Exhibit 1.1
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Macquarie Infrastructure Company Trust
Macquarie Infrastructure Company LLC
Macquarie Infrastructure Management (USA) Inc.
________ shares of Trust Stock
Each Representing One Beneficial Interest
in
Macquarie Infrastructure Company Trust
PURCHASE AGREEMENT
Dated: ________, 2004
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Macquarie Infrastructure Company Trust
Macquarie Infrastructure Company LLC
Macquarie Infrastructure Management (USA) Inc.
________ shares of Trust Stock
Each Representing One Beneficial Interest
in
Macquarie Infrastructure Company Trust
PURCHASE AGREEMENT
________, 2004
▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Citigroup Global Markets Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
as Representatives of the several Underwriters named on Schedule A hereto
Ladies and Gentlemen:
Macquarie Infrastructure Company LLC, a Delaware limited liability company
(the "Company"), for itself and as sponsor of Macquarie Infrastructure Company
Trust, a statutory trust formed under the laws of the State of Delaware (the
"Trust"), and Macquarie Infrastructure Management (USA) Inc. (the "Manager")
confirm their agreement with ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇
& ▇▇▇▇▇ Incorporated ("▇▇▇▇▇▇▇ ▇▇▇▇▇") and each of the other Underwriters named
in Schedule A hereto (collectively, the "Underwriters", which term shall also
include any underwriter substituted as hereinafter provided in Section 10
hereof), for whom ▇▇▇▇▇▇▇ ▇▇▇▇▇ and Citigroup Global Markets Inc. ("Citigroup")
are acting as representatives (in such capacity, the "Representatives"), with
respect to the issue by the Trust, the sale by the Company and the purchase by
the Underwriters, acting severally and not jointly, of the respective numbers of
shares of trust stock set forth in said Schedule A, each representing one
beneficial interest in the Trust (the "Trust Stock"), and with respect to the
grant by the Company to the Underwriters, acting severally and not jointly, of
the option described in Section 2(b) hereof to purchase all or any part of
_________ additional shares of Trust Stock to cover overallotments, if any. The
aforesaid ______ shares of Trust Stock (the "Initial Securities") to be
purchased by the Underwriters and all or any part of the ______ shares of Trust
Stock subject to the option described in Section 2(b) hereof (the "Option
Securities") are hereinafter called, collectively, the "Securities".
Immediately prior to the delivery of the Initial Securities and the Option
Securities, if any, to the Underwriters, the Company, as Sponsor of the Trust,
will cause the Trust to sell to the Company the Initial Securities and the
Option Securities, if any, in exchange for an equal number of limited liability
company interests of the Company as consideration for such limited liability
company interests.] The aforesaid ______ limited liability company interests of
the Company (the "Initial Interests") to be purchased by the Trust and all or
any part of the ______ limited liability company interests of the Company to be
sold to the Trust in connection with the option described in Section 2(b) hereof
(the "Option Interests") are hereinafter called, collectively, the "Interests".
The Company has entered into a purchase agreement with the Manager, dated
the date hereof (the "Manager Purchase Agreement"), pursuant to which the
Manager will acquire from the Company in a private placement transaction a
number of shares of Trust Stock equal to the number of shares of Trust Stock
having an aggregate purchase price at the time of purchase of $50 million, at a
purchase price per share equal to the initial public offering price (the
"Initial Manager Shares" and, collectively with any other shares of Trust Stock
issued to the Manager pursuant to the terms of the management services agreement
(the "Management Services Agreement") among the Company, Macquarie
Infrastructure Assets Inc., Macquarie Yorkshire LLC, South East Water LLC,
Communications Infrastructure LLC and the Manager, dated the date hereof (the
"Manager Shares"). Immediately prior to the delivery of any Manager Shares, the
Company, as Sponsor of the Trust, will cause the Trust to sell to the Company
the Manager Shares in exchange for, and as consideration for, an equal amount of
limited liability interests of the Company. The Manager has agreed to hold 70%
of Initial Manager Shares (the "Lock-up Manager Shares") for a period of not
less than 12 months from the Closing Time. At any time from and after the first
anniversary of the Closing Time, the Manager may dispose of 50% of the Lock-up
Manager Shares and may dispose of the balance of the Lock-up Manager Shares at
any time from and after the third anniversary of the Closing Time.
The Trust and the Company understand that the Underwriters propose to make
a public offering of the Securities as soon as the Representatives deem
advisable after this Agreement has been executed and delivered.
The Company and the Underwriters agree that up to _______ shares of the
Initial Securities to be purchased by the Underwriters (the "Reserved
Securities") shall be reserved for sale by the Underwriters to certain eligible
employees and persons having business relationships with the Company or the
Manager (the "Invitees"), as part of the distribution of the Securities by the
Underwriters, subject to the terms of this Agreement, the applicable rules,
regulations and interpretations of the National Association of Securities
Dealers, Inc. (the "NASD") and all other applicable laws, rules and regulations.
To the extent that such Reserved Securities are not orally confirmed for
purchase by Invitees by the end of the first business day after the date of this
Agreement, such Reserved Securities may be offered to the public as part of the
public offering contemplated hereby.
The Trust and the Company have filed with the Securities and Exchange
Commission (the "Commission") on June 7, 2004, a registration statement on Form
S-1 (No. 333-116244), pre-effective Amendment No. 1 thereto filed on August 24,
2004, pre-effective Amendment No. 2 thereto filed on October 15, 2004 and
pre-effective Amendment No. 3 thereto filed on November , 2004, including the
related preliminary prospectus, or prospectuses, covering the registration of
the Securities under the Securities Act of 1933, as amended (the "1933 Act").
Promptly after execution and delivery of this Agreement, the Trust and the
Company will prepare and file a prospectus in accordance with the provisions of
Rule 430A ("Rule 430A") of the rules and regulations of the Commission under the
1933 Act (the "1933 Act Regulations") and paragraph (b) of Rule 424 ("Rule
424(b)") of the 1933 Act Regulations. The information included in any such
prospectus that was omitted from such registration statement at the time it
became effective but that is deemed to be part of such registration statement at
the
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time it became effective pursuant to paragraph (b) of Rule 430A is referred to
as "Rule 430A Information". Each Form of Prospectus used before such
registration statement became effective, and any prospectus that omitted the
Rule 430A Information, that was used after such effectiveness and prior to the
execution and delivery of this Agreement, is herein called a "preliminary
prospectus". Such registration statement, including the exhibits and any
schedules thereto, at the time it became effective, and including the Rule 430A
Information, is herein called the "Registration Statement". Any registration
statement filed pursuant to Rule 462(b) of the 1933 Act Regulations is herein
referred to as the "Rule 462(b) Registration Statement", and after such filing
the term "Registration Statement" shall include the Rule 462(b) Registration
Statement. For purposes of this Agreement, all references to the Registration
Statement, any preliminary prospectus, the Prospectus or any amendment or
supplement to any of the foregoing shall be deemed to include the copy filed
with the Commission pursuant to its Electronic Data Gathering, Analysis and
Retrieval system ("▇▇▇▇▇").
Unless otherwise indicated, all references in this agreement to a
"Subsidiary" and, collectively, the "Subsidiaries" shall be deemed to mean and
include each "significant subsidiary" of the Company (as such term is defined in
Rule 1-02 of Regulation S-X) and each existing subsidiary providing financial
statements included in the Registration Statement, all as listed on Schedule B
hereto.
The parties hereto acknowledge that Investments in Macquarie
Infrastructure Company Trust are not deposits with or other liabilities of
Macquarie Bank Limited or of any Macquarie Group company and are subject to
investment risk, including possible delays in repayment and loss of income and
principal invested. Neither Macquarie Bank Limited nor any other member company
of the Macquarie Group guarantees the performance of Macquarie Infrastructure
Company Trust or the repayment of capital from Macquarie Infrastructure Company
Trust.
SECTION 1. Representations and Warranties.
(a) Representations and Warranties by the Company. The Company, for itself
and as sponsor of the Trust, represents and warrants to each Underwriter as of
the date hereof, as of the Closing Time referred to in Section 2(c) hereof, and
as of each Date of Delivery (if any) referred to in Section 2(b) hereof, and
agrees with each Underwriter, as follows:
(i) Compliance with Registration Requirements. Each of the
Registration Statement, any Rule 462(b) Registration Statement and any
post-effective amendment thereto has become effective under the 1933 Act
and no stop order suspending the effectiveness of the Registration
Statement, any Rule 462(b) Registration Statement or any post-effective
amendment thereto has been issued under the 1933 Act and no proceedings
for that purpose have been instituted or are pending or, to the knowledge
of the Company, are contemplated by the Commission, and any request on the
part of the Commission for additional information has been complied with.
At the respective times the Registration Statement, any Rule 462(b)
Registration Statement and any post-effective amendments thereto became
effective and at the Closing Time (and, if any Option Securities are
purchased, at the Date of Delivery), the Registration Statement, the Rule
462(b) Registration Statement and any amendments and supplements thereto
complied and will comply in all material respects with the requirements of
the 1933 Act and the 1933 Act Regulations and did not and will not contain
an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein
not misleading, and the Prospectus, any preliminary prospectuses and any
supplement thereto or prospectus wrapper prepared in connection therewith,
at their respective times of issuance and at the Closing Time, complied
and will comply in all material respects with any applicable laws or
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regulations of foreign jurisdictions in which the Prospectus and such
preliminary prospectuses, as amended or supplemented, if applicable, are
distributed in connection with the offer and sale of Reserved Securities.
Neither the Prospectus nor any amendments or supplements thereto
(including any prospectus wrapper), at the time the Prospectus or any
amendments or supplements thereto were issued and at the Closing Time
(and, if any Option Securities are purchased, at the Date of Delivery),
included or will include an untrue statement of a material fact or omitted
or will omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading. The representations and warranties in this
subsection shall not apply to statements in or omissions from the
Registration Statement or the Prospectus made in reliance upon and in
conformity with written information furnished to the Company by any
Underwriter through the Representatives expressly for use in the
Registration Statement (or any amendment thereto) or the Prospectus (or
any amendment or supplement thereto).
Each preliminary prospectus and the prospectus filed as part of the
Registration Statement as originally filed or as part of any amendment
thereto complied when so filed in all material respects with the 1933 Act
Regulations and each preliminary prospectus and the Prospectus delivered
to the Underwriters for use in connection with this offering were
identical to the electronically transmitted copies thereof filed with the
Commission pursuant to ▇▇▇▇▇, except to the extent permitted by Regulation
S-T.
(ii) Independent Accountants. The accountants who certified the
financial statements and supporting schedules of the Trust included in the
Registration Statement are registered public accounting firms as required
by the 1933 Act and the 1933 Act Regulations. The accountants who
certified the financial statements and supporting schedules of the
entities listed on Schedule C hereto (each, a Financial Entity, and
collectively, the "Financial Entities") included in the Registration
Statement are either (A) registered public accounting firms as required by
the 1933 Act and the 1933 Act Regulations or (B) independent public
accountants under U.S. generally accepted auditing standards, as set forth
on Schedule C hereto.
(iii) Financial Statements. The financial statements included in the
Registration Statement and the Prospectus, together with the related
schedules and notes, present fairly in all material respects the financial
position of the Financial Entities at the dates indicated and the
statement of operations, stockholders' equity and cash flows of such
subsidiaries for the periods specified; and such financial statements have
been prepared in conformity with generally accepted accounting principles
("GAAP") applied on a consistent basis throughout the periods involved.
The selected financial data for each such Financial Entity and the summary
financial information for each such Financial Entity included in the
Prospectus present fairly in all material respects the information shown
therein and have been compiled on a basis consistent with that of the
related audited financial statements included in the Registration
Statement. The pro forma financial statements and the related notes
thereto included in the Registration Statement and the Prospectus present
fairly the information shown therein, have been prepared in accordance
with the Commission's rules and guidelines with respect to pro forma
financial statements and have been properly compiled on the bases
described therein, and the assumptions used in the preparation thereof are
reasonable and the adjustments used therein are appropriate to give effect
to the transactions and circumstances referred to therein.
(iv) No Material Adverse Change in Business. Since the respective
dates as of which information is given in the Registration Statement and
the Prospectus, except as otherwise stated therein, (A) there has been no
material adverse change in the condition, financial or otherwise, or in
the earnings, business affairs or business prospects of the Company and
its subsidiaries
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considered as one enterprise, whether or not arising in the ordinary
course of business (a "Material Adverse Effect"), (B) there have been no
transactions entered into by the Company and its subsidiaries, other than
those in the ordinary course of business, which are material with respect
to the Company and its respective subsidiaries considered as one
enterprise, and (C) there has been no dividend or distribution of any kind
declared, paid or made by the Company.
(v) Good Standing of the Company and Subsidiaries. (A) The Company
has been duly formed and is validly existing as a limited liability
company in good standing under the laws of the State of Delaware and has
limited liability company power and authority to own, lease and operate
its properties and to conduct its business as described in the Prospectus
and to enter into and perform its obligations under this Agreement; and
the Company is duly qualified as a foreign limited liability company to
transact business and is in good standing in each other jurisdiction in
which such qualification is required, whether by reason of the ownership
or leasing of property or the conduct of business, except where the
failure so to qualify or to be in good standing would not result in a
Material Adverse Effect; except as disclosed in the Registration
Statement, all of the issued and outstanding Interests have been duly
authorized and validly issued and are owned by the Trust, directly, free
and clear of any security interest, mortgage, pledge, lien, encumbrance,
claim, equity or encumbrance of any kind ("Security Interest"), and none
of the outstanding Interests were issued in violation of the preemptive or
similar rights of any holder of such Interest; upon delivery of the
Interests as payment of consideration in exchange for the Securities
acquired as herein contemplated, the Interests will be fully paid and
non-assessable; the Interests, when issued, will conform to all statements
relating thereto contained in the Prospectus and such description will
conform in all material respects to the rights set forth in the
instruments defining the same; no holder of the Interests will be subject
to personal liability by reason of being such a holder.
(B) Each Subsidiary of the Company has been duly organized or
formed, as applicable, and is validly existing and in good standing under
the laws of the jurisdiction of its organization and has power and
authority to own, lease and operate its respective properties and to
conduct its respective business as described in the Prospectus; and each
Subsidiary is duly qualified as a foreign corporation or a limited
liability company to transact business and is in good standing in each
other jurisdiction in which such qualification is required, whether by
reason of the ownership or leasing of property or the conduct of business,
except where the failure so to qualify or to be in good standing would not
result in a Material Adverse Effect; except as otherwise disclosed in the
Registration Statement, all of the issued and outstanding interests or
capital stock, as the case may be, of each such Subsidiary has been duly
authorized and validly issued, is fully paid and, to the extent applicable
in the jurisdiction of such entity's organization, non-assessable, and
upon consummation of the transactions contemplated in the Prospectus will
be owned by the Company, directly or through subsidiaries, free and clear
of any Security Interest; none of the outstanding shares of capital stock
or membership interests of any Subsidiary was issued in violation of the
preemptive or similar rights of any securityholder of such Subsidiary. All
the subsidiaries of the Company and each Subsidiary are listed on Schedule
D hereto.
(vi) Authorization of Agreement. This Agreement has been duly
authorized, executed and delivered by the Company.
(vii) Ownership of Securities. Immediately prior to the consummation
of the transactions contemplated herein, the Company will own and will
have good and valid title to the Securities to be sold hereunder, free and
clear of any Security Interest; and upon delivery of such Securities and
payment of the purchase price therefor as herein contemplated, the
Underwriters
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will receive good and valid title to the Securities purchased by it from
the Company, free and clear of any Security Interest.
(viii) Authorization of Transfer of the Securities. All necessary
action has been taken by the Company to duly and validly sell, assign and
transfer to the Underwriters the Securities to be sold by the Company
hereunder, to deliver the Securities to be sold by the Company hereunder,
to accept payment therefor, and otherwise to consummate the transactions
contemplated herein.
(ix) Absence of Defaults and Conflicts. Neither the Company nor any
of its Subsidiaries, and to the Company's knowledge, none of the Company's
other subsidiaries is in violation of its charter, by-laws, operating
agreement or any organizational documents or in default in the performance
or observance of any obligation, agreement, covenant or condition
contained in any contract, indenture, mortgage, deed of trust, loan or
credit agreement, note, lease or other agreement or instrument to which
the Company or its subsidiaries, is a party or by which it or any of them
may be bound, or to which any of the property or assets of the Company or
its subsidiaries is subject (collectively, "Agreements and Instruments"),
except for such defaults that would not reasonably be expected to result
in a Material Adverse Effect; and the execution, delivery and performance
of this Agreement and, except as disclosed in the Prospectus, the
consummation of the transactions contemplated in this Agreement and the
Registration Statement (including the issuance and sale of the Securities
and the use of the proceeds from the sale of the Securities as described
in the Prospectus under the caption "Use of Proceeds") and compliance by
the Company with its obligations under this Agreement have been duly
authorized by all necessary corporate action and do not and will not,
whether with or without the giving of notice or passage of time or both,
conflict with or constitute a breach of, or default or Repayment Event (as
defined below) under, or result in the creation or imposition of any lien,
charge or encumbrance upon any property or assets of the Company or any
subsidiary, pursuant to, the Agreements and Instruments (except for such
conflicts, breaches, defaults or Repayment Events or liens, charges or
encumbrances that would not reasonably be expected to result in a Material
Adverse Effect), nor will such action result in any violation of the
provisions of the charter, by-laws, operating agreement or any similar
organizational documents of the Company or any Subsidiary, or any
applicable law, statute, rule, regulation, judgment, order, writ or decree
of any government, government instrumentality or court, domestic or
foreign, having jurisdiction over the Company or any Subsidiary or any of
their assets, properties or operations (other than foreign or state
securities or blue sky laws). As used in this Agreement, a "Repayment
Event" means any event or condition which gives the holder of any note,
debenture or other evidence of indebtedness (or any person acting on such
holder's behalf) the right to require the repurchase, redemption or
repayment of all or a portion of such indebtedness by the Company or any
subsidiary.
(x) Absence of Proceedings. There is no action, suit, proceeding,
inquiry or investigation before or brought by any court or governmental
agency or body, domestic or foreign, now pending, or, to the knowledge of
the Company, threatened, against or affecting the Company or any
Subsidiary, which is required to be disclosed in the Registration
Statement (other than as disclosed therein), or which might reasonably be
expected to result in a Material Adverse Effect or, except as disclosed in
the Prospectus, which might reasonably be expected to materially and
adversely affect the properties or assets thereof or the consummation of
the transactions contemplated in this Agreement or the performance by the
Company of its obligations hereunder or thereunder; the aggregate of all
pending legal or governmental proceedings to which the Company or any
subsidiary is a party or of which any of their respective property or
assets is the subject which are not described in the Registration
Statement, including
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ordinary routine litigation incidental to the business, would not
reasonably be expected to result in a Material Adverse Effect.
(xi) Accuracy of Exhibits. There are no contracts or documents which
are required to be described in the Registration Statement or the
Prospectus or to be filed as exhibits thereto which have not been so
described and filed as required.
(xii) Absence of Further Requirements. No filing with, or
authorization, approval, consent, license, order, registration,
qualification or decree of, any court or governmental authority or agency
is necessary or required for the performance by the Company of its
obligations hereunder, in connection with the offering, or sale of the
Securities under this Agreement or, except as disclosed in the Prospectus,
the consummation of the transactions contemplated by this Agreement,
except (i) such as have been already obtained or as may be required under
the 1933 Act or the 1933 Act Regulations and state securities or blue sky
laws and (ii) such as have been obtained under the laws and regulations of
jurisdictions outside the United States in which the Reserved Securities
are offered.
(xiii) Absence of Manipulation. Neither the Company nor any
affiliate of the Company has taken, nor will the Company or any affiliate
take, directly or indirectly, any action which is designed to or which has
constituted or which would be expected to cause or result in stabilization
or manipulation of the price of any security of the Trust to facilitate
the sale or resale of the Securities.
(xiv) Investment Company Act. The Company is not required, and upon
the issuance and sale of the Securities as herein contemplated and the
application of the net proceeds therefrom as described in the Prospectus
will not be required, to register as an "investment company" under the
Investment Company Act of 1940, as amended (the "1940 Act").
(xv) Registration Rights. There are no persons with registration
rights or other similar rights to have any securities registered pursuant
to the Registration Statement or otherwise registered by the Company under
the 1933 Act, except pursuant to the Registration Rights Agreement among
the Trust, the Company and the Manager dated the date hereto (the
"Registration Rights Agreement").
(xvi) Compliance with Laws. The Company and its Subsidiaries are in
compliance with all laws administered by, and all regulations of, any
governmental agency or body, domestic or foreign, applicable to them,
except as disclosed in the Prospectus and where such non-compliance would
not reasonably be expected to result in a Material Adverse Effect, and
neither the Company nor any Subsidiary has been advised by any
governmental agency or body, domestic or foreign, that it is not in
material compliance with such laws and regulations. The Company has in
place reasonable procedures and controls designed to ensure compliance
with (A) any United States sanctions administered by the Office of Foreign
Asset Controls (the "OFAC") the of the United States Treasury Department,
(B) the Patriot Act and all regulations and government guidance on
compliance therewith and on the prevention and detection of money
laundering violations, and (C) the Foreign Corrupt Practices Act ("FCPA")
and all regulations thereunder.
(xvii) Disclosure and Accounting Controls. The Company has
established disclosure controls and procedures (as such term is defined in
Rules 13a-14 and 15d-14 under the ▇▇▇▇ ▇▇▇) that (A) are designed to
ensure that material information relating to the Company and Macquarie
Infrastructure Company, Inc. is made known to the Company's Chief
Executive Officer and its
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Chief Financial Officer by others within the Company and Macquarie
Infrastructure Company, Inc., particularly during the periods in which the
filings made by the Company with the Commission which it may make under
the 1934 Act are being prepared, (B) are evaluated for effectiveness as of
the end of each fiscal quarter and (C) are effective to perform the
functions for which they were established. The Company has established
internal accounting controls sufficient to provide reasonable assurance
that (A) transactions are executed in accordance with the management's
general or specific authorizations, (B) transactions are recorded as
necessary to permit preparation of financial statements in conformity with
generally accepted accounting principles and to maintain asset
accountability, (C) access to assets is permitted only in accordance with
the management's general or specific authorization and (D) the recorded
accountability for assets is compared with the existing assets at
reasonable intervals and appropriate action is taken with respect to any
differences.
(xviii) Compliance with ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act. There is and has been no
failure on the part of the Company or the Company's directors and
officers, in their capacities as such, to comply with the provisions of
the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act and the Company is in compliance with all
applicable provisions of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act.
(xix) Absence of Labor Dispute. No labor dispute with the employees
of any Subsidiary or any of its respective subsidiaries exists or, to the
knowledge of the Company, is imminent, and the Company is not aware of any
existing or imminent labor disturbance by the employees of any subsidiary
or any subsidiary's principal suppliers, manufacturers, customers or
contractors, which, in either case, would result in a Material Adverse
Effect.
(xx) Possession of Intellectual Property. Each Subsidiary and its
respective subsidiaries own or possess, or can acquire on reasonable
terms, adequate patents, patent rights, licenses, inventions, copyrights,
know-how (including trade secrets and other unpatented and/or unpatentable
proprietary or confidential information, systems or procedures),
trademarks, service marks, trade names or other intellectual property
(collectively, "Intellectual Property") necessary to carry on the business
now operated by them, and no Subsidiary nor any of its respective
subsidiaries have received any notice or is otherwise aware of any
infringement of or conflict with asserted rights of others with respect to
any Intellectual Property or of any facts or circumstances which would
render any Intellectual Property invalid or inadequate to protect the
interest such Subsidiary or any of its respective subsidiaries therein,
and which infringement or conflict (if the subject of any unfavorable
decision, ruling or finding) or invalidity or inadequacy, singly or in the
aggregate, would result in a Material Adverse Effect.
(xxi) Possession of Licenses and Permits. The Company and its
Subsidiaries possess adequate permits, licenses, approvals, consents and
other authorizations (collectively, "Governmental Licenses") issued by the
appropriate federal, state, local or foreign regulatory agencies or bodies
necessary to conduct the business now operated by them (subject to such
qualifications as may be set forth in the Prospectus or except where the
failure to so possess would not singly or in the aggregate be reasonably
expected to have a Material Adverse Effect); the Company and its
subsidiaries are in compliance with the terms and conditions of all such
Governmental Licenses, except where the failure so to comply would not,
singly or in the aggregate, be reasonably expected to have a Material
Adverse Effect; all of the Governmental Licenses are valid and in full
force and effect, except as disclosed in the Prospectus or when the
invalidity of such Governmental Licenses or the failure of such
Governmental Licenses to be in full force and effect would not, singly or
in the aggregate, be reasonably expected to result in a Material Adverse
Effect; and no Subsidiary nor any of its respective subsidiaries has
received, any written notice of proceedings relating to the revocation or
modification of any such
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Governmental Licenses which, singly or in the aggregate, if the subject of
an unfavorable decision, ruling or finding, would be reasonably expected
to result in a Material Adverse Effect.
(xxii) Title to Property. Each Subsidiary and its respective
subsidiaries have good title to all real property owned by such Subsidiary
and its respective subsidiaries and good title to all other properties
owned by them, in each case, free and clear of any Security Interest
except such as (A) are described in the Prospectus or (B) do not, singly
or in the aggregate, materially affect the value of such property and do
not interfere with the use made and proposed to be made of such property
by each Subsidiary or any of its respective subsidiaries; and all of the
leases and subleases material to the business of each Subsidiary and its
respective subsidiaries or other subsidiary, as the case may be,
considered as one enterprise, and under which each Subsidiary or any of
its respective subsidiaries holds properties described in the Prospectus,
are in full force and effect, and no Subsidiary nor any of its respective
subsidiaries have any notice of any material claim of any sort that has
been asserted by anyone adverse to the rights of each Subsidiary or any of
its respective subsidiaries, as the case may be, under any of the leases
or subleases mentioned above, or affecting or questioning the rights of
such Subsidiary or any of its respective subsidiaries, as the case may be,
to the continued possession of the leased or subleased premises under any
such lease or sublease.
(xxiii) Environmental Laws. Except as described in the Registration
Statement and except as would not, singly or in the aggregate, reasonably
be expected to result in a Material Adverse Effect (A) no Subsidiary nor
any of its respective subsidiaries is in violation of any federal, state,
local or foreign statute, law, rule, regulation, ordinance, code or rule
of common law or any judicial or administrative interpretation thereof,
including any judicial or administrative order, consent, decree or
judgment, relating to pollution or protection of human health, the
environment (including, without limitation, ambient air, surface water,
groundwater, land surface or subsurface strata) or wildlife, including,
without limitation, laws and regulations relating to the release or
threatened release of petroleum or petroleum products, asbestos-containing
materials, or any chemicals, substances or wastes regulated as a
pollutant, contaminant, or as toxic or hazardous (collectively, "Hazardous
Materials") or to the manufacture, processing, distribution, use,
treatment, storage, disposal, transport or handling of Hazardous Materials
(collectively, "Environmental Laws"), (B) each Subsidiary and its
respective subsidiaries have all permits, authorizations and approvals
required under any applicable Environmental Laws and are each in
compliance with their requirements, (C) there are no pending or, to the
best of the Company's knowledge, threatened administrative, regulatory or
judicial actions, suits, demands, demand letters, claims, liens, notices
of noncompliance or violation, investigation or proceedings relating to
any Environmental Law against any Subsidiary or any of its respective
subsidiaries and (D) to the best of the Company's knowledge, there are no
events or circumstances that would reasonably be expected to form the
basis of an order for clean-up or remediation, or an action, suit or
proceeding by any private party or governmental body or agency, against or
affecting any Subsidiary or any of its respective subsidiaries relating to
Hazardous Materials or any Environmental Laws.
(xxiv) Execution of Acquisition Agreements. The acquisition
agreements set forth on Schedule E (the "Acquisition Agreements") have
been duly executed by the Company or each party that is a direct or
indirect wholly owned subsidiary of the Company, as applicable, and all of
such Acquisition Agreements are in full force and effect and constitute
binding obligations of the Company and its Subsidiaries as applicable.
(b) Representations and Warranties by the Trust. The Company, as sponsor
of the Trust, represents and warrants to each Underwriter as of the date hereof,
as of the Closing Time referred to in
9
Section 2(c) hereof, and as of each Date of Delivery (if any) referred to in
Section 2(b) hereof, and agrees with each Underwriter, as follows:
(i) Good Standing of the Trust. The Trust has been duly formed and
is validly existing in good standing as a statutory trust under the laws
of the State of Delaware, is and will be treated as a "grantor trust" for
federal income tax purposes under existing law, has the trust power and
authority to enter into this Agreement and to conduct its business as
described in the Prospectus and is not required to be authorized to do
business in any other jurisdiction. The Trust is not a party to or
otherwise bound by any agreement or instrument other than those described
in the Prospectus and when issued by the Trust and delivered by the
Company pursuant to this Agreement against payment of the consideration
set forth in this Agreement, the Securities will represent all the
beneficial interests in the Trust, other than the Manager Shares.
(ii) Due Authority of Trustees. The Regular Trustee of the Trust, as
defined in the Trust Agreement, (the "Trustee") is authorized in such
capacity to execute and deliver this Agreement and to authorize the
delivery to the Company of the Securities to be sold by the Trust under
this Agreement and to accept payment therefor in the form of the
Interests, to duly endorse (in blank or otherwise) the certificate or
certificates representing the Securities or a stock power or powers with
respect thereto.
(iii) Authorization of Agreements. This Agreement and the Trust
Agreement have been duly authorized, executed and delivered by the Trust.
(iv) Authorization of Securities and Ownership of Interests. All
necessary action has been taken by the Trust to duly and validly
authorize, issue and deliver the Securities to the Company in a number
equal to the number of Interests delivered to the Trust as consideration
for such Securities; upon delivery of such Securities and payment of such
consideration therefor in exchange for the Interests acquired as herein
contemplated, the Securities to be purchased from the Trust by the Company
in exchange for the Interests will be fully paid and non-assessable; other
than the Initial Manager Shares, the Securities will constitute the only
securities issued by the Trust that are outstanding; the Securities will
conform to all statements relating thereto contained in the Prospectus and
such description conforms to the rights set forth in the instruments
defining the same; no holder of Securities will be subject to personal
liability by reason of being such a holder; and the issuance of the
Securities is not subject to statutory or contractual preemptive or other
similar rights.
(v) Capitalization. The shares of Trust Stock, as set forth in the
section titled "Capitalization" in the Prospectus are, on the date hereof,
the only issued and outstanding shares representing beneficial interests
of the Trust and (except for subsequent issuances, if any, pursuant to
this Agreement or otherwise) the Trust is not required to issue, has not
issued and will not issue any other class of securities. The issued and
outstanding shares of Trust Stock representing beneficial interests of the
Trust have been duly authorized and validly issued and are fully paid and
non-assessable.
(vi) Absence of Further Requirements. No filing with, or
authorization, approval, consent, license, order, registration,
qualification or decree of, any court or governmental authority or agency
is necessary or required for the performance by the Trust of its
obligations hereunder, in connection with the offering, issuance or sale
of the Securities under this Agreement or the consummation of the
transactions contemplated by this Agreement, except (i) such as have been
already obtained or as may be required under the 1933 Act or the 1933 Act
Regulations and state securities or blue sky laws and (ii) such as have
been obtained under the
10
laws and regulations of jurisdictions outside the United States in which
the Reserved Securities are offered.
(vii) Investment Company Act. The Trust is not required, and upon
the issuance and sale of the Securities as herein contemplated and the
application of the net proceeds therefrom as described in the Prospectus
will not be required, to register as an "investment company" under the
1940 Act.
(viii) Compliance with Laws. The Trust is in compliance with all
laws administered by, and all regulations of, any governmental agency or
body, domestic or foreign, applicable to the Trust, except where such
non-compliance would not result in a Material Adverse Effect, and the
Trust has not been advised by any governmental agency or body, domestic or
foreign, that it is not in material compliance with such laws and
regulations. The Trust has in place reasonable procedures and controls
designed to ensure compliance with (A) any United States sanctions
administered by the OFAC the of the United States Treasury Department, (B)
the Patriot Act laws and all regulations and government guidance on
compliance therewith and on the prevention and detection of money
laundering violations, and (C) the FCPA and all regulations thereunder.
(ix) Ownership of Interests. Upon consummation of the transactions
contemplated hereby, the Trust will own the Interests free and clear of
any Security Interest.
(x) Absence of Conflict. The Trust is not in violation or default of
any term or provision of the Trust Agreement, except for such violations
or defaults that would not result in a Material Adverse Effect.
(c) Representations and Warranties by the Manager. The Manager represents
and warrants to each Underwriter as of the date hereof, as of the Closing Time
referred to in Section 2(c) hereof, and as of each Date of Delivery (if any)
referred to in Section 2(b) hereof, and agrees with each Underwriter that the
representations and warranties of the Company contained in Section 1(a) hereof,
solely with respect to representations with respect to the Subsidiaries listed
on Schedule F hereto.
(d) Officer's Certificates. Any certificate signed by any officer of the
Company or any officer of the Manager delivered to the Representatives, the
Representatives or to counsel for the Underwriters shall be deemed a
representation and warranty by the Company, including in its capacity as sponsor
of the Trust, or the Manager to each Underwriter as to the matters covered
thereby.
SECTION 2. Sale and Delivery to Underwriters; Closing.
(a) Initial Securities. On the basis of the representations and warranties
herein contained and subject to the terms and conditions herein set forth, the
Company agrees to sell to each Underwriter, severally and not jointly, and each
Underwriter, severally and not jointly, agrees to purchase from the Company, at
the price per share set forth in Schedule G, the number of Initial Securities
set forth in Schedule A opposite the name of such Underwriter, plus any
additional number of Initial Securities which such Underwriter may become
obligated to purchase pursuant to the provisions of Section 10 hereof.
(b) Option Securities. In addition, on the basis of the representations
and warranties herein contained and subject to the terms and conditions herein
set forth, the Company hereby grants an option to the Underwriters, severally
and not jointly, to purchase up to an additional ________ shares of Trust Stock
at the price per share set forth in Schedule G, less an amount per share equal
to any dividends or distributions declared by the Company and payable on the
Initial Securities but not payable on the Option Securities. The option hereby
granted will expire 30 days after the date hereof and may be exercised in
11
whole or in part from time to time only for the purpose of covering
overallotments which may be made in connection with the offering and
distribution of the Initial Securities upon notice by the Representatives to the
Company setting forth the number of Option Securities as to which the several
Underwriters are then exercising the option and the time and date of payment and
delivery for such Option Securities. Any such time and date of delivery for the
Option Securities (a "Date of Delivery") shall be determined by the
Representatives, but shall not be later than seven full business days after the
exercise of said option or sooner than three full business days unless it is the
Closing Time, nor in any event prior to the Closing Time, as hereinafter
defined. If the option is exercised as to all or any portion of the Option
Securities, each of the Underwriters, acting severally and not jointly, will
purchase that proportion of the total number of Option Securities then being
purchased which the number of Initial Securities set forth in Schedule A
opposite the name of such Underwriter bears to the total number of Initial
Securities, subject in each case to such adjustments as the Representatives in
their discretion shall make to eliminate any sales or purchases of fractional
shares.
(c) Payment. Payment of the purchase price for, and delivery of
certificates for, the Initial Securities shall be made at the offices of Sidley
▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ llp, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, or at
such other place as shall be agreed upon by the Representatives and the Company,
at 9:00 A.M. (Eastern time) on the third (fourth, if the pricing occurs after
4:30 P.M. (Eastern time) on any given day) business day after the date hereof
(unless postponed in accordance with the provisions of Section 10), or such
other time not later than ten business days after such date as shall be agreed
upon by the Representatives and the Company (such time and date of payment and
delivery being herein called "Closing Time").
In addition, in the event that any or all of the Option Securities are
purchased by the Underwriters, payment of the purchase price for, and delivery
of certificates for, such Option Securities shall be made at the above-mentioned
offices, or at such other place as shall be agreed upon by the Representatives
and the Company, on each Date of Delivery as specified in the notice from the
Representatives to the Company.
Payment shall be made to the Company by wire transfer of immediately
available funds to a bank account designated by the Company, against delivery to
the Representatives for the respective accounts of the Underwriters of
certificates for the Securities to be purchased by them. It is understood that
each Underwriter has authorized the Representatives, for its account, to accept
delivery of, receipt for, and make payment of the purchase price for, the
Initial Securities and the Option Securities, if any, which it has agreed to
purchase. ▇▇▇▇▇▇▇ ▇▇▇▇▇, individually and not as representative of the
Underwriters, may (but shall not be obligated to) make payment of the purchase
price for the Initial Securities or the Option Securities, if any, to be
purchased by any Underwriter whose funds have not been received by the Closing
Time or the relevant Date of Delivery, as the case may be, but such payment
shall not relieve such Underwriter from its obligations hereunder.
(d) Denominations; Registration. Certificates for the Initial Securities
and the Option Securities, if any, shall be in such denominations and registered
in such names as the Representatives may request in writing at least one full
business day before the Closing Time or the relevant Date of Delivery, as the
case may be. The certificates for the Initial Securities and the Option
Securities, if any, will be made available for examination and packaging by the
Representatives in The City of New York not later than 10:00 A.M. (Eastern time)
on the business day prior to the Closing Time or the relevant Date of Delivery,
as the case may be.
(e) Appointment of Qualified Independent Underwriter. The Company hereby
confirms its engagement of ▇▇▇▇▇▇▇ ▇▇▇▇▇ as, and ▇▇▇▇▇▇▇ ▇▇▇▇▇ hereby confirms
its agreement with the Company to render services as, a "qualified independent
underwriter" within the meaning of Rule 2720 of the Conduct
12
Rules of the National Association of Securities Dealers, Inc. with respect to
the offering and sale of the Securities. ▇▇▇▇▇▇▇ ▇▇▇▇▇, solely in its capacity
as qualified independent underwriter and not otherwise, is referred to herein as
the "Independent Underwriter".
SECTION 3. Covenants of the Company. The Company, for itself and as
sponsor of the Trust, covenants with each Underwriter as follows:
(a) Compliance with Securities Regulations and Commission Requests. The
Trust and the Company, subject to Section 3(b), will comply with the
requirements of Rule 430A and will notify the Representatives immediately, and
confirm the notice in writing, (i) when any post-effective amendment to the
Registration Statement shall become effective, or any supplement to the
Prospectus or any amended Prospectus shall have been filed, (ii) of the receipt
of any comments from the Commission, (iii) of any request by the Commission for
any amendment to the Registration Statement or any amendment or supplement to
the Prospectus or for additional information, and (iv) of the issuance by the
Commission of any stop order suspending the effectiveness of the Registration
Statement or of any order preventing or suspending the use of any preliminary
prospectus, or of the suspension of the qualification of the Securities for
offering or sale in any jurisdiction, or of the initiation or threatening of any
proceedings for any of such purposes. The Company will promptly effect the
filings necessary pursuant to Rule 424(b) and will take such steps as it deems
necessary to ascertain promptly whether the form of prospectus transmitted for
filing under Rule 424(b) was received for filing by the Commission and, in the
event that it was not, it will promptly file such prospectus. The Company will
make every reasonable effort to prevent the issuance of any stop order and, if
any stop order is issued, to obtain the lifting thereof at the earliest possible
moment.
(b) Filing of Amendments. The Company will give the Representatives notice
of its intention to file or prepare any amendment to the Registration Statement
(including any filing under Rule 462(b)) or any amendment, supplement or
revision to either the prospectus included in the Registration Statement at the
time it became effective or to the Prospectus, will furnish the Representatives
with copies of any such documents a reasonable amount of time prior to such
proposed filing or use, as the case may be, and will not file or use any such
document to which the Representatives or counsel for the Underwriters shall
object.
(c) Delivery of Registration Statements. The Company has furnished or will
deliver to the Representatives and counsel for the Underwriters, without charge,
signed copies of the Registration Statement as originally filed and of each
amendment thereto (including exhibits filed therewith or incorporated by
reference therein) and signed copies of all consents and certificates of
experts, and will also deliver to the Representatives, without charge, a
conformed copy of the Registration Statement as originally filed and of each
amendment thereto (without exhibits) for each of the Underwriters. The copies of
the Registration Statement and each amendment thereto furnished to the
Underwriters will be identical to the electronically transmitted copies thereof
filed with the Commission pursuant to ▇▇▇▇▇, except to the extent permitted by
Regulation S-T.
(d) Delivery of Prospectus. The Company has delivered to each Underwriter,
without charge, as many copies of each preliminary prospectus as such
Underwriter reasonably requested, and the Company hereby consents to the use of
such copies for purposes permitted by the 1933 Act. The Company will furnish to
each Underwriter, without charge, during the period when the Prospectus is
required to be delivered under the 1933 Act, such number of copies of the
Prospectus (as amended or supplemented) as such Underwriter may reasonably
request. The Prospectus and any amendments or supplements thereto furnished to
the Underwriters will be identical to the electronically transmitted copies
thereof filed with the Commission pursuant to ▇▇▇▇▇, except to the extent
permitted by Regulation S-T.
13
(e) Continued Compliance with Securities Laws. Each the Trust and the
Company will comply with the 1933 Act and the 1933 Act Regulations so as to
permit the completion of the distribution of the Securities as contemplated in
this Agreement and in the Prospectus. If at any time when a prospectus is
required by the 1933 Act to be delivered in connection with sales of the
Securities, any event shall occur or condition shall exist as a result of which
it is necessary, in the reasonable opinion of counsel for the Underwriters, to
amend the Registration Statement or amend or supplement any Prospectus in order
that the Prospectus will not include any untrue statements of a material fact or
omit to state a material fact necessary in order to make the statements therein
not misleading in the light of the circumstances existing at the time it is
delivered to a purchaser, or if it shall be necessary, in the reasonable opinion
of such counsel, at any such time to amend the Registration Statement or amend
or supplement any Prospectus in order to comply with the requirements of the
1933 Act or the 1933 Act Regulations, the Trust and the Company will promptly
prepare and file with the Commission, subject to Section 3(b), such amendment or
supplement as may be necessary to correct such statement or omission or to make
the Registration Statement or the Prospectus comply with such requirements, and
the Company will furnish to the Underwriters such number of copies of such
amendment or supplement as the Underwriters may reasonably request.
(f) Blue Sky Qualifications. The Company will use its reasonable efforts,
in cooperation with the Underwriters, to qualify the Securities for offering and
sale under the applicable securities laws of such states and other jurisdictions
(domestic or foreign) as the Representatives may designate and to maintain such
qualifications in effect for a period of not less than one year from the later
of the effective date of the Registration Statement and any Rule 462(b)
Registration Statement; provided, however, that the neither the Trust nor
Company shall be obligated to file any general consent to service of process or
to qualify as a foreign corporation or as a dealer in securities in any
jurisdiction in which it is not so qualified or to subject itself to taxation in
respect of doing business in any jurisdiction in which it is not otherwise so
subject.
(g) Rule 158. The Company will timely file such reports pursuant to the
Securities Exchange Act of 1934 (the "1934 Act") as are necessary in order to
make generally available to its securityholders as soon as practicable an
earnings statement for the purposes of, and to provide the benefits contemplated
by, the last paragraph of Section 11(a) of the 1933 Act.
(h) Use of Proceeds. The Company will use the net proceeds received by it
from the sale of the Securities in the manner specified in the Prospectus under
"Use of Proceeds."
(i) Listing. The Company will use its best efforts to effect the listing
of the Securities on the New York Stock Exchange.
(j) Restriction on Sale of Securities. During a period of 180 days from
the date of the Prospectus, excluding (A) Securities to be sold hereunder, (B)
the Manager Shares to be delivered to the Manager pursuant to the terms of the
Manager Purchase Agreement or the Management Services Agreement, (C) restricted
shares granted to directors pursuant to the Non-Employee Director's Equity Plan,
and limited liability interests of the Company issued to the Trust in exchange
for any of the shares of Trust Stock issued in connection with (A), (B) or (C)
above, neither the Trust nor the Company will, without the prior written consent
of the Representatives, (i) directly or indirectly, offer, pledge, sell,
contract to sell, sell any option or contract to purchase, purchase any option
or contract to sell, grant any option, right or warrant to purchase or otherwise
transfer or dispose of any shares of Trust Stock, limited liability company
interests of the Company or any securities convertible into or exercisable or
exchangeable for shares of Trust Stock or liability company interests of the
Company or file any registration statement under the 1933 Act with respect to
any of the forgoing (except a registration statement filed in accordance with
the Registration Rights Agreement or a registration statement on Form
14
S-8) or (ii) enter into any swap or any other agreement or any transaction that
transfers, in whole or in part, directly or indirectly, the economic consequence
of ownership of the shares of Trust Stock, whether any such swap or transaction
described in clause (i) or (ii) above is to be settled by delivery of shares of
Trust Stock, limited liability company interests of the Company or such other
securities, in cash or otherwise.
In the event that either (x) during the last 17 days of the 180-day period
referred to above, the Trust or the Company issues an earnings release or (y)
prior to the expiration of such 180-day period, the Trust or the Company
announces that it will release earnings results during the 17-day period
beginning on the last day of such 180-day period, the restrictions described
above shall continue to apply until the expiration of the 17-day period
beginning on the date of the earnings release.
(k) Reporting Requirements. Each the Trust and the Company, during the
period when the Prospectus are required to be delivered under the 1933 Act, will
file all documents required to be filed with the Commission pursuant to the 1934
Act within the time periods required by the 1934 Act and the rules and
regulations of the Commission thereunder.
(l) Acquisitions. The Company will use its best efforts to consummate the
transactions contemplated in the Acquisition Agreements, in each case, as soon
as practicable after the Closing Time.
(m) Compliance with NASD Rules. The Company hereby agrees that it will
ensure that the Reserved Securities will be restricted as required by the
National Association of Securities Dealers, Inc. (the "NASD") or the NASD rules
from sale, transfer, assignment, pledge or hypothecation for a period of three
months following the date of this Agreement. The Underwriters will notify the
Company as to which persons will need to be so restricted. At the request of the
Underwriters, the Company will direct the transfer agent to place a stop
transfer restriction upon such securities for such period of time. Should the
Company release, or seek to release, from such restrictions any of the Reserved
Securities, the Company agrees to reimburse the Underwriters for any reasonable
expenses (including, without limitation, legal expenses) they incur in
connection with such release.
(n) Subsidiary Compliance with Laws. As promptly as possible following the
acquisition of each Subsidiary, the Company shall ensure that each such
Subsidiary has in place such procedures and controls referred to in Section
1(b)(viii) (A), (B) and (C) above.
(o) Establishment of Disclosure and Accounting Controls with Respect to
Subsidiaries. The Company shall, upon the earlier of (i) March 31, 2005 and (ii)
the date that the Company files with the SEC its annual report on Form 10-K for
the fiscal year ended December 31, 2004, ensure that the disclosure controls and
procedures referred to in Section 1(b)(xvii) will include information with
respect to each Subsidiary and that the internal accounting controls referred to
in Section 1(b)(xvii) will extend to each such Subsidiary.
SECTION 4. Payment of Expenses.
(a) Expenses. The Company will pay all expenses incident to the
performance of its and the Trust's obligations under this Agreement, including
(i) the preparation, printing and filing of the Registration Statement
(including financial statements and exhibits) as originally filed and of each
amendment thereto, (ii) the preparation, printing and delivery to the
Underwriters of this Agreement, any Agreement among Underwriters and such other
documents as may be required in connection with the offering, purchase, sale,
issuance or delivery of the Securities, (iii) the preparation, issuance and
delivery of the certificates for the Securities to the Underwriters, including
any stock or other transfer taxes and
15
any stamp or other duties payable upon the sale, issuance or delivery of the
Securities to the Underwriters and the transfer of the Securities between the
Underwriters and the International Managers, (iv) the fees and disbursements of
counsel, accountants and other advisors of the Company and the Trust, (v) the
qualification of the Securities under securities laws in accordance with the
provisions of Section 3(f) hereof, including filing fees and the reasonable fees
and disbursements of counsel for the Underwriters in connection therewith and in
connection with the preparation of the Blue Sky Survey and any supplement
thereto, (vi) the printing and delivery to the Underwriters of copies of each
preliminary prospectus, and of the Prospectus and any amendments or supplements
thereto, (vii) the preparation, printing and delivery to the Underwriters of
copies of the Blue Sky Survey and any supplement thereto, (viii) the fees and
expenses of any transfer agent or registrar for the Securities, (ix) the costs
and expenses of the Trust and the Company relating to investor presentations on
any "road show" undertaken in connection with the marketing of the Securities,
including without limitation, expenses associated with the production of road
show slides and graphics, fees and expenses of any consultants engaged in
connection with the road show presentations, travel and lodging expenses of the
representatives and officers of the Trust and the Company and any such
consultants, and the cost of aircraft and other transportation chartered in
connection with the road show, (x) the filing fees incident to, and the
reasonable fees and disbursements of counsel to the Underwriters in connection
with, the review by the NASD of the terms of the sale of the Securities, (xi)
the fees and expenses incurred in connection with the listing of the Securities
on the New York Stock Exchange, (xii) all costs and expenses of the
Underwriters, including the fees and disbursements of counsel for the
Underwriters, in connection with matters related to the Reserved Securities
which are designated by the Company for sale to Invitees and (xiii) the fees and
expenses of the Independent Underwriter.
(b) Termination of Agreement. If this Agreement is terminated by the
Representatives in accordance with the provisions of Section 5 or Section
9(a)(i) hereof, the Company shall reimburse the Underwriters for all of their
out-of-pocket expenses, including the reasonable fees and disbursements of
counsel for the Underwriters.
SECTION 5. Conditions of Underwriters' Obligations. The obligations of the
several Underwriters hereunder are subject to the accuracy of the
representations and warranties contained in Section 1 hereof or in certificates
of any officer of the Company, the Subsidiaries and the Trust delivered pursuant
to the provisions hereof, to the performance by the Company, the Subsidiaries
and the Trust of its covenants and other obligations hereunder, and to the
following further conditions:
(a) Effectiveness of Registration Statement. The Registration Statement,
including any Rule 462(b) Registration Statement, has become effective and at
Closing Time no stop order suspending the effectiveness of the Registration
Statement shall have been issued under the 1933 Act or proceedings therefor
initiated or threatened by the Commission, and any request on the part of the
Commission for additional information shall have been complied with to the
reasonable satisfaction of counsel to the Underwriters. A prospectus containing
the Rule 430A Information shall have been filed with the Commission in
accordance with Rule 424(b) (or a post-effective amendment providing such
information shall have been filed and declared effective in accordance with the
requirements of Rule 430A).
(b) Opinion of Counsel for the Trust and the Company. At Closing Time, the
Representatives shall have received the favorable opinion, dated as of the
Closing Time, of Shearman & Sterling LLP, counsel for the Trust and the Company,
in form and substance reasonably satisfactory to counsel for the Underwriters,
together with signed or reproduced copies of such letter for each of the other
Underwriters, to the effect set forth in Exhibit A hereto and to such further
effect as counsel to the Underwriters may reasonably request. In giving such
opinion such counsel may rely, as to all matters governed by the laws of
jurisdictions other than the law of the State of New York and the federal law of
the United States and the General Corporation Law and the Limited Liability
Company Act of the State of
16
Delaware, upon the opinions of counsel satisfactory to the Representatives. Such
counsel may also state that, insofar as such opinion involves factual matters,
they have relied, to the extent they deem proper, upon certificates of officers
of the Company and its subsidiaries and certificates of public officials.
(c) Opinion of Delaware Counsel for the Trust and the Company. At Closing
Time, the Representatives shall have received the favorable opinion, dated as of
the Closing Time, of Potter ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, Delaware counsel for the
Trust and the Company, in form and substance reasonably satisfactory to counsel
for the Underwriters, together with signed or reproduced copies of such letter
for each of the other Underwriters, to the effect set forth in Exhibit B hereto
and to such further effect as counsel to the Underwriters may reasonably
request. Such counsel may also state that, insofar as such opinion involves
factual matters, they have relied, to the extent they deem proper, upon
certificates of officers of the Company and its subsidiaries and certificates of
public officials.
(d) Opinion of Counsel for Underwriters. At Closing Time, the
Representatives shall have received the favorable opinion, dated as of the
Closing Time, of Sidley ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ llp, counsel for the Underwriters,
together with signed or reproduced copies of such letter for each of the other
Underwriters in form and substance satisfactory to the Representatives. In
giving such opinion such counsel may rely, as to all matters governed by the
laws of jurisdictions other than the law of the State of New York and the
federal law of the United States and the General Corporation Law and the Limited
Liability Company Act of the State of Delaware, upon the opinions of counsel
satisfactory to the Representatives. Such counsel may also state that, insofar
as such opinion involves factual matters, they have relied, to the extent they
deem proper, upon certificates of officers of the Company and its subsidiaries
and certificates of public officials.
(e) Officers' Certificate of Company. At Closing Time, there shall not
have been, since the date hereof or since the respective dates as of which
information is given in the Prospectus, any material adverse change in the
condition, financial or otherwise, or in the earnings, business affairs or
business prospects of the Trust, the Company and its subsidiaries (including,
but not limited to, the Subsidiaries) considered as one enterprise, whether or
not arising in the ordinary course of business, and the Representatives shall
have received a certificate of the Chief Executive Officer and Chief Financial
Officer of the Company, dated as of Closing Time, to the effect that (i) there
has been no such material adverse change, (ii) the representations and
warranties in Section 1(a) hereof are true and correct with the same force and
effect as though expressly made at and as of Closing Time, (iii) the Trust and
the Company have complied with all agreements and satisfied all conditions on
their part to be performed or satisfied at or prior to Closing Time, and (iv) no
stop order suspending the effectiveness of the Registration Statement has been
issued and no proceedings for that purpose have been instituted or are pending
or, to their knowledge, contemplated by the Commission.
(f) Certificate of the Company, as Sponsor of the Trust. At Closing Time,
the Representatives shall have received a certificate of the Company, as Sponsor
of the Trust, dated as of the Closing Time, to the effect that (i) the
representations and warranties in Section 1(b) hereof are true and correct with
the same force and effect as though expressly made at and as of Closing Time,
(ii) the Trust has complied with all agreements and satisfied all conditions on
its part to be performed or satisfied at or prior to Closing Time, and (iii) no
stop order suspending the effectiveness of the Registration Statement has been
issued and no proceedings for that purpose have been instituted or are pending
or, to their knowledge, contemplated by the Commission.
(g) Certificate of the Manager. At Closing Time, the Representatives shall
have received a certificate of the Manager, dated as of the Closing Time, to the
effect that the representations and warranties in Section 1(c) hereof are true
and correct with the same force and effect as though expressly made at and as of
Closing Time.
17
(h) Accountant's Comfort Letter. At the time of the execution of this
Agreement, the Representatives shall have received a letter from each applicable
auditor listed below, dated such date, in form and substance reasonably
satisfactory to the Representatives, together with signed or reproduced copies
of such letter for each of the other Underwriters containing statements and
information of the type ordinarily included in accountants' "comfort letters" to
underwriters with respect to the financial statements and certain financial
information contained in the Registration Statement and the Prospectus relating
to the respective entity named below.
(i) ▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇, with respect to the Trust and the
Company.
(ii) KPMG LLP, with respect to Executive Air Support, Inc.
(iii) PricewaterhouseCoopers LLP, with respect to Executive Air
Support, Inc.
(iv) Ernst & Young LLP, with respect to General Aviation Holdings,
LLC.
(v) Lesley, Thomas, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, Inc., with respect to Newport
Beach FBO, LLC.
(vi) Ernst & Young LLP, with respect to Palm Springs FBO, LLC.
(vii) Deloitte & Touche LLP, with respect to Palm Springs FBO, LLC,
doing business as Million Air Palm Springs.
(viii) Ernst & Young LLP, with respect to Macquarie Airports North
America, Inc.
(ix) ▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇, with respect to AmPorts Aviation
Division (a division of American Port Services, Inc.).
(x) Ernst & Young LLP, with respect to Macquarie Americas Parking
Corporation and Off-Airport Parking Operations of PCA Company of America,
LLC.
(xi) PricewaterhouseCoopers LLP, with respect to Thermal Chicago
Corporation and ETT Nevada, Inc.
(xii) Deloitte & Touche LLP, with respect to Connect M1-A1 Holdings
Limited.
(i) Bring-down Comfort Letter. At Closing Time, the Representative shall
have received from each auditor listed in Section 5(g) a letter, dated as of
Closing Time, to the effect that such auditor reaffirms the statements made in
the letter furnished pursuant to subsection (g) of this Section, except that the
specified date referred to shall be a date not more than three business days
prior to Closing Time.
(j) Approval of Listing. At Closing Time, the Securities shall have been
approved for listing on the New York Stock Exchange, subject only to official
notice of issuance.
(k) No Objection. The NASD has confirmed that it has not raised any
objection with respect to the fairness and reasonableness of the underwriting
terms and arrangements.
(l) Lock-up Agreements. At the date of this Agreement, the Representatives
shall have received an agreement substantially in the form of Exhibit C hereto
signed by the persons listed on Schedule H hereto.
18
(m) Conditions to Purchase of Option Securities. In the event that the
Underwriters exercise their option provided in Section 2(b) hereof to purchase
all or any portion of the Option Securities, the representations and warranties
of the Company and the Trust contained herein and the statements in any
certificates furnished by the Company, any subsidiary (including, but not
limited to, the Subsidiaries) of the Company or the Trust hereunder shall be
true and correct as of each Date of Delivery and, at the relevant Date of
Delivery, the Representatives shall have received:
(i) Officer's Certificate of the Company. A certificate, dated
such Date of Delivery, of the President of any Vice President
of the Company and of the chief financial officer or the chief
accounting officer of the Company confirming that the
certificate delivered at the Closing Time pursuant to Section
5(f) hereof remains true and correct as of such Date of
Delivery.
(ii) Certificate of the Company as Sponsor of the Trust. A
certificate, dated such Date of Delivery, of an authorized
representative of the Company confirming that the certificate
delivered at the Closing Time pursuant to Section 5(g) hereof
remains true and correct as of such Date of Delivery.
(ii) Certificate of the Manager. A certificate, dated such Date of
Delivery, of an authorized representative of the Manager
confirming that the certificate delivered at the Closing Time
pursuant to Section 5(h) hereof remains true and correct as of
such Date of Delivery.
(iii) Opinion of Counsel for Company. The favorable opinion of
Shearman & Sterling LLP, counsel for the Trust and the
Company, in form and substance reasonably satisfactory to
counsel for the Underwriters, dated such Date of Delivery,
relating to the Option Securities to be purchased on such Date
of Delivery and otherwise to the same effect as the opinion
required by Section 5(b) hereof.
(iv) Opinion of Delaware Counsel for the Trust and the Company. The
favorable opinion of Potter ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, Delaware
counsel to the Trust and the Company, in form and substance
reasonably satisfactory to counsel for the Underwriters, dated
such Date of Delivery, relating to the Option Securities to be
purchased on such Date of Delivery and otherwise to the same
effect as the opinion required by Section 5(c) hereof.
(v) Opinion of Counsel for Underwriters. The favorable opinion of
Sidley ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the Underwriters,
dated such Date of Delivery, relating to the Option Securities
to be purchased on such Date of Delivery and otherwise to the
same effect as the opinion required by Section 5(d) hereof.
(vi) Bring-down Comfort Letters. A letter from each of the auditors
listed in Section 5(h), in form and substance satisfactory to
the Representatives and dated such Date of Delivery,
substantially in the same form and substance as the letters
furnished to the Representatives pursuant to Section 5(h)
hereof, except that the "specified date" in the letters
furnished pursuant to this paragraph shall be a date not more
than five days prior to such Date of Delivery.
(n) Closing of the Acquisitions. At Closing Time, the Acquisition
Agreements remain in full force and effect.
19
(o) Additional Documents. At Closing Time and at each Date of Delivery,
counsel for the Underwriters shall have been furnished with such documents and
opinions as they may reasonably require for the purpose of enabling them to pass
upon the issuance and sale of the Securities as herein contemplated, or in order
to evidence the accuracy of any of the representations or warranties, or the
fulfillment of any of the conditions, herein contained; and all proceedings
taken by the Trust or the Company in connection with the issuance and sale of
the Securities as herein contemplated shall be reasonably satisfactory in form
and substance to the Representatives and counsel for the Underwriters.
(p) Termination of Agreement. If any condition specified in this Section
shall not have been fulfilled when and as required to be fulfilled, this
Agreement, or, in the case of any condition to the purchase of Option Securities
on a Date of Delivery which is after the Closing Time, the obligations of the
several Underwriters to purchase the relevant Option Securities, may be
terminated by the Representatives by notice to the Company at any time at or
prior to Closing Time or such Date of Delivery, as the case may be, and such
termination shall be without liability of any party to any other party except as
provided in Section 4 and except that Sections 1, 6, 7 and 8 shall survive any
such termination and remain in full force and effect.
SECTION 6. Indemnification.
(a) Indemnification of Underwriters by the Company and the Trust. (1) The
Company, for itself and as sponsor of the Trust, agrees to indemnify and hold
harmless each Underwriter, its affiliates, as such term is defined in Rule
501(b) under the 1933 Act (each, an "Affiliate"), its selling agents and each
person, if any, who controls any Underwriter within the meaning of Section 15 of
the 1933 Act or Section 20 of the 1934 Act:
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or alleged
untrue statement of a material fact contained in the Registration
Statement (or any amendment thereto), including the Rule 430A Information
or the omission or alleged omission therefrom of a material fact required
to be stated therein or necessary to make the statements therein not
misleading or arising out of any untrue statement or alleged untrue
statement of a material fact included in any preliminary prospectus or the
Prospectus (or any amendment or supplement thereto), or the omission or
alleged omission therefrom of a material fact necessary in order to make
the statements therein, in the light of the circumstances under which they
were made, not misleading;
(ii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission, provided that (subject to Section
6(d) below) any such settlement is effected with the written consent of
the Company;
(iii) against any and all expense whatsoever, as incurred (including
the fees and disbursements of counsel chosen by the Representatives),
reasonably incurred in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental agency
or body, commenced or threatened, or any claim whatsoever based upon any
such untrue statement or omission, or any such alleged untrue statement or
omission, to the extent that any such expense is not paid under (i) or
(ii) above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or
20
omission made in reliance upon and in conformity with written information
furnished to the Company by any Underwriter through the Representatives
expressly for use in the Registration Statement (or any amendment thereto),
including the Rule 430A Information or any preliminary prospectus or the
Prospectus (or any amendment or supplement thereto); and provided, further, that
the Company will not be liable to any Underwriter, or any Affiliate or selling
agent of or person controlling such Underwriter, to the extent that the Company
shall sustain the burden of proving that any such loss, liability, claim, damage
or expense resulted from the fact that such Underwriter, in contravention of a
requirement of this Agreement or applicable law, sold Securities to a person to
whom such Underwriter failed to send or give, at or prior to the Closing Time, a
copy of the Prospectus, as then amended or supplemented, if it shall have been
determined by a court of competent jurisdiction by final and nonappealable
judgment that (i) the Company has previously furnished sufficient copies thereof
(sufficiently in advance of the Closing Time to allow for distribution by the
Closing Time) to the Underwriter and the loss, liability, claim, damage or
expense of such Underwriter resulted from an untrue statement or omission of a
material fact contained in or omitted from the preliminary prospectus which was
corrected in the Prospectus as, if applicable, amended or supplemented prior to
the Closing Time and such Prospectus was required by law to be delivered at or
prior to the written confirmation of sale to such person and (ii) such failure
to give or send such Prospectus by the Closing Time to the party or parties
asserting such loss, liability, claim, damage or expense would have constituted
the sole defense to the claim asserted by such person.
(2) In addition to and without limitation of the Company's
obligation to indemnify ▇▇▇▇▇▇▇ ▇▇▇▇▇ as an Underwriter, the Company also agrees
to indemnify and hold harmless the Independent Underwriter, its Affiliates and
selling agents and each person, if any, who controls the Independent Underwriter
within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act,
from and against any and all loss, liability, claim, damage, and expense
whatsoever, as incurred, incurred as a result of the Independent Underwriter's
participation as a "qualified independent underwriter" within the meaning of
Rule 2720 of the Conduct Rules of the National Association of Securities
Dealers, Inc. in connection with the offering of the Securities.
(b) Indemnification of Trust, Trustees, Company, Directors and Officers.
Each Underwriter severally agrees to indemnify and hold harmless the Trust and
the Trustees and the Company, its directors, each of its officers who signed the
Registration Statement, and each person, if any, who controls the Company within
the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act against
any and all loss, liability, claim, damage and expense described in the
indemnity contained in subsection (a)(1) of this Section, as incurred, but only
with respect to untrue statements or omissions, or alleged untrue statements or
omissions, made in the Registration Statement (or any amendment thereto),
including the Rule 430A Information or any preliminary prospectus or the
Prospectus (or any amendment or supplement thereto) in reliance upon and in
conformity with written information furnished to the Company and the Trust by
such Underwriter through the Representatives expressly for use in the
Registration Statement (or any amendment thereto) or such preliminary prospectus
or the Prospectus (or any amendment or supplement thereto).
(c) Actions against Parties; Notification. Each indemnified party shall
give notice as promptly as reasonably practicable to each indemnifying party of
any action commenced against it in respect of which indemnity may be sought
hereunder, but failure to so notify an indemnifying party shall not relieve such
indemnifying party from any liability hereunder to the extent it is not
materially prejudiced as a result thereof and in any event shall not relieve it
from any liability which it may have otherwise than on account of this indemnity
agreement. In the case of parties indemnified pursuant to Section 6(a)(1) above,
counsel to the indemnified parties shall be selected by the Representatives,
and, in the case of parties indemnified pursuant to Section 6(b) above, counsel
to the indemnified parties shall be selected by the Company. An indemnifying
party may participate at its own expense in the defense of any such action;
provided, however, that counsel to the indemnifying party shall not (except with
the
21
consent of the indemnified party) also be counsel to the indemnified party. In
no event shall the indemnifying parties be liable for fees and expenses of more
than one counsel (in addition to any local counsel) separate from their own
counsel for all indemnified parties in connection with any one action or
separate but similar or related actions in the same jurisdiction arising out of
the same general allegations or circumstances; provided, that, if indemnity is
sought pursuant to Section 6(a)(2), then, in addition to the fees and expenses
of such counsel for the indemnified parties, the indemnifying party shall be
liable for the reasonable fees and expenses of not more than one counsel (in
addition to any local counsel) separate from its own counsel and that of the
other indemnified parties for the Independent Underwriter in its capacity as a
"qualified independent underwriter" and all persons, if any, who control the
Independent Underwriter within the meaning of Section 15 of the 1933 Act or
Section 20 of 1934 Act in connection with any one action or separate but similar
or related actions in the same jurisdiction arising out of the same general
allegations or circumstances if, in the reasonable judgment of the Independent
Underwriter, there may exist a conflict of interest between the Independent
Underwriter and the other indemnified parties. Any such separate counsel for the
Independent Underwriter and such control persons of the Independent Underwriter
shall be designated in writing by the Independent Underwriter. No indemnifying
party shall, without the prior written consent of the indemnified parties,
settle or compromise or consent to the entry of any judgment with respect to any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever in respect of which
indemnification or contribution could be sought under this Section 6 or Section
7 hereof (whether or not the indemnified parties are actual or potential parties
thereto), unless such settlement, compromise or consent (i) includes an
unconditional release of each indemnified party from all liability arising out
of such litigation, investigation, proceeding or claim and (ii) does not include
a statement as to or an admission of fault, culpability or a failure to act by
or on behalf of any indemnified party.
(d) Settlement without Consent if Failure to Reimburse. If at any time an
indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel, such indemnifying party
agrees that it shall be liable for any settlement of the nature contemplated by
Section 6(a)(1)(ii) or settlement of any claim in connection with any violation
referred to in Section 6(e) effected without its written consent if (i) such
settlement is entered into more than 45 days after receipt by such indemnifying
party of the aforesaid request, (ii) such indemnifying party shall have received
notice of the terms of such settlement at least 30 days prior to such settlement
being entered into and (iii) such indemnifying party shall not have reimbursed
such indemnified party in accordance with such request prior to the date of such
settlement.
(e) Indemnification for Reserved Securities. In connection with the offer
and sale of the Reserved Securities, the Company agrees to indemnify and hold
harmless the Underwriters, their Affiliates and selling agents and each person,
if any, who controls any Underwriter within the meaning of either Section 15 of
the 1933 Act or Section 20 of the 1934 Act, from and against any and all loss,
liability, claim, damage and expense (including, without limitation, any legal
or other expenses reasonably incurred in connection with defending,
investigating or settling any such action or claim), as incurred, (i) arising
out of the violation of any applicable laws or regulations of foreign
jurisdictions where Reserved Securities have been offered; (ii) arising out of
any untrue statement or alleged untrue statement of a material fact contained in
any prospectus wrapper or other material prepared by or with consent of the
Company for distribution to Invitees in connection with the offering of the
Reserved Securities or caused by any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading; (iii) caused by the failure of any Invitee to
pay for and accept delivery of Reserved Securities which have been orally
confirmed for purchase by any Invitee by the end of the first business day after
the date of the Agreement; or (iv) related to, or arising out of or in
connection with, the offering of the Reserved Securities.
22
SECTION 7. Contribution. If the indemnification provided for in Section 6
hereof is for any reason unavailable to or insufficient to hold harmless an
indemnified party in respect of any losses, liabilities, claims, damages or
expenses referred to therein, then each indemnifying party shall contribute to
the aggregate amount of such losses, liabilities, claims, damages and expenses
incurred by such indemnified party, as incurred, (i) in such proportion as is
appropriate to reflect the relative benefits received by the Trust and the
Company on the one hand and the Underwriters on the other hand from the offering
of the Securities pursuant to this Agreement or (ii) if the allocation provided
by clause (i) is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Trust and the Company on the one hand
and of the Underwriters on the other hand in connection with the statements or
omissions, or in connection with any violation of the nature referred to in
Section 6(e) hereof, which resulted in such losses, liabilities, claims, damages
or expenses, as well as any other relevant equitable considerations.
The relative benefits received by the Trust and the Company on the one
hand and the Underwriters on the other hand in connection with the offering of
the Securities pursuant to this Agreement shall be deemed to be in the same
respective proportions as the total net proceeds from the offering of the
Securities pursuant to this Agreement (before deducting expenses) received by
the Trust and the Company and the total underwriting discount received by the
Underwriters, in each case as set forth on the cover of the Prospectus, bear to
the aggregate initial public offering price of the Securities as set forth on
the cover of the Prospectus.
The relative fault of the Trust and the Company on the one hand and the
Underwriters on the other hand shall be determined by reference to, among other
things, whether any such untrue or alleged untrue statement of a material fact
or omission or alleged omission to state a material fact relates to information
supplied by the Company or by the Underwriters and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission or any violation of the nature referred to in Section 6(e)
hereof.
The Company, the Trust and the Underwriters agree that ▇▇▇▇▇▇▇ ▇▇▇▇▇ will
not receive any additional benefits hereunder for serving as the Independent
Underwriter in connection with the offering and sale of the Securities.
The Trust, the Company and the Underwriters agree that it would not be
just and equitable if contribution pursuant to this Section 7 were determined by
pro rata allocation (even if the Underwriters were treated as one entity for
such purpose) or by any other method of allocation which does not take account
of the equitable considerations referred to above in this Section 7. The
aggregate amount of losses, liabilities, claims, damages and expenses incurred
by an indemnified party and referred to above in this Section 7 shall be deemed
to include any legal or other expenses reasonably incurred by such indemnified
party in investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue or alleged untrue
statement or omission or alleged omission.
Notwithstanding the provisions of this Section 7, no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Securities underwritten by it and distributed to the public
were offered to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of any such untrue or
alleged untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the ▇▇▇▇ ▇▇▇) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
23
For purposes of this Section 7, each person, if any, who controls a
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act and each Underwriter's Affiliates and selling agents shall have the
same rights to contribution as such Underwriter, each Trustee shall have the
same rights to contribution as the Trust and each director of the Company, each
officer of the Company who signed the Registration Statement, and each person,
if any, who controls the Company within the meaning of Section 15 of the 1933
Act or Section 20 of the 1934 Act shall have the same rights to contribution as
the Company. The Underwriters' respective obligations to contribute pursuant to
this Section 7 are several in proportion to the number of Initial Securities set
forth opposite their respective names in Schedule A hereto and not joint.
SECTION 8. Representations, Warranties and Agreements to Survive Delivery.
All representations, warranties and agreements contained in this Agreement or in
certificates of the Trustees of the Trust or officers of the Company or the
Manager submitted pursuant hereto, shall remain operative and in full force and
effect, regardless of (i) any investigation made by or on behalf of any
Underwriter or its Affiliates or selling agents, any person controlling any
Underwriter, its officers or directors, any Trustee, or any person controlling
the Manager or the Company and (ii) delivery of and payment for the Securities.
SECTION 9. Termination of Agreement.
(a) Termination; General. The Representatives may terminate this
Agreement, by notice to the Company, at any time at or prior to Closing Time (i)
if there has been, since the time of execution of this Agreement or since the
respective dates as of which information is given in the Prospectus, any
material adverse change in the condition, financial or otherwise, or in the
earnings, business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise, whether or not arising in the
ordinary course of business, (ii) if there has been, since the time of execution
of this Agreement or since the respective dates as of which information is given
in the Prospectus, any material adverse change in the condition, financial or
otherwise, or affairs of the Trust, or (iii) if there has occurred any material
adverse change in the financial markets in the United States or the
international financial markets, any outbreak of hostilities or escalation
thereof or other calamity or crisis or any change or development involving a
prospective change in national or international political, financial or economic
conditions, in each case the effect of which is such as to make it, in the
judgment of the Representatives, impracticable or inadvisable to market the
Securities or to enforce contracts for the sale of the Securities, or (iv) if
trading in any securities of the Trust has been suspended or materially limited
by the Commission or the New York Stock Exchange, or if trading generally on the
American Stock Exchange or the New York Stock Exchange or in the Nasdaq National
Market has been suspended or materially limited, or minimum or maximum prices
for trading have been fixed, or maximum ranges for prices have been required, by
any of said exchanges or by such system or by order of the Commission, the
National Association of Securities Dealers, Inc. or any other governmental
authority, or (v) a material disruption has occurred in commercial banking or
securities settlement or clearance services in the United States or in Europe,
or (vi) if a banking moratorium has been declared by either Federal or New York
authorities.
(b) Liabilities. If this Agreement is terminated pursuant to this Section,
such termination shall be without liability of any party to any other party
except as provided in Section 4 hereof, and provided further that Sections 1, 6,
7 and 8 shall survive such termination and remain in full force and effect.
SECTION 10. Default by One or More of the Underwriters. If one or more of
the Underwriters shall fail at Closing Time or a Date of Delivery to purchase
the Securities which it or they are obligated to purchase under this Agreement
(the "Defaulted Securities"), the Representatives shall have the right, within
24 hours thereafter, to make arrangements for one or more of the non-defaulting
Underwriters, or
24
any other underwriters, to purchase all, but not less than all, of the Defaulted
Securities in such amounts as may be agreed upon and upon the terms herein set
forth; if, however, the Representatives shall not have completed such
arrangements within such 24-hour period, then:
(i) if the number of Defaulted Securities does not exceed 10% of the
number of Securities to be purchased on such date, each of the
non-defaulting Underwriters shall be obligated, severally and not jointly,
to purchase the full amount thereof in the proportions that their
respective underwriting obligations hereunder bear to the underwriting
obligations of all non-defaulting Underwriters, or
(ii) if the number of Defaulted Securities exceeds 10% of the number
of Securities to be purchased on such date, this Agreement or, with
respect to any Date of Delivery which occurs after the Closing Time, the
obligation of the Underwriters to purchase and of the Trust to sell the
Option Securities to be purchased and sold on such Date of Delivery shall
terminate without liability on the part of any non-defaulting Underwriter.
No action taken pursuant to this Section shall relieve any defaulting
Underwriter from liability in respect of its default.
In the event of any such default which does not result in a termination of
this Agreement or, in the case of a Date of Delivery which is after the Closing
Time, which does not result in a termination of the obligation of the
Underwriters to purchase and the Trust to sell the relevant Option Securities,
as the case may be, either the Representatives or the Company shall have the
right to postpone Closing Time or the relevant Date of Delivery, as the case may
be, for a period not exceeding seven days in order to effect any required
changes in the Registration Statement or Prospectus or in any other documents or
arrangements. As used herein, the term "Underwriter" includes any person
substituted for a Underwriter under this Section 10.
SECTION 11. Limitation on Sales by the Underwriters. Each Underwriter
hereby agrees, severally and not jointly, that it will not sell to any one
Person (as such term is defined in the 1933 Act) an amount of Securities equal
to or in excess of 20% of the total aggregate amount of Securities purchased by
such Underwriter in the distribution under the terms of this Agreement, without
the prior written consent of the Company.
SECTION 12. Notices. All notices and other communications hereunder shall
be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
Underwriters shall be directed to the Representatives at ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co.,
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated, ▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, attention of ▇▇▇▇▇▇▇ ▇▇▇▇, and Citigroup Global
Markets Inc., at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇, Attention:
General Counsel; and notices to the Trust and to the Company shall be directed
to it at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, attention of
▇▇▇▇▇ ▇▇▇▇▇▇.
SECTION 13. Parties. This Agreement shall each inure to the benefit of and
be binding upon the Underwriters, the Trust and the Company and their respective
successors. Nothing expressed or mentioned in this Agreement is intended or
shall be construed to give any person, firm or corporation, other than the
Underwriters, the Trust and the Company and their respective successors and the
controlling persons and officers and directors referred to in Sections 6 and 7
and their heirs and legal representatives, any legal or equitable right, remedy
or claim under or in respect of this Agreement or any provision herein
contained. This Agreement and all conditions and provisions hereof are intended
to be for the sole and exclusive benefit of the Underwriters, the Trust and the
Company and their respective successors, and said controlling persons and
officers and directors and their heirs and legal
25
representatives, and for the benefit of no other person, firm or
corporation. No purchaser of Securities from any Underwriter shall be deemed to
be a successor by reason merely of such purchase.
SECTION 14. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
SECTION 15. TIME. TIME SHALL BE OF THE ESSENCE OF THIS AGREEMENT. EXCEPT
AS OTHERWISE SET FORTH HEREIN, SPECIFIED TIMES OF DAY REFER TO NEW YORK CITY
TIME.
SECTION 16. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
SECTION 17. Effect of Headings. The Section headings herein are for
convenience only and shall not affect the construction hereof.
26
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof, whereupon
this instrument, along with all counterparts, will become a binding agreement
between the Underwriters, the Trust, the Company and the Manager in accordance
with its terms.
MACQUARIE INFRASTRUCTURE COMPANY TRUST,
by ▇▇▇▇▇ ▇▇▇▇▇▇, as Regular Trustee
By
------------------------------------
Name:
Title:
MACQUARIE INFRASTRUCTURE COMPANY LLC,
for itself and as sponsor of the Trust
By
------------------------------------
Name:
Title:
MACQUARIE INFRASTRUCTURE
MANAGEMENT (USA) INC., as the Manager
By
------------------------------------
Name:
Title:
27
CONFIRMED AND ACCEPTED,
as of the date first above written:
▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO.
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇
INCORPORATED
By: ▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇
INCORPORATED
By:
-----------------------------------------
Authorized Signatory
CITIGROUP GLOBAL MARKETS INC.
By:
-----------------------------------------
Authorized Signatory
For themselves and as Representatives of the
other Underwriters named in Schedule A hereto.
28
SCHEDULE A
Underwriters
Number of
Initial
Name of Underwriters Securities
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated..................................
Citigroup Global Markets Inc..............................
▇▇▇▇▇▇▇▇▇ & Company, Inc..................................
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, Incorporated......................
Macquarie Securities (USA) Inc............................
RBC Capital Markets Corporation...........................
▇▇▇▇▇▇▇ ▇▇▇▇▇ & Associates Inc. ..........................
--------
Total..................................................... ----
========
Sch A-1
SCHEDULE B
Significant Subsidiaries
Macquarie Infrastructure Company, Inc.
Macquarie District Energy Holdings, LLC
Thermal Chicago Corporation
ETT Nevada, Inc.
North America Capital Holding Company
Executive Air Support, Inc.
General Aviation Holdings, LLC
Newport Beach FBO, LLC
Palm Springs FBO, LLC
Macquarie FBO Holdings, LLC
Macquarie Airports North America, Inc.
Macquarie Americas Parking Corporation
Macquarie Yorkshire LLC
Macquarie Yorkshire Limited
Connect M1-A1 Holdings Limited
Connect M1-A1 Limited
South East Water LLC
Communications Infrastructure LLC
Sch B-1
SCHEDULE C
Financial Entities
AUDITOR'S STANDARD OF
INDEPENDENCE WITH RESPECT TO
FINANCIAL ENTITY AUDITOR THE RELATED FINANCIAL ENTITY
-------------------------------------- ----------------------------------- -------------------------------------
Macquarie Infrastructure Company Trust ▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇ registered public accounting firm
under the 1933 Act and the Rules and
Regulations ("RPAF")
Executive Air Support, Inc. KPMG LLP RPAF
PricewaterhouseCoopers LLP RPAF
General Aviation Holdings, LLC Ernst & Young LLP independent auditor under the
guidelines of the American Institute
of Certified Public Accountants
("AICPA")
Newport Beach FBO, LLC Lesley, Thomas, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, RPAF
Inc.
Palm Springs FBO, LLC Ernst & Young LLP AICPA
Deloitte & Touche LLP RPAF
Macquarie Airports North America, Inc. Ernst & Young LLP AICPA
Amports Aviation Division ▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇ RPAF
Macquarie Americas Parking Corporations Ernst & Young LLP AICPA
Off-Airport Parking Operations of PCA Ernst & Young LLP AICPA
Parking Company of America, LLC
Thermal Chicago Corporation PricewaterhouseCoopers LLP RPAF
ETT Nevada, Inc. PricewaterhouseCoopers LLP RPAF
Connect M1-A1 Holdings Limited Deloitte & Touche LLP RPAF
Sch C-1
SCHEDULE D
All Subsidiaries
Aircraft Leasing, Inc.
Aircraft R Us, Inc.
Aircraft Rentals, Inc.
Airports Avcenter, Inc.
Atlantic Aviation Aircraft Sales, Inc.
Atlantic Aviation Corporation
Atlantic Aviation Flight Support, Inc.
Atlantic Aviation Holding Corporation
Atlantic Aviation Overseas, Ltd.
Atlantic Aviation Philadelphia, Inc.
Atlantic Aviation Support Group, Inc.
Atlantic Aviation Venezuela, Inc.
▇▇▇▇▇▇▇▇ Airport Services, Inc.
Bridgeport Airport Services, Inc.
Charter Oak Aviation, Inc.
Communications Infrastructure LLC
ETT National Power
ETT Nevada, Inc.
Executive Air Support, Inc.
Exelon Thermal Technologies, Inc.
Flightways of Long Island, Inc.
General Aviation of New Orleans, LLC
General Aviation, LLC
ILG Avcenter, Inc.
Katana Leasing, Inc.
Macquarie Airports North America, Inc.
Macquarie Americas Parking Corporation
Macquarie Aviation North America 2, Inc.
Macquarie Aviation North America, Inc.
Macquarie District Energy Holdings, LLC
Macquarie District Energy, Inc.
Macquarie FBO Holdings, LLC
Macquarie Infrastructure Assets Inc.
Macquarie Yorkshire LLC
NW Alladin LLC
NW Chicago, LLC
NW Midway LLC
Parking Company of America Airport Holdings, LLC
Parking Company of America Airports Phoenix, LLC
Parking Company of America Airports, LLC
PCA Airports, Ltd.
PCAA Chicago, LLC
PCAA GP, LLC
PCAA LP, LLC
PCAA Parent, LLC
South East Water LLC
Thermal Chicago Corp.
Sch D-1
SCHEDULE E
Acquisition Agreements
AIRPORT SERVICES:
Second Amended and Restated Stock Purchase Agreement, dated as of October 12,
2004, between Macquarie Investment Holdings, Inc. and Macquarie Infrastructure
Assets Inc.
Stock Purchase Agreement, dated as of October 8, 2004, between Macquarie
Specialized Asset Management Limited, on behalf of Macquarie Global
Infrastructure Fund A and Macquarie Global Infrastructure Fund C, and Macquarie
Specialized Asset Management 2 Limited, on behalf of Macquarie Global
Infrastructure Fund B and Macquarie Global Infrastructure Fund D, and Macquarie
Infrastructure Assets Inc.
DISTRICT ENERGY BUSINESS:
The Amended and Restated Limited Liability Company Purchase Agreement, dated as
of October 11, 2004, between Macquarie Investment Holdings, Inc. and Macquarie
Infrastructure Assets Inc.
AIRPORT PARKING BUSINESS:
The Stock Purchase Agreement, dated as of June 7, 2004, between Macquarie
Specialized Asset Management Limited, on behalf of Macquarie Global
Infrastructure Fund A, and Macquarie Specialized Asset Management 2 Limited, on
behalf of Macquarie Global Infrastructure Fund B, and Macquarie Infrastructure
Assets Inc.
PARKING COMPANY OF AMERICA AIRPORTS HOLDINGS, LLC:
Stock Purchase Agreement, dated as of October 8, 2004, between Seacoast Capital
Partners II, L.P. and Macquarie Infrastructure Assets Inc.
PCAA PARENT LLC:
Unit Purchase Agreement, dated October 8, 2004, between Macquarie Securities
(USA), Inc. and Parking Company of America.
Unit Purchase Agreement, dated August 17, 2004, between ARE Holdings, LLC, Atlas
Superpark, Ltd, Parking Company of America Management, LLC and Parking Company
of America.
Sch E-1
SCHEDULE F
Subsidiaries currently managed by affiliates of the Manager
Macquarie Infrastructure Company, Inc.
Macquarie Airports North America, Inc.
Macquarie Americas Parking Corporation
Macquarie Yorkshire Limited
Sch F-1
SCHEDULE G
Macquarie Infrastructure Company Trust
________ Shares of Trust Stock
1. The initial public offering price per share for the Securities,
determined as provided in said Section 2, shall be $________.
2. The purchase price per share for the Securities to be paid by the
several Underwriters shall be $________, being an amount equal to the initial
public offering price set forth above less $________ per share; provided that
the purchase price per share for any Option Securities purchased upon the
exercise of the overallotment option described in Section 2(b) shall be reduced
by an amount per share equal to any dividends or distributions declared by the
Company and payable on the Initial Securities but not payable on the Option
Securities.
Sch G-1
SCHEDULE H
List of persons and entities subject to lock-up
▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, III
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇
Macquarie Infrastructure Management (USA) Inc.
Sch H-1
Exhibit C
Form of Lock-up Agreement
________, 2004
▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Citigroup Global Markets Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
as Representatives of the several Underwriters
named in the Purchase Agreement
Re: Proposed Public Offering by Macquarie Infrastructure Company Trust
Dear Sirs:
The undersigned, a stockholder of Macquarie Infrastructure Company Trust,
a Delaware statutory trust (the "Trust"), and/or an officer and/or director of
Macquarie Infrastructure Company LLC, a Delaware limited liability company (the
"Company"), understands that ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇
& ▇▇▇▇▇ Incorporated ("▇▇▇▇▇▇▇ ▇▇▇▇▇") and Citigroup Global Markets Inc. (the
"Representatives") propose to enter into a Purchase Agreement (the "Purchase
Agreement") with the Company providing for the public offering of Trust shares,
each representing one beneficial interest in the Trust (the "Trust Stock"). In
recognition of the benefit that such an offering will confer upon the
undersigned as a stockholder and/or an officer and/or director of the Company,
and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the undersigned agrees with each underwriter to
be named in the Purchase Agreement that, during a period of 180 days from the
date of the Purchase Agreement, the undersigned will not, without the prior
written consent of the Representatives, directly or indirectly, (i) offer,
pledge, sell, contract to sell, sell any option or contract to purchase,
purchase any option or contract to sell, grant any option, right or warrant for
the sale of, or otherwise dispose of or transfer any shares of Trust Stock,
limited liability company interests of the Company (the "Interests"), or any
securities convertible into or exchangeable or exercisable for Trust Stock or
Interests, whether now owned or hereafter acquired by the undersigned or with
respect to which the undersigned has or hereafter acquires the power of
disposition, or file, or cause to be filed, any registration statement under the
Securities Act of 1933, as amended, with respect to any of the foregoing
(collectively, the "Lock-Up Securities") or (ii) enter into any swap or any
other agreement or any transaction that transfers, in whole or in part, directly
or indirectly, the economic consequence of ownership of the Lock-Up Securities,
whether any such swap or transaction is to be settled by delivery of Trust
Stock, Interests or other securities, in cash or otherwise. In the event that
either (x) during the last 17 days of the 180-day period referred to above, the
Trust or the Company issues an earnings release or (y) prior to the expiration
of such 180-day period, the Trust or the Company announces that it will release
earnings results during the 17-day period beginning on the last day of such
180-day period, the restrictions described above shall continue to apply until
the expiration of the 17-day period beginning on the date of the earnings
release.
Ex C-1
Very truly yours,
Signature:
--------------------------
Print Name:
-------------------------
Ex C-2