Exhibit 2.1
EXECUTION COPY
STOCK PURCHASE AGREEMENT
Between
MACQUARIE SPECIALISED ASSET MANAGEMENT LIMITED
as Trustee for and on behalf of
MACQUARIE GLOBAL INFRASTRUCTURE FUND A
and
MACQUARIE SPECIALISED ASSET MANAGEMENT 2 LIMITED
as Trustee for and on behalf of
MACQUARIE GLOBAL INFRASTRUCTURE FUND B
and
MACQUARIE INFRASTRUCTURE ASSETS INC.
Dated as of June 7, 2004
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS
SECTION 1.01. Certain Defined Terms.............................................. 1
SECTION 1.02. Definitions........................................................ 6
ARTICLE II
PURCHASE AND SALE
SECTION 2.01. Purchase and Sale of the Shares.................................... 6
SECTION 2.02. Purchase Price..................................................... 7
SECTION 2.03. Closing............................................................ 7
SECTION 2.04. Closing Deliveries by the Sellers.................................. 7
SECTION 2.05. Closing Deliveries by the Purchaser................................ 8
ARTICLE III
REPRESENTATIONS AND WARRANTIES
OF THE SELLERS
SECTION 3.01. Organization, Authority and Qualification of the Sellers........... 8
SECTION 3.02. Organization, Authority and Qualification of the Company........... 8
SECTION 3.03. Subsidiaries....................................................... 9
SECTION 3.04. Capitalization..................................................... 9
SECTION 3.05. No Conflict........................................................ 9
SECTION 3.06. Consents and Approvals............................................. 9
SECTION 3.07. Litigation......................................................... 9
SECTION 3.08. Compliance with Laws............................................... 10
SECTION 3.09. Taxes.............................................................. 10
SECTION 3.10. Insurance.......................................................... 11
SECTION 3.11. Financial Statements............................................... 11
SECTION 3.12. Environmental Matters.............................................. 11
SECTION 3.13. Brokers............................................................ 13
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
OF THE PURCHASER
SECTION 4.01. Organization and Authority of the Purchaser........................ 13
SECTION 4.02. No Conflict........................................................ 13
SECTION 4.03. Consents and Approvals............................................. 13
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SECTION 4.04. Brokers............................................................ 13
ARTICLE V
ADDITIONAL AGREEMENTS
SECTION 5.01. Conduct of Business Prior to the Closing........................... 14
SECTION 5.02. Access to Information.............................................. 14
SECTION 5.03. Confidentiality.................................................... 14
SECTION 5.04. Regulatory and Other Authorizations; Notices and Consents.......... 15
SECTION 5.05. Notice of Developments............................................. 16
SECTION 5.06. No Solicitation or Negotiation..................................... 16
SECTION 5.07. Release of Indemnity Obligations................................... 16
SECTION 5.08. Further Assurances................................................. 17
SECTION 5.09. Further Action..................................................... 17
SECTION 5.10. Notice of Termination of Initial Public Offering................... 17
SECTION 5.11. Company's Obligations.............................................. 17
SECTION 5.12. Non-Competition.................................................... 17
SECTION 5.13. Non-Solicitation................................................... 17
ARTICLE VI
TAX MATTERS
SECTION 6.01. Preparation and Filing of Tax Returns; Payment of Taxes............ 18
SECTION 6.02. Transfer and Similar Taxes......................................... 18
SECTION 6.03. Tax Indemnification................................................ 18
SECTION 6.04. Contests........................................................... 18
SECTION 6.05. Miscellaneous...................................................... 19
ARTICLE VII
INDEMNIFICATION
SECTION 7.01. Survival of Representations and Warranties......................... 20
SECTION 7.02. Indemnification by the Sellers..................................... 20
SECTION 7.03. Indemnification by the Purchaser................................... 21
SECTION 7.04. Limits on Indemnification.......................................... 21
SECTION 7.05. Tax Treatment...................................................... 21
SECTION 7.06. Third Party Claims................................................. 21
SECTION 7.07. Exclusive Remedy................................................... 22
ARTICLE VIII
CONDITIONS TO CLOSING
SECTION 8.01. Conditions to Obligations of the Sellers........................... 22
SECTION 8.02. Conditions to Obligations of the Purchaser......................... 23
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ARTICLE IX
TERMINATION, AMENDMENT AND WAIVER
SECTION 9.01. Termination........................................................ 24
SECTION 9.02. Effect of Termination.............................................. 25
ARTICLE X
GENERAL PROVISIONS
SECTION 10.01. Expenses.......................................................... 25
SECTION 10.02. Notices........................................................... 26
SECTION 10.03. Public Announcements.............................................. 27
SECTION 10.04. Severability...................................................... 27
SECTION 10.05. Entire Agreement.................................................. 27
SECTION 10.06. Assignment........................................................ 27
SECTION 10.07. Amendment......................................................... 27
SECTION 10.08. Waiver............................................................ 27
SECTION 10.09. No Third Party Beneficiaries...................................... 28
SECTION 10.10. Waiver of Jury Trial.............................................. 28
SECTION 10.11. Governing Law..................................................... 28
SECTION 10.12. Counterparts...................................................... 28
SECTION 10.13. Capacity of Trustees.............................................. 29
iii
DISCLOSURE SCHEDULE
The Disclosure Schedule shall include the following Sections:
3.03 Subsidiaries
3.06 Consents and Approvals
3.07 Litigation
3.09 Taxes
3.11(b) Financial Statements
3.12 Environmental Matters
4.03 Consents and Approvals
5.01 Conduct of Business Prior to the Closing
8.01(d) Legal Opinion
8.02 (e) Legal Opinion
8.02 (f) Consents and Approvals
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STOCK PURCHASE AGREEMENT (this "Agreement"), dated as of June
__, 2004, between MACQUARIE SPECIALISED ASSET MANAGEMENT LIMITED, as Trustee for
and on behalf of MACQUARIE GLOBAL INFRASTRUCTURE FUND A ("Trustee 1") and
MACQUARIE SPECIALISED ASSET MANAGEMENT 2 LIMITED, as Trustee for and on behalf
of MACQUARIE GLOBAL INFRASTRUCTURE FUND B ("Trustee 2" and collectively with
Trustee 1, the "Sellers"), and MACQUARIE INFRASTRUCTURE ASSETS INC., a Delaware
corporation or its wholly owned subsidiary (the "Purchaser").
WHEREAS, the Sellers own all the issued and outstanding shares
(the "Shares") of common stock, $.01 par value per share (the "Common Stock"),
of MACQUARIE AMERICAS PARKING CORPORATION INC., a Delaware corporation (the
"Company");
WHEREAS, each of the Sellers in its role as the Trustee for
Macquarie Global Infrastructure Funds A and B has the authority to manage, sell,
transfer and convey the Shares.
WHEREAS, the Company, through its subsidiaries, is engaged in
the business of operating and managing the on-site airport parking operations,
non-airport parking operations, parking management services, vehicle repair and
maintenance services and transportation services at various locations in the
United States (the "Business"); and
WHEREAS, the Sellers wish to sell to the Purchaser, and the
Purchaser wishes to purchase from the Sellers, the Shares, upon the terms and
subject to the conditions set forth herein;
NOW, THEREFORE, in consideration of the promises and the
mutual agreements and covenants hereinafter set forth, and intending to be
legally bound, the Sellers and the Purchaser hereby agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. Certain Defined Terms. For purposes of this
Agreement:
"Action" means any claim, action, suit, arbitration, inquiry,
proceeding or investigation by or before any Governmental Authority.
"Actual Cash Balance" means the amount (if any) of the Company
and its Subsidiaries cash in hand or in the bank accounts on the Closing Date,
in excess of the reserves that the Company is required to maintain under the
GMAC Loan Agreement on the Closing Date.
"Affiliate" means, with respect to any specified Person, any
other Person that directly, or indirectly through one or more intermediaries,
controls, is controlled by, or is under common control with, such specified
Person.
"Base Cash Balance" means $2,000,000.
"Business Day" means any day that is not a Saturday, a Sunday
or other day on which banks are required or authorized by Law to be closed in
The City of New York.
"CERCLA" means the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended through the Closing.
"Claims" means any and all administrative, regulatory or
judicial actions, suits, petitions, appeals, demands, demand letters, claims,
liens, notices of noncompliance or violation, investigations, proceedings,
consent orders or consent agreements.
"Code" means the Internal Revenue Code of 1986, as amended.
Any reference herein to a specific section of the Code shall be deemed to
include a reference to any corresponding provision of future Law.
"control" (including the terms "controlled by" and "under
common control with"), with respect to the relationship between or among two or
more Persons, means the possession, directly or indirectly or as trustee,
personal representative or executor, of the power to direct or cause the
direction of the affairs or management of a Person, whether through the
ownership of voting securities, as trustee, personal representative or executor,
by contract, credit arrangement or otherwise.
"Disclosure Schedule" means the Disclosure Schedule attached
hereto, dated as of the date hereof, delivered by the Sellers to the Purchaser
in connection with this Agreement.
"Encumbrance" means any security interest, pledge,
hypothecation, mortgage, lien (including environmental and Tax liens),
violation, charge, lease, license, encumbrance, servient easement, adverse
claim, reversion, reverter, preferential arrangement, restrictive covenant,
condition or restriction of any kind, including any restriction on the use,
voting, transfer, receipt of income or other exercise of any attributes of
ownership.
"Environmental Claims" means any Claims relating in any way to
any Environmental Law or any Environmental Permit, including (a) any and all
Claims by Governmental Authorities for enforcement, cleanup, removal, response,
remedial or other actions or damages pursuant to any applicable Environmental
Law and (b) any and all Claims by any Person seeking damages, contribution,
indemnification, cost recovery, compensation or injunctive relief resulting from
Hazardous Materials or arising from alleged injury or threat of injury to
health, safety or the Environment.
"Environmental Laws" means all Laws, now or hereafter in
effect and as amended, and any judicial or administrative interpretation
thereof, including any judicial or administrative order, consent decree or
judgment, relating to the environment, health, safety, natural resources or
Hazardous Materials, including CERCLA; the Resource Conservation and Recovery
Act, 42 U.S.C. Sections 6901 et seq.; the Hazardous Materials Transportation
Act, 49 U.S.C. Sections 6901 et seq.; the Clean Water Act, 33 U.S.C. Sections
1251 et seq.; the Toxic Substances Control Act, 15 U.S.C. Sections 2601 et seq.;
the Clean Air Act, 42 U.S.C. Sections 7401 et seq.; the Safe Drinking Water Act,
42 U.S.C. Sections 300f et seq.; the Atomic Energy Act, 42 U.S.C. Sections 2011
et seq.; the Federal Insecticide, Fungicide and Rodenticide Act, 7 U.S.C.
Sections 136 et seq.; and the Federal Food, Drug and Cosmetic Act, 21 U.S.C.
Sections 301 et seq.
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"Environmental Permits" means all permits, approvals,
identification numbers, licenses and other authorizations required under or
issued pursuant to any applicable Environmental Law.
"Excluded Taxes" means (i) Taxes imposed on or payable by the
Company for any Pre-Closing Periods, (ii) Taxes imposed on or payable by the
Company or any Purchaser Indemnified Party as a result of any breach of warranty
or representation under Section 3.09 or breach of any covenant herein relating
to Taxes and (iii) Taxes of another Person imposed upon or payable by the
Company with respect to any taxable period or portion thereof ending on or
before the Closing Date.
"GMAC Loan Agreement" means the loan agreement entered into on
October 1, 2003 amongst Parking Company of America Airports, LLC, PCA Airports,
Ltd., Parking Company of America Airports Phoenix, LLC and GMAC Commercial
Mortgage Corporation.
"Governmental Authority" means any federal, national,
supranational, state, provincial, local, or similar government, governmental,
regulatory or administrative authority, agency or commission or any court,
tribunal, or judicial or arbitral body.
"Governmental Authorizations" shall mean any consent, license,
registration or permit issued, granted, given or otherwise made available by or
under the authority of any Governmental Authority or pursuant to any legal
requirement, in each case in connection with the operation of the Business.
"Governmental Order" means any order, writ, judgment,
injunction, decree, stipulation, determination or award entered by or with any
Governmental Authority.
"Hazardous Materials" means (a) petroleum and petroleum
products, radioactive materials, asbestos-containing materials, urea
formaldehyde foam insulation, transformers or other equipment that contain
polychlorinated biphenyls and radon gas, (b) any other chemicals, materials or
substances defined as or included in the definition of "hazardous substances",
"hazardous wastes", "hazardous materials", "extremely hazardous wastes",
"restricted hazardous wastes", "toxic substances", "toxic pollutants",
"contaminants" or "pollutants", or words of similar import, under any applicable
Environmental Law, and (c) any other chemical, material or substance which is
regulated by any Environmental Law.
"HSR Act" means the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements
Act of 1976, as amended, and the rules and regulations promulgated thereunder.
"Indemnifying Party" means the Sellers pursuant to Section
7.02 and the Purchaser pursuant to Section 7.03, as the case may be, or either
party pursuant to Section 7.06.
"Knowledge" means the actual knowledge of the executive
officers of the Company, Xxxxxxx Xxxxxxx and Xxxxxxx Xxxxxxx.
"Law" means any federal, national, supranational, state,
provincial, local or similar statute, law, ordinance, regulation, rule, code,
order, requirement or rule of law (including common law).
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"Liabilities" means any and all debts, liabilities and
obligations, whether accrued or fixed, absolute or contingent, matured or
unmatured or determined or determinable, including those arising under any Law,
Action or Governmental Order and those arising under any contract, agreement,
arrangement, commitment or undertaking.
"Macquarie Global Infrastructure Fund A" means the Series A
specialty investment fund managed by Macquarie Specialised Asset Management
Limited.
"Macquarie Global Infrastructure Fund B" means the Series B
specialty investment fund managed by Macquarie Specialised Asset Management 2
Limited.
"Material Adverse Effect" means any circumstance, change in or
effect on the Business, the Company or any Subsidiary that, individually or in
the aggregate with all other circumstances, changes in or effects on the
Business, the Company or any Subsidiary: (a) is or is reasonably likely to be
materially adverse to the business, operations, assets or liabilities (including
contingent liabilities), employee relationships, customer or supplier
relationships, results of operations or the condition (financial or otherwise)
of the Business, the Company or any Subsidiary or (b) is reasonably likely to
materially adversely affect the ability of the Purchaser to operate or conduct
the Business in the manner in which it is currently operated or conducted by the
Company or any Subsidiary.
"MGIF" means Macquarie Global Infrastructure Funds A and B.
"MIAT" means Macquarie Infrastructure Assets Trust.
"Minimum Cash Balance" means the Base Cash Balance plus the
Tax Cash Balance.
"Permitted Encumbrances" means such of the following as to
which no enforcement, collection, execution, levy or foreclosure proceeding
shall have been commenced and as to which neither the Company nor any Subsidiary
is otherwise subject to civil or criminal liability due to its existence: (a)
liens for Taxes not yet due and payable, for which adequate reserves have been
maintained in accordance with GAAP; (b) Encumbrances imposed by Law, such as
materialmen's, mechanics', carriers', workmen's and repairmen's liens and other
similar liens arising in the ordinary course of business securing obligations
that (i) are not overdue for a period of more than 30 days and (ii) are not in
excess of $5,000 in the case of a single property or $50,000 in the aggregate at
any time; (c) pledges or deposits to secure obligations under workers'
compensation laws or similar legislation or to secure public or statutory
obligations; and (d) minor survey exceptions, reciprocal easement agreements and
other customary encumbrances on title to real property that (i) were not
incurred in connection with any indebtedness, (ii) do not render title to the
property encumbered thereby unmarketable and (iii) do not, individually or in
the aggregate, materially adversely affect the value of or the use of such
property for its current and anticipated purposes.
"Person" means any individual, partnership, firm, corporation,
limited liability company, association, trust, unincorporated organization or
other entity, as well as any syndicate or group that would be deemed to be a
person under Section 13(d)(3) of the Securities Exchange Act of 1934, as
amended.
4
"Post-Closing Straddle Period" means the portion of a Straddle
Period beginning the day after the Closing Date.
"Pre-Closing Periods" means any taxable period ending on or
before the Closing Date.
"Pre-Closing Straddle Period" means the portion of a Straddle
Period ending on the Closing Date.
"Property Taxes" means real and personal property Taxes and
any other Taxes imposed on a periodic basis and measured by the value of any
item.
"Purchase Price Adjustment" means 45% of the amount determined
by subtracting the Actual Cash Balance from the Minimum Cash Balance.
"Release" means disposing, discharging, injecting, spilling,
leaking, leaching, dumping, emitting, escaping, seeping, placing and the like
into or upon any land or water or air or otherwise entering into the
Environment.
"Straddle Period" means any taxable period beginning before
the Closing Date and ending after the Closing Date.
"Subsidiaries" means Parking Company of America Airports
Holdings, LLC, PCAA Parent, LLC, Parking Company of America Airports, LLC, PCAA
GP, LLC, PCAA LP, LLC, PCA Airports, Ltd, Parking Company of America Airports
Phoenix, LLC, PCAA Chicago, LLC, PCAA Oakland, LLC, PCAA Properties, LLC and any
and all corporations, partnerships, limited liability companies, joint ventures,
associations and other entities controlled by the Company directly or indirectly
through one or more intermediaries.
"Tax" or "Taxes" means (i) any and all taxes, fees, levies,
duties, tariffs, imposts, and other charges of any kind (together with any and
all interest, penalties, additions to tax and additional amounts imposed with
respect thereto) imposed by any government or taxing authority, including taxes
or other charges on or with respect to income, franchises, windfall or other
profits, gross receipts, property, sales, use, capital stock, payroll,
employment, social security, workers' compensation, unemployment compensation,
or net worth; taxes or other charges in the nature of excise, withholding, ad
valorem, stamp, transfer, value added, or gains taxes; license, registration and
documentation fees; and customs' duties, tariffs, and similar charges, (ii) any
Liability for the payment of any Tax as a result of membership in any
affiliated, consolidated, combined or unitary group of corporations and (iii)
any transferee or secondary Liability in respect of any Tax (whether imposed by
Law or contractual arrangement).
"Tax Cash Balance" means a good faith estimate of the amount
of Taxes accrued by the Company and its Subsidiaries in the Pre-Closing Straddle
Period. Such amount shall be certified by the Sellers in a certificate delivered
to the Purchaser one Business Day prior to the Closing Date. Such certificate
will be sufficiently detailed so as to facilitate the Purchaser's full and
complete understanding of the calculation of the Tax Cash Balance.
5
"Tax Returns" means any return, declaration, report, election,
claim for refund or information return or other statement or form relating to,
filed or required to be filed with any Taxing authority, including any schedule
or attachment thereto, and including any amendment thereof.
"Trustees" means Macquarie Specialised Asset Management
Limited and Macquarie Specialised Asset Management 2 Limited.
SECTION 1.02. Definitions. The following terms have the
meanings set forth in the Sections set forth below:
Definition Location
---------- --------
"Agreement" ......................... Preamble
"Basket Amount"...................... 7.04
"Business"........................... Recitals
"Closing"............................ 2.03
"Closing Date" ...................... 2.03
"Common Stock" ...................... Recitals
"Company"............................ Recitals
"Competing Business" ................ 5.12
"Contest"............................ 6.04(b)
"Financial Statements". ............. 3.11(a)
"Loss"............................... 7.02
"Purchase Price"..................... 2.02(a)
"Purchaser" ......................... Preamble
"Purchaser Indemnified Party" ....... 7.02
"Seller Indemnified Party" .......... 7.03
"Sellers"............................ Preamble
"Shares" ............................ Recitals
"Tax Indemnity Payments".. .......... 6.03(b)
"Term".. ............................ 5.12
"Third Party Claim" ................. 7.06
"Transfer Taxes"..................... 6.02
"Trustee 1" ......................... Preamble
"Trustee 2" ......................... Preamble
ARTICLE II
PURCHASE AND SALE
SECTION 2.01. Purchase and Sale of the Shares. Upon the terms
and subject to the conditions of this Agreement, at the Closing, the Sellers
shall sell, assign, transfer, convey and deliver, free and clear of all
Encumbrances, to the Purchaser, the Shares of the Company, and the Purchaser
shall purchase the Shares of the Company.
6
SECTION 2.02. .Purchase Price. (a) In consideration of the sale and transfer
of the Shares, the parties hereto agree that, at the Closing, the Purchaser
shall pay and the Seller shall receive a total purchase price of $33,000,000
(the "Purchase Price"). The Purchaser shall deduct from the Purchase Price any
amounts required to be withheld or deducted under the Code or other applicable
Tax Law. Any amounts so deducted shall be remitted by the Purchaser to the
appropriate Governmental Authority on a timely basis.
(b)The Purchase Price shall be reduced and the Purchaser shall
not be required to pay on the Closing Date an amount (if any) equal to the
Purchase Price Adjustment.
(c) Subject to Section 2.02(a) and (b), the Purchase Price
shall be distributed as follows:
Macquarie Global Infrastructure Fund A: $16,500,000 less 50%
of the Purchase Price Adjustment, if any for 50% of the
outstanding Shares; and
Macquarie Global Infrastructure Fund B: $16,500,000 less 50%
of the Purchase Price Adjustment, if any for 50% of the
outstanding Shares.
SECTION 2.03. Closing. Subject to the terms and conditions of
this Agreement, the sale and purchase of the Shares contemplated by this
Agreement shall take place at a closing (the "Closing") to be held at the
offices of Shearman & Sterling LLP, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx at
10:00 A.M. New York time the fifteenth Business Day following the satisfaction
or waiver of all conditions to the obligations of the parties set forth in
Sections 8.01 and 8.02 or at such other place or at such other time or on such
other date as the Sellers and the Purchaser may mutually agree upon in writing
(the "Closing Date").
SECTION 2.04. Closing Deliveries by the Sellers. At the
Closing, the Sellers shall deliver or cause to be delivered to the Purchaser:
(a) stock certificates evidencing the Shares duly endorsed in
blank, or accompanied by stock powers duly executed in blank, in form
satisfactory to the Purchaser and with all required stock transfer tax
stamps affixed;
(b) receipts for the Purchase Price;
(c) a true and complete copy, certified by the Secretary or an
Assistant Secretary of each Seller, of the resolutions duly and validly
adopted by the Board of Directors of such Seller evidencing its
authorization of the execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby;
(d) good standing certificates for the Company and for each
Subsidiary from the Secretary of State of the jurisdiction in which
such entity is incorporated or organized and from the Secretary of
State in each other jurisdiction in which the properties owned or
leased by any of the Company or any Subsidiary, or the operation of its
business in such jurisdiction, requires the Company or any Subsidiary
to qualify to do business as a foreign corporation, in each case dated
as of a date not earlier than five Business Days prior to the Closing;
7
(e) the certificate, dated the Closing Date, contemplated by
Section 8.01(a); and
(f) such other documents and instruments reasonably requested
by the Purchaser to consummate the transactions contemplated hereby.
SECTION 2.05. Closing Deliveries by the Purchaser. (a) At the
Closing, the Purchaser shall deliver to the Sellers the Purchase Price by wire
transfer in immediately available funds to a bank account in the United States
to be designated by the Sellers in a written notice to the Purchaser at least
five Business Days before the Closing;
(b) the certificate, dated the Closing Date, contemplated by
Section 8.02(a); and
(c) such other documents and instruments reasonably requested
by the Sellers to consummate the transactions contemplated hereby.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
OF THE SELLERS
As an inducement to the Purchaser to enter into this
Agreement, each Seller, jointly and severally hereby represents and warrants to
the Purchaser as follows:
SECTION 3.01. Organization, Authority and Qualification of the
Sellers. Each Seller is a corporation duly organized, validly existing and in
good standing under the laws of the jurisdiction of its incorporation and has
all necessary power and authority to enter into this Agreement, to carry out its
obligations hereunder and to consummate the transactions contemplated hereby.
The execution and delivery of this Agreement by each Seller, the performance by
such Seller of its obligations hereunder and the consummation by such Seller of
the transactions contemplated hereby have been duly authorized by all requisite
action on the part of such Seller and its Board of Directors. This Agreement has
been duly executed and delivered by each Seller, and (assuming due
authorization, execution and delivery by the Purchaser) this Agreement
constitutes a legal, valid and binding obligation of each Seller, enforceable
against such Seller in accordance with its respective terms. Each Seller has the
authority to transfer and convey, valid and legal title of the Shares to the
Purchaser.
SECTION 3.02. Organization, Authority and Qualification of the
Company. The Company is a corporation duly organized, validly existing and in
good standing under the laws of the jurisdiction of its incorporation and has
all necessary power and authority to own, operate or lease the properties and
assets now owned, operated or leased by it and to carry on the Business as it
has been and is currently conducted. The Company is duly licensed or qualified
to do business and is in good standing in each jurisdiction in which the
properties owned or leased by it or the operation of its business makes such
licensing or qualification necessary or desirable. All corporate actions taken
by the Company have been duly authorized, and the Company has not taken any
action that in any respect conflicts with, constitutes a default under or
results in a
8
violation of any provision of its certificate of incorporation or by-laws. True
and correct copies of the certificate of incorporation and by-laws of the
Company, each as in effect on the date hereof, have been delivered by the
Sellers to the Purchaser.
SECTION 3.03. Subsidiaries. Section 3.03 of the Disclosure
Schedule sets forth a true and complete list of all Subsidiaries, listing for
each Subsidiary its name, type of entity, the jurisdiction and date of its
incorporation or organization, its authorized capital stock, partnership capital
or equivalent, the number and type of its issued and outstanding shares of
capital stock, partnership interests or similar ownership interests and the
current ownership of such shares, partnership interests or similar ownership
interests.
SECTION 3.04. Capitalization. The authorized capital stock of
the Company consists of 1000 shares of Common Stock. As of the date hereof, 24
shares of Common Stock are issued and outstanding, all of which are validly
issued, fully paid and nonassessable. None of the issued and outstanding shares
of Common Stock was issued in violation of any preemptive rights. There are no
outstanding contractual obligations of the Company to repurchase, redeem or
otherwise acquire any shares of Common Stock or to provide funds to, or make any
investment (in the form of a loan, capital contribution or otherwise) in, any
other Person. The Shares constitute all of the issued and outstanding capital
stock of the Company and are owned of record and beneficially by the Sellers
free and clear of all Encumbrances. Upon consummation of the transactions
contemplated by this Agreement and registration of the Shares in the name of the
Purchaser in the stock records of the Company, the Purchaser, assuming it shall
have purchased the Shares for value in good faith and without notice of any
adverse claim, will own all the issued and outstanding capital stock of the
Company free and clear of all Encumbrances. Upon consummation of the
transactions contemplated by this Agreement, the Shares will be fully paid and
nonassessable.
SECTION 3.05. No Conflict. The execution, delivery and
performance of this Agreement by each Seller does not and will not (a) violate,
conflict with or result in the breach of any provision of the certificate of
incorporation or by-laws (or similar organizational documents) of each Seller,
the Company and its Subsidiaries or (b) conflict with or violate any Law or
Governmental Order applicable to each Seller, the Company or its Subsidiaries or
any of their respective assets, properties or businesses or (c) conflict in any
material respect with, or result in any breach of, or constitute a default under
any agreement to which such Seller is a party or by which it or any of its
assets or properties may be bound or (d) result in or require the creation of
any Encumbrance, except for a Permitted Encumbrance, upon the Business and the
underlying assets.
SECTION 3.06. Consents and Approvals. All material consents
which are necessary for the execution, delivery and performance by the Sellers
of this Agreement are set forth in Section 3.06 of the Disclosure Schedule. For
the avoidance of doubt, the only Consents required as a condition of the
obligations of the parties to consummate the Closing are those set forth in
Section 8.02 hereof.
SECTION 3.07. Litigation. Except as set forth in Section 3.07
of the Disclosure Schedule, there are no material proceedings by any Person or
Governmental Authority pending,
9
or, to the Knowledge of each Seller, threatened relating to or affecting the
Company, its Subsidiaries or the Business.
SECTION 3.08. Compliance with Laws. The Company and its
Subsidiaries have conducted and continue to conduct the Business in accordance
with all Laws and Governmental Orders applicable to the Company and its
Subsidiaries except where the failure to do so would have a Material Adverse
Effect and the Company and its Subsidiaries are not in any material violation of
any such Law or Governmental Order.
SECTION 3.09. Taxes. Except as set forth in Section 3.09 of
the Disclosure Schedule:
(a) The Sellers, the Company and its Subsidiaries have duly
and accurately filed when due, including any extensions, all Tax
Returns in connection with the Company, its Subsidiaries and the
Business. All such Tax Returns are correct and complete in all material
respects.
(b) The Sellers, the Company and its Subsidiaries have timely
paid and discharged any and all Tax obligations with respect to the
Company and its Subsidiaries and the Business, whether or not shown on
any Tax Return. The Sellers, the Company and its Subsidiaries have
timely discharged any and all obligations to withhold and remit any
Taxes required to be withheld by or with respect to the Company and its
Subsidiaries and the Business.
(c) Neither the Sellers nor the Company or any of its
Subsidiaries have received notice of any Tax deficiency outstanding,
proposed or assessed against or allocable to the Company or any of its
Subsidiaries, nor has the Company or any of its Subsidiaries executed
any waiver of any statute of limitations on the assessment or
collection of any Tax, or executed or filed with the Internal Revenue
Service or any other Taxing authority any agreement now in effect
extending the period for assessment or collection of any Taxes against
the Company or any of its Subsidiaries.
(d) There are no actions, suits, proceedings, audits,
investigations or claims pending, in progress, or to the Sellers'
Knowledge, threatened against the Company or any of its Subsidiaries
with respect to Taxes. There are no Encumbrances for Taxes upon,
pending against, or to the Sellers' Knowledge, threatened against the
assets of the Business.
(e) There are no Tax sharing or Tax allocation agreements with
respect to which the Company or any of its Subsidiaries has been or
currently is a party.
(f) The Company or any of its Subsidiaries is not liable for
Taxes of another Person under Treasury Regulation Section 1.1502-6 (or
any similar provision of state, local or foreign Tax Law) as a
transferee or successor, by contract or otherwise liable.
(g) The income Tax Returns of the Company and its Subsidiaries
have disclosed any Tax positions that, if not disclosed, could give
rise to penalties under Section 6662 of the Code (or a similar
provision of state or local Tax Law).
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(g) No claim has been made by a Taxing authority in a
jurisdiction where the Company or any of its Subsidiaries does not file
Tax Returns that the Company or any of its Subsidiaries is or may be
subject to taxation by such jurisdiction. No power of attorney has been
granted with respect to any matter relating to Taxes that could affect
the Company or any of its Subsidiaries in any taxable period ending
after the Closing Date.
(i) The Company and its Subsidiaries were not, at any time
during the applicable period set forth in Section 897(c)(1) of the
Code, a United States real property holding corporation within the
meaning of Section 897(c)(2) of the Code.
(j) The Company and its Subsidiaries have not been required to
recognize income as a result of any adjustment pursuant to Section 481
of the Code (or a similar provision of state or local Tax Law) by
reason of a change in accounting method initiated by the Company, and
no Taxing authority has initiated or proposed any such adjustment or
change in accounting method. The Company and its Subsidiaries are not
required to include in a taxable period ending after the Closing Date
income that economically accrued in a taxable period ending on or prior
to the Closing Date but that was not recognized for Tax purposes in any
prior taxable period.
SECTION 3.10. Insurance. Section 3.10 of the Disclosure
Schedule contains a list and brief description of all policies of title,
property, fire, hazard, casualty, liability, life, worker's compensation and
other forms of insurance of any kind relating to the Business. All such policies
(a) are in full force and effect and (b) are valid, outstanding and enforceable
policies.
SECTION 3.11. Financial Statements. (a) True and complete
copies of the audited consolidated balance sheet and the related audited
consolidated statements of income and cash flows of the Company and its
Subsidiaries for the fiscal year ended as of December 31, 2003, and the
unaudited financial statements of the Company and its Subsidiaries for the
period ended March 31, 2004 (collectively, the "Financial Statements") have been
delivered by the Sellers to the Purchaser.
(b) The Financial Statements (i) were prepared in accordance
with the books of account and other financial records of the Company and the
Subsidiaries (except as may be indicated in the notes thereto or in Section
3.11(b) of the Disclosure Schedule) and (ii) present fairly in all material
respects the consolidated financial condition and results of operations of the
Company and the Subsidiaries as of the dates thereof or for the periods covered
thereby and (iii) were prepared in accordance with GAAP applied on a basis
consistent with the past practices of the Company and the Subsidiaries.
(c) Each Seller represents that the Business has been
conducted in the ordinary course of business, consistent with past practices of
the Company and each Subsidiary, since March 31, 2004.
SECTION 3.12. Environmental Matters. (a) Except as disclosed
in Section 3.12(a) of the Disclosure Schedule, there are no outstanding and
unresolved written
11
notices, pending or, to the Knowledge of each Seller, threatened actions from
any Governmental Authority or any other Person alleging that the Business is not
being or has not been conducted in material compliance with, or has violated
Environmental Laws or alleging that such Seller or the Company has any liability
for the Business under the Environmental Laws.
(b) Except as set forth in Section 3.12(b) of the Disclosure
Schedule, there are no pending or, to the Knowledge of each Seller, threatened
Environmental Claims, against such Seller or the Company and its Subsidiaries
which arise from the operation of the Business, or relate to any real property
currently or formerly owned, operated or leased by the Sellers as part of the
Business.
(c) Except as set forth in Section 3.12(c)(i) of the
Disclosure Schedule, each Seller, the Company and its Subsidiaries have obtained
all material Governmental Authorizations required under Environmental Laws to
operate the Business as currently operated. Section 3.12(c)(ii) of the
Disclosure Schedule sets forth a true and complete list of all Governmental
Authorizations issued to each Seller or the Company and its Subsidiaries to
operate the Business. To the Knowledge of each Seller, Section 3.12(c)(iii) of
the Disclosure Schedule describes Governmental Authorizations required under
Environmental Laws and issued to others, but upon which Seller relies for the
operation of the Business.
(d) Except as disclosed in Section 3.12(d) of the Disclosure
Schedule, each Seller, the Company and its Subsidiaries are in substantial
compliance with all Environmental Laws regarding the Business.
(e) The Sellers have furnished to the Purchaser a true and
accurate copy of the Phase I Environmental Assessment reports conducted by the
Company regarding the Business and dated as listed on Section 3.12(e) of the
Disclosure Schedule.
(f) Each Seller has furnished to the Purchaser copies of all
environmental assessments, reports, audits, and other documents and information
in its possession or under its control that relate to any real property
currently or formerly owned, operated or leased by such Seller or the Company or
its Subsidiaries regarding the Business.
(g) Except as set forth in Section 3.12(g) of the Disclosure
Schedule, to the Sellers' Knowledge, there has been no Release at any real
property currently or formerly owned, operated or leased by any Seller or the
Company in connection with the Business for which such Seller, the Company or
the Purchaser could be liable under the Environmental Laws, and the real
property is not subject to any state or federal environmental lien.
(h) Except in connection with the transfer of any Governmental
Authorizations listed in Sections 3.12(c)(i) and (ii) of the Disclosure
Schedule, no authorization, notification, recording, filing, consent, waiting
period, remedial action or approval is required by any Seller, the Company or
any of its Subsidiaries under any Environmental Law in order to consummate the
transaction contemplated by this Agreement.
(i) To the Sellers' Knowledge, neither Sellers nor the Company
or any of its Subsidiaries is listed as, or have been notified that it is, a
potentially responsible party under CERCLA or any comparable state statute as a
result of the operation of the Business.
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SECTION 3.13. Brokers. No broker, finder or investment banker
is entitled to any brokerage, finder's or other fee or commission in connection
with the transactions contemplated by this Agreement based upon arrangements
made by or on behalf of any Seller, the Company or any of its Subsidiaries.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
OF THE PURCHASER
As an inducement to the Sellers to enter into this Agreement,
the Purchaser hereby represents and warrants to the Sellers as follows:
SECTION 4.01. Organization and Authority of the Purchaser. The
Purchaser is a corporation duly organized, validly existing and in good standing
under the laws of the jurisdiction of its incorporation and has all necessary
corporate power and authority to enter into this Agreement, to carry out its
obligations hereunder and to consummate the transactions contemplated hereby.
The execution and delivery by the Purchaser of this Agreement, the performance
by the Purchaser of its obligations hereunder and the consummation by the
Purchaser of the transactions contemplated hereby have been duly authorized by
all requisite corporate action on the part of the Purchaser. This Agreement has
been duly executed and delivered by the Purchaser, and (assuming due
authorization, execution and delivery by each Seller) this Agreement constitutes
a legal, valid and binding obligation of the Purchaser, enforceable against the
Purchaser in accordance with its terms.
SECTION 4.02. No Conflict. Except as may result from any facts
or circumstances relating solely to the Sellers, the execution, delivery and
performance by the Purchaser of this Agreement does not and will not (a)
violate, conflict with or result in the breach of any provision of the
certificate of incorporation or by-laws of the Purchaser, (b) conflict with or
violate any Law or Governmental Order applicable to the Purchaser or (c)
conflict with, or result in any breach of, constitute a default (or event which
with the giving of notice or lapse of time, or both, would become a default)
under, require any consent under, or give to others any rights of termination,
amendment, acceleration, suspension, revocation or cancellation of, any note,
bond, mortgage or indenture, contract, agreement, lease, sublease, license,
permit, franchise or other instrument or arrangement to which the Purchaser is a
party, which would adversely affect the ability of the Purchaser to carry out
its obligations under, and to consummate the transactions contemplated by this
Agreement.
SECTION 4.03. Consents and Approvals. All consents, approvals,
ratifications, waiver, Governmental Authorizations or other authorizations
required to be obtained from any third party other than such consents, the
failure to obtain which will not have a Material Adverse Effect, which are
necessary for the execution and delivery by the Purchaser of this Agreement are
set forth in Section 4.03 of the Disclosure Schedule.
SECTION 4.04. Brokers. No broker, finder or investment banker
is entitled to any brokerage, finder's or other fee or commission in connection
with the transactions
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contemplated by this Agreement based upon arrangements made by or on behalf of
the Purchaser.
ARTICLE V
ADDITIONAL AGREEMENTS
SECTION 5.01. Conduct of Business Prior to the Closing. The
Sellers covenant and agree that, except as described in Section 5.01 of the
Disclosure Schedule, between the date hereof and the time of the Closing,
neither the Company nor any Subsidiary shall conduct its business other than in
the ordinary course and consistent with the Company's and such Subsidiary's
prior practice. Without limiting the generality of the foregoing, except as
described in Section 5.01 of the Disclosure Schedule, each Seller shall cause
the Company and each Subsidiary to (a) continue their advertising and
promotional activities, and pricing and purchasing policies, in accordance with
past practice, (b) not shorten or lengthen the customary payment cycles for any
of their payables or receivables, (c) use their best efforts to (i) preserve
intact their business organizations and the business organization of the
Business, (ii) keep available to the Purchaser the services of the employees of
the Company and each Subsidiary, (iii) continue in full force and effect without
material modification all existing policies or binders of insurance currently
maintained in respect of the Company, each Subsidiary and the Business and (iv)
preserve their current relationships with their customers, suppliers and other
persons with which they have had significant business relationships and (d) not
engage in any practice, take any action, fail to take any action or enter into
any transaction which could cause any representation or warranty of such Seller
to be untrue or result in a breach of any covenant made by such Seller in this
Agreement.
SECTION 5.02. Access to Information. From the date hereof
until the Closing, upon reasonable notice, each Seller shall cause its officers,
directors, employees, agents, representatives, accountants and counsel and shall
cause the Company and the Subsidiaries and each of the Company's and the
Subsidiaries' officers, directors, employees, agents, representatives,
accountants and counsel to: (a) afford the officers, employees, agents,
accountants, counsel, financing sources and representatives of the Purchaser
reasonable access, during normal business hours, to the offices, properties,
plants, other facilities, books and records of the Company and each Subsidiary
including access to enter upon such properties, plants and facilities to
investigate and collect air, surface water, groundwater and soil samples or to
conduct any other type of environmental assessment and to those officers,
directors, employees, agents, accountants and counsel of each Seller, the
Company and of each Subsidiary who have any Knowledge relating to the Company,
any Subsidiary or the Business and (b) furnish to the officers, employees,
agents, accountants, counsel, financing sources and representatives of the
Purchaser such additional financial and operating data and other information
regarding the assets, properties, liabilities and goodwill of the Company, the
Subsidiaries and the Business (or legible copies thereof) as the Purchaser may
from time to time reasonably request.
SECTION 5.03. Confidentiality. Each Seller agrees to, and
shall cause its agents, representatives, Affiliates, employees, officers and
directors to: (i) treat and hold as confidential (and not disclose or provide
access to any Person to) all information relating to trade secrets, processes,
patent applications, product development, price, customer and supplier lists,
pricing
14
and marketing plans, policies and strategies, details of client and consultant
contracts, operations methods, product development techniques, business
acquisition plans, new personnel acquisition plans and all other confidential or
proprietary information with respect to the Business, the Company and each
Subsidiary, (ii) in the event that any Seller or any such agent, representative,
Affiliate, employee, officer or director becomes legally compelled to disclose
any such information, provide the Purchaser with prompt written notice of such
requirement so that the Purchaser, the Company or any Subsidiary may seek a
protective order or other remedy or waive compliance with this Section 5.03,
(iii) in the event that such protective order or other remedy is not obtained,
or the Purchaser waives compliance with this Section 5.03, furnish only that
portion of such confidential information which is legally required to be
provided and exercise its best efforts to obtain assurances that confidential
treatment will be accorded such information, and (iv) promptly furnish (prior
to, at, or as soon as practicable following, the Closing) to the Company or the
Purchaser any and all copies (in whatever form or medium) of all such
confidential information then in the possession of each Seller or any of its
agents, representatives, Affiliates, employees, officers and directors and
destroy any and all additional copies then in the possession of each Seller or
any of its agents, representatives, Affiliates, employees, officers and
directors of such information and of any analyses, compilations, studies or
other documents prepared, in whole or in part, on the basis thereof; provided,
however, that this sentence shall not apply to any information that, at the time
of disclosure, is available publicly and was not disclosed in breach of this
Agreement by any Seller, its agents, representatives, Affiliates, employees,
officers or directors.
SECTION 5.04. Regulatory and Other Authorizations; Notices and
Consents. (a) Each Seller shall use all commercially reasonable efforts to
obtain (or cause the Company and the Subsidiaries to obtain) all authorizations,
consents, orders and approvals of all Governmental Authorities and officials
that may be or become necessary for its execution and delivery of, and the
performance of its obligations pursuant to this Agreement and will cooperate
fully with the Purchaser in promptly seeking to obtain all such authorizations,
consents, orders and approvals.
(b) Each Seller shall or shall cause the Company and the
Subsidiaries to give promptly such notices to third parties and use all
commercially reasonable efforts to obtain such third party consents and estoppel
certificates as the Purchaser may in its sole discretion deem necessary or
desirable in connection with the transactions contemplated by this Agreement.
(c) The Purchaser shall cooperate and use all commercially
reasonable efforts to assist the Sellers in giving such notices and obtaining
such consents and estoppel certificates; provided, however, that the Purchaser
shall have no obligation to give any guarantee or other consideration of any
nature in connection with any such notice, consent or estoppel certificate or to
consent to any change in the terms of any agreement or arrangement which the
Purchaser reasonably may deem adverse to the interests of the Purchaser, the
Company or any Subsidiary.
(d) Each Seller and the Purchaser agrees that, in the event
that any consent, approval or authorization necessary or desirable to preserve
for the Company or any Subsidiary any right or benefit under any lease, license,
contract, commitment or other agreement or arrangement to which the Company or
any Subsidiary is a party is not obtained prior to the Closing, each Seller
will, subsequent to the Closing, cooperate with the Purchaser, the Company or
any such Subsidiary in attempting to obtain such consent, approval or
authorization as
15
promptly thereafter as practicable. If such consent, approval or authorization
cannot be obtained, each Seller shall use all of its commercially reasonable
efforts to provide the Purchaser, the Company or such Subsidiary, as the case
may be, with the rights and benefits of the affected lease, license, contract,
commitment or other agreement or arrangement for the term of such lease,
license, contract or other agreement or arrangement, and, if such Seller
provides such rights and benefits, the Company or such Subsidiary, as the case
may be, shall assume the obligations and burdens thereunder.
SECTION 5.05. Notice of Developments. Prior to the Closing,
each Seller shall promptly notify the Purchaser in writing of (a) all events,
circumstances, facts and occurrences arising subsequent to the date of this
Agreement which could result in any breach of a representation or warranty or
covenant of such Seller in this Agreement or which could have the effect of
making any representation or warranty of such Seller in this Agreement untrue or
incorrect in any respect, (b) all other material developments affecting the
assets, Liabilities, business, financial condition, operations, results of
operations, customer or supplier relations, employee relations, projections or
prospects of the Company or any Subsidiary and (c) any Material Adverse Effect.
SECTION 5.06. No Solicitation or Negotiation. Each Seller
agrees that between the date of this Agreement and the earlier of (a) the
Closing and (b) the termination of this Agreement, none of the Sellers, the
Company, the Subsidiaries or any of their respective Affiliates, officers,
directors, representatives or agents will (i) solicit, initiate, consider,
encourage or accept any other proposals or offers from any Person (A) relating
to any acquisition or purchase of all or any portion of the capital stock of the
Company or any Subsidiary or the Assets or (B) to enter into any merger,
consolidation, business combination, recapitalization, reorganization or other
extraordinary business transaction involving or otherwise relating to the
Company or any Subsidiary or (ii) participate in any discussions, conversations,
negotiations and other communications regarding, or furnish to any other Person
any information with respect to, or otherwise cooperate in any way, assist or
participate in, facilitate or encourage any effort or attempt by any other
Person to seek to do any of the foregoing. Each Seller immediately shall cease
and cause to be terminated all existing discussions, conversations, negotiations
and other communications with any Persons conducted heretofore with respect to
any of the foregoing. Such Seller shall notify the Purchaser promptly if any
such proposal or offer, or any inquiry or other contact with any Person with
respect thereto, is made and shall, in any such notice to the Purchaser,
indicate in reasonable detail the identity of the Person making such proposal,
offer, inquiry or contact and the terms and conditions of such proposal, offer,
inquiry or other contact. Each Seller agrees not to, and to cause the Company
and each Subsidiary not to, without the prior written consent of the Purchaser,
release any Person from, or waive any provision of, any confidentiality or
standstill agreement to which such Seller, the Company or any Subsidiary is a
party.
SECTION 5.07. Release of Indemnity Obligations. Each Seller
covenants and agrees, on or prior to the Closing, to execute and deliver to the
Company, for the benefit of the Company and each Subsidiary, a general release
and discharge, in form and substance satisfactory to the Purchaser, releasing
and discharging the Company and Subsidiary from any and all obligations to
indemnify such Seller or otherwise hold it harmless pursuant to any agreement or
other arrangement entered into prior to the Closing.
16
SECTION 5.08. Further Assurances. (a) Each Seller covenants
and agrees to cooperate with the Purchaser and shall use its commercially
reasonable efforts to take, or cause to be taken, all actions and to do, or
cause to be done, all things, including the making of any SEC disclosures,
necessary or desirable under applicable Law and regulation, as the Purchaser may
reasonably request such Seller to take or do in connection with the initial
public offering of MIAT or any of its Subsidiaries.
(b) Notwithstanding anything to the contrary contained in this
Agreement, the Purchaser shall have the right to use and disclose the Financial
Statements and other related documents in connection with the initial public
offering to be done by MIAT or any of its Subsidiaries.
SECTION 5.09. Further Action. Each of the parties hereto shall
use all commercially reasonable efforts to take, or cause to be taken, all
appropriate action, do or cause to be done all things necessary, proper or
advisable under applicable Law, and to execute and deliver such documents and
other papers, as may be required to carry out the provisions of this Agreement
and consummate and make effective the transactions contemplated hereby.
SECTION 5.10. Notice of Termination of Initial Public
Offering. Purchaser shall immediately notify the Sellers if it has determined,
for whatever reason, to terminate or otherwise not pursue the initial public
offering of MIAT or any of its subsidiaries in which event Sellers shall have a
right of termination as provided in Section 9.01.
SECTION 5.11. Company's Obligations. The Purchaser agrees to
honor the Company's obligations under paragraph 3 of the letter agreement dated
April 2, 2004, and in addition shall extend such offer to the other minority
investors of PCAA Parent LLC and Parking Company of America Airports Holdings,
LLC, upon similar terms as set forth in this Agreement, including customary
representations, warranties, covenants and other provisions reasonably
acceptable to the Purchaser.
SECTION 5.12. Non-Competition. In order that the Purchaser and
the Company may enjoy the full benefit of the airport operations, MGIF agrees
that for a period of two (2) years starting on the Closing Date (the "Term"),
MGIF and its subsidiaries or Affiliates (individually, collectively, or in any
combination, as principal, partner, member, investor, director, officer, agent,
employee, consultant or otherwise) will not, without the express written
approval of the Purchaser, directly or indirectly, engage in or otherwise have a
material direct or indirect interest in any Competing Business. For purposes of
this Section 5.12, a business shall be deemed to be a "Competing Business" if it
is materially engaged in providing off-airport commercial airport parking and
transportation related services at any commercial airport within North America.
The parties acknowledge that (i) the restrictions contained in this Section 5.12
are reasonable and necessary in order to protect the Company's and its
Subsidiaries' legitimate interests, and (ii) any violation of the restrictions
contained in this Section 5.12 would result in irreparable injury to the
Purchaser, the Company and its Subsidiaries.
SECTION 5.13. Non-Solicitation. During the Term, MGIF agrees
not to solicit for, or divert or attempt to divert, directly or indirectly, any
business of the Company or any customers or suppliers of the Company. MGIF
agrees that during the Term, it shall not solicit or induce any person who at
any time within the previous one year period shall have been an
17
employee or independent contractor of the Company to become employed by or
associated with any other person, firm or corporation, and MGIF shall not
approach any such employee or independent contractor for such purpose or
authorize or knowingly approve the taking of such actions by any other person,
firm or corporation or assist any such person, firm or corporation in taking
such action. Additionally, MGIF will not, directly or indirectly, induce or
attempt to influence any employee, customer, independent contractor or supplier
of the Company to terminate his or her employment or any other relations with
the Company.
ARTICLE VI
TAX MATTERS
SECTION 6.01. Preparation and Filing of Tax Returns; Payment
of Taxes. (a) The Sellers shall prepare and file (in each case, at its own cost
and expense and in a manner consistent with past practice) on a timely basis all
Tax Returns (including returns for estimated Taxes) for the Company for all
Pre-Closing Periods. The Sellers shall timely pay all taxes shown to be due and
payable on such Tax returns.
(b) Any refund of taxes of the Company which are allocable
pursuant to this Agreement to (i) a Post-Closing Straddle Period shall be for
the account of the Purchaser and (ii) a Pre-Closing Straddle Period shall be for
the account of such Seller. Such Seller shall promptly pay to the Purchaser, and
the Purchaser shall promptly pay (or cause to be paid) to such Seller, the
amount of any such refund received by such Seller or the Purchaser, as the case
may be, to the extent such other party is entitled to such refund pursuant to
this Agreement.
SECTION 6.02. Transfer and Similar Taxes. Notwithstanding any
other provision of this Agreement to the contrary, each Seller shall be solely
responsible for paying all property, sales, use, privilege, transfer,
documentary, gains, stamp, duties, recording and similar Taxes and fees
(including any penalties, interest or additions) imposed upon any party in
connection with the transactions contemplated by this Agreement (collectively,
the "Transfer Taxes"). Each Seller shall procure any stock transfer stamp
required by, and accurately file all necessary Tax Returns and other
documentation with respect to, any Transfer Tax.
SECTION 6.03. Tax Indemnification. (a) Each Seller shall,
jointly and severally, indemnify, defend, and hold harmless the Purchaser
Indemnified Parties (including the Company) from and against any and all
Excluded Taxes and against any loss, damage, liability or expense (including
reasonable fees for attorneys and other outside consultants) incurred in
contesting or otherwise in connection with any such Excluded Taxes.
(b) All amounts payable or to be paid under this Section 6.03
(the "Tax Indemnity Payments") shall be paid in immediately available funds
within five (5) Business Days after the later of (i) receipt of a written
request from the party entitled to such Tax Indemnity Payment and (ii) the day
of payment of the amount that is the subject of the Tax Indemnity Payment by the
party entitled to receive such Tax Indemnity Payment.
SECTION 6.04. Contests. (a) After the Closing, the Purchaser
shall promptly notify each Seller in writing of any written notice of a proposed
assessment or claim in an audit
18
or administrative or judicial proceeding of the Company, which, if determined
adversely to the taxpayer, would be grounds for indemnification under Section
6.03; provided, however, that the failure to give such notice will not affect
the Purchaser's right to indemnification under this Agreement except to the
extent, if any, that, but for such failure, such Seller would have avoided the
Tax Liability in question.
(b) In the case of an audit or administrative or judicial
proceeding (a "Contest") that relates to a Pre-Closing Period, each Seller shall
have the right, at its expense, to participate in and control the conduct of
such Contest, but only to the extent that such Contest relates solely to a
potential adjustment for which such Seller has acknowledged, in writing, its
liability under this Agreement to hold the Purchaser and the Company harmless
against the full amount of any adjustment which may be made as a result of such
Contest. The Purchaser also may participate in any such Contest, and, if such
Seller does not assume the defense of any such Contest, the Purchaser may defend
the same in such manner as it may deem appropriate, including settling such
Contest after five days' prior written notice to such Seller setting forth the
terms and conditions of settlement. Notwithstanding anything to the contrary
contained in this Agreement, in the event that issues relating to a potential
adjustment for which such Seller has acknowledged its liability in writing are
required to be contested in the same Contest as separate issues relating to a
potential adjustment for which the Purchaser would be liable, the Purchaser
shall have the right, at its expense, to control the Contest with respect to the
latter issues.
(c) In the case of a Contest that relates to a Straddle
Period, or otherwise with respect to issues relating to a potential adjustment
for which both the Sellers (as evidenced by its written acknowledgement of
liability under this Section 6.04), on the one hand, and the Purchaser, on the
other hand, could be liable, (i) each of the Sellers and the Purchaser may
participate in the Contest, and (ii) such Contest shall be controlled by that
party which would bear the burden of the greater portion of the sum of the
adjustment and any corresponding adjustments that may reasonably be anticipated
for future taxable periods. The principle set forth in this Section 6.04(c) also
shall govern for purposes of deciding any issue that must be decided jointly
(including choice of judicial forum) in situations in which separate issues are
otherwise controlled under this Article VI by the Purchaser and the Sellers.
(d) Notwithstanding anything to the contrary herein, the
Sellers shall not enter into any compromise or agree to settle any claim
pursuant to a Contest, which would adversely affect the Purchaser or the Company
in a taxable period ending after the Closing Date without the prior written
consent of the Purchaser.
SECTION 6.05. Miscellaneous. (a) From and after the date of
this Agreement, each Seller shall not, without the prior written consent of the
Purchaser, make, or cause or permit to be made, any Tax election that would
adversely affect the Company in a taxable period ending after the Closing Date.
(b) Each Seller and its Affiliates shall provide the Purchaser
with such cooperation and information as the Purchaser reasonably may request in
connection with any Tax matters relating to the Company, including, without
limitation, the filing of any Tax Return or claim for refund, the determination
of any liability for Taxes or right to a refund of Taxes or the conduct of any
Contest in respect of Taxes. Such cooperation and information shall include,
19
without limitation, providing the Purchaser with copies of any relevant Tax
Returns, together with documents relating to rulings or other determinations by
Taxing authorities.
(c) Notwithstanding any provisions in this Agreement to the
contrary, (i) the obligations of each Seller to indemnify and hold harmless the
Purchaser Indemnified Parties pursuant to this Article VI and (ii) the
representations and warranties contained in Section 3.09 shall terminate at the
close of business on the 90th day following the expiration of the applicable
statute of limitations with respect to the Tax Liabilities in question (giving
effect to any waiver, mitigation or extension thereof).
ARTICLE VII
INDEMNIFICATION
SECTION 7.01. Survival of Representations and Warranties. (a)
The representations and warranties of each Seller contained in this Agreement
shall survive the Closing until the earlier of the 18 month anniversary of the
Closing or the expiration of the statute of limitation; provided, however, that
(i) the representations and warranties made pursuant to Sections 3.01, 3.02,
3.03 and 3.04 shall survive indefinitely, (ii) the representations and
warranties made pursuant to Section 3.09 shall survive as provided in Section
6.05(c) and (iii) insofar as any claim is made by the Purchaser for the breach
of any representation or warranty of any Seller contained herein, which claim
arises out of allegations of personal injury or property damage suffered by any
third party on or prior to the Closing or attributable to products or inventory
sold or shipped, or activities or omissions that occur, on or prior to the
Closing, such representations and warranties shall, for purposes of such claim
by the Purchaser, survive until thirty calendar days after the expiration of the
applicable statute of limitations governing such claims. If written notice of a
claim has been given prior to the expiration of the applicable representations
and warranties by the Purchaser to such Seller, then the relevant
representations and warranties shall survive as to such claim, until such claim
has been finally resolved.
(b) The representations and warranties of the Purchaser
contained in this Agreement shall survive the Closing until the 18 month
anniversary of the Closing; provided, however, that the representations and
warranties made pursuant to Section 4.01 shall survive indefinitely. If written
notice of a claim has been given prior to the expiration of the applicable
representations and warranties by any Seller to the Purchaser, then the relevant
representations and warranties shall survive as to such claim, until such claim
has been finally resolved.
SECTION 7.02. Indemnification by the Sellers. Subject to the
limitations set forth in Section 7.04 hereof, the Purchaser and its Affiliates,
officers, directors, employees, agents, successors and assigns (each a
"Purchaser Indemnified Party") shall be, jointly and severally, indemnified and
held harmless by each Seller for and against any and all Liabilities, losses,
damages, claims, costs and expenses, interest, awards, judgments and penalties
(including reasonable attorneys' and consultants' fees and expenses) actually
suffered or incurred by them (including any Action brought or otherwise
initiated by any of them) (hereinafter a "Loss"), arising out of or resulting
from:
20
(a) the breach of any representation or warranty made by the
Sellers contained in this Agreement; or
(b) the breach of any covenant or agreement by the Sellers
contained in this Agreement.
To the extent that the Sellers' undertakings set forth in this Section 7.02 may
be unenforceable, each Seller shall contribute the maximum amount that it is
permitted to contribute under applicable Law to the payment and satisfaction of
all Losses incurred by the Purchaser Indemnified Parties.
SECTION 7.03. Indemnification by the Purchaser. Subject to the
limitations set forth in Section 7.04 hereof, the Sellers and its Affiliates,
officers, directors, employees, agents, successors and assigns (each a "Seller
Indemnified Party") shall be indemnified and held harmless by the Purchaser for
and against any and all Losses, arising out of or resulting from:
(a) the breach of any representation or warranty made by the
Purchaser contained in this Agreement; or
(b) the breach of any covenant or agreement by the Purchaser
contained in this Agreement.
To the extent that the Purchaser's undertakings set forth in this Section 7.03
may be unenforceable, the Purchaser shall contribute the maximum amount that it
is permitted to contribute under applicable Law to the payment and satisfaction
of all Losses incurred by the Seller Indemnified Parties.
SECTION 7.04. Limits on Indemnification. Notwithstanding
anything to the contrary contained in this Agreement: (a) an Indemnifying Party
shall not be liable for any claim for indemnification pursuant to Section 7.02,
7.03 or Article VI, unless and until the aggregate amount of indemnifiable
Losses which may be recovered from the Indemnifying Party equals or exceeds
$150,000 (the "Basket Amount"), after which the Indemnifying Party shall be
liable for all Losses, including the Basket Amount and (b) the maximum amount of
indemnifiable Losses which may be recovered from an Indemnified Party arising
out of or resulting from the causes set forth in Section 7.02, 7.03 or Article
VI, as the case may be, shall be an amount equal to $2,400,000, net of insurance
proceeds.
SECTION 7.05. Tax Treatment. All amounts paid under the
indemnification provisions of this Agreement shall be treated as adjustments to
purchase price for all Tax purposes.
SECTION 7.06. Third Party Claims. (a) If any third party shall
notify either the Sellers or the Purchaser ("Indemnified Party") with respect to
any matter (a "Third Party Claim") which may give rise to a claim for
indemnification against the other under this Article VII, then the Indemnified
Party shall promptly notify the Indemnifying Party thereof in writing within 30
days of the receipt of such notice. Such notice will contain in reasonable
detail, the nature and the basis of the claim and the amount thereof, to the
extent known, and any other relevant information in the possession of the
Indemnified Party. No delay on the part of the Indemnified
21
Party in notifying the Indemnifying Party shall relieve the Indemnifying Party
from any obligation hereunder unless the Indemnifying Party is prejudiced
thereby.
(b) The Indemnifying Party shall have the right at any time to
assume and thereafter conduct the defense of the Third Party Claim with counsel
of its choice, reasonably satisfactory to the Indemnified Party; provided,
however, that the Indemnifying Party will not consent to the entry of any
judgment or enter into any settlement with respect to the Third Party Claim
without the prior written consent of the Indemnified Party (not to be
unreasonably withheld) unless the judgment or proposed settlement involves only
the payment of money damages and does not impose any equitable relief upon the
Indemnified Party.
(c) Unless and until an Indemnifying Party assumes the defense
of the Third Party Claim as provided in Section 7.06(b) above, however, the
Indemnified Party may defend against the Third Party Claim in any manner it
reasonably may deem appropriate.
(d) In no event will the Indemnified Party consent to the
entry of any judgment or enter into any settlement with respect to the Third
Party Claim without the prior written consent of the Indemnifying Party (which
consent will not be unreasonably withheld).
(e) The Indemnifying Party or the Indemnified Party, as the
case may be, who is controlling the defense of the Third Party Claim shall keep
the other fully informed of such claim at all stages thereof. The parties hereto
agree to render to each other such assistance as they may reasonably require of
each other in order to ensure the proper and adequate defense of any Third Party
Claim.
SECTION 7.07. Exclusive Remedy. The indemnification provisions
set forth in this Agreement are the exclusive remedies of the Purchaser and the
Sellers arising out of or in connection with this Agreement and the transactions
contemplated hereby.
ARTICLE VIII
CONDITIONS TO CLOSING
SECTION 8.01. Conditions to Obligations of the Sellers. The
obligations of the Sellers to consummate the transactions contemplated by this
Agreement shall be subject to the fulfillment or written waiver, at or prior to
the Closing, of each of the following conditions:
(a) Representations, Warranties and Covenants. The
representations and warranties of the Purchaser contained in this
Agreement shall have been true and correct when made and shall be true
and correct in all material respects as of the Closing Date, except to
the extent such representations and warranties are as of another date,
in which case, such representations and warranties shall be true and
correct as of that date, in each case, with the same force and effect
as if made as of the Closing Date, other than such representations and
warranties as are made as of another date, the covenants and agreements
contained in this Agreement to be complied with by the Purchaser on or
before the Closing Date shall have been complied with in all material
respects. The
22
Sellers shall have received a certificate of the Purchaser to such
effect signed by a duly authorized executive officer;
(b) HSR Act. Any waiting period (and any extension thereof)
under the HSR Act applicable to the purchase of the Shares and the
Business contemplated by this Agreement shall have expired or shall
have been terminated;
(c) No Proceeding or Litigation. No Action shall have been
commenced by or before any Governmental Authority against either any
Seller or the Purchaser, seeking to restrain or materially and
adversely alter the transactions contemplated by this Agreement which,
in the reasonable, good faith determination of such Seller, is likely
to render it impossible or unlawful to consummate such transactions;
provided, however, that the provisions of this Section 8.01(c) shall
not apply if such Seller has directly or indirectly solicited or
encouraged any such Action; and
(d) Legal Opinion. The Sellers shall have received from
Shearman & Sterling LLP a legal opinion, addressed to the Purchaser and
dated as of the Closing, substantially in the form of Section 8.01(d)
of the Disclosure Schedule.
SECTION 8.02. Conditions to Obligations of the Purchaser. The
obligations of the Purchaser to consummate the transactions contemplated by this
Agreement shall be subject to the fulfillment or written waiver, at or prior to
the Closing, of each of the following conditions:
(a) Representations, Warranties and Covenants. (i) The
representations and warranties of each Seller contained in this
Agreement (x) that are not qualified by "materiality" or "Material
Adverse Effect" shall have been true and correct in all material
respects when made and shall be true and correct in all material
respects as of the Closing Date with the same force and effect as if
made as of the Closing Date and (y) that are qualified by "materiality"
or Material Adverse Effect" shall have been true and correct when made
and shall be true and correct as of the Closing Date with the same
force and effect as if made as of the Closing Date, except to the
extent such representations and warranties are as of another date, in
which case, such representations and warranties shall be true and
correct as of that date with the same force and effect as if made as of
the Closing Date, and except in the case of clause (y) above for such
failure of such representations and warranties to be true and correct
that would not have, individually or in the aggregate, a Material
Adverse Effect, (ii) the covenants and agreements contained in this
Agreement to be complied with by each Seller on or before the Closing
Date shall have been complied with and (iii) the Purchaser shall have
received a certificate of the Sellers to such effect signed by a duly
authorized executive officer;
(b) HSR Act. Any waiting period (and any extension thereof)
under the HSR Act applicable to the purchase of the Shares and the
Business contemplated by this Agreement shall have expired or shall
have been terminated;
(c) No Proceeding or Litigation. No Action shall have been
commenced or threatened by or before any Governmental Authority against
either any Seller or the Purchaser, seeking to restrain or materially
and adversely alter the transactions
23
contemplated by this Agreement which, in the reasonable, good faith
determination of the Purchaser, is likely to render it impossible or
unlawful to consummate such transactions; provided, however, that the
provisions of this Section 8.02(c) shall not apply if the Purchaser has
directly or indirectly solicited or encouraged any such Action;
(d) FIRPTA Certificate. The Purchaser shall have received from
the Sellers at the Closing a certificate, in compliance with Treasury
Regulation Section 1.1445-2, certifying that the transactions
contemplated by this Agreement are exempt from withholding under
Section 1445 of the Code.
(e) Legal Opinion. The Purchaser shall have received from
Xxxxxx Xxxxxxx PLLC a legal opinion and from Xxxxxx Xxxxx Leibler
Lawyers and Advisers, a legal opinion, both addressed to the Purchaser
and dated as of the Closing, substantially in the form of Section
8.02(e) of the Disclosure Schedule;
(f) Consents and Approvals. The Purchaser and the Sellers
shall have received, each in form and substance satisfactory to the
Purchaser, all authorizations, consents, orders and approvals of all
Governmental Authorities and officials and all third party consents and
estoppel certificates necessary for the consummation of the
transactions contemplated by this Agreement, as listed in Section
8.02(f) of the Disclosure Schedule;
(g) Financing. MIAT or any of its Subsidiaries shall have
successfully completed its initial public offering of equity
securities; and
(h) No Material Adverse Effect. No event or events shall have
occurred, or be reasonably likely to occur, which, individually or in
the aggregate, have, or could reasonably be deemed to have, a Material
Adverse Effect.
ARTICLE IX
TERMINATION, AMENDMENT AND WAIVER
SECTION 9.01. Termination. This Agreement may be terminated at
any time prior to the Closing:
(a) by the Purchaser if, between the date hereof and the
Closing (i) an event or condition occurs that has resulted in a
Material Adverse Effect, (ii) any representations and warranties of
each Seller contained in this Agreement (1) that are not qualified by
"materiality" or "Material Adverse Effect" shall not have been true and
correct in all material respects when made or (2) that are qualified by
"materiality" or "Material Adverse Effect" shall not have been true and
correct when made, (iii) the Sellers shall not have complied in all
material respects with the covenants or agreements contained in this
Agreement to be complied with by it or (iv) the Sellers, the Company or
any Subsidiary makes a general assignment for the benefit of creditors,
or any proceeding shall be instituted by or against any Seller, the
Company or any Subsidiary seeking to adjudicate any of them a bankrupt
or insolvent, or seeking liquidation, winding up or reorganization,
arrangement, adjustment, protection, relief or composition of its debts
under any Law
24
relating to bankruptcy, insolvency or reorganization; provided,
however, that for purposes of Section 9.01(a)(iii) above, Purchaser
shall have no right to terminate until Purchaser has notified the
Sellers of such failure to comply and such failure has continued
without cure for a period of ten (10) days after the notice thereof;
(b) by the Purchaser in the event (i) the Sellers have within
the previous ten (10) business days given the Purchaser any notice of a
development pursuant to Section 5.05 above, and (ii) the development that is the
subject of the notice has had a Material Adverse Effect;
(c) by the Sellers in the event (i) Purchaser shall not have
complied in all material respects with the covenants or agreements contained in
the Agreement to be complied with by it, provided, however, that Sellers shall
have no right to terminate under this Section 9.01(c) until Sellers have
notified the Purchaser of such failure to comply and such failure has continued
without cure for a period of ten (10) days after the notice thereof, and (ii)
Purchaser has notified Sellers that it is no longer pursuing the initial public
offering of MIAT or its subsidiaries, pursuant to Section 5.10;
(d) by either the Sellers or the Purchaser if the Closing
shall not have occurred by August 15, 2004; provided, however, that the right to
terminate this Agreement under this Section 9.01(d) shall not be available to
any party whose failure to fulfill any obligation under this Agreement shall
have been the cause of, or shall have resulted in, the failure of the Closing to
occur on or prior to such date;
(e) by either the Purchaser or any Seller in the event that
any Governmental Authority shall have issued an order, decree or ruling or taken
any other action restraining, enjoining or otherwise prohibiting the
transactions contemplated by this Agreement and such order, decree, ruling or
other action shall have become final and nonappealable; or
(f) by the mutual written consent of the Sellers and the
Purchaser.
SECTION 9.02. Effect of Termination. In the event of
termination of this Agreement as provided in Section 9.01, this Agreement shall
forthwith become void and there shall be no liability on the part of either
party hereto except (a) as set forth in Sections 5.03 and 10.01 and (b) that
nothing herein shall relieve either party hereto from liability for any breach
of this Agreement.
ARTICLE X
GENERAL PROVISIONS
SECTION 10.01. Expenses. Except as otherwise specified in this
Agreement, all costs and expenses, including fees and disbursements of counsel,
financial advisors and accountants, reasonably incurred and accompanied by
invoices, in connection with this Agreement and the transactions contemplated by
this Agreement shall be paid by the Purchaser, whether or not the Closing shall
have occurred, provided, however, the Purchaser shall pay the legal expenses
incurred by the Sellers in connection with this Agreement and the transactions
contemplated hereby, up to an amount of $100,000.
25
SECTION 10.02. Notices. All notices, requests, claims, demands
and other communications hereunder shall be in writing and shall be given or
made (and shall be deemed to have been duly given or made upon receipt) by
delivery in person, by an internationally recognized overnight courier service,
by facsimile or registered or certified mail (postage prepaid, return receipt
requested) to the respective parties hereto at the following addresses (or at
such other address for a party as shall be specified in a notice given in
accordance with this Section 10.02):
(a) if to the Sellers:
Macquarie Specialised Asset Management Limited
000 Xxxx Xxxxxx Xxxx
Xxxxxxx, Xxxxxxx X0X0X0
Telecopy: (000) 000 0000
Attention: Xxxxxxx Xxxxxxx
with a copy (which shall not constitute notice) to:
Xxxxxx Xxxxxxx PLLC
000 Xxxxxxxxxxx Xxxxxx
Xxxxxxx, XX 00000-0000
Telecopy: (000) 000-0000
Attention: Xxxxxxxxxx X. Xxxxxxxx, Esq
and
Macquarie Specialised Asset Management 2 Limited
000 Xxxx Xxxxxx Xxxx
Xxxxxxx, Xxxxxxx X0X0X0
Telecopy: (000) 000 0000
Attention: Xxxxxxx Xxxxxxx
with a copy (which shall not constitute notice) to:
Xxxxxx Xxxxxxx PLLC
000 Xxxxxxxxxxx Xxxxxx
Xxxxxxx, XX 00000-0000
Telecopy: (000) 000-0000
Attention: Xxxxxxxxxx X. Xxxxxxxx, Esq.
(b) if to the Purchaser:
Macquarie Infrastructure Assets, Inc.
000 0xx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx
Telecopy: (000) 000 0000
Attention: Xxxxx Xxxxxx
26
with a copy (which shall not constitute notice) to:
Shearman & Sterling LLP
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Telecopy: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxxx, Esq.
SECTION 10.03. Public Announcements. Neither party hereto
shall make, or cause to be made, any press release or public announcement in
respect of this Agreement or the transactions contemplated hereby or otherwise
communicate with any news media without prior notification to the other party,
and the parties hereto shall cooperate as to the timing and contents of any such
press release, public announcement or communication.
SECTION 10.04. Severability. If any term or other provision of
this Agreement is invalid, illegal or incapable of being enforced by any Law or
public policy, all other terms and provisions of this Agreement shall
nevertheless remain in full force and effect for so long as the economic or
legal substance of the transactions contemplated hereby is not affected in any
manner materially adverse to either party hereto. Upon such determination that
any term or other provision is invalid, illegal or incapable of being enforced,
the parties hereto shall negotiate in good faith to modify this Agreement so as
to effect the original intent of the parties as closely as possible in an
acceptable manner in order that the transactions contemplated hereby are
consummated as originally contemplated to the greatest extent possible.
SECTION 10.05. Entire Agreement. This Agreement constitutes
the entire agreement of the parties hereto with respect to the subject matter
hereof and supersedes all prior agreements and undertakings, both written and
oral, between each Seller and the Purchaser with respect to the subject matter
hereof.
SECTION 10.06. Assignment. This Agreement may not be assigned
by operation of law or otherwise without the express written consent of each
Seller and the Purchaser (which consent may be granted or withheld in the sole
discretion of such Seller or the Purchaser); provided, however, that the
Purchaser may assign this Agreement or any of its rights and obligations
hereunder to one or more Affiliates of the Purchaser without the consent of each
Seller.
SECTION 10.07. Amendment. This Agreement may not be amended or
modified except (a) by an instrument in writing signed by, or on behalf of, each
Seller and the Purchaser or (b) by a waiver in accordance with Section 10.08.
SECTION 10.08. Waiver. Either party to this Agreement may (a)
extend the time for the performance of any of the obligations or other acts of
the other party, (b) waive any inaccuracies in the representations and
warranties of the other party contained herein or in any document delivered by
the other party pursuant hereto or (c) waive compliance with any of the
agreements of the other party or conditions to such party's obligations
contained herein. Any such extension or waiver shall be valid only if set forth
in an instrument in writing signed by the party to be bound thereby. Any waiver
of any term or condition shall not be construed as a
27
waiver of any subsequent breach or a subsequent waiver of the same term or
condition, or a waiver of any other term or condition of this Agreement. The
failure of either party hereto to assert any of its rights hereunder shall not
constitute a waiver of any of such rights. All rights and remedies existing
under this Agreement are cumulative to, and not exclusive of, any rights or
remedies otherwise available.
SECTION 10.09. No Third Party Beneficiaries. Except for the
provisions of Article VII relating to indemnified parties, this Agreement shall
be binding upon and inure solely to the benefit of the parties hereto and their
respective successors and permitted assigns and nothing herein, express or
implied, is intended to or shall confer upon any other Person, including any
union or any employee or former employee of any Seller, any legal or equitable
right, benefit or remedy of any nature whatsoever, including any rights of
employment for any specified period, under or by reason of this Agreement.
SECTION 10.10. Waiver of Jury Trial. Each of the parties
hereto hereby waives to the fullest extent permitted by applicable Law any right
it may have to a trial by jury with respect to any litigation directly or
indirectly arising out of, under or in connection with this Agreement or the
transactions contemplated by this Agreement. Each of the parties hereto hereby
(a) certifies that no representative, agent or attorney of the other party has
represented, expressly or otherwise, that such other party would not, in the
event of litigation, seek to enforce the foregoing waiver and (b) acknowledges
that it has been induced to enter into this Agreement and the transactions
contemplated by this Agreement, as applicable, by, among other things, the
mutual waivers and certificates in this Section 10.10.
SECTION 10.11. Governing Law. This Agreement shall be governed
by, and construed in accordance with, the laws of the State of New York
applicable to contracts executed in and to be performed in that State. All
Actions arising out of or relating to this Agreement shall be heard and
determined exclusively in any New York federal court sitting in the Borough of
Manhattan of The City of New York, provided, however, that if such federal court
does not have jurisdiction over such Action, such Action shall be heard and
determined exclusively in any New York state court sitting in the Borough of
Manhattan of The City of New York. Consistent with the preceding sentence, the
parties hereto hereby (a) submit to the exclusive jurisdiction of any federal or
state court sitting in the Borough of Manhattan of The City of New York for the
purpose of any Action arising out of or relating to this Agreement brought by
any party hereto and (b) irrevocably waive, and agree not to assert by way of
motion, defense, or otherwise, in any such Action, any claim that it is not
subject personally to the jurisdiction of the above-named courts, that its
property is exempt or immune from attachment or execution, that the Action is
brought in an inconvenient forum, that the venue of the Action is improper, or
that this Agreement or the transactions contemplated by this Agreement may not
be enforced in or by any of the above-named courts.
SECTION 10.12. Counterparts. This Agreement may be executed
and delivered (including by facsimile transmission) in one or more counterparts,
and by the different parties hereto in separate counterparts, each of which when
executed shall be deemed to be an original, but all of which taken together
shall constitute one and the same agreement.
28
SECTION 10.13. Capacity of Trustees. The Purchaser
acknowledges and agrees that any liability arising under or in connection with
this Agreement is limited to and can be enforced against the Trustees only to
the extent to which it can be satisfied out of the property of MGIF out of which
the Trustees are actually indemnified for their liability. The Purchaser
acknowledges that this limitation of the Trustees' liability applies despite any
other provision of this Agreement and extends to all liabilities and obligations
of the Trustees in any way connected with any representation, warranty, conduct,
omission, agreement or transaction related to this Agreement.
29
IN WITNESS WHEREOF, the Sellers and the Purchaser have caused
this Agreement to be executed as of the date first written above by their
respective officers thereunto duly authorized.
MACQUARIE SPECIALISED ASSET MANAGEMENT
LIMITED,
as Trustee for and on behalf of
MACQUARIE GLOBAL INFRASTRUCTURE FUND A
By: /s/ Xxxxxxx Xxxxxxx
-----------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Managing Director
MACQUARIE SPECIALISED ASSET
MANAGEMENT 2 LIMITED,
as Trustee for and on behalf of
MACQUARIE GLOBAL INFRASTRUCTURE FUND B
By: /s/ Xxxxxxx Xxxxxxx
-----------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Managing Director
MACQUARIE INFRASTRUCTURE ASSETS INC.
By: /s/ Xxxxx Xxxxxx
-----------------------------------
Name: Xxxxx Xxxxxx
Title: Chief Executive Officer
