Macquarie Infrastructure Company Trust Macquarie Infrastructure Company LLC 9,000,000 shares of Trust Stock Each Representing One Beneficial Interest in Macquarie Infrastructure Company Trust PURCHASE AGREEMENT Dated: October 24, 2006
EXHIBIT 1.1
EXECUTION COPY
Macquarie Infrastructure Company Trust
Macquarie Infrastructure Company LLC
9,000,000 shares of Trust Stock
Each Representing One Beneficial Interest
in
Macquarie Infrastructure Company Trust
in
Macquarie Infrastructure Company Trust
Dated: October 24, 2006
Macquarie Infrastructure Company Trust
Macquarie Infrastructure Company LLC
9,000,000 shares of Trust Stock
Each Representing One Beneficial Interest
in
Macquarie Infrastructure Company Trust
in
Macquarie Infrastructure Company Trust
October 24, 2006
XXXXXXX XXXXX & CO.
Xxxxxxx Xxxxx, Xxxxxx, Xxxxxx & Xxxxx
Xxxxxxx Xxxxx, Xxxxxx, Xxxxxx & Xxxxx
Incorporated
Citigroup Global Markets Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Credit Suisse Securities (USA) LLC
Xxxxxx Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxx Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
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”) confirms its agreement with Xxxxxxx Xxxxx & Co.,
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated (“Xxxxxxx Xxxxx”) 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 Xxxxxxx
Xxxxx, Citigroup Global Markets Inc. (“Citigroup”) and Credit Suisse Securities (USA) LLC (“Credit
Suisse”) 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 1,350,000 additional shares
of Trust Stock to cover overallotments, if any. The aforesaid 9,000,000 shares of Trust Stock (the
“Initial Securities”) to be purchased by the Underwriters and all or any part of the 1,350,000
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 9,000,000 limited liability company interests of the Company
(the “Initial Interests”) to be purchased by the Trust and all or any part of the 1,350,000 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 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 Trust and the Company have filed with the Securities and Exchange Commission (the
“Commission”) on October 16, 2006, an automatic shelf registration statement on Form S-3 (Nos.
333-138010, 333-138010-01), including the related base prospectus (the “Base Prospectus”), which
registration statement became effective upon filing under Rule 462(e) of the rules and regulations
of the Commission (the “1933 Act Regulations”) under the Securities Act of 1933, as amended (the
“1933 Act”). Such registration statement covers the registration of the Securities under the 1933
Act. Promptly after execution and delivery of this Agreement, the Trust and the Company will
prepare and file a final prospectus supplement in accordance with the provisions of Rule 430B
(“Rule 430B”) of the 1933 Act Regulations and paragraph (b) of Rule 424 (“Rule 424(b)”) of the 1933
Act Regulations. Any information included in such final prospectus supplement that was omitted
from such registration statement at the time it became effective but that is deemed to be part of
and included in such registration statement pursuant to Rule 430B is referred to as “Rule 430B
Information”. Each preliminary prospectus supplement to the Base Prospectus used in connection
with the offering of the Securities that was used prior to the filing of the Prospectus (as defined
below), together with the Base Prospectus, is herein called a “preliminary prospectus.” Such
registration statement, at any given time, including the amendments thereto at such time, the
exhibits and any schedules thereto at such time, the documents incorporated by reference therein
pursuant to Item 12 of Form S-3 under the 1933 Act at such time and the documents otherwise deemed
to be a part thereof or included therein by 1933 Act Regulations, is herein called the
“Registration Statement.” The Registration Statement at the time it originally became effective is
herein called the “Original Registration Statement.” The final prospectus supplement, together
with the Base Prospectus, in the form first furnished to the Underwriters for use in connection
with the offering of the Securities, including the documents incorporated by reference therein
pursuant to Item 12 of Form S-3 under the 1933 Act at the time of the execution of this Agreement,
is herein called the “Prospectus.” 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 (“XXXXX”).
All references in this Agreement to financial statements and schedules and other information
which is “contained,” “included” or “stated” in the Registration Statement, any preliminary
prospectus or the Prospectus (or other references of like import) shall be deemed to mean and
include all such financial statements and schedules and other information which is incorporated by
reference in or otherwise deemed by 1933 Act Regulations to be a part of or included in the
Registration Statement, any preliminary prospectus or the Prospectus, as the case may be; and all
references in this Agreement to amendments or supplements to the Registration Statement, any
preliminary prospectus or the Prospectus shall be deemed to mean and include the filing of any
document under the Securities Exchange Act of 1934 (the “1934 Act”) which is incorporated by
reference in the Registration Statement, such preliminary prospectus or the Prospectus, as the case
may be.
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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.
(i) Registration Statement, Prospectus and Disclosure at Time of Sale. The
Original Registration Statement became effective upon filing under Rule 462(e) of the 1933
Act Regulations (“Rule 462(e)”) on October 16, 2006, and any post-effective amendment
thereto also became effective upon filing under Rule 462(e). No stop order suspending the
effectiveness of the 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.
Any offer that is a written communication relating to the Securities made prior to the
filing of the Original Registration Statement by the Company or any person acting on its
behalf (within the meaning, for this paragraph only, of Rule 163(c) of the 1933 Act
Regulations) has been filed with the Commission in accordance with the exemption provided
by Rule 163 of the 1933 Act Regulations (“Rule 163”) and otherwise complied with the
requirements of Rule 163, including without limitation the legending requirement, to
qualify such offer for the exemption from Section 5(c) of the 1933 Act provided by Rule
163.
At the respective times the Original Registration Statement and each amendment thereto
became effective, at each deemed effective date with respect to the Underwriters pursuant
to Rule 430B(f)(2) of the 1933 Act Regulations and at the Closing Time (and, if any Option
Securities are purchased, at the Date of Delivery), the Registration Statement and any
amendment and supplement 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.
Neither the Prospectus nor any amendments or supplements thereto (including any
prospectus wrapper), at the time the Prospectus or any such amendment or supplement was
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.
Each preliminary prospectus (including the prospectus filed as part of the Original
Registration Statement or 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 was identical to
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the
electronically transmitted copies thereof filed with the Commission pursuant to XXXXX,
except to the extent permitted by
Regulation S-T.
As of the Applicable Time (as defined below), neither (x) the Issuer General Use Free
Writing Prospectus(es) (as defined below) issued at or prior to the Applicable Time, the
Statutory Prospectus (as defined below) and the information included on Schedule E hereto
(except for the information included in paragraph 2. of Schedule E), all considered
together (collectively, the “General Disclosure Package”), nor (y) any individual Issuer
Limited Use Free Writing Prospectus, when considered together with the General Disclosure
Package, included any untrue statement of a material fact or omitted to state any material
fact necessary in order to make the statements therein, in the light of the circumstances
under which they were made, not misleading.
As used in this subsection and elsewhere in this Agreement:
“Applicable Time” means 5:00 p.m. (Eastern time) on October 24, 2006 or such other
time as agreed by the Company and the Representatives.
“Issuer Free Writing Prospectus” means any “issuer free writing prospectus,” as
defined in Rule 433 of the 1933 Act Regulations (“Rule 433”), relating to the Securities
that (i) is required to be filed with the Commission by the Company, (ii) is a “road show
that is a written communication” within the meaning of Rule 433(d)(8)(i), whether or not
required to be filed with the Commission or (iii) is exempt from filing pursuant to Rule
433(d)(5)(i) because it contains a description of the Securities or of the offering that
does not reflect the final terms, in each case in the form filed or required to be filed
with the Commission or, if not required to be filed, in the form retained in the Company’s
records pursuant to Rule 433(g).
“Issuer General Use Free Writing Prospectus” means any Issuer Free Writing Prospectus
that is intended for general distribution to prospective investors, as evidenced by its
being specified in Schedule G hereto.
“Issuer Limited Use Free Writing Prospectus” means any Issuer Free Writing Prospectus
that is not an Issuer General Use Free Writing Prospectus.
“Statutory Prospectus” as of any time means the prospectus relating to the Securities
that is included in the Registration Statement immediately prior to that time, including
any document incorporated by reference therein and any preliminary or other prospectus
deemed to be a part thereof.
Each Issuer Free Writing Prospectus, as of its issue date and at all subsequent times
through the completion of the public offer and sale of the Securities or until any earlier
date that the issuer notified or notifies the Representatives as described in Section 3(e),
did not, does not and will not include any information that conflicted, conflicts or will
conflict with the information contained in the Registration Statement or the Prospectus,
including any document incorporated by reference therein and any preliminary or other
prospectus deemed to be a part thereof that has not been superseded or modified.
The representations and warranties in this subsection shall not apply to statements in
or omissions from the Registration Statement, the Prospectus or any Issuer Free Writing
Prospectus made in reliance upon and in conformity with written information furnished to
the Company by any Underwriter through the Representatives expressly for use therein.
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(ii) Incorporated Documents. The documents incorporated or deemed to be
incorporated by reference in the Registration Statement and the Prospectus, at the time
they were or hereafter are filed with the Commission, complied and will comply in all
material respects with the requirements of the Securities Exchange Act of 1934 (the “1934
Act”) and the rules and regulations of the Commission under the 1934 Act (the “1934 Act
Regulations”), and, when read together with the other information in the General Disclosure
Package and the Prospectus, (a) at the time the Original Registration Statement became
effective, (b) at the earliest time the Prospectus was first used and at the date and time
of the first contract of sale of Securities in this offering and (c) at the Closing Time,
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.
(iii) Independent Accountants. The accountants who certified the financial
statements and supporting schedules of the Trust included or incorporated by reference in
the Registration Statement are an independent registered public accounting firm as required
by the 1933 Act, the 1933 Act Regulations, the 1934 Act, the 1934 Act Regulations and the
Public Company Accounting Oversight Board (United States). 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”), other than the
Trust, included or incorporated by reference 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.
(iv) Financial Statements. The financial statements incorporated by reference
in the Registration Statement, the General Disclosure Package and the Prospectus, together
with the related schedules and notes (in the case of the Company and the Trust, contained in
(i) the Company’s and the Trust’s amended Annual Report on Form 10-K/A for the fiscal year
ended December 31, 2005, filed with the SEC on October 16, 2006, and (ii) the Company’s and
the Trust’s amended and restated Quarterly Reports on Form 10-Q/A for the fiscal quarters
ended March 31, 2006 and June 30, 2006, each filed with the SEC on October 16, 2006),
present fairly in all material respects, as applicable, the financial position of the
Financial Entities and each Financial Entity’s respective consolidated subsidiaries, as the
case may be, 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 its consolidated subsidiaries and the summary financial
information for each such Financial Entity and its consolidated subsidiaries included or
incorporated by reference in the General Disclosure Package and 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
incorporated by reference in the Registration Statement, the General Disclosure Package 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.
All disclosures contained in the Registration Statement, the General Disclosure Package or
the Prospectus, or incorporated by reference therein, regarding “non-GAAP financial
measures” (as such term is defined by the rules and regulations of the Commission) comply
with Regulation G of the 1934 Act and Item 10 of Regulation S-K of the 1933 Act, to the
extent applicable.
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(v) No Material Adverse Change in Business. Since the respective dates as of
which information is given in the Registration Statement, the General Disclosure Package 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 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 or any of 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) except for regular
quarterly dividends on the Trust Stock, there has been no dividend or distribution of any
kind declared, paid or made by the Company on its capital stock.
(vi) 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
General Disclosure Package and 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 General Disclosure Package and 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 General Disclosure Package and
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, the General Disclosure Package and the Prospectus, 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 are 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.
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(vii) Authorization of Agreement. This Agreement has been duly authorized,
executed and delivered by the Company.
(viii) 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 will receive good and valid title to the Securities purchased
by it from the Company, free and clear of any Security Interest.
(ix) 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.
(x) 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 General Disclosure Package and 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 General Disclosure Package and 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.
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(other than as disclosed therein), or which might reasonably be expected to result
in a Material Adverse Effect or, except as disclosed in the General Disclosure Package and
the Prospectus, which might reasonably be expected to materially and adversely affect the
properties or assets of the Company and its Subsidiaries, taken as a whole, 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 ordinary routine litigation incidental to the business,
would not reasonably be expected to result in a Material Adverse Effect.
(xii) Accuracy of Exhibits. There are no contracts or documents which are
required to be described in the Registration Statement, the Prospectus or the documents
incorporated by reference therein or to be filed as exhibits thereto which have not been so
described and filed as required.
(xiii) 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 General Disclosure Package and the
Prospectus, the consummation of the transactions contemplated by this Agreement, except such
as have been already obtained or as may be required under the 1933 Act or the 1933 Act
Regulations and foreign or state securities or blue sky laws.
(xiv) 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.
(xv) 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”).
(xvi) 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 Company’s manager,
Macquarie Infrastructure Management (USA) Inc. (the “Manager”), dated December 15, 2004 (the
“Registration Rights Agreement”).
(xvii) 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 General Disclosure
Package and the Prospectus or 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
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Asset Controls (the “OFAC”) the of the United States Treasury
Department and (B) the Foreign Corrupt Practices Act (“FCPA”) and all regulations
thereunder.
(xviii) Disclosure and Accounting Controls. The Company employs disclosure
controls and procedures (as such term is defined in Rules 13a-14 and 15d-14 under the 1934
Act) 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 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 maintains
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. Except as described or incorporated by reference
in the General Disclosure Package and the Prospectus, since the end of the Company’s most
recent audited fiscal year, there has been (I) no material weakness in the Company’s
internal control over financial reporting (whether or not remediated) and (II) no change in
the Company’s internal control over financial reporting that has materially affected, or is
reasonably likely to materially affect, the Company’s internal control over financial
reporting.
(xx) 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.
(xxii) Possession of Licenses and Permits. The Company and its Subsidiaries
possess adequate permits, licenses, approvals, consents and other authorizations
(collectively,
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“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 General Disclosure Package and
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 General Disclosure Package
and 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 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.
(xxiii) 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 General Disclosure
Package and 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 General Disclosure Package and 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.
(xxiv) Environmental Laws. Except as described in the General Disclosure
Package and the Prospectus 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
10
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.
(xxv) Pending Proceedings and Examinations. The Registration Statement is not
the subject of a pending proceeding or examination under Section 8(d) or 8(e) of the 1933
Act, and the Company is not the subject of a pending proceeding under Section 8A of the 1933
Act in connection with the offering of the Securities.
(i) Status as a Well-Known Seasoned Issuer. (A) At the time of filing the
Original Registration Statement, (B) at the time of the most recent amendment thereto for
the purposes of complying with Section 10(a)(3) of the 1933 Act (whether such amendment was
by post-effective amendment, incorporated report filed pursuant to Section 13 or 15(d) of
the 1934 Act or form of prospectus), (C) at the time the Trust or any person acting on its
behalf (within the meaning, for this clause only, of Rule 163(c) of the 1933 Act
Regulations) made any offer relating to the Securities in reliance on the exemption of Rule
163 of the 1933 Act Regulations and (D) at the date hereof, the Trust was and is a
“well-known seasoned issuer” as defined in Rule 405 of the 1933 Act Regulations (“Rule
405”). The Registration Statement is an “automatic shelf registration statement,” as
defined in Rule 405, and the Securities, since their registration on the Registration
Statement, have been and remain eligible for registration by the Trust on a Rule 405
“automatic shelf registration statement.” The Trust has not received from the Commission
any notice pursuant to Rule 401(g)(2) of the 1933 Act Regulations objecting to the use of
the automatic shelf registration statement form.
(ii) Trust is Not an Ineligible Issuer. (A) At the earliest time after the
filing of the Original Registration Statement that the Trust or another offering participant
made a bona fide offer (within the meaning of Rule 164(h)(2) of the 1933 Act Regulations)
and (B) as of the Applicable Time (with such time being used as the determination date for
purposes of this clause (B)), the Trust was not and is not an “ineligible issuer” as defined
in Rule 405, without taking account of any determination by the Commission pursuant to Rule
405 that it is not necessary that the Company be considered an “ineligible issuer.”
(iii) 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 General Disclosure Package and 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
General Disclosure Package and the Prospectus.
(iv) Due Authority of Trustee. 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
11
(in blank or otherwise) the certificate or certificates representing the
Securities or a stock power or powers with respect thereto.
(v) Authorization of Agreements. This Agreement and the Trust Agreement have
been duly authorized, executed and delivered by the Trust.
(vi) 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; the Securities will conform to all statements
relating thereto contained in the General Disclosure Package and 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.
(vii) Capitalization. The shares of Trust Stock, as set forth in the section
titled “Capitalization” in the Prospectus will be, at the Closing Time, the only issued and
outstanding shares representing beneficial interests of the Trust and (except for
outstanding director stock units or subsequent issuances (A) pursuant to this Agreement or
(B) pursuant to the management services agreement (the “Management Services Agreement”)
among the Company, the subsidiaries of the Company party thereto and the Manager, as amended
as of August 8, 2006) the Securities will constitute the only securities issued by the Trust
that are outstanding; 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.
(viii) 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 such as have been already obtained or as may be required under the 1933
Act or the 1933 Act Regulations and foreign or state securities or blue sky laws.
(ix) 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.
(xi) Ownership of Interests. Upon consummation of the transactions
contemplated hereby, the Trust will own the Interests free and clear of any Security
Interest.
12
(xii) 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.
SECTION 2. Sale and Delivery to Underwriters; Closing.
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
13
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. Xxxxxxx Xxxxx, 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.
SECTION 3. Covenants of the Company. The Company, for itself and as sponsor of the
Trust, covenants with each Underwriter as follows:
14
within the time required by Rule 456(b)(1) (i) of
the 1933 Act Regulations without regard to the proviso therein and otherwise in accordance with
Rules 456(b) and 457(r) of the 1933 Act Regulations.
15
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. If at any time following issuance of an Issuer Free
Writing Prospectus there occurred or occurs an event or development as a result of which such
Issuer Free Writing Prospectus conflicted or would conflict with the information contained in the
Registration Statement relating to the Securities or included or would include an untrue statement
of a material fact or omitted or would omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances, prevailing at that subsequent time, not
misleading, the Company will promptly notify the Representatives and will promptly amend or
supplement, at its own expense, such Issuer Free Writing Prospectus to eliminate or correct such
conflict, untrue statement or omission. If at any time prior to the filing of the Prospectus
pursuant to Rule 424(b), any event occurs as a result of which the General Disclosure Package would
include any untrue statement of a material fact or omit to state any material fact necessary to
make the statements therein in the light of the circumstances under which they were made or the
circumstances then prevailing not misleading, the Company will (i) notify promptly the
Representatives so that any use of the General Disclosure Package may cease until it is amended or
supplemented; (ii) amend or supplement the General Disclosure Package to correct such statement or
omission; and (iii) supply any amendment or supplement to you in such quantities as the
Representatives may reasonably request.
16
respect to any of the forgoing
(except a registration statement filed in accordance with the Registration Rights Agreement or a
registration statement on Form 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.
SECTION 4. Payment of Expenses.
17
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 and (xii) the fees and expenses of the
Independent Underwriter.
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:
(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 Xxxxxxxx & 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 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.
18
(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 Austin 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.
(i) | KPMG LLP, with respect to the Trust and the Company. |
||
(ii) | KPMG LLP, with respect to Connect M1-A1 Holdings Limited. |
||
(iii) | Xxxxx & Young LLP, with respect to International-Matex Tank Terminals. |
||
(iv) | Deloitte & Touche LLP, with respect to The Gas Company. |
19
(i) Listing. The Company will use its best efforts to effect the listing of the Securities on
the New York Stock Exchange.
(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(e) 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(f) hereof remains true and correct as of such Date of
Delivery. |
||
(iv) | Opinion of Counsel for the Trust and the Company. The
favorable opinion of Xxxxxxxx & 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. |
||
(v) | Opinion of Delaware Counsel for the Trust and the
Company. The favorable opinion of Xxxxxx Xxxxxxxx & Xxxxxxx 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. |
||
(vi) | Opinion of Counsel for Underwriters. The favorable
opinion of Xxxxxx Xxxxxx 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. |
20
(vii) | Bring-down Comfort Letters. A letter from each of the
auditors listed in Section 5(g), 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(g) 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. |
SECTION 6. Indemnification.
(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 430B
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 , any Issuer Free Writing Prospectus, the General Disclosure Package
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;
21
(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 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 430B Information
or any preliminary prospectus, any Permitted Free Writing Prospectus, the General Disclosure
Package 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.
22
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.
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, 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
23
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 Xxxxxxx Xxxxx 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
1933 Act) shall be entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation.
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 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 Company and (ii) delivery of and
payment for the Securities.
24
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
or the General Disclosure Package, 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.
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 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.
25
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 11.
SECTION 11. 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
Xxxxxxx Xxxxx & Co., Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, 4 World Financial Center,
New York, New York 10080, Attention of: Xxxxx Xxxxxx, Citigroup Global Markets Inc., at 000
Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, 00000, Attention of: General Counsel and Credit Suisse
Securities (USA) LLC, at Xxxxxx Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention of: General
Counsel; and notices to the Trust and to the Company shall be directed to it at 000 Xxxx
00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention of: Xxxxx Xxxxxx.
SECTION 12. No Advisory or Fiduciary Relationship. The Company for itself and as
sponsor of the Trust acknowledges and agrees that (a) the purchase and sale of the Securities
pursuant to this Agreement, including the determination of the public offering price of the
Securities and any related discounts and commissions, is an arm’s-length commercial transaction
between the Company, on the one hand, and the several Underwriters, on the other hand, (b) in
connection with the offering contemplated hereby and the process leading to such transaction each
Underwriter is and has been acting solely as a principal and is not the agent or fiduciary of the
Company, or its respective stockholders, creditors, employees or any other party, (c) no
Underwriter has assumed or will assume an advisory or fiduciary responsibility in favor of the
Company with respect to the offering contemplated hereby or the process leading thereto
(irrespective of whether such Underwriter has advised or is currently advising the Company on other
matters) and no Underwriter has any obligation to the Company with respect to the offering
contemplated hereby except the obligations expressly set forth in this Agreement, (d) the
Underwriters and their respective affiliates may be engaged in a broad range of transactions that
involve interests that differ from those of each of the Company, and (e) the Underwriters have not
provided any legal, accounting, regulatory or tax advice with respect to the offering contemplated
hereby and the Company and has consulted its own respective legal, accounting, regulatory and tax
advisors to the extent it deemed appropriate.
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 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.
26
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.
27
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 and the Company
in accordance with its terms.
MACQUARIE INFRASTRUCTURE COMPANY TRUST, by Xxxxx Xxxxxx, as Regular Trustee |
||||||
By | /s/ Xxxxx Xxxxxx | |||||
Name: Xxxxx Xxxxxx | ||||||
Title: Regular Trustee |
MACQUARIE INFRASTRUCTURE COMPANY LLC, for itself and as sponsor of the Trust | ||||||
By | /s/ Xxxxx Xxxxxx | |||||
Name: Xxxxx Xxxxxx | ||||||
Title: Chief Executive Officer |
S-1
The undersigned 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.
CONFIRMED AND ACCEPTED,
as of the date first above written:
XXXXXXX XXXXX & CO.
XXXXXXX XXXXX, XXXXXX, XXXXXX & XXXXX
XXXXXXX XXXXX, XXXXXX, XXXXXX & XXXXX
INCORPORATED
By:
|
XXXXXXX XXXXX, XXXXXX, XXXXXX & XXXXX | |||
INCORPORATED | ||||
By: |
/s/ Xxxxx Xxxxxx | |||
CITIGROUP GLOBAL MARKETS INC. | ||||
By: |
/s/ Xxxx Xxxx | |||
CREDIT SUISSE SECURITIES (USA) LLC | ||||
By: |
/s/ Xxxxxxxx Xxxxxxx | |||
For themselves and as Representatives of the | ||||
other Underwriters named in Schedule A hereto. |
S-2
SCHEDULE A
Underwriters
Number of | ||||
Initial | ||||
Name of Underwriters | Securities | |||
Xxxxxxx Lynch, Xxxxxx, Xxxxxx & Xxxxx
Incorporated |
2,520,000 | |||
Citigroup Global Markets Inc. |
2,520,000 | |||
Credit Suisse Securities (USA) LLC |
2,520,000 | |||
X.X. Xxxxxxx & Sons, Inc. |
405,000 | |||
Xxxxxxxxx & Company, Inc. |
405,000 | |||
Macquarie Securities (USA) Inc. |
405,000 | |||
Xxxxxx, Xxxxxxxx & Company, Incorporated |
225,000 | |||
Total |
9,000,000 | |||
Sch A-1
SCHEDULE B
Significant Subsidiaries
Atlantic Aviation FBO Inc.
Eagle Aviation Resources, Ltd.
ETT Nevada Inc.
Executive Air Support, Inc.
General Aviation Holdings, LLC
Macquarie Airports North America Inc.
Macquarie Americas Parking Corporation
Macquarie District Energy Holdings LLC
Macquarie Gas Holdings LLC
Macquarie Infrastructure Company Inc.
Macquarie Terminal Holdings LLC
Macquarie Yorkshire LLC
Newport FBO Two LLC
Palm Springs FBO Two LLC
The Gas Company, LLC
Thermal Chicago Corporation
Trajen Holdings, Inc.
Eagle Aviation Resources, Ltd.
ETT Nevada Inc.
Executive Air Support, Inc.
General Aviation Holdings, LLC
Macquarie Airports North America Inc.
Macquarie Americas Parking Corporation
Macquarie District Energy Holdings LLC
Macquarie Gas Holdings LLC
Macquarie Infrastructure Company Inc.
Macquarie Terminal Holdings LLC
Macquarie Yorkshire LLC
Newport FBO Two LLC
Palm Springs FBO Two LLC
The Gas Company, LLC
Thermal Chicago Corporation
Trajen Holdings, Inc.
Sch B-1
SCHEDULE C
Financial Entities
Auditor’s Standard of | ||||
Independence with | ||||
respect to the related | ||||
Financial Entity | Auditor | Financial Entity | ||
Macquarie
Infrastructure Company Trust |
KPMG LLP | registered public accounting firm under the 1933 Act and the Rules and Regulations (“RPAF”) | ||
IMTT Holdings Inc.
(formerly known as
Loving Enterprises,
Inc.)
|
Ernst & Young LLP | US GAAP | ||
Macquarie HGC
Investment LLC
(formerly known as K-1
HGC Investment,
L.L.C.)
|
Deloitte & Touche LLP | US GAAP | ||
Connect M1-A1 Holdings Limited |
KPMG LLP | RPAF |
Sch C-1
SCHEDULE D
All Subsidiaries
AAC Subsidiary, LLC
Airport Parking Management, Inc.
Atlantic Aviation Corporation
Atlantic Aviation FBO Inc.
Atlantic Aviation Flight Support, Inc.
Atlantic Aviation Holding Corporation
Atlantic Aviation Philadelphia, Inc.
BASI Holdings, LLC
Xxxxxxxx Airport Services, Inc.
Bridgeport Airport Services, Inc.
BTV AvCenter, Inc.
Charter Oak Aviation Inc.
COAI Holdings, LLC
Communications Infrastructure LLC
Eagle Aviation Resources Ltd.
ETT National Power, Inc.
ETT Nevada, Inc.
Executive Air Support, Inc.
FLI Subsidiary, LLC
Flightways of Long Island, Inc.
Futura Natural Gas LLC
General Aviation Holdings LLC
General Aviation of New Orleans, LLC
General Aviation, LLC
HGC Holdings LLC
HGC Investment Corporation
ILG Avcenter, 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 Gas Holdings LLC
Macquarie HGC Investment LLC
Macquarie Infrastructure Company Inc.
Macquarie Terminal Holdings LLC
Macquarie Yorkshire LLC
Macquarie Yorkshire Limited
MDE Thermal Technologies, Inc.
MIC European Financing S.a.r.L
Newport FBO Two LLC
Northwind Aladdin LLC
Northwind Chicago LLC
Northwind Midway, LLC
Palm Springs FBO Two LLC
Airport Parking Management, Inc.
Atlantic Aviation Corporation
Atlantic Aviation FBO Inc.
Atlantic Aviation Flight Support, Inc.
Atlantic Aviation Holding Corporation
Atlantic Aviation Philadelphia, Inc.
BASI Holdings, LLC
Xxxxxxxx Airport Services, Inc.
Bridgeport Airport Services, Inc.
BTV AvCenter, Inc.
Charter Oak Aviation Inc.
COAI Holdings, LLC
Communications Infrastructure LLC
Eagle Aviation Resources Ltd.
ETT National Power, Inc.
ETT Nevada, Inc.
Executive Air Support, Inc.
FLI Subsidiary, LLC
Flightways of Long Island, Inc.
Futura Natural Gas LLC
General Aviation Holdings LLC
General Aviation of New Orleans, LLC
General Aviation, LLC
HGC Holdings LLC
HGC Investment Corporation
ILG Avcenter, 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 Gas Holdings LLC
Macquarie HGC Investment LLC
Macquarie Infrastructure Company Inc.
Macquarie Terminal Holdings LLC
Macquarie Yorkshire LLC
Macquarie Yorkshire Limited
MDE Thermal Technologies, Inc.
MIC European Financing S.a.r.L
Newport FBO Two LLC
Northwind Aladdin LLC
Northwind Chicago LLC
Northwind Midway, LLC
Palm Springs FBO Two LLC
Sch D-1
Parking Company of America Airports 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 Missouri, LLC
PCAA Oakland, LLC
PCAA Parent, LLC
PCAA Properties, LLC
PCAA SP LLC
PCAA SP-OK LLC
RCL Properties LLC
Seacoast (PCAAH) Holdings Inc.
Sierra Aviation
The Gas Company LLC
Thermal Chicago Corporation
Trajen FBO, LLC
Trajen Flight Support, LP
Trajen Funding Inc.
Trajen Holdings, Inc.
Trajen Limited, LLC
Waukesha Flying Services, Inc.
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 Missouri, LLC
PCAA Oakland, LLC
PCAA Parent, LLC
PCAA Properties, LLC
PCAA SP LLC
PCAA SP-OK LLC
RCL Properties LLC
Seacoast (PCAAH) Holdings Inc.
Sierra Aviation
The Gas Company LLC
Thermal Chicago Corporation
Trajen FBO, LLC
Trajen Flight Support, LP
Trajen Funding Inc.
Trajen Holdings, Inc.
Trajen Limited, LLC
Waukesha Flying Services, Inc.
Sch D-2
SCHEDULE E
Macquarie Infrastructure Company Trust
9,000,000 Shares of Trust Stock
1. The public offering price per share for the Securities, determined as provided in
said Section 2, shall be $29.50.
2. The purchase price per share for the Securities to be paid by the several
Underwriters shall be $28.24625, being an amount equal to the initial public offering price
set forth above less $1.25375 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.
3. The number of Initial Securities offered shall be 9,000,000 shares of Trust Stock,
and the number of Option Securities subject to the overallotment option described in Section
2(b) shall be 1,350,000 shares of Trust Stock.
Sch E-1
SCHEDULE F
List of persons and entities subject to lock-up
Xxxxxx X. Xxxxx, Xx.
Xxxxxx X. Xxxxxxx, III
Xxxxx X. Xxxxx
Xxxx Xxxxxxx
Xxxxx Xxxxxx
Xxxxxxx X. Xxxx
Xxxxxxx Xxxxxxxxxxxxx
Xxxxxx X. Xxxxxxx, III
Xxxxx X. Xxxxx
Xxxx Xxxxxxx
Xxxxx Xxxxxx
Xxxxxxx X. Xxxx
Xxxxxxx Xxxxxxxxxxxxx
Macquarie Infrastructure Management (USA) Inc.
Sch F-1
SCHEDULE G
Issuer General Use Free Writing Prospectus
None.
Sch G-1
Exhibit A
[Form of Opinion of Shearman & Sterling LLP]
Ex A-1
Exhibit B
[Form of Opinion of Xxxxxx Xxxxxxxx & Xxxxxxx LLP]
Ex B-1
Exhibit C
Form of Lock-up Agreement
October [ ], 2006
October [ ], 2006
XXXXXXX XXXXX & CO.
Xxxxxxx Xxxxx, Xxxxxx, Xxxxxx & Xxxxx
Xxxxxxx Xxxxx, Xxxxxx, Xxxxxx & Xxxxx
Incorporated
4 World Financial Center
New York, New York 10080
New York, New York 10080
Citigroup Global Markets Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Credit Suisse Securities (USA) LLC
Xxxxxx Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxx Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
as Representatives of the several Underwriters
named in the Purchase Agreement
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 Xxxxxxx Xxxxx & Co., Xxxxxxx
Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, Citigroup Global Markets Inc. and Credit Suisse
Securities (USA) LLC (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 90 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.
Ex C-1
Very truly yours, | ||||||
Signature: | ||||||
Print Name: | ||||||
Ex C-2