Exhibit
2.2




Execution
Version




PURCHASE
AGREEMENT




BY AND
AMONG




MACQUARIE
INFRASTRUCTURE COMPANY INC.,




JOHN
HANCOCK LIFE INSURANCE COMPANY,




AND




JOHN
HANCOCK LIFE INSURANCE COMPANY (U.S.A.)




DATED AS
OF NOVEMBER 20, 2009





TABLE
OF CONTENTS





Article
      I Definitions
                  21.1
                  Definitions
                  21.2
                  Other
      Definitional Provisions
                  9Article
      II Purchase and Sale of the Holdco Interests
                  92.1
                  Purchase
      and Sale
                  92.2
                  Purchase
      Price
                  92.3
                  Distributions
      of Designated Cash
                  9Article
      III Closing
                  93.1
                  Closing
                  93.2
                  Deliveries
      at Closing by Seller
                  103.3
                  Deliveries
      at Closing by Buyers
                  11Article
      IV Representations and Warranties of Seller
                  114.1
                  Organization
      of Seller
                  114.2
                  Authorization
      of Transaction
                  124.3
                  Non-contravention
                  124.4
                  Capitalization
      of MDEH III and Holdco
                  124.5
                  Preferential
      Rights to Purchase
                  134.6
                  Securities
      Laws
                  134.7
                  Investment
      Company Act
                  13Article
      V Representations and Warranties Concerning Holdco, the Company and Its
      Subsidiaries
                  135.1
                  Organization,
      Qualification, and Corporate Power of Holdco, the Company and the
      Company’s Subsidiaries
                  135.2
                  Capitalization
      of the Company and the Company’s Subsidiaries
                  145.3
                  Non-contravention
                  145.4
                  Brokers’
      Fees
                  145.5
                  Title
      to Tangible Assets
                  155.6
                  Financial
      Statements
                  155.7
                  Legal
      Compliance
                  155.8
                  Tax
      Matters
                  155.9
                  Real
      Property
                  185.10
                  Intellectual
      Property
                  205.11
                  Contracts
                  205.12
                  Related
      Party Agreements
                  215.13
                  Credit
      Enhancements
                  215.14
                  Authorizations
                  225.15
                  Litigation
                  225.16
                  Employee
      Benefits
                  22


i





5.17
                                                                                                    Environmental
      Matters
                                                                                                    235.18
                                                                                                    Labor
      and Employment Matters
                                                                                                    245.19
                                                                                                    Assets
      and Liabilities of Holdco
                                                                                                    245.20
                                                                                                    Disclaimer
      of Other Representations and Warranties
                                                                                                    245.21
                                                                                                    Disclaimer
      Regarding Estimates and Projections
                                                                                                    255.22
                                                                                                    Absence
      of Undisclosed Material Liabilities
                                                                                                    255.23
                                                                                                    Transactions
      with Affiliates
                                                                                                    25Article
      VI Representations and Warranties of Buyers
                                                                                                    256.1
                                                                                                    Organization
      of Buyer
                                                                                                    256.2
                                                                                                    Authorization
      of Transaction
                                                                                                    266.3
                                                                                                    Non-contravention
                                                                                                    266.4
                                                                                                    Brokers’
      Fees
                                                                                                    266.5
                                                                                                    Financing
                                                                                                    266.6
                                                                                                    Investment
                                                                                                    266.7
                                                                                                    Investigation
      of Buyer
                                                                                                    276.8
                                                                                                    Notice
      of Misrepresentations or Omissions
                                                                                                    27Article
      VII Covenants of the Parties Prior to Closing
                                                                                                    277.1
                                                                                                    Consents
                                                                                                    277.2
                                                                                                    Cooperation
                                                                                                    277.3
                                                                                                    Operation
      of Business
                                                                                                    287.4
                                                                                                    Access
                                                                                                    287.5
                                                                                                    Confidentiality
                                                                                                    297.6
                                                                                                    Notice
      of Developments
                                                                                                    29Article
      VIII Post-Closing Covenants
                                                                                                    298.1
                                                                                                    Tax
      Matters
                                                                                                    298.2
                                                                                                    Further
      Assurances
                                                                                                    31Article
      IX Conditions to Obligations to Close
                                                                                                    329.1
                                                                                                    Conditions
      to Buyers’ Obligations
                                                                                                    329.2
                                                                                                    Conditions
      to Seller’s Obligation
                                                                                                    32Article
      X Remedies for Breaches of this Agreement
                                                                                                    3310.1
                                                                                                    Survival
      of Representations and Warranties
                                                                                                    3310.2
                                                                                                    Indemnification
      Provisions for the Benefit of each Buyer
                                                                                                    3410.3
                                                                                                    Indemnification
      Provisions for the Benefit of Seller
                                                                                                    3510.4
                                                                                                    Matters
      Involving Third Parties
                                                                                                    3510.5
                                                                                                    Determination
      of Adverse Consequences
                                                                                                    3610.6
                                                                                                    Exclusive
      Remedy
                                                                                                    3610.7
                                                                                                    Waiver
      of Certain Damages
                                                                                                    36Article
      XI Termination
                                                                                                    3611.1
                                                                                                    Termination
      of Agreement
                                                                                                    3611.2
                                                                                                    Effect
      of Termination
                                                                                                    37


ii





Article
      XII Miscellaneous
                                                      3712.1
                                                      Press
      Releases and Public Announcements
                                                      3712.2
                                                      No
      Third-Party Beneficiaries
                                                      3812.3
                                                      Time
      Of Essence
                                                      3812.4
                                                      Entire
      Agreement
                                                      3812.5
                                                      Succession
      and Assignment
                                                      3812.6
                                                      Counterparts
                                                      3812.7
                                                      Headings
                                                      3812.8
                                                      Notices
                                                      3812.9
                                                      Governing
      Law
                                                      4012.10
                                                      Consent
      to Jurisdiction
                                                      4012.11
                                                      Specific
      Performance
                                                      4112.12
                                                      Amendments
      and Waivers
                                                      4112.13
                                                      Severability
                                                      4112.14
                                                      Expenses
                                                      4112.15
                                                      Construction
                                                      4112.16
                                                      Incorporation
      of Exhibits and Schedules
                                                      4112.17
                                                      Tax
      Disclosure Authorization
                                                      41


iii


Exhibits
and Schedules




Exhibits





Exhibit A
— Form of Amended and Restated LLC Agreement


Exhibit B
— Form of Assignment and Assumption Agreement


Exhibit C
— Form of Seller Closing Certificate


Exhibit D
— Form of Buyer Closing Certificate


Exhibit E
— Financial Statements


Exhibit F
— Shareholder Loan Term Sheet


Exhibit G
— Form of Seller Legal Opinion





Schedules





Schedule
1.1(a) — Seller’s Persons with Knowledge


Schedule
1.1(b) — Permitted Encumbrances


Schedule
2.1 — Purchased Interests of Each Buyer


Schedule
4.3 — Non-contravention by Seller


Schedule
4.4 — Capitalization of MDEH III and Holdco


Schedule
5.1 — Organization, Qualification, and Corporate Power of Holdco, the Company
and the Company’s Subsidiaries


Schedule
5.2 — Capitalization of the Company and the Company’s Subsidiaries


Schedule
5.3 — Non-contravention by the Company


Schedule
5.8 —Tax Matters


Schedule
5.9(a) — Owned Real Property


Schedule
5.9(b) — Leased Real Property


Schedule
5.9(c) — Easements


Schedule
5.9(d) — Customer Rights


Schedule
5.10 — Intellectual Property


Schedule
5.11 — Contracts


Schedule
5.12 — Related Party Agreements


Schedule
5.13 — Credit Enhancements


Schedule
5.14 — Authorizations


Schedule
5.15 — Litigation


Schedule
5.16(a) — Employee Benefit Plans


Schedule
5.16(d) — Qualified Employee Benefit Plans


Schedule
5.16(g) — Employee Benefit Plan Claims


Schedule
5.17 — Environmental Matters


Schedule
5.18 — Labor and Employment Matters


Schedule
5.22 — Absence of Undisclosed Material Liabilities


Schedule
5.23 — Transactions with Affiliates


Schedule
6.3 — Non-contravention by Buyers


Schedule
9.1(d) — Closing Consents and Approvals of Buyers


Schedule
9.2(d) — Closing Consents and Approvals of Seller


i


PURCHASE
AGREEMENT




This
Purchase Agreement (this “Agreement”) is entered into
as of November 20, 2009 by and among Macquarie Infrastructure Company Inc., a
Delaware corporation (“MIC,” or “Seller” as of the date
hereof), John Hancock Life Insurance Company, a Massachusetts corporation
(“JHLIC”), and John
Hancock Life Insurance Company (U.S.A.), a Michigan corporation (“JHUSA,” and each of JHLIC and
JHUSA individually a “Buyer” and collectively
“Buyers”). Each of
Seller and each Buyer is referred to herein individually as a “Party” and collectively as
the “Parties.”




RECITALS




WHEREAS,
as of the date hereof, Seller owns all of the outstanding membership interests
(the “Company
Interests”) of Macquarie District Energy Holdings LLC, a Delaware limited
liability company (the “Company”);




WHEREAS,
after the date hereof and prior to the Closing Date, Seller will form Macquarie
District Energy Holdings III LLC, a Delaware limited liability company (“MDEH III”) as a wholly-owned
Subsidiary of Seller, and Macquarie District Energy Holdings II LLC, a Delaware
limited liability company (“Holdco”) that will be formed
by Seller after the date hereof for the purpose of owning the Company Interests
at the Closing and issuing the Shareholder Loan to the Company;




WHEREAS,
as of the Closing Date, Seller will own all of the outstanding membership
interests in MDEH III (the “MDEH III Interests”) and MDEH
III will own all of the outstanding membership interests in Holdco (the “Holdco Interests”), and prior
to the Closing Date, Seller will contribute all of the Company Interests to MDEH
III and MDEH III will contribute all of the Company Interests to Holdco, such
that the Company will become a wholly-owned Subsidiary of Holdco;




WHEREAS,
this Agreement sets forth the terms of a transaction in which each Buyer will
severally purchase from Seller, and Seller will sell to Buyers, 49.99% in the
aggregateof the
Holdco Interests (the “Purchased Interests”);
and




WHEREAS,
on the Closing Date, the Parties shall enter into an Amended and Restated LLC
Agreement with respect to Holdco.




NOW,
THEREFORE, in consideration of the premises and the mutual promises herein made,
and in consideration of the representations, warranties, and covenants herein
contained, the Parties agree as follows.









ARTICLE
I




DEFINITIONS




1.1 Definitions.




“Adverse Consequences” means
all actions, suits, proceedings, hearings, investigations, charges, complaints,
claims, demands, injunctions, judgments, orders, decrees, rulings, damages,
dues, penalties, fines, costs, liabilities, obligations, taxes, liens, losses,
expenses, and fees, including court costs and reasonable attorneys’ fees and
expenses and other costs of suit.




“Affiliate” means with respect
to any Person, any direct or indirect Subsidiary of such Person, and any other
Person that directly, or through one or more intermediaries, controls or is
controlled by or is under common control with such first Person.  As
used in this definition, “control” (including with correlative meanings,
“controlled by” and “under common control with”) means possession, directly or
indirectly, of power to direct or cause the direction of management or policies
(whether through ownership of securities or partnership or other ownership
interests).




“Affiliated Group” means any
affiliated group within the meaning of Code Section 1504(a) or any similar group
defined under a similar provision of state, local or foreign law.




“Agreement” has the meaning
set forth in the preamble.




“Amended and Restated LLC Agreement” means an
amended and restated limited liability company agreement with respect to Holdco,
the form of which is attached hereto as Exhibit
A.




“Applicable Rate” means simple
interest at a rate of 2% per annum.




“Assignment and Assumption
Agreement” means an assignment and assumption agreement, the form of
which is attached hereto as Exhibit B, which sets
forth the terms and conditions under which Seller shall assign and each Buyer
shall severally assume the obligations associated with the Purchased
Interests.




“Authorization” shall mean any
approval, authorization, certification, consent, ordinance, variance,
permission, license or permit (excluding those issued pursuant to Environmental
Requirements) to or from, or filing, notice or recordings to or with any
governmental authority other than foreign qualifications to conduct business and
good standing certifications.




“Basket” has the meaning set
forth in Section
10.2(b).




“Business Day” means a day on
which Federal Reserve Banks in New York, New York are open for general
business.




“Buyer” has the meaning set
forth in the preamble to this Agreement.




“Buyers” has the meaning set
forth in the preamble to this Agreement.




2




“Buyer Indemnified Parties”
has the meaning set forth in Section
10.2(a).




“Buyer Material Adverse
Effect” means any effect or change that would be materially adverse to a
Buyer’s ability to consummate the transactions contemplated by this Agreement or
to perform its obligations under this Agreement.




“CapEx Accounts” means the
account with Banc of America Securities LLC in the name of MDE Thermal
Technologies, Inc. (A/C #22394768) holding (i) the proceeds received by MDE from
borrowings under its capex loan facility, and (ii) committed funds relating to
the Westgate Project, or such other account as designated by Holdco, the Company
or the Company’s Subsidiaries from time to time.  For purposes of this
definition, the “Westgate Project” means ETT Nevada, Inc.’s share of the costs
of capital improvements to the energy transfer station facilities of Northwind
Aladdin LLC contemplated by that certain Facility Expansion Agreement dated as
of January 30, 2009 by and between Westgate Planet Hollywood Las Vegas, LLC and
Northwind Aladdin LLC.




“Closing” has the meaning set
forth in Section
3.1.




“Closing Date” has the meaning
set forth in Section
3.1.




“Closing Expenses” has the
meaning set forth in Section
12.14.




“Code” means the Internal
Revenue Code of 1986, as amended.




“Company” has the meaning set
forth in the recitals.




“Company Interests” has the
meaning set forth in the recitals.




“Credit Enhancements” has the
meaning set forth in Section
5.13.




“Customer Rights” means any
easements, licenses, rights of access or similar rights granted by any customers
for purposes of providing chilled water contained in any contracts with
customers of the Company or any of the Company’s Subsidiaries.




“Debt” means at a particular
time, without duplication, (i) any obligations under any indebtedness of the
Company or any of the Company’s Subsidiaries for borrowed money (including any
principal, accrued interest, penalties and fees, interest premiums, expenses,
breakage costs and bank overdrafts thereunder); (ii) any indebtedness evidenced
by any note, bond, debenture or other debt security; (iii) any obligations under
capitalized leases; and (iv) any indebtedness secured by a Lien, mortgage,
charge or other encumbrance on a Person’s assets.




“Designated Cash” means
amounts determined (a) as of the last day of any completed fiscal quarter
ending after the date of this Agreement and prior to the Closing Date and
(b) as of the Closing Date (determined at the end of the day immediately
prior to the Closing Date), equal to all cash and cash equivalents on the
consolidated balance sheet as of each such date of Holdco (if after the date of
its formation, or the Company, if Holdco has not been formed as of the relevant
distribution date) less (i) $50,000
less (ii) the
cash balance held in the CapEx Accounts.




3




“Disclosing Party” has the
meaning set forth in Section
7.5.




“District Cooling System”
means the various plants, pipeline systems and other facilities used in the
distribution of chilled water in the City of Chicago’s downtown district that
the Company and the Subsidiaries of the Company have the right to use, operate
and maintain pursuant to the District Cooling System Use Agreement and the
ancillary agreements contemplated thereby.




“District Cooling System Use
Agreement” means that certain District Cooling System Use Agreement dated
October 1, 1994, by and between the City of Chicago and Thermal Chicago
Corporation (as successor-in-interest to Northwind Incorporated), including each
amendment thereto.




“Easements” has the meaning
set forth in Section
5.9(c).




“Employee Benefit Plan” means
any “employee benefit plan” (as such term is defined in ERISA §3(3)) and any
other material employee benefit plan, program or arrangement.




“Employee Pension Benefit
Plan” has the meaning set forth in ERISA §3(2).




“Employee Welfare Benefit
Plan” has the meaning set forth in ERISA §3(1).




“Environmental Requirements”
means, as enacted or amended and in effect prior to the Closing Date, applicable
federal, state, local, and foreign laws, statutes, regulations, ordinances,
rules, orders, decrees, permits, and authorizations, concerning pollution or
protection of the environment or human health or safety, including those
relating to the presence, use, production, generation, handling, transportation,
treatment, storage, disposal, distribution, labeling, testing, processing,
discharge, release, threatened release, control, or cleanup of any hazardous
materials, substances, or wastes.




“ERISA” means the Employee
Retirement Income Security Act of 1974, as amended.




“ERISA Affiliate” means each
entity that is treated as a single employer with Company for purposes of Code
Section 414.




“Financial Statements” has the
meaning set forth in Section
5.6.




“Foreign Plan” means any plan,
fund or other similar program that (a) is established or maintained outside the
United States of America by the Company or any Subsidiary primarily for the
benefit of employees of the Company or one or more Subsidiaries residing outside
the United States of America, which plan, fund or other similar program
provides, or results in, retirement income, a deferral of income in
contemplation of retirement or payments to be made upon termination of
employment, and (b) is not subject to ERISA or the Code.




“GAAP” means U.S. generally
accepted accounting principles as in effect from time to time, consistently
applied.




“Holdco” has the meaning set
forth in the recitals.




4




“Holdco Interests” has the
meaning set forth in the recitals.




“Income Tax” means any
federal, state, local, or foreign income tax measured by or imposed on net
income, including any interest, penalty, or addition thereto, whether disputed
or not.




“Income Tax Return” means any
return, declaration, report, claim for refund, or information return or
statement relating to Income Taxes, including any schedule or attachment
thereto.




“Indemnified Party” has the
meaning set forth in Section
10.4(a).




“Indemnifying Party” has the
meaning set forth in Section
10.4(a).




“JHLIC” has the meaning set
forth in the preamble.




“JHUSA” has the meaning set
forth in the preamble.




“Knowledge” means the actual
knowledge, without independent investigation of the persons listed in Schedule
1.1(a).




“Leased Real Property” means
all leasehold or subleasehold estates and other rights to use or occupy any
land, buildings, structures, improvements, fixtures, or other interest in real
property that is used in Company’s or any of the Company’s Subsidiaries’
businesses.




“Leases” means all leases,
subleases, licenses, concessions and other agreements (written or oral),
including all amendments, extensions, renewals, guaranties, and other agreements
with respect thereto, pursuant to which Company or any of the Company’s
Subsidiaries holds any Leased Real Property.




“Liaison” has the meaning set
forth in Section
7.4.




“Lien” means any mortgage,
pledge, lien, encumbrance, charge, or other security interest other than
Permitted Encumbrances.




5




“Material Adverse Effect”
means any effect or change that would be materially adverse to the business of
Holdco, the Company and the Company’s Subsidiaries, taken as a whole, or to the
ability of any Party to consummate timely the transactions contemplated hereby
or to perform its obligations hereunder; provided that none of the
following shall be deemed to constitute, and none of the following shall be
taken into account in determining whether there has been, a Material Adverse
Effect (unless any such event, condition or circumstance (x) disproportionately
affects Holdco, the Company or the Company’s Subsidiaries as compared to other
similarly situated companies in the industry in which the Company and the
Company’s Subsidiaries operate or (y) materially and adversely affects
either the Midway Energy Delivery Agreement listed on Schedule 1.1(b)
or the Energy Service Agreements to which Northwind Aladdin LLC is a party
listed on Schedule 5.11(iii)):
(a) any adverse change, event, development, or effect arising from or relating
to (i) any changes in general economic, political or regulatory conditions in
the business or industry in which the Company and the Company’s Subsidiaries
operate, (ii) local, national or international, political or social conditions,
including the engagement by the United States in hostilities, whether or not
pursuant to the declaration of a national emergency or war, or the occurrence of
any military or terrorist attack upon the U.S., or any of its territories,
possessions, or diplomatic or consular offices or upon any military
installation, equipment or personnel of the U.S., (iii) any act of God or other
calamity, (iv) weather or any weather related event, (v) any event, change,
effect, development, condition or occurrence in or affecting the economy or the
financial, credit, banking or securities markets (including any disruption
thereof and any decline in the price of any security or any market index), (vi)
any changes in GAAP or accounting standards or interpretations thereof, (vii)
changes in laws, rules, regulations, orders, other interpretations of law or
binding directives issued by any governmental entity, or applicable stock
exchange rules, (viii) any change resulting from changes in the international,
national, regional or local markets for commodities or supplies, including
energy and fuel, used in the business of the Company and the Company’s
Subsidiaries, (ix) any change in the financial condition or results of operation
of the Company and the Company’s Subsidiaries caused by the transactions
contemplated hereby, (x) any changes in Seller’s or its parent company’s stock
price or credit metrics, or the failure thereof to meet guidance, projections or
forecasts, whether internal or maintained by analysts, or (xi) the taking of any
action contemplated by this Agreement and the other agreements contemplated
hereby; (b) any existing event, occurrence, or circumstance with respect to
which Seller is required to disclose and has disclosed to Buyers or which a
Buyer has or reasonably should have knowledge of as of the date hereof; and (c)
any adverse change in or effect on the business of Company and the Company’s
Subsidiaries that is cured by Seller before the earlier of (1) the Closing Date
and (2) the date on which this Agreement is terminated pursuant to Section 11.1
hereof.




“MDE” shall mean Macquarie
District Energy, Inc., a Delaware corporation as of the date hereof and a
wholly-owned Subsidiary of the Company, and a limited liability company as of
the date of its conversion to such business entity form.




“MDEH III” has the meaning set
forth in the recitals.




“MDEH III Interests” has the
meaning set forth in the recitals.




“MIC” has the meaning set
forth in the recitals.




“Most Recent Financial
Statements” has the meaning set forth in Section
5.6.




“Most Recent Fiscal Quarter
End” has the meaning
set forth in Section
5.6.




“Multiemployer Plan” has the
meaning set forth in ERISA §3(37).




“Ordinary Course of Business”
means the ordinary course of business consistent with Seller’s or the Company’s
or any of the Company’s Subsidiaries’ past custom and practice (including with
respect to quantity and frequency).




“Other Rights” has the meaning
set forth in Section
5.9(d)(i).




“Other Transaction Documents”
means, collectively, the Seller Assignment, the Assignment and Assumption
Agreement and the Amended and Restated LLC Agreement.




6




“Owned Real Property” means
all land, together with all buildings, structures, improvements, and fixtures
located thereon, owned by Holdco, the Company or any of the Company’s
Subsidiaries and used in the business of Company and the Company’s
Subsidiaries.




“Parties” has the meaning set
forth in the preamble to this Agreement.




“Party” has the meaning set
forth in the preamble to this Agreement.




“Permitted Encumbrances” means
(i) in the case of Real Property, all easements, rights-of-way, servitudes,
permits, licenses, surface leases and other rights, conditions, covenants or
other restrictions, and easements for streets, alleys, highways, telephone
lines, power lines, other utility lines, railways and other easements and
rights-of-way on, over or affecting any portion of the Real Property which are
(x) of record, or (y) do not materially impair the use or occupancy of such Real
Property; (ii) liens for Taxes or assessments not yet due and payable or which
are being contested in good faith through appropriate proceedings; (iii)
mechanics’, materialmen’s, carriers’, workers’, repairers’ and other similar
liens arising or incurred in the Ordinary Course of Business relating to
obligations as to which there is no material default on the part of Holdco, the
Company or the Company’s Subsidiaries or the validity of which are being
contested in good faith; (iv) zoning, entitlement, conservation restriction and
other land use and environmental regulations imposed by governmental
authorities; (v) restrictions on transfer of securities imposed by applicable
state and federal securities laws; (vi) with respect to the Leased Real Property
Customer Rights and Other Rights, any liens, encumbrances and other matters
created or suffered by any landlord, sub-landlord, grantor, licensor or
customer, as applicable, with an interest therein; (vii) such other encumbrances
and encroachments which are immaterial in nature and amount or other matters
that would be disclosed by a survey or other inspection of the Real Property;
(viii) any matters set forth on any title commitments previously disclosed to
Buyers; (ix) any other imperfections in title not material in amount; and (xi)
such items as are set forth on Schedule
1.1(b).




“Person” means an individual,
a partnership, a corporation, a limited liability company, an association, a
joint stock company, a trust, a joint venture, an unincorporated organization,
any other business entity or a governmental entity (or any department, agency,
or political subdivision thereof).




“Purchase Price” has the
meaning set forth in Section
2.2.




“Purchased Interests” has the
meaning set forth in the recitals.




“Real Property” has the
meaning set forth in Section
5.9(d).




“Receiving Party” has the
meaning set forth in Section
7.5.




“Representatives” means the
employees, agents, attorneys, advisors, lenders, investors and accountants of a
Party and its Affiliates.




“Schedules” has the meaning
set forth in the introduction to Article
IV.




“Securities Act” means the
Securities Act of 1933, as amended.




7




“Seller” has the meaning set
forth in the preamble to this Agreement.  For purposes of this
Agreement, the term “Seller” shall mean MDEH III from and after the date of any
assignment of this Agreement by MIC to MDEH III, subject to Section
12.5.




“Seller Assignment” means the
Assignment Agreement between MIC and MDEH III, pursuant to which MIC shall
assign to MDEH III its right, title and interest in this Agreement, subject to
Section
12.5.




“Seller Indemnified Parties”
has the meaning set forth in Section 10.3.




“Shareholder Loan” means an
unsecured debt issued by Holdco to the Company prior to the Closing Date,
consistent with the terms set forth on Exhibit
F.




“Subsidiary” means any Person
with respect to which a specified Person (or a Subsidiary thereof) owns a
majority of the common stock or other equity interests or has the power to vote
or direct the voting of sufficient securities to elect a majority of the
directors or managers.




“Tax” or “Taxes” means any federal,
state, local, or foreign income, gross receipts, license, payroll, employment,
excise, severance, stamp, occupation, premium, windfall profits, environmental
(including taxes under Code Section 59A), customs duties, capital stock,
franchise, profits, withholding, social security (or similar), unemployment,
disability, real property, personal property, sales, use, transfer,
registration, value added, alternative or add-on minimum, estimated, or other
tax of any kind whatsoever, including any interest, penalty, or addition
thereto, whether disputed or not.




“Tax Authority” means any
domestic, foreign or international governmental, quasi-governmental,
legislative, judicial, administrative or regulatory authority, agency,
commission, body, organization, court or entity having jurisdiction over the
assessment, determination, collection, or imposition of any Tax.




“Tax Return” means any return,
declaration, report, claim for refund, or information return or statement
relating to Taxes, including any schedule or attachment thereto, and including
any amendment thereof.




“Termination Date” has the
meaning set forth in Section
11.1(b).




“Third Party Claim” has the
meaning set forth in Section
10.4(a).




“Treasury Regulation” or
“Treas. Reg.” means the
U.S. Income Tax Regulations promulgated under the Code, as such Regulations may
be amended from time to time (including corresponding provisions of succeeding
Regulations).




“WARN Act” has the meaning set
forth in Section
5.18.




8




1.2 Other Definitional
Provisions .  All
accounting terms not otherwise defined herein shall have the meaning ascribed
thereto by GAAP. All terms defined in this Agreement in the singular shall have
comparable meanings when used in the plural and vice-versa.  The words
“hereof,” “herein” and “hereunder” and words of similar import when used in this
Agreement shall refer to this Agreement as a whole and not to any particular
provision of this Agreement.  References to Articles, Sections,
Schedules and Exhibits shall refer to those portions of this Agreement unless
otherwise designated. The use of the masculine, feminine or neuter gender herein
shall not limit any provision of this Agreement. The use of the terms
“including” or “include” shall in all cases herein mean “including, without
limitation” or “include, without limitation,” respectively.




ARTICLE
II




PURCHASE AND SALE OF THE
HOLDCO INTERESTS




2.1 Purchase and
Sale .  On
and subject to the terms and conditions of this Agreement, on the Closing Date,
each Buyer severally agrees to purchase from Seller, and Seller agrees to sell
to each Buyer its respective Purchased Interests, for the consideration
specified below in Section
2.2.  Each Buyer will purchase from Seller the portion of the
Purchased Interests specified opposite such Buyer’s name on Schedule
2.1.




2.2 Purchase
Price .  The
aggregate purchase price payable by Buyers to Seller in consideration for the
Purchased Interests shall be $29,500,000 (the “Purchase
Price”).




2.3 Distributions of Designated
Cash .




(a) Designated Cash in Quarters
Ending Prior to the Closing.  Seller shall be entitled to cause
Holdco (as of the date of its formation, or the Company, if Holdco has not been
formed as of the relevant date) and its Subsidiaries to distribute and pay to
Seller by wire transfer of immediately available funds an amount up to the
Designated Cash held by Holdco (as of the date of its formation, or the Company,
if Holdco has not been formed as of the relevant date) and its Subsidiaries for
any fiscal quarter ending prior to the Closing as a regularly scheduled
distribution as of such distribution date, according to the terms of the Debt of
the Company and its Subsidiaries.




(b) Designated Cash as of the
Closing Date.  The Parties acknowledge and agree that Seller
shall be entitled to receive the amount of Designated Cash held by Holdco and
its Subsidiaries as of the Closing Date under the applicable terms of the
Amended and Restated LLC Agreement.  Buyers acknowledge that the
Purchase Price shall not be subject to any adjustment related to any of the
payments in respect of Designated Cash contemplated under this Section
2.3.  The Parties agree to treat (and agree that Holdco will
treat) the distributions contemplated by this Section 2.3(b) for
U.S. federal income tax purposes as (i) a distribution by Holdco to Seller of a
receivable on the Closing Date in the amount of the Designated Cash distributed
followed by (ii) the repayment of such receivable.




ARTICLE
III




CLOSING




3.1 Closing .  The
consummation of the transactions contemplated by this Agreement (the “Closing”) shall take place on
the date on which the conditions (excluding conditions that, by their terms,
cannot be satisfied until the Closing) set forth in Sections 9.1 and
9.2 are
satisfied or waived in writing (the “Closing Date”) or at such
other time and date as the Parties may agree in writing.  The Closing
shall be held at 1:00 p.m. eastern prevailing time at the offices of
Kirkland & Ellis LLP, 601 Lexington Avenue, New York, New York, or such
other place as the Parties may agree in writing.




9




3.2 Deliveries at
Closingby
Seller .  At
the Closing, Seller shall deliver to Buyers copies of the following instruments
duly executed by MIC or MDEH III, as applicable:




(a) the
Amended and Restated LLC Agreement;




(b) the
Seller Assignment and the Assignment and Assumption Agreement;




(c) certificates
as to the good standing and legal existence of each of Holdco, the Company and
the Company’s Subsidiaries, certified by the Secretary of State of their
respective jurisdictions of formation and organization, dated within 10 Business
Days prior to the Closing Date;




(d) a
certificate of the Secretary or Assistant Secretary of Seller, dated as of the
Closing Date, setting forth and attesting to (i) the corporate organizational
documents of MIC and MDEH III; (ii) resolutions of MIC and MDEH III authorizing
the execution, delivery and performance of this Agreement and the Other
Transaction Documents and the consummation of the transactions contemplated
hereby; and (iii) the incumbency and signature of each officer of MIC and MDEH
III executing this Agreement and the Other Transaction Documents and any
document delivered under this Section
3.2;




(e) a
certificate of non-foreign status dated as of the Closing Date in the form and
substance required by the Treasury Regulations promulgated under Section 1445 of
the Code, stating that neither MIC nor MDEH III is a “foreign person” as defined
in Section 1445 of the Code;




(f) a
certificate dated as of the Closing Date and duly executed by an officer of MIC
and MDEH III regarding the satisfaction of the conditions set forth in Section 9.1(a) and
Section 9.1(b),
substantially in the form attached hereto as Exhibit
C;




(g)
copies of all notices, consents and approvals listed on Schedule 9.1(d)
obtained, made or delivered (as applicable) by Seller, the Company and the
Company’s Subsidiaries in connection with the transactions contemplated by this
Agreement;




(h) evidence
reasonably satisfactory to Buyers that the Company has filed the necessary forms
required to effectively convert its status from a partnership to a corporate tax
payer for U.S. federal income tax purposes;




(i) evidence
reasonably satisfactory to Buyers that MDE has made all necessary filings to
effectively convert its status from a Delaware corporation to a Delaware limited
liability company, and to elect corporate tax payer status for a limited
liability company for U.S. federal income tax purposes;




10




(j) confirmation
of the making of the Shareholder Loan by Holdco to the Company;




(k) an
opinion of Seller’s counsel with respect to the matters set forth on Exhibit G attached
hereto and in form and substance reasonably satisfactory to the Buyers;
and




(l) a
reasonably detailed statement of the amount of Designated Cash for each
completed fiscal quarter ending after the date of this Agreement and prior to
the Closing Date and as of the Closing Date, certified on the Closing Date by an
officer of MIC and MDEH III.




3.3 Deliveries at Closing by
Buyers .  At
the Closing, Buyers shall deliver to Seller copies of the following instruments
duly executed by Buyers, and take such other actions as set forth
below:




(a) the
Amended and Restated LLC Agreement;




(b) the
Assignment and Assumption Agreement;




(c) a
certificate of the Secretary or Assistant Secretary of each Buyer substantially
in the form attached hereto as Exhibit D, dated as
of the Closing Date, and setting forth and attesting to (i) Buyer’s
authorization for the execution, delivery and performance of this Agreement and
the Other Transaction Documents (other than the Seller Assignment) and the
consummation of the transactions contemplated hereby; (ii) the incumbency and
signature of each officer of Buyer executing this Agreement and the Other
Transaction Documents (other than the Seller Assignment) and any document
delivered under this Section 3.3; and
(iii) the satisfaction of the conditions set forth in Section 9.2(a) and
Section
9.2(b);




(d) copies
of all consents and approvals listed on Schedule 9.2(d)
obtained, made or delivered (as applicable) by Buyers in connection with the
transactions contemplated by this Agreement; and




(e) Buyers
shall pay to Seller (each according to such Buyer’s proportion of the Purchased
Interests to be purchased by it as set forth on Schedule 2.1), in
immediately available funds by wire transfer to an account designated by Seller,
the aggregate Purchase Price.




ARTICLE
IV




REPRESENTATIONS AND
WARRANTIES OF SELLER




Subject
to the exceptions, disclaimers and other matters set forth in this Agreement and
the disclosure schedules delivered by Seller to Buyers on the date hereof (the
“Schedules”), Seller
hereby represents and warrants to Buyers as of the date hereof and as of the
Closing Date (in each case, unless another date is referenced, in which case as
of such other date) as follows:




4.1 Organization of
Seller .  Seller
is as of the date of this Agreement, and will be on the Closing Date, duly
organized, validly existing and in good standing under the laws of the state of
Delaware, and is duly qualified to do business as a foreign entity in all states
where it is necessary and required to be so qualified in order to perform the
obligations and effect the transactions contemplated by this Agreement, except
where the lack of such qualification would not have a Material Adverse
Effect.




11




4.2 Authorization of
Transaction .  Seller
has full corporate or limited liability company (as the case may be) power and
authority to execute and deliver this Agreement and the Other Transaction
Documents and to perform its obligations hereunder.  The execution,
delivery and performance of this Agreement has been duly and validly authorized
by all necessary corporate action on the part of Seller.  This
Agreement has been, and the Other Transaction Documents will have as of the
Closing been, duly executed and delivered by Seller and constitute (and will
constitute as of the Closing in the case of the Other Transaction Documents) the
valid and legally binding obligation of Seller, enforceable in accordance with
its terms and conditions.




4.3 Non-contravention .




(a)
Neither the execution, delivery and performance of this Agreement and the Other
Transaction Documents (with respect to the performance of the transactions
contemplated hereby), nor the consummation of the transactions contemplated
hereby, will (i) violate any constitution, statute, regulation, rule,
injunction, judgment, order, decree, ruling, charge, or other restriction of any
government, governmental agency, or court to which Seller is subject or any
provision of its charter, bylaws, or other corporate or limited liability
company organizational documents; (ii) conflict with, result in a breach of,
constitute a default under, result in the acceleration of, create in any party
the right to accelerate, terminate, modify, or cancel, or require any notice
under any agreement, contract, lease, license, instrument, or other arrangement
to which Seller is a party or by which Seller is bound or to which any of
Seller’s assets is subject, except as set forth on Schedule 4.3; or
(iii) result in the imposition or creation of a Lien upon or with respect to the
Holdco Interests, except where the violation, conflict, breach, default,
acceleration, termination, modification, cancellation, failure to give notice,
or Lien would not have a Material Adverse Effect.  To the Knowledge of
Seller, after due inquiry, and except as set forth on Schedule 4.3, Seller
need not give any notice to, make any filing with, or obtain any authorization,
consent, or approval of any government or governmental agency in order to
consummate and perform the transactions contemplated by this Agreement and the
Other Transaction Documents (with respect to the performance of the transactions
contemplated hereby) other than disclosures required under United States
securities laws or applicable stock exchange rules, except as would not have a
Material Adverse Effect.  As of the Closing Date, all of the
authorizations, consents, notices and approvals listed in Schedule 9.2(d) have
been obtained, given, or waived in writing.




(b) None
of the authorizations, consents, notices or approvals that are listed in Schedule 4.3 but
are not listed in Schedule 9.2(d)
are material to the business of Holdco, the Company and the Company’s
Subsidiaries, taken as a whole, or to the ability of any Party to consummate
timely the transaction contemplated hereby.




4.4 Capitalization of MDEH III
and Holdco .  As
of the Closing Date, the authorized, issued and outstanding equity interests of
MDEH III will consist of the MDEH III Interests, and of Holdco will consist of
the Holdco Interests, each as set forth on Schedule
4.4.  As of the Closing Date, MIC will own beneficially and of
record all of the outstanding MDEH III Interests, and MDEH III will own
beneficially and of record all of the outstanding Holdco Interests, in each case
free and clear of all Liens, liabilities, charges, voting trusts, restrictions,
encumbrances and claims of every kind, except as set forth on Schedule
4.4.  As of the Closing Date, the MDEH III Interests and the
Holdco Interests will be duly authorized and validly issued, fully paid and
nonassessable.




12




4.5 Preferential Rights to
Purchase .  There
are no preferential purchase rights or options or other rights that are held by
any Person to purchase or acquire any of the MDEH III Interests or the Holdco
Interests that shall be triggered or become operative as a result of the
execution or performance of this Agreement or the Other Transaction Documents or
the consummation of the transactions contemplated hereby, except as set forth in
the Amended and Restated LLC Agreement.  As of the Closing Date,
Seller will not be subject to any contract or commitment that requires Seller to
sell, transfer or otherwise dispose of the MDEH III Interests or the Holdco
Interests to any third parties, except as contemplated under this Agreement and
the Assignment and Assumption Agreement and the Amended and Restated LLC
Agreement.




4.6 Securities
Laws .  Neither
the Seller, nor anyone acting on behalf of the Seller, has sold or offered or
will sell or offer for sale any Purchased Interests to nonqualified offerees so
as to subject the sale of the Purchased Interests by the Seller as contemplated
by this Agreement to the provisions of Section 5 of the Securities Act of 1933,
as amended, or the registration requirements of any state’s securities or “blue
sky” laws.




4.7 Investment Company
Act .  Neither
the Seller nor any of its Affiliates is subject to regulation under the
Investment Company Act of 1940, as amended.




ARTICLE
V




REPRESENTATIONS AND
WARRANTIES CONCERNING HOLDCO, THECOMPANY AND ITS
SUBSIDIARIES




Subject
to the exceptions, disclaimers and other matters set forth in this Agreement,
the Schedules delivered by Seller to Buyers on the date hereof, Seller hereby
represents and warrants to Buyers as of the date hereof and as of the Closing
Date (in each case, unless another date is referenced, in which case as of such
other date) as follows:




5.1 Organization, Qualification,
and Corporate Powerof Holdco, the Company and
the Company’s Subsidiaries .  Each
of the Company and the Company’s Subsidiaries are, and Holdco will be as of the
Closing Date, duly organized, validly existing, and in good standing under the
laws of the jurisdiction of their incorporation or formation.  Each of
the Company and the Company’s Subsidiaries are, and Holdco will be as of the
Closing Date, duly authorized to conduct business and are in good standing under
the laws of each jurisdiction where such qualification is required, except where
the lack of such qualification would not have a Material Adverse Effect. Each of
the Company and the Company’s Subsidiaries have, and Holdco will have as of the
Closing Date, full corporate or limited liability company, as the case may be,
power and authority to carry on the business in which they are engaged and to
own and use the properties owned and used by them.  Schedule 5.1 lists
the directors, managers and officers of the Company and each of the Company’s
Subsidiaries, and Holdco (as of the Closing Date).




13




5.2 Capitalization of the
Company and the Company’s Subsidiaries .  The
authorized, issued and outstanding equity interests of the Company and the
Company’s Subsidiaries are set forth on Schedule
5.2.  Except as set forth in Schedule 5.2, Holdco,
the Company or one of the Company’s Subsidiaries own beneficially and of record
all of the outstanding equity interests of the Company and the Company’s
Subsidiaries and such equity interests are owned free and clear of all Liens,
liabilities, charges, voting trusts, restrictions, encumbrances and claims of
every kind.  The equity interests of each of the Company and the
Company’s Subsidiaries have been duly authorized and validly issued, are fully
paid and nonassessable.




5.3 Non-contravention .




(a)
Neither the execution, delivery and performance of this Agreement and the Other
Transaction Documents (with respect to the performance of the transactions
contemplated hereby), nor the consummation of the transactions contemplated
hereby, will (i) violate any constitution, statute, regulation, rule,
injunction, judgment, order, decree, ruling, charge, or other restriction of any
government, governmental agency, or court to which the Company or any of the
Company’s Subsidiaries are subject (or to which Holdco will be subject as of the
Closing Date) or any provision of the charter, bylaws, or other corporate or
limited liability company organizational documents of the Company and any of the
Company’s Subsidiaries (or of Holdco as of the Closing Date); or (ii) conflict
with, result in a breach of, constitute a default under, result in the
acceleration of, create in any party the right to accelerate, terminate, modify,
or cancel, or require any notice under any agreement, contract, lease, license,
instrument, or other arrangement to which the Company or any of the Company’s
Subsidiaries is a party or by which it is bound, or to which Holdco will be a
party or be bound as of the Closing Date, or to which any of its assets is (or
Holdco’s assets will be as of the Closing Date) subject (or result in the
imposition of any Lien upon any of its assets), except as provided in Schedule
5.3 or where the violation, conflict, breach, default, acceleration,
termination, modification, cancellation, failure to give notice, or Lien would
not have a Material Adverse Effect.  To the Knowledge of Seller, after
due inquiry, and except as set forth as Schedule 4.3, neither Holdco, nor the
Company nor any of the Company’s Subsidiaries need give any notice to, make any
filing with, or obtain any authorization, consent, or approval of any government
or governmental agency in order for the Parties to consummate and perform the
transactions contemplated by this Agreement and the Other Transaction Documents
(with respect to the performance of the transactions contemplated hereby),
except where the failure to give notice, to file, or to obtain any
authorization, consent, or approval would not have a Material Adverse
Effect.  As of the Closing Date, all of the authorizations, consents,
notices and approvals listed in Schedule 9.2(d) have been obtained, given, or
waived in writing.




(b) None
of the authorizations, consents, notices or approvals that are listed in Schedule 5.3 but
are not listed in Schedule 9.2(d)
are material to the business of Holdco, the Company and the Company’s
Subsidiaries, taken as a whole, or to the ability of any Party to consummate
timely the transaction contemplated hereby.




5.4 Brokers’
Fees .  Neither
the Company nor any of the Company’s Subsidiaries has (nor will Holdco have as
of the Closing Date) any liability or obligation to pay any fees or commissions
to any broker, finder, or agent with respect to the transactions contemplated by
this Agreement.




14




5.5 Title to Tangible
Assets .  At
the Closing, the assets of the Company and the Company’s Subsidiaries will
include all of the assets (whether tangible or intangible) that are necessary
for the continued operation of their businesses in all material respects
immediately after the Closing as conducted as of the date
hereof.  Holdco, the Company and the Company’s Subsidiaries have good
title to, or a valid leasehold interest in or right to use, free and clear of
all Liens except for Permitted Encumbrances, the material tangible assets
reflected in the Financial Statements that are necessary for the continued
operation of their business in all material respects as conducted as of the date
hereof and as of the Closing Date.  Notwithstanding anything to the
contrary in this Section 5.5, Seller
makes no representation or warranty in this Section 5.5 regarding
the value, quality or condition of any assets used in or necessary for the
operation of the businesses of the Company and the Company’s Subsidiaries as of
the date hereof.




5.6 Financial
Statements .  Attached
hereto as Exhibit
E are the following financial statements (collectively, the “Financial Statements”): (i)
audited consolidated balance sheets and statements of income, changes in
stockholders’ equity, and cash flow as of and for the fiscal years ended 2007
and 2008 for the Company and the Company’s Subsidiaries; and (ii) unaudited
consolidated balance sheets and statements of income, changes in members’
equity, and cash flow (the “Most Recent Financial
Statements”) as of and for the quarters ended September 30, 2009
(the “Most Recent Fiscal
Quarter End”) for the Company and the Company’s
Subsidiaries.  The Financial Statements (including the notes thereto,
if applicable) have been prepared from the books and records of the Company in
accordance with GAAP throughout the periods covered thereby and present fairly
the financial condition of Company and the Company’s Subsidiaries as of such
dates and the results of operations of the Company and the Company’s
Subsidiaries for such periods; provided,however, that the Most
Recent Financial Statements are subject to normal year-end adjustments and lack
footnotes and other presentation items.  Since the Most Recent Fiscal
Quarter End, there has not been any Material Adverse Effect.




5.7 Legal
Compliance .  To
the Knowledge of Seller, during the 24 month period ending on each of the date
hereof and the Closing Date, each of the Company and the Company’s Subsidiaries,
and Holdco as of the Closing Date, has complied with all applicable laws
(including rules, regulations, codes, plans, injunctions, judgments, orders,
decrees, rulings, and charges thereunder) of federal, state, local, and foreign
governments (and all agencies thereof), except where the failure to comply would
not have a Material Adverse Effect.  Notwithstanding anything to the
contrary in this Section 5.7, this
Section 5.7
does not relate to matters with respect to (i) laws relating to Taxes and other
Tax matters (which are the subject of Section 5.8); (ii)
litigation and regulatory matters (which are the subject of Section 5.15); (iii)
ERISA and other employee benefit matters (which are the subject of Section 5.16); (iv)
Environmental Requirements and other environmental matters (which are the
subject of Section
5.17); or (v) labor and employment matters (which are the subject of
Section
5.18).




5.8 Tax
Matters .  Except
as provided in Schedule
5.8:




(a) Each
of Seller, the Company and the Company’s Subsidiaries have timely filed (after
giving force and effect to any extensions of time) all material Tax Returns that
it was required to file.  All material Taxes owed by the Company and
the Company’s Subsidiaries (whether or not shown on any Tax Return) have been
(or will be) timely paid, are being contested in good faith (as described in
Schedule 5.8),
or are (or will be) reserved on the books of the Company.  No Tax
Authority in a jurisdiction where the Company or any of the Company’s
Subsidiaries does not file Tax Returns has asserted that the Company or any of
the Company’s Subsidiaries is or may be subject to taxation by that
jurisdiction. All material Taxes not yet due and payable have been fully accrued
on the books of Seller, the Company or the applicable Subsidiary of the Company,
as the case may be.




15




(b)
Neither the Company nor any of the Company’s Subsidiaries, nor Seller acting on
behalf of the Company or any of the Company’s Subsidiaries, has waived any
statute of limitations, executed or filed with any Tax Authority any agreement
or other document extending or having the effect of extending the period for
assessment, reassessment or collection, entered into any closing agreement or
granted any power of attorney with respect to any Taxes.




(c) No
audits or other administrative proceedings, claims, discussions or court
proceedings are presently pending with regard to any Taxes or Tax Returns of the
Company or any of the Company’s Subsidiaries, and no additional issues are being
asserted against the Company or any of the Company’s Subsidiaries in connection
with any existing audits of the Company or any of the Company’s
Subsidiaries.  No unpaid deficiency for any Tax has been assessed by a
Tax Authority against the Company or any of the Company’s
Subsidiaries.




(d)
Neither the Company nor any of the Company’s Subsidiaries (i) has, since
December 22, 2004, been a member of an Affiliated Group filing a consolidated
federal Income Tax Return other than a group the common parent of which is MIC
(and, since January 1, 2007, Macquarie Infrastructure Company LLC) or
(ii) other than as a result of being a member of such Affiliated Group, has
any liability for the Taxes of any Person other than itself and its direct
Subsidiaries under Treas. Reg. § 1.1502-6 (or any similar provision of state,
local or foreign law), as a transferee or successor, by contract, or
otherwise.




(e) Upon
giving effect to the Closing, neither the Company nor any of the Company’s
Subsidiaries is a party to or bound by any Tax allocation or sharing agreement
with or arising by, through or under Seller or any of its
Affiliates.




(f) There
are no Liens against Seller or Seller’s assets affecting the Company Interests,
or against any assets of the Company or any of the Company’s Subsidiaries, that
arose in connection with any failure (or alleged failure) to pay any
Tax.




(g) The
Company and each of the Company’s Subsidiaries have withheld and paid all
material Taxes required to have been withheld and paid in connection with
amounts paid or owing to any employee, independent contractor, creditor or other
party prior to or on the Closing Date and have complied in all material respects
with all requirements relating to such withholding.




(h) There
is no dispute or claim concerning any Tax liability of the Company or any of the
Company’s Subsidiaries raised by any Tax Authority in writing or, to the
Knowledge of Seller, threatened.




(i) Schedule 5.8 lists
all Tax Returns filed by the Company or any of the Company’s Subsidiaries for
taxable periods ended on or after December 31, 2006, indicates those Tax Returns
that have been audited, and indicates those Tax Returns that currently are the
subject of audit.  Holdco has not filed any Tax Returns.




16




(j) In
connection with the transactions contemplated by this Agreement, neither the
Company nor any of the Company’s Subsidiaries has made any payments or is
obligated to make any payments that will not be deductible under Code Sections
162(m) or 280G.




(k)
Holdco will be as of the date of its formation, and will remain through the
Closing Date, an entity that is disregarded as separate from its owner under
Section 7701 of the Code and where applicable state and local income tax
purposes.




(l) The
net operating losses for U.S. federal income tax purposes of MDE and its
Subsidiaries after giving effect to the transactions contemplated hereby will be
an amount at least equal to $16,000,000.




(m) To
Seller’s Knowledge, after due inquiry, neither the net operating losses
identified in Section
5.8(l) nor any other tax attribute of Holdco or its Subsidiaries are
currently subject to limitation under Section 381, 382, 383, or 384 of the Code,
or the U.S. federal consolidated return regulations.




(n)
Assuming that the transactions contemplated by this Agreement constitute an
“ownership change” as defined in Section 382(g) of the Code, the annual “Section
382 limitation” (as defined in Section 382 of the Code) of Holdco and its
Subsidiaries for each taxable year of the “five year limitation period”, as
defined in Section 382(h)(7) of the Code, will at least equal
$4,600,000.




(o)
Except as provided in Schedule 5.8, neither
MDE nor any of the Company’s Subsidiaries has distributed stock of another
person, or has had its stock distributed by another person, in a transaction
that was purported or intended to be governed in whole or in part by Section 355
or Section 361 of the Code.




(p)
Except as provided in Schedule 5.8, neither
the Company nor any of the Company’s Subsidiaries is or has been a party to any
“reportable transaction” as defined in Section 6707A(c)(1) of the Code and
Treas. Reg. § 1.6011-4(b), or a “listed transaction” as defined in Section
6707A(c)(2) of the Code and Treas. Reg. § 1.6011-4(b)(2).




(q) For
purposes of this Section 5.8 and Section 8.1, any
reference to the Company or any of the Company’s Subsidiaries shall be deemed to
include any person that merged with or liquidated into the Company or such
Subsidiary.




(r) No
taxable income will be recognized to Holdco or the Company as a result of the
election to treat the Company as taxable as a corporation for U.S. federal
income tax purposes.




(s) There
are no limitations on the net operating losses identified in Section 5.8(l) under
Treas. Reg. § 1.1502-3(d) or Treas. Reg. § 1.1502-21(b) that would limit the use
of the net operating losses identified in Section 5.8(l)
against income produced by MDE, Thermal Chicago Corporation, or ETT Nevada
Inc.




17




(t) No
attribute reduction with respect to MDE or MDE’s Subsidiaries has been or will
be required under Treas. Reg. § 1.1502-36(d) in regard to any transaction
occurring prior to or as a result of the Closing.




(u) None
of the Seller, Holdco, the Company or any of their respective Affiliates has any
plan or intention to cause a transaction that would create a limitation on the
net operating losses identified in Section 5.8(l) within
the three year period following the Closing.




(v) As of
the Closing Date, Seller shall have caused, or shall have caused Holdco to
cause, the Company to file Internal Revenue Service Form 8832 to elect to be
classified as a corporation for U.S. federal income tax purposes;




(w) As of
the Closing Date, Seller shall have caused, or shall have caused Holdco and the
Company to cause, MDE to (i) make all necessary filings to convert its status
from a Delaware corporation to a Delaware limited liability company, (ii) change
its name to “Macquarie District Energy LLC,” and (iii) file Internal Revenue
Service Form 8832 to elect to be classified as a corporation for U.S. federal
income tax purposes effective as of the date of the conversion referred to in
Section
5.8(w)(i) above;




(x) As of
the Closing Date, Seller, Holdco and the Company have treated and will treat the
conversion and election referred to in Section 5.8(w) as a
mere change of name for the purposes of Section 368(a)(1)(F) of the Code;
and




(y) As of
the Closing Date, Seller shall make the representations and warranties set forth
in Sections
5.8(a) through 5.8(j) and Sections 5.8(p) and
5.8(q) with
respect to Holdco.




5.9 Real
Property.




(a) Schedule 5.9(a) sets
forth the address and description of each parcel of Owned Real
Property.  With respect to each parcel of Owned Real
Property:




(i)       
the Company or one of the Company’s Subsidiaries has good and marketable fee
simple title, free and clear of all Liens, except Permitted
Encumbrances;




(ii)     
except as set forth in Schedule 5.9(a),
neither the Company nor any of the Company’s Subsidiaries has leased or
otherwise granted to any Person the right to use or occupy such Owned Real
Property or any portion thereof; and




(iii)    
other than any right of Buyers pursuant to this Agreement, there are no
outstanding options, rights of first offer or rights of first refusal to
purchase such Owned Real Property or any portion thereof or interest
therein.




(b) Schedule 5.9(b) sets
forth the address of each parcel of Leased Real Property (to the extent such
property has an associated common address), and a true and complete list of all
Leases for each such parcel of Leased Real Property. Seller has delivered to
Buyers a true and complete copy of each such Lease document, and in the case of
any oral Lease, a written summary of the material terms of such Lease. Except as
set forth in Schedule
5.9(b), with respect to each of the Leases:




18




(i)   
   such Lease is legal, valid, binding, enforceable and in full
force and effect, subject to proper authorization and execution of such Lease by
the other party thereto and the application of any bankruptcy or other
creditor’s rights laws; and




(ii)     
neither the Company, nor any of the Company’s Subsidiaries is in breach of or
default under such Lease, and, to the Knowledge of Seller, no event has occurred
or circumstance exists that, with the delivery of notice, the passage of time or
both, would constitute such a breach or default, except for any such breach or
default as would not have a Material Adverse Effect.




(c) Schedule 5.9(c) sets
forth a listing of all easements in favor of, used or occupied by, the Company
or any of the Company’s Subsidiaries, but does not include the District Cooling
System Use Agreement, Customer Rights or Other Rights (such easements (excluding the Customer
Rights, the District Cooling System Use Agreements and any Other Rights), the
“Easements”).  Seller
has made available to Buyers a true and complete copy of each material Easement
document that it has in its possession as of the date
hereof.   Except as set forth in Schedule 5.9(c), with
respect to each of the Easements:




(i)      
to the Knowledge of Seller, after due inquiry, neither the Company nor any of
the Company’s Subsidiaries has received any written notice of any default by the
Company or any of the Company’s Subsidiaries under any Easement that has not
been cured or any written termination notice with respect thereto;
and




(ii)      to
the Knowledge of Seller, after due inquiry, neither the Company, nor any of the
Company’s Subsidiaries is in breach of or default under such Easement, except as
would not have a Material Adverse Effect.




(d) District Cooling
System.




(i)        The
entire continuous length of the pipelines that comprise a part of the District
Cooling System is subject to (A) the District Cooling System Use Agreement and
the ancillary agreements contemplated thereby, (B) the applicable Easements,
(C) the Customer Rights, and/or (D) other rights that permit the Company or
the Company’s Subsidiaries to install, construct, operate, maintain and use such
pipelines within the lands covered thereby and provide the Company or the
Company’s Subsidiaries such rights incidental thereto as are necessary to
operate and maintain the District Cooling System (the “Other Rights”) except to the
extent that the failure of any part of the District Cooling System to be subject
to the agreements, easements or rights described in the foregoing clauses (A),
(B), (C) and/or (D) would not have a Material Adverse Effect on the Company and
the Company’s Subsidiaries collectively.




(ii)      
Seller has made available to Buyers complete and correct copies of the District
Cooling System Use Agreement and all Customer Rights, including all amendments
thereto.




(iii)      Except
as set forth in Schedule 5.9(d), to
the Knowledge of the Seller, after due inquiry, there exists no default or event
of default (or any event or condition that with notice or lapse of time or both
would become a default) on the part of the Company or any Subsidiary of the
Company under the District Cooling System Use Agreement, any Customer Rights or
the Other Rights except to the extent that such default, event of default, event
or condition would not have a Material Adverse Effect on the Company and the
Company’s Subsidiaries collectively.




19




(e) The
Owned Real Property identified in Schedule 5.9(a), the
Leased Real Property identified in Schedule 5.9(b), the
Easements identified in Schedule 5.9(c)
(collectively, the “Real
Property”) and the Customer Rights and Other Rights referenced in Section 5.9(d)
comprise all of the real property used in the business of the Company and the
Company’s Subsidiaries; and neither the Company nor any of the Company’s
Subsidiaries is a party to any agreement or option to purchase any real property
or interest therein (other than as described on Schedule
5.9(b)).




(f)
Neither the Company nor any of the Company’s Subsidiaries has received written
notice of any condemnation, expropriation or other proceeding in eminent domain
affecting any parcel of Owned Real Property or any portion thereof or interest
therein.




5.10        Intellectual
Property. Schedule 5.10 sets
forth (i) all material patents, trademark and service mark registrations and
copyright registrations that have been issued to the Company or any of the
Company’s Subsidiaries, and (ii) the pending material patent applications,
applications for trademark or service mark registration and applications for
copyright registration that the Company or any of the Company’s Subsidiaries has
filed.




5.11        Contracts .




(a) Schedule 5.11 lists
all of the following written agreements (other than any agreements set forth on
Schedule 5.12)
related to Holdco, the Company or any of the Company’s
Subsidiaries:




(i)          any
agreement (or group of related agreements) the performance of which will involve
annual consideration in excess of $1,000,000;




(ii)         any
energy supply agreement;




(iii)        any
agreements between the Company or the Company’s Subsidiaries and their
customers;




(iv)        any
agreements relating to material partnerships, joint ventures or other
arrangements involving a sharing of profits or expenses;




(v)         any
agreement (or group of related agreements) under which the Company or any of the
Company’s Subsidiaries has created, incurred, assumed, or guaranteed any Debt in
excess of $1,000,000;




(vi)        any
agreements containing covenants prohibiting or limiting the right to compete of
the Company or any of the Company’s Subsidiaries;




(vii) any
profit sharing, stock option, stock purchase, stock appreciation, deferred
compensation, severance, or other similar agreement for the benefit of its
current or former directors, officers, and employees and with respect to which
the Company or any of the Company’s Subsidiaries may have
liability;




20




(viii)      any
collective bargaining agreement with any labor organization;




(ix)        any
settlement, conciliation or similar agreement with any governmental authority
or, pursuant to which, will require payment (after the execution date of this
Agreement) by the Company or any of the Company’s Subsidiaries of consideration
in excess of $1,000,000;




(x)          any
agreement for the lease of personal property to or from any Person involving
annual consideration in excess of $1,000,000;




(xi)         any
other agreement under which the consequences of a default or early termination
would be reasonably likely to have a Material Adverse Effect; and




(xii)        any
agreement, indenture, instrument, order of any court or any governmental agency
rule or regulation which contains any restriction on Holdco (after its
formation) or the Company or any of the Company’s Subsidiaries to make
distributions or pay dividends.




Seller has made
available to Buyers a correct and complete copy of each material agreement
(including all amendments thereto) listed on Schedule 5.11 (except
to the extent noted therein).  To the Knowledge of Seller, after due
inquiry, the Company or its Subsidiary party thereto has performed in all
respects the obligations required to be performed under the agreements listed on
Schedule 5.11,
and no breach by the other party to such agreement, has occurred and is
continuing, except for such failures to perform or breaches as would not have a
Material Adverse Effect.  To the Knowledge of Seller, after due
inquiry, neither the Company nor any of the Company’s Subsidiaries has received
any written notice of any default under any agreement listed on Schedule 5.11 that
has not been cured, nor has it received any written termination notice with
respect thereto, except for any such default or termination as would not have a
Material Adverse Effect.




5.12        Related Party
Agreements .  Except
as set forth on Schedule 5.12,
neither the Company nor any of the Company’s Subsidiaries is a party to or
otherwise bound by any agreement with Seller or any Affiliate of Seller (other
than the Company and the Company’s Subsidiaries, or Holdco as of the Closing
Date).




5.13        Credit
Enhancements .  Schedule 5.13 sets
forth a true, accurate and complete list of all guaranties, sureties, letters of
credit, performance bonds guaranteeing the performance of the Company and any of
the Company’s Subsidiaries, and similar undertakings (“Credit Enhancements”)
maintained or currently required to be maintained by or for the Company and/or
the Company’s Subsidiaries in connection with the conduct of their respective
businesses other than agreements relating to Debt.  There is no
collateral supporting any such Credit Enhancements.




21




5.14        Authorizations .  Schedule 5.14 sets
forth a true, accurate and complete list of all material Authorizations held by
the Company and the Company’s Subsidiaries which are necessary or required to
operate their businesses as presently conducted, and any material Authorizations
which are pending approval or renewal on the date hereof.  To the
Knowledge of Seller, after due inquiry, the Company and, to the extent
applicable, each of the Company’s Subsidiaries is in material compliance with
all of the terms and requirements of any Authorization identified or required to
be identified on Schedule
5.14.  The Authorizations listed on Schedule 5.14 have
been issued to, and duly obtained and fully paid for by, the holder thereof and
are valid and in full force and effect, and neither Seller, the Company nor any
of the Company’s Subsidiaries has received any written notice that any
governmental authority intends to cancel, terminate or not renew any such
Authorization, except as would not have a Material Adverse Effect.  To
the Knowledge of Seller, after due inquiry, no event has occurred or
circumstance exists, including, without limitation, the execution and delivery
of this Agreement and the consummation of the transactions contemplated hereby,
that may (with or without notice or lapse of time) constitute or result directly
or indirectly in the revocation, withdrawal, suspension, modification, or
termination of any Authorization listed or required to be listed on Schedule 5.14, except
as would not have a Material Adverse Effect.




5.15        Litigation .  Schedule 5.15 sets
forth each instance in which Holdco (since its formation) the Company or any of
the Company’s Subsidiaries (i) is subject to any outstanding injunction,
judgment, order, decree, ruling, or charge or (ii) is a party to any action,
suit, proceeding, hearing or, to Seller’s Knowledge, investigation of, in, or
before any court or quasi-judicial or administrative agency of any federal,
state, local, or foreign jurisdiction, other than matters of general
applicability affecting similarly situated businesses, except where the
injunction, judgment, order, decree, ruling, action, suit, proceeding, hearing,
or investigation would not have a Material Adverse Effect.




5.16        Employee
Benefits.




(a) Schedule 5.16(a)
lists each Employee Benefit Plan that Holdco, the Company or any of the
Company’s Subsidiaries maintains or to which any of the Company and the
Company’s Subsidiaries or any of its ERISA Affiliates contribute for the benefit
of any employee of the Company.




(b) Each
such Employee Benefit Plan (other than any Multiemployer Plan) and each related
trust, insurance contract, or fund that implements such plan has been
maintained, funded and administered in accordance with the terms of such
Employee Benefit Plan and complies in form and in operation in all respects with
the applicable requirements of ERISA and the Code, except in either case as
would not have a Material Adverse Effect.




(c) All
contributions (including all employer contributions and employee salary
reduction contributions) that are due have been made to each such Employee
Benefit Plan that is an Employee Pension Benefit Plan.  All premiums
or other payments that are due have been paid with respect to each such Employee
Benefit Plan that is an Employee Welfare Benefit Plan.




(d)
Except as set forth on Schedule 5.16(d),
each such Employee Benefit Plan (other than any Multiemployer Plan) that is
intended to meet the requirements of a “qualified plan” under Code Section
401(a) has received a determination letter or opinion letter from the Internal
Revenue Service to the effect that it meets the requirements of Code Section
401(a).




22




(e)
Neither the Company nor any of its ERISA Affiliates have incurred any withdrawal
liability to any Multiemployer Plan due to a “complete withdrawal” or “partial
withdrawal” (as such terms are defined in Section 4203 and 4205 of ERISA) that
has not been satisfied in full.




(f)
During the last six (6) years, neither Company nor any of the Company’s
Subsidiaries has maintained, sponsored or contributed to either (i) any Employee
Pension Benefit Plan (other than any Multiemployer Plan) that is a “defined
benefit plan” (as defined in ERISA Section 3(35)) on
behalf of any employees of the Company or any of the Company’s Subsidiaries, or
(ii) any material Foreign Plan.




(g) With
respect to each Benefit Plans set forth on Schedule 5.16(a)
other than any Multiemployer Plan, and except as set forth on Schedule 5.16(g), to
the Knowledge of Seller, no action, investigation, suit, proceeding, hearing or
claim with respect to the assets thereof (other than routine claims for
benefits) is pending or threatened, and notwithstanding Schedule 5.16(g),
Seller has no Knowledge of any facts that would give rise to or could reasonably
be expected to give rise to any such action, suit or claim that would reasonably
be expected to result in a Material Adverse Effect.




(h) To
the Knowledge of Seller, neither Holdco, the Company or any of its Subsidiaries
could reasonably be expected to incur any material liability under or on account
of any employee benefit plan program or arrangement sponsored, maintained or
contributed to by Seller or any Seller Affiliates (including any affiliates
subject to the laws of any non-United Sates jurisdiction) other than Holdco, the
Company or any of its Subsidiaries.




(i) The
expected post-retirement benefit obligations associated with the employees and
former employees of the Company or any of the Company’s Subsidiaries (determined
as of the last day of the Company’s most recently ended fiscal year in
accordance with Financial Accounting Standards Board Statement No. 106, without
regard to liabilities attributable to continuation coverage mandated by Section
4980B of the Code) does not exceed an amount that could reasonably be expected
to result in a Material Adverse Effect.




5.17        Environmental
Matters.




(a)
Except as set forth on Schedule
5.17:




(i)           to
the Knowledge of Seller, after due inquiry, the Company and the Company’s
Subsidiaries are in compliance with Environmental Requirements, except for such
non-compliance as would not have a Material Adverse Effect;




(ii)          Holdco
(since its formation) the Company and the Company’s Subsidiaries have obtained
and are in compliance with all material permits, licenses and other
authorizations that are required pursuant to Environmental Requirements, except
where the failure to obtain or comply with such permits, licenses and
authorizations would not have a Material Adverse Effect;




(iii)         none
of Holdco (since its formation), the Company nor the Company’s Subsidiaries is
subject to any injunction, judgment, order, decree or restriction of any
government, governmental agency or court, pursuant to or with respect to
Environmental Requirements, except as would not have a Material Adverse
Effect;




23




(iv)        the
Company and the Company’s Subsidiaries have not received any written notice of
any material violation of Environmental Requirements, or any material
liabilities under Environmental Requirements, including any investigatory,
remedial, indemnification, or corrective obligations, relating to the Company or
the Company’s Subsidiaries or their facilities arising under Environmental
Requirements, the subject of which would have a Material Adverse Effect;
and




(v)         to
the Knowledge of Seller, after due inquiry, Seller has disclosed to Buyer and
its representatives in the online “data room” established by Seller with respect
to the transactions contemplated hereby to which Buyers’ Representatives have
been given access all material third party reports commissioned by the Company
and its Affiliates with respect to the compliance of the business of the Company
and the Company’s Subsidiaries with Environmental Requirements.




(b) This
Section 5.17
contains the sole and exclusive representations and warranties of Seller with
respect to any environmental matters, including without limitation any arising
under any Environmental Requirements.




5.18        Labor and Employment
Matters .  Except
as set forth on Schedule 5.18, with
respect to the business of the Company and the Company’s Subsidiaries: (i) there
are no pending, or to Seller’s Knowledge, after due inquiry, threatened, labor
or employment controversies, that, if adversely decided, would have a Material
Adverse Effect; (ii) Seller is not a party to any collective bargaining
agreement or relationship; (iii) no union organizing or decertification efforts
are underway or, to Seller’s Knowledge, after due inquiry, threatened and no
such efforts have (to Seller’s Knowledge, after due inquiry) occurred within the
past three (3) years; (iv) there is no strike, slowdown, work stoppage, lockout
or other material job action underway, or to Seller’s Knowledge, after due
inquiry, threatened, and no such material job action has occurred in the past
three (3) years; (v) with respect to this transaction, any notice required under
any law or contract has been given, and all bargaining obligations with any
employee representative have been, or prior to the Closing will be, satisfied;
and, (vi) within the past three (3) years, Seller has not implemented any plant
closing or layoff of employees that could implicate the Worker Adjustment and
Retraining Notification Act of 1988, as amended, or any similar foreign, state
or local law, regulation or ordinance (collectively, the “WARN Act”), and no such
layoffs will be implemented without advance notification to Buyers.




5.19        Assets and Liabilities of
Holdco .  At
the Closing, Holdco will not directly own any assets other than the Company
Interests and the Shareholder Loan, or have any direct liabilities other than as
related thereto.




5.20        Disclaimer of Other
Representations and Warranties .  Except
as expressly set forth in Article IV and Article V of this
Agreement or in any certificate delivered under Section 3.2 in
connection with the Closing, Seller makes no representation or warranty, express
or implied, at law or in equity, in respect of Holdco, the Company, the
Company’s Subsidiaries, or any of their respective assets, liabilities or
operations, including with respect to merchantability or fitness for any
particular purpose, and any such other representations or warranties are hereby
expressly disclaimed. Buyers hereby acknowledge and agree that, except to the
extent specifically set forth in Article IV and Article V of this
Agreement, Buyers are purchasing the Purchased Interests on an “as-is, where-is”
basis.




24




5.21        Disclaimer Regarding
Estimates and Projections .  In
connection with Buyers’ investigation of Holdco, the Company and the Company’s
Subsidiaries, Buyers have received from or on behalf of Seller, Holdco, the
Company and the Company’s Subsidiaries certain estimates, forecasts, plans and
financial projections.  Each Buyer acknowledges that there are
uncertainties inherent in such estimates, forecasts, plans and projections, that
each Buyer is familiar with such uncertainties, that each Buyer is taking full
responsibility for making its own evaluation of the adequacy and accuracy of all
estimates, forecasts, plans and projections so furnished to it (including the
reasonableness of the assumptions underlying such estimates, forecasts, plans
and projections). Accordingly, Seller makes no representation or warranty with
respect to such estimates, forecasts, plans and projections (including any
underlying assumptions), other than that they were made in good faith and that
Seller has no Knowledge that they were inaccurate or misleading in any material
respect as of the time when made.




5.22        Absence of Undisclosed
Material Liabilities .  Except
as set forth in Schedule 5.22, none
of Holdco, the Company or any of the Company’s Subsidiaries has any liability,
whether absolute, accrued, contingent or otherwise, which is required to be
recorded on a balance sheet prepared in accordance with GAAP, other than
liabilities shown on the Most Recent Financial Statements, or liabilities
incurred in the Ordinary Course of Business since the date of the Most Recent
Financial Statements, which would not have a Material Adverse
Effect.




5.23        Transactions with
Affiliates .  Except
as set forth on Schedule 5.23, and
other than contemplated under this Agreement, neither Seller nor any member,
shareholder, or director of Holdco, the Company or Seller is involved in any
material business arrangement that will remain in effect as of the Closing Date
with Holdco, the Company or the Company’s Subsidiaries nor does any such Person
have any direct ownership interest in any material property, asset or right,
tangible or intangible, which is used in or necessary to conduct the business of
any of Holdco, the Company or the Company’s Subsidiaries.




ARTICLE
VI




REPRESENTATIONS AND
WARRANTIES OF BUYERS




Each
Buyer hereby severally (and not jointly), on its own behalf, represents and
warrants to Seller as of the date hereof (unless another date is referenced, in
which case as of such other date) as follows:




6.1 Organization of
Buyer .  Buyer
is as of the date of this Agreement, and will be on the Closing Date, duly
organized, validly existing and in good standing under the laws of its state of
organization, and is duly qualified or licensed to do business as a foreign
entity in all states where it is necessary and required to be so qualified or
licensed in order to perform the obligations and effect the transactions
contemplated by this Agreement.




25




6.2 Authorization of
Transaction .  Buyer
has full power and authority (including full corporate or other entity power and
authority) to execute and deliver this Agreement and to perform its obligations
hereunder.  The execution, delivery and performance of this Agreement
and the Other Transaction Documents (other than the Seller Assignment) has been
duly and validly authorized by all necessary corporate action on the part of
Buyer.  This Agreement has been, and the Other Transaction Documents
(other than the Seller Assignment) will have as of the Closing been, duly
executed and delivered by Buyer and constitute (and will constitute as of the
Closing in the case of the Other Transaction Documents other than the Seller
Assignment) the valid and legally binding obligation of Buyer, enforceable in
accordance with its terms and conditions.




6.3 Non-contravention .  Neither
the execution, delivery and performance of this Agreement and the Other
Transaction Documents other than the Seller Assignment (with respect to the
performance of the transactions contemplated hereby), nor the consummation of
the transactions contemplated hereby, will (i) violate any constitution,
statute, regulation, rule, injunction, judgment, order, decree, ruling, charge,
or other restriction of any government, governmental agency, or court to which
Buyer is subject or any provision of its charter, bylaws, or other corporate or
limited liability company organizational documents; or (ii) conflict with,
result in a breach of, constitute a default under, result in the acceleration
of, create in any party the right to accelerate, terminate, modify, or cancel,
or require any notice under any agreement, contract, lease, license, instrument,
or other arrangement to which Buyer is a party or by which it is bound or to
which any of its assets is subject.  Except as set forth on Schedule 6.3, Buyer
need not give any notice to, make any filing with, or obtain any authorization,
consent, or approval of any government or governmental agency in order to
consummate and perform the transactions contemplated by this
Agreement.  The execution, delivery and performance of this Agreement
and the Other Transaction Documents other than the Seller Assignment (with
respect to the performance of the transactions contemplated hereby) and all
other agreements contemplated hereby have been duly authorized by
Buyer.




6.4 Brokers’
Fees .  Buyer
has no liability or obligation to pay any fees or commissions to any broker,
finder, or agent with respect to the transactions contemplated by this
Agreement.




6.5 Financing .  As
of the date hereof and at and as of the Closing, Buyer will have sufficient cash
in immediately available funds to pay its share of the Purchase Price according
to the proportion of the Purchased Interests to be purchased by it pursuant to
Section 3.3(e),
and to consummate the transactions contemplated by this Agreement, including,
without limitation, when and as required by the terms of this
Agreement.




6.6 Investment .  Buyer
is not acquiring the Purchased Interests with a view to or for sale in
connection with any distribution thereof within the meaning of the Securities
Act.  Buyer acknowledges and understands that the Holdco Interests
have not been registered under the Securities Act and cannot be resold without
registration under applicable federal and state securities laws or pursuant to
an exemption therefrom.




26




6.7 Investigation of
Buyer .  Buyer
has conducted its own independent investigation, review and analysis of the
business, operations, assets, liabilities, results of operations, and financial
condition of Holdco, the Company and the Company’s Subsidiaries, which
investigation, review and analysis was done by Buyer and its Affiliates and, to
the extent Buyer deemed appropriate, by Buyer’s representatives, for the purpose
of acquiring the Purchased Interests.  Buyer acknowledges that it and
its representatives have been provided reasonable and sufficient access to the
personnel, properties, premises, records, documents, and other information and
materials as it considers appropriate to make its evaluations of Holdco, the
Company and the Company’s Subsidiaries for such purpose.  In entering
into this Agreement, Buyer acknowledges that it has relied solely upon the
aforementioned investigation, review and analysis and not on any representations
of the Seller or its representatives (except the specific representations and
warranties of the Seller set forth in Article IV and Article V of this
Agreement and the certifications delivered under Section 3.2 in
connection with the Closing). Buyer acknowledges and agrees that neither Seller
nor any of its directors, officers, shareholders, employees, Affiliates,
controlling Persons, agents, advisors or representatives makes or has made any
representation or warranty, either express or implied, as to the accuracy or
completeness of any of the information (including materials furnished in
Seller’s data room, presentations by Seller’s, Holdco’s, the Company’s or the
Company’s Subsidiaries’ management, financial projections or otherwise) provided
or made available to Buyer or its directors, officers, employees, Affiliates,
controlling Persons, agents or representatives (except the specific
representations and warranties of the Seller set forth in Article IV and Article V of this
Agreement and the certifications delivered under Section 3.2 in
connection with the Closing).




6.8 Notice of Misrepresentations
or Omissions .  Buyer
has no knowledge that any representation or warranty of Seller in this Agreement
or any agreement contemplated hereby is not true and correct in all material
respects, and Buyer has no knowledge of any material errors in, or material
omissions from, the Exhibits and Schedules to this Agreement or the schedules,
exhibits or attachments to any agreement contemplated hereby.




ARTICLE
VII




COVENANTS OF THE PARTIES
PRIOR TO CLOSING




During
the period from the date of this Agreement and continuing until the Closing or
earlier termination of this Agreement:




7.1 Consents .  Seller
and Buyers covenant and agree to (i) promptly file, or cause to be promptly
filed, with any United States agency or any state or local governmental body or
agency, all other notices, applications or other documents as may be necessary
to consummate the transactions contemplated hereby, including in connection with
the matters referred to in Section 4.3, Section 5.3, and
Section 6.3 of
this Agreement, and (ii) diligently pursue all Authorizations and/or other
consents or approvals from any such governmental agencies or bodies or other
third parties (as applicable) as may be necessary in connection with the
consummation of the transactions contemplated hereby.




7.2 Cooperation .  Each
of the Parties shall cooperate and use its commercially reasonable efforts to
take, or cause to be taken, all action, and to do, or cause to be done, all
things necessary, proper or advisable under applicable laws to consummate the
transactions contemplated hereby.  Further, each Buyer shall use
commercially reasonably efforts as Seller may request to assist Seller in
obtaining consents set forth on Schedule 4.3, and any
other third party consents necessary to effect the transactions contemplated
hereby.  Seller shall cooperate with Buyers and use commercially
reasonable efforts as Buyers may request to assist in obtaining a Private
Placement Number for the Purchased Interests issued by Standard & Poor’s
CUSIP Service Bureau (in cooperation with the Securities Valuation Office of the
National Association of Insurance Commissioners).




27




7.3 Operation of
Business .  Seller
will use commercially reasonable efforts to not cause or permit Holdco, the
Company or any of the Company’s Subsidiaries to engage in any practice, take any
action, or enter into any transaction outside the Ordinary Course of Business,
unless such practice, action or transaction is specifically contemplated by this
Agreement or Buyers shall otherwise agree in writing.  Without
limiting the generality of the foregoing, Seller shall use its commercially
reasonable efforts to preserve intact, for the benefit of Buyers, Holdco’s, the
Company’s and the Company’s Subsidiaries’ respective businesses, assets, records
and the goodwill of their respective customers, suppliers, landlords and others
having business relations with them.Without
limiting the generality of the foregoing, except for the transactions expressly
contemplated by this Agreement, Seller shall not permit Holdco, the Company or
any of their Subsidiaries to (a) incur or guaranty (or commit to incur or
guaranty) any new debt for borrowed money, (b) effect any change (or commit to
effect any change) in their capitalization, declare or make any distribution of
any kind outside the Ordinary Course of Business in respect of their equity, or
issue, sell, pledge or otherwise dispose of or encumber any of their equity, or
(c) amend any of their organizational documents in any material
respect.




7.4 Access .  Seller
will designate a single point of contact (a “Liaison”) to which Buyers
shall direct any requests for information concerning the operations of Holdco,
the Company and the Company’s Subsidiaries, and through such Liaison, shall give
each Buyer access to the offices, properties, books and records, and to
officers, employees, agents, accountants and counsel of Holdco, the Company or
any Subsidiary, at reasonable times during regular business hours and upon
reasonable notice, and will instruct the Liaison and such other persons to
cooperate with Buyers’ Representatives in connection therewith.  Each
Buyer agrees to indemnify and hold Seller, Holdco, the Company and the Company’s
Subsidiaries harmless from any and all claims and liabilities, including costs
and expenses for loss, injury to or death of any Representative of Buyers, and
any loss, damage to or destruction of any property owned by Seller, Holdco, the
Company and the Company’s Subsidiaries or others (including claims or
liabilities for loss of use of any property) resulting directly or indirectly
from the action or inaction of any of the Representatives of Buyers during any
visit to the business or property sites of Seller, Holdco, the Company or any of
the Company’s Subsidiaries prior to or including the Closing Date, whether
pursuant to this Section 7.4 or
otherwise, INCLUDING ON ACCOUNT OF THE SOLE OR CONCURRENT NEGLIGENCE OF SELLER
(EXCEPT TO THE EXTENT OF SELLER’S GROSS NEGLIGENCE), THE COMPANY OR ITS
SUBSIDIARIES, AND ITS AND THEIR AFFILIATES,  OFFICERS, DIRECTORS,
EMPLOYEES OR AGENTS.




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7.5 Confidentiality .  Each
Party (the “Receiving
Party”) shall, and shall cause its Affiliates and Representatives to,
hold in strict confidence all documents and information concerning the other
Party (the “Disclosing
Party”) and its Affiliates and its and their Representatives furnished to
it in connection with the transactions contemplated by this Agreement
(including, without limitation, this entire Agreement) and shall not, without
the prior written consent of the Disclosing Party, disclose any such
information; provided,
however, that the
Receiving Party may disclose such information without the prior written consent
of the Disclosing Party if the information (i) is or shall come generally
available in the public domain (other than as a result of disclosure in
violation hereof), (ii) is received after the date hereof from another Person
without, to the knowledge of the Receiving Party, violation of any contractual
duty to the Disclosing Party, (iii) is legally required to be disclosed pursuant
to any applicable law, order, subpoena or legal process or (except as permitted
by clause (iv)) to any municipal, state or federal regulatory body having
jurisdiction over Buyers and the Receiving Party or its counsel reasonably
determines that it is prudent to be disclosed (provided that in each case, the
Receiving Party shall, to the fullest extent permitted by law, provide the
Disclosing Party with reasonable prior notice of such disclosure and a
reasonable opportunity to contest the same and obtain a protective order or
other request for confidential treatment), or (iv) to any insurance regulatory
body having jurisdiction over Buyers, including the National Association of
Insurance Commissioners or similar organizations or their successors, or
(v) is reasonably made in connection with the enforcement of any right or
remedy relating to this Agreement or the transactions contemplated
hereunder.  Notwithstanding anything in this Section 7.5 to the
contrary, each Buyer acknowledges and agrees that Seller shall be entitled to
disclose the execution, delivery, and material terms of this Agreement, but not
any of the Schedules or Exhibits hereto,
pursuant to applicable regulatory requirements of the U.S. Securities and
Exchange Commission promulgated under federal securities laws.  Each
Party agrees that it will be responsible for any breach or violation of this
Section 7.5 by
any of its Affiliates or Representatives.  Notwithstanding any
provision to the contrary contained in this Agreement, the obligations of the
Parties set forth in this Section 7.5 shall
survive until the date that is two (2) years from the date of this
Agreement.




7.6 Notice of
Developments .  Seller
shall have the right, from time to time prior to the Closing, to supplement or
amend the Schedules in writing with respect to any matter hereafter arising or
discovered which if existing or known on the date hereof would have been
required to be set forth or described in the Schedules.  No such
disclosure shall be deemed to have been disclosed for purposes of determining
whether or not the conditions to Closing set forth in Article IX of this
Agreement have been satisfied; provided that if the Closing
occurs, such disclosure shall be deemed to have cured any breach of
representation or warranty relating to the matters set forth in such update for
purposes of indemnification pursuant to Article X.




ARTICLE
VIII




POST-CLOSING
COVENANTS




8.1 Tax
Matters .




(a)
Seller shall cause Holdco, the Company and the Company’s Subsidiaries to timely
file (after giving force and effect to any extensions of time) all Tax Returns
and pay all Taxes due on or before the Closing Date.  Seller shall
file, or cause Holdco, the Company and the Company’s Subsidiaries to file, all
Income Tax Returns for all consolidated, combined, or unitary groups that
include Seller, Holdco, the Company and the Company’s Subsidiaries, whether or
not such Tax Returns are due before or after the Closing Date.  Holdco
shall file, or cause to be filed, all separate Tax Returns of Holdco, the
Company and the Company’s Subsidiaries that are due after the Closing Date and
all Tax Returns due after the Closing Date for all combined, consolidated, and
unitary groups headed by Holdco.




29




(b)
Seller will include the income of Holdco, the Company and the Company’s
Subsidiaries on Seller’s consolidated, combined, or unitary Income Tax Returns
that include Seller, Holdco, the Company and the Company’s Subsidiaries for all
periods through the Closing Date and pay any Taxes attributable to such
income.  Seller shall cause the Company and the Company’s Subsidiaries
to furnish Tax information to Seller for inclusion in Seller’s consolidated,
combined, or unitary Income Tax Returns that include Seller, Holdco, the Company
and the Company’s Subsidiaries for the period which includes the Closing Date in
accordance with the past custom and practice of the Company and the Company’s
Subsidiaries. The income of Holdco, the Company and the Company’s Subsidiaries
will be apportioned to the period up to and including the Closing Date and the
period after the Closing Date by closing the books of Holdco, the Company and
the Company’s Subsidiaries as of the end of the Closing Date.




(c) For
purposes of this Section 8.1, in the
case of any Taxes that are imposed on a periodic basis and are payable for a
taxable period that includes (but does not end on) the Closing Date, the portion
of such Tax which relates to the portion of such taxable period ending on the
Closing Date shall (i) in the case of any Taxes, other than Taxes based upon or
related to income or receipts, be deemed to be the amount of such Tax for the
entire taxable period multiplied by a fraction the numerator of which is the
number of days in the taxable period ending on the Closing Date and the
denominator of which is the number of days in the entire taxable period, and
(ii) in the case of any Taxes based upon or related to income or receipts, be
deemed equal to the amount which would be payable if the relevant taxable period
ended on the Closing Date. Any Tax credits relating to a taxable period that
begins before and ends after the Closing Date shall be taken into account as
though the relevant taxable period ended on the Closing Date.  All
determinations necessary to give effect to the foregoing allocations shall be
made in a manner consistent with prior practice of Holdco, the Company and the
Company’s Subsidiaries.




(d) The
Parties shall provide each other with such assistance as may reasonably be
requested by the others in connection with the preparation of any Tax Return or
report of Taxes, any audit or other examination by any Tax Authority, or any
judicial or administrative proceedings relating to liabilities for Taxes. Such
assistance shall include the retention and (upon the other Party’s request) the
provision of records and information, including copies of Tax Return workpapers
of Holdco, the Company or any of the Company’s Subsidiaries for tax years ending
in calendar years 2006, 2007, 2008 and 2009, which are reasonably relevant to
any such proceeding and making employees available on a mutually convenient
basis to provide additional information or explanation of material provided
hereunder and shall include providing copies of relevant Income Tax Returns of
Holdco, the Company or any of the Company’s Subsidiaries and supporting
material. The Party requesting assistance hereunder shall reimburse the
assisting Party for reasonable out-of-pocket expenses incurred in providing
assistance.  The Parties will cause the Company to (i) retain such
books and records for the full period of any statute of limitations (and, to the
extent notified by Seller, any extensions thereof) of the respective taxable
periods, (ii) abide by all record retention agreements entered into with any Tax
Authority to which the Party is a party, (iii) provide the others with any
records or information which may be relevant to such preparation, audit,
examination, proceeding or determination and (iv) with respect to any such books
and records relating to periods for which the statute of limitations has
expired, retain such books and records as requested in writing by the other
Party.




30




(e) All
refunds, plus interest thereon, for Taxes for periods ending on or before the
Closing Date or with respect to any consolidated, combined, or unitary Income
Tax Returns that include Seller, Holdco, the Company and the Company’s
Subsidiaries, whether or not such Income Tax Returns are due before or after the
Closing Date, shall be property of Seller, and such refunds, plus any interest
earned in connection with the refund, shall be paid to Seller by Holdco promptly
upon receipt.




(f) All
Tax sharing agreements between Holdco or the Company and any of the Company’s
Subsidiaries, on the one hand, and Seller, on the other hand, shall be
terminated as of the Closing Date and shall have no further effect for any
taxable year except for any obligations arising prior to the Closing Date. After
the Closing Date, neither Holdco nor the Company nor any of the Company’s
Subsidiaries shall be bound thereby nor have any liability thereunder except for
any obligations arising prior to the Closing Date.




(g)
Seller shall be responsible for any Income Tax imposed upon gain recognized as a
result of deferred intercompany transactions (as set forth in Treas. Reg. §
1.1502-13) between Holdco, the Company or any of the Company’s Subsidiaries and
Seller and any member of an affiliated group to which any of the foregoing was a
member and that occurred on or prior to the Closing Date.  Seller
shall pay or reimburse Buyers for any such Income Tax incurred by Holdco, the
Company or any of the Company’s Subsidiaries. Such payment or reimbursement
shall be disbursed by Seller to Buyers within five (5) days of presentment by
the Purchaser of an invoice for such amount, supported by a copy of the
appropriate Tax Return.




(h) To
the extent there is an inconsistency between a provision in this Section 8.1 and
another provision in this Agreement, this Section 8.1 shall
control.




(i) Each
Party agrees that the transaction contemplated by this Agreement shall be
treated for U.S. federal income Tax purposes as a transaction described in
Revenue Ruling 99-5 (Situation 1) and, except as required by applicable law,
shall file all Tax Returns consistently with such treatment.




8.2 Further
Assurances .




(a)
Promptly, and in any event within 30 days after the Closing Date, Seller shall
cause each of the authorizations, consents, notices and approvals listed on
Schedule 4.3
and Schedule
5.3 (and not listed on Schedule 9.2(d))
to be given or obtained (as applicable), except to the extent otherwise provided
on Schedule 4.3
and Schedule
5.3.




(b) Upon
the request of a Party at any time after the Closing Date, the other Party will
promptly execute and deliver such further instruments of assignment, transfer,
conveyance, endorsement, direction or authorization and other documents as such
Party may reasonably request to effectuate the purposes of this
Agreement.




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ARTICLE
IX




CONDITIONS TO OBLIGATIONS TO
CLOSE




9.1 Conditions to Buyers’
Obligations .  Buyers’
obligations to consummate the transactions to be performed by it in connection
with the Closing is subject to the satisfaction by Seller or waiver by Buyers in
writing of all the following conditions:




(a) Representation and
Warranties.  The representations and warranties of Seller set
forth in Article
IV and Article
V of this Agreement shall be true and correct as of the date hereof and
as of the Closing Date (in each case, unless another date is referenced, in
which case as of such other date), without giving effect to any qualifications
as to the words “material” or “Material Adverse Effect” set forth therein,
except where the failure of such representations and warranties to be so true
and correct would not have a Material Adverse Effect.




(b) Performance Obligations of
Seller. Seller shall have performed and complied with all of its
covenants hereunder in all respects through the Closing, without giving effect
to any qualifications as to the words “material” or “Material Adverse Effect”
set forth therein, except where the failure to perform such covenants would not
have a Material Adverse Effect.




(c) No Litigation or
Actions. There shall not be any injunction, judgment, order, decree,
ruling, or charge in effect preventing consummation of any of the transactions
contemplated by this Agreement.




(d) Closing Consents and
Approvals. Buyers shall have received all other authorizations, consents,
and approvals of governments, governmental agencies and third parties referred
to in Schedule
9.1(d).




(e) Deliveries of Seller.
Seller shall have delivered, and Buyers shall have received, all of the items to
be delivered by it as set forth in Section 3.2 of this
Agreement.




9.2 Conditions to Seller’s
Obligation .  Seller’s
obligation to consummate the transactions to be performed by it in connection
with the Closing is subject to the satisfaction by Buyers or waiver by Seller in
writing of all the following conditions:




(a) Representations and
Warranties.  The representations and warranties of Buyers set
forth in Article
VI of this Agreement shall be true and correct as of the date hereof and
as of the Closing Date (in each case, unless another date is referenced, in
which case as of such other date), without giving effect to any qualifications
as to the word “material” set forth therein, except where the failure of such
representations and warranties to be so true and correct would not have a Buyer
Material Adverse Effect.




(b) Performance Obligations of
Buyers.  Buyers shall have performed and complied with all of
their covenants hereunder in all respects through the Closing, without giving
effect to any qualifications as to the word “material” set forth therein, except
where the failure to perform such covenants would not have a Buyer Material
Adverse Effect.




32




(c) No Litigation or
Actions.  There shall not be any injunction, judgment, order,
decree, ruling, or charge in effect preventing consummation of any of the
transactions contemplated by this Agreement.




(d) Closing Consents and
Approvals.  Seller, Holdco, the Company and the Company’s
Subsidiaries shall have received or given (as applicable) all other
authorizations, consents, notices and approvals of governments, governmental
agencies and third parties referred to in Schedule
9.2(d).




(e) Deliveries of
Buyers.  Each Buyer shall have delivered, and Seller shall have
received, all of the items to be delivered by it as set forth in Section 3.3 of this
Agreement.




ARTICLE
X




REMEDIES FOR BREACHES OF
THIS AGREEMENT




10.1        Survival of Representations
and Warranties .




(a) All
of the representations and warranties of the Parties contained in this Agreement
shall survive the Closing hereunder and continue in full force and effect
(subject to any applicable statutes of limitations):




(i)           in
the case of the representations and warranties of the Parties, except as set
forth below, until 12 months after the Closing Date;




(ii)          in
the case of the representations and warranties of Seller contained in Section 4.1
(Organization of Seller), Section 4.2
(Authorization of Transaction), Section 4.4
(Capitalization of Holdco), Section 4.5
(Preferential Rights to Purchase), Section 5.1
(Organization, Qualification, and Corporate Power of Holdco, the Company and
Subsidiaries), and Section 5.2
(Capitalization of Subsidiaries), indefinitely; and




(iii)         in
the case of the representations and warranties of Seller contained in Section 5.8 (Tax
Matters) and Section
5.16 (Employee Benefits), until thirty (30) days following (A) except as
provided in clause (B), the expiration of the applicable statute of limitations
period, and (B) with respect to Section 5.8(l), the
later of the period described in clause (A) and the last year in which the net
operating losses described in Section 5.8(l) are
available for use prior to expiration.




(b) Each
of the covenants of the Parties contained in this Agreement (other than
covenants that, by their terms, are required to be performed after the Closing)
shall terminate as of the Closing and no Party shall make or bring any claim
subsequent to the Closing Date for indemnification relating hereto.




(c) In
the event that Buyers waive in writing any condition to their obligations
hereunder as set forth in Section 9.1,
such condition shall terminate and Buyers shall not make or bring any claim
subsequent to the Closing Date for indemnification relating
thereto.




33




(d) No
claim may be made against any Party, and no Party shall have any liability to
any Person, hereunder after the applicable survival period for a representation,
warranty or covenant specified herein shall have expired, except that, if
written notice of any claim for indemnification under Section 10.2 or Section 10.3 shall
have been given in accordance with Section 12.8 within
the applicable survival period, then such survival period shall be extended as
it relates to the matters and Adverse Consequences specifically identified until
such claim has been satisfied or otherwise resolved as provided in this Article
X.




10.2        Indemnification Provisions
for the Benefit of each Buyer.




(a) From
and after the Closing, subject to the provisions of this Article X, Seller
agrees, to the fullest extent permitted by law, to indemnify, defend and hold
harmless Buyers and their respective directors, officers, successors and
permitted assigns (collectively, the “Buyer Indemnified Parties”)
from and against any Adverse Consequences the Buyer Indemnified Parties suffer,
directly resulting from:




(i)           any
material breach of, inaccuracy in, or omission from  any of Seller’s
representations and warranties contained in this Agreement or in any
certification delivered by under Section 3.2 in
connection with the Closing, unless qualified as to the words “material” or
“Material Adverse Effect” as set forth therein, in which case any breach or
inaccuracy;




(ii)          any
material breach or non-fulfillment of any covenant, agreement or other
obligation of Seller contained in
this Agreement; and




(iii)         (A)
any Taxes imposed on Holdco, the Company or any of the Company’s Subsidiaries
with respect to any taxable period, or portion thereof, ending on or before the
Closing Date, (B) any Taxes of any member of an Affiliated Group of which
Holdco, the Company or any of the Company’s Subsidiaries (or any predecessor of
any of the foregoing) is or was a member on or prior to the Closing Date,
including pursuant to Treas. Reg. § 1.1502-6 or any analogous or similar state,
local, or foreign law or regulation, and (C) any material Taxes of any Person
(other than Holdco, the Company or any of the Company’s Subsidiaries) imposed on
Holdco, the Company or any of the Company’s Subsidiaries as a transferee or
successor, by reason of a contractual liability or other arrangement or pursuant
to any law, where (1) such status as transferee, successor, obligor by reason of
a contractual liability or other arrangement pursuant to law exists as of the
Closing Date and (2) which Taxes relate to an event or transaction occurring on
or before the Closing Date.




(b) Seller shall not
have any obligation to indemnify the Buyer Indemnified Parties pursuant to Section 10.2(a)(i) or
Section
10.2(a)(ii) (other than with respect to the amount of any Adverse
Consequences suffered resulting from breaches of or inaccuracies under Section 5.8, and from
breaches of or inaccuracies in any representation or warranty of which Seller
had Knowledge when made) until and only to the extent the aggregate amount of
the Adverse Consequences suffered by the Buyer Indemnified Parties by reason of
all such breaches and/or claims exceeds $692,500 (the “Basket”), in which case the
Buyer Indemnified Parties will be entitled to indemnity for all Adverse
Consequences in excess of the Basket, subject to Section 10.2(c);
provided that in
calculating the Buyer Indemnified Parties’ aggregate total Adverse Consequences,
individual Adverse Consequences in amounts less than $175,000 shall be
disregarded.




34




(c) The
Seller’s obligation to indemnify the Buyer Indemnified Parties pursuant to Section 10.2(a)(i)
and Section
10.2(a)(ii) shall not exceed an aggregate amount equal to $4,425,000
except in the case of indemnification obligations pursuant to Section 10.2(a)(i) to
the extent such obligations relate to or result from breaches of or inaccuracies
in any representations and warranties contained in Section 4.1
(Organization of Seller), Section 4.2
(Authorization of Transaction), Section 4.4
(Capitalization of Holdco), Section 4.5
(Preferential Rights to Purchase), Section 5.1
(Organization, Qualification, and Corporate Power of Holdco, the Company and
Subsidiaries), Section
5.2 (Capitalization of Subsidiaries), Section 5.8 (Tax
Matters) and Section
5.16 (Employee Benefits).




(d) If
Seller is required to indemnify the Buyer Indemnified Parties hereunder, Seller
may elect to satisfy its indemnity obligations by directing Holdco to pay the
distributions to which Seller would otherwise be entitled under the Amended and
Restated LLC Agreement to the relevant Buyer in satisfaction of such
indemnification obligations, for Buyer’s benefit or that of the other Buyer
Indemnified Parties, until such time as such indemnity obligations are
satisfied.  To the extent that Seller elects to satisfy its
indemnification obligations in such manner, such Buyer’s right to receive such
distributions shall be Buyer’s and the other Buyer Indemnified Parties’ sole
recourse to satisfy its and their rights to indemnification
hereunder.




10.3        Indemnification Provisions
for the Benefit of Seller .  From
and after the Closing, subject to the provisions of the Article X, each Buyer
agrees, to the fullest extent permitted by law, to indemnify, defend and hold
harmless Seller and its directors, officers, successors and permitted assigns
(collectively, the “Seller
Indemnified Parties”) from and against any Adverse Consequences the
Seller Indemnified Parties suffer, directly resulting from:




(a) any
material breach of, inaccuracy in, or omission from any of such Buyer’s
representations and warranties contained in this Agreement or in any
certification delivered by such Buyer under Section 3.3 in
connection with the Closing, unless qualified as to the word “material” as set
forth therein, in which case any breach or inaccuracy; and




(b) any
material breach or non-fulfillment of any covenant, agreement or other
obligation of such Buyer contained in this Agreement.




10.4        Matters Involving Third
Parties.




(a) If
any third party shall notify any Party (the “Indemnified Party”) with
respect to any matter (a “Third Party Claim”) which may
give rise to a claim for indemnification against the other Party (the “Indemnifying Party”) under
this Article X,
then the Indemnified Party shall promptly (and in any event within five (5)
Business Days after receiving notice of the Third Party Claim) notify the
Indemnifying Party thereof in writing.




(b) The
Indemnifying Party will have the right at any time to assume and thereafter
conduct the defense of the Third Party Claim with counsel of its choice; 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 withheld unreasonably) unless the
judgment or proposed settlement involves only the payment of money damages and
does not impose an injunction or other equitable relief upon the Indemnified
Party.




35




(c)
Unless and until the Indemnifying Party assumes the defense of the Third Party
Claim as provided in Section 10.4(b), 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 (not to be withheld
unreasonably).




10.5        Determination of Adverse
Consequences .  The
Parties shall make appropriate adjustments for tax benefits and insurance
coverage and take into account the time value of money (using the Applicable
Rate as the discount rate) in determining Adverse Consequences for purposes of
this Article X.
All indemnification payments under this Article X shall be
deemed adjustments to the Purchase Price for Tax purposes unless otherwise
required by applicable law.  The Parties shall have a duty to mitigate
any Adverse Consequence to which a right of indemnity applies
hereunder.




10.6        Exclusive
Remedy .  Seller
and Buyers acknowledge and agree that the foregoing indemnification provisions
in this Article
X and the relief contemplated by Section 12.11 shall
be the exclusive remedy of the Parties with respect to this Agreement (including
any breach of any representation, warranty or covenant) and the transactions
contemplated by this Agreement.  The provisions of this Section 10.6 will
not, however, prevent or limit a claim or cause of action based on fraud or
intentional misrepresentation.




10.7        Waiver of Certain
Damages. EXCEPT
FOR CLAIMS OR CAUSES OF ACTION BASED ON FRAUD, NO PARTY SHALL BE LIABLE UNDER
THIS AGREEMENT FOR SPECIAL, PUNITIVE, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR
INDIRECT DAMAGES OR LOST PROFITS WHETHER BASED ON CONTRACT, TORT, STRICT
LIABILITY, OTHER LAW OR OTHERWISE AND WHETHER OR NOT FROM ANY OTHER PARTY’S
SOLE, JOINT OR CONCURRENT NEGLIGENCE, STRICT LIABILITY OR OTHER FAULT, EXCEPT TO
THE EXTENT SUCH DAMAGES ARE PAYABLE TO A THIRD PARTY WITH RESPECT TO A THIRD
PARTY CLAIM AGAINST A PERSON ENTITLED TO INDEMNIFICATION PURSUANT TO THIS ARTICLE X, AND EACH
PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW,
ANY RIGHT IT MAY HAVE TO RECEIVE SUCH DAMAGES UNDER THIS AGREEMENT.




ARTICLE
XI




TERMINATION




11.1        Termination of
Agreement .  The
Parties may terminate this Agreement as provided below:




36




(a)
Buyers and Seller may terminate this Agreement by mutual written consent at any
time prior to the Closing;




(b)
Buyers may terminate this Agreement by giving written notice to Seller at any
time prior to the Closing (i) in the event there shall have been a material
breach, inaccuracy or non-fulfillment by Seller of any representation, warranty
or covenant contained in this Agreement (unless qualified as to the words
“material” or “Material Adverse Effect” as set forth therein, in which case,
then in the event of any breach, inaccuracy or non-fulfillment) which has
prevented the satisfaction of any condition to the obligations of Buyers under
Section 9.1
hereof and such breach shall not have been remedied within 60 days after receipt
by Seller of notice in writing from Buyers, specifying the nature of such breach
and requesting that it be remedied or Buyers shall not have received adequate
assurance of a cure of such breach within such 60 day period; or (ii) if the
Closing shall not have occurred on or before the date 12 months from signing
(the “Termination
Date”), by reason of the failure of any condition to the obligations of
Buyers under Section
9.1 hereof (unless the failure results primarily from either Buyer itself
breaching any representation, warranty, or covenant contained in this
Agreement); and




(c)
Seller may terminate this Agreement by giving written notice to Buyers at any
time prior to the Closing (i) in the event there shall have been a material
breach, inaccuracy or non-fulfillment by either Buyer of any representation,
warranty or covenant contained in this Agreement (unless qualified as to the
word “material” as set forth therein, in which case, then in the event of any
breach, inaccuracy or non-fulfillment) which has prevented the satisfaction of
any condition to the obligations of Seller under Section 9.2 hereof
and such breach shall not have been remedied within 60 days after receipt by
Buyers of notice in writing from Seller, specifying the nature of such breach
and requesting that it be remedied or Seller shall not have received adequate
assurance of a cure of such breach within such 60 day period; or (ii) if the
Closing shall not have occurred on or before the Termination Date, by reason of
the failure of any condition to the obligations of Seller under Section 9.2 hereof
(unless the failure results primarily from Seller breaching any representation,
warranty, or covenant contained in this Agreement).




11.2        Effect of
Termination .  If
any Party terminates this Agreement pursuant to Section 11.1 above,
all rights and obligations of the Parties hereunder shall terminate without any
liability of any Party to any other Party (except for any liability of any Party
then in breach); provided,
however, that the provisions contained in Section 7.5
(Confidentiality), Section 12.8
(Notices), Section
12.9 (Governing Law) and Section 12.14
(Expenses) shall survive termination.




ARTICLE
XII




MISCELLANEOUS




12.1        Press Releases and Public
Announcements .  No
Party shall issue any press release or make any public announcement relating to
the subject matter of this Agreement without the prior written approval of each
Buyer and Seller; provided,
however, that any Party may make any public disclosure it believes in
good faith is required by applicable law or any listing or trading agreement
concerning its publicly traded securities (in which case the disclosing Party
will use its commercially reasonable efforts to allow the other Parties
reasonable time to review and comment on the proposed disclosure prior to making
such disclosure).




37




12.2        No Third-Party
Beneficiaries .  This
Agreement shall not confer any rights or remedies upon any Person other than the
Parties and their respective successors and permitted assigns.




12.3        Time Of
Essence .  With
regard to all rights and obligations of the Parties and all dates and time
periods set forth or referred to in this Agreement, time is of the
essence.




12.4        Entire
Agreement .  This
Agreement (including the documents referred to herein) constitutes the entire
agreement among the Parties and supersedes any prior understandings, agreements,
or representations by or among the Parties, written or oral, to the extent they
relate in any way to the subject matter hereof.




12.5        Succession and
Assignment .  This
Agreement shall be binding upon and inure to the benefit of the Parties named
herein and their respective successors and permitted assigns.  No
Party may assign either this Agreement or any of its rights, interests, or
obligations hereunder without the prior written approval of the other Party;
provided, however, that
(a) MIC may, without the prior written approval of Buyers, assign this Agreement
to MDEH III; and (b) each Buyer may, without the prior written approval of
Seller: (i) assign, transfer or pledge its interest in this Agreement in
connection with any financing with financial institutions or other arrangements
as collateral security; or (ii) assign any or all of its rights and interests
hereunder to one of its Affiliates, so long as such Affiliate is as capable of
performing this Agreement as such Buyer; or (iii) designate one or more of its
Affiliates to perform its obligations hereunder (and in any or all of clauses
(a) and (b)(i) through (b)(iii), the assigning Party shall nonetheless remain
responsible for the performance of all of its obligations
hereunder).  Notwithstanding any assignment by MIC of this Agreement
to MDEH III contemplated by clause (a) above, MIC agrees that it shall in all
events remain primarily liable for all payment and performance obligations of
the “Seller” under this Agreement (whether arising before or after the
assignment to MDEH III), including, without limitation, obligations to pay costs
and expenses, including transfer taxes, all indemnification obligations of
Seller, or for any breach, inaccuracy or omission by Seller in its
representations and warranties under Article IV and Article V of this
Agreement or any certificate delivered under Section 3.2 in
connection with the Closing, and otherwise, in each case subject to the terms
and conditions relating to Seller’s obligations under this
Agreement.




12.6        Counterparts .  This
Agreement may be executed in one or more counterparts (including by means of
facsimile), each of which shall be deemed an original but all of which together
will constitute one and the same instrument.




12.7        Headings .  The
Section headings contained in this Agreement are inserted for convenience only
and shall not affect in any way the meaning or interpretation of this
Agreement.




12.8        Notices .  All
notices, requests, demands, claims, and other communications hereunder shall be
in writing. Any notice, request, demand, claim, or other communication hereunder
shall be deemed duly given (i) when delivered personally to the recipient; (ii)
one Business Day after being sent to the recipient by reputable overnight
courier service (charges prepaid); (iii) one Business Day after being sent to
the recipient by confirmed facsimile transmission if the sender on the same day
sends a confirming copy of such notice by reputable overnight delivery service
(charges prepaid); or (iv) four Business Days after being mailed to the
recipient by certified or registered mail, return receipt requested and postage
prepaid, and addressed to the intended recipient as set forth
below:




38




(a) If to
Seller, to:




Macquarie Infrastructure Company
Inc.


125 W 55th Street


New York, NY 10019


Attn: James Hooke, Chief Executive
Officer


Telephone No.:
212-231-1835


Facsimile No.:
212-231-1828





Copies to:





Macquarie Infrastructure Company
Inc.


125 W 55th Street


New York, NY 10019


Attn: Heidi Mortensen, Legal
Counsel


Telephone No.:
212-231-1820


Facsimile No.:
212-231-1828





Kirkland & Ellis
LLP


300 North LaSalle


Chicago, IL 60654


Attn: Robert T. Buday


Telephone No.:
312-862-2000


Facsimile No.:
312-862-2200







(b) If to
Buyers, to:




John Hancock Life Insurance
Company


c/o
John Hancock Financial Services, Inc.


Bond & Corporate Finance
Group


197 Clarendon Street, 2nd
Floor


Boston,
MA  02116


Attn: Gerald C. Hanrahan, Managing
Director


Telephone No.:
617-572-9633


Facsimile No.:
617-572-5068




39




John Hancock Life Insurance Company
(U.S.A.)


c/o John Hancock Financial
Services, Inc.


Bond & Corporate Finance
Group


197 Clarendon Street, 2nd
Floor


Boston,
MA  02116


Attn: Gerald C. Hanrahan, Managing
Director


Telephone No.:
617-572-9633


Facsimile No.:
617-572-5068





Copy to:





John Hancock Financial Services,
Inc.


Investment Law


197 Clarendon Street, C-3


Boston,
MA  02116


Attn: John T. Wallace


Telephone No.:
617-572-9245


Facsimile No.:
617-572-9269





Any Party
may change the address to which notices, requests, demands, claims, and other
communications hereunder are to be delivered by giving the other Parties notice
in the manner herein set forth.




12.9        Governing
Law .  This
Agreement and any claims with respect to the legal relations between the Parties
shall be governed by and construed in accordance with the laws of the State of
Delaware, excluding any choice of law rules which may direct application of the
laws of another jurisdiction.




12.10      Consent to
Jurisdiction .  Any
action permitted by this Agreement to be commenced in court shall be brought and
maintained exclusively in the federal or state courts located within the
geographic boundaries of the United States District Court for the Southern
District of New York and each of Seller and Buyers (i) hereby irrevocably
submits to the jurisdiction of the federal and state courts located within the
geographic boundaries of the United States District Court for the Southern
District of New York, and (ii) irrevocably waives any objection that it may now
or hereafter have to the laying of venue in such forums and agrees not to plead
or claim that any action in such forums would be inconvenient.  EACH
OF THE PARTIES HERETO IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN
ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE LEGAL
RELATIONS BETWEEN THE PARTIES HEREUNDER OR THE TRANSACTIONS CONTEMPLATED
HEREBY.




40




12.11      Specific
Performance .  The
Parties agree that irreparable damage would occur in the event that any
provision of this Agreement is not performed in accordance with its specific
terms or is otherwise breached.  The Parties agree that in the event
of any breach by the other Party of any covenant or obligation contained in this
Agreement, the other Party shall be entitled (in addition to any other remedy
that may be available to it under this Agreement, including monetary damages) to
seek (i) a decree or order of specific performance to enforce the observance and
performance of such covenant or obligation and (ii) an injunction restraining
such breach.  The Parties further agree that no Party to this
Agreement shall be required to obtain, furnish or post any bond or similar
instrument in connection with or as a condition to obtaining any remedy referred
to in this Section
12.11 and each Party waives any objection to the imposition of such
relief or any right it may have to require the obtaining, furnishing or posting
of any such bond or similar instrument.




12.12      Amendments and
Waivers .  No
amendment of any provision of this Agreement shall be valid unless the same
shall be in writing and signed by Buyers and Seller.  To the fullest
extent permitted by law, no waiver by any Party of any provision of this
Agreement or any default, misrepresentation, or breach of warranty or covenant
hereunder, whether intentional or not, shall be valid unless the same shall be
in writing and signed by the Party making such waiver, nor shall such waiver be
deemed to extend to any prior or subsequent default, misrepresentation, or
breach of warranty or covenant hereunder or affect in any way any rights arising
by virtue of any prior or subsequent such occurrence.




12.13      Severability .  Any
term or provision of this Agreement that is invalid or unenforceable in any
situation in any jurisdiction shall not affect the validity or enforceability of
the remaining terms and provisions hereof or the validity or enforceability of
the offending term or provision in any other situation or in any other
jurisdiction.




12.14      Expenses .  Neither
Party shall be liable for the other Party’s costs and expenses (including legal
fees and expenses) incurred in connection with this Agreement and the
transactions contemplated hereby.




12.15      Construction .  The
Parties have participated jointly in the negotiation and drafting of this
Agreement. In the event an ambiguity or question of intent or interpretation
arises, it is the intention of the Parties hereto that this Agreement shall be
construed as if drafted jointly by the Parties and no presumption or burden of
proof shall arise favoring or disfavoring any Party by virtue of the authorship
of any of the provisions of this Agreement.




12.16      Incorporation of Exhibits
and Schedules . The
Exhibits and Schedules identified in this Agreement are incorporated herein by
reference and made a part hereof.




12.17      Tax Disclosure
Authorization .  Notwithstanding
anything herein to the contrary, the Parties (and each Affiliate and agent of
any Party) agree that each Party (and each employee, representative, and other
agent of such Party) may disclose to any and all Persons, without limitation of
any kind, the tax treatment and tax structure (as such terms are used in
regulations promulgated under Code Section 6011) of the transactions
contemplated by this Agreement and all materials of any kind (including opinions
or other tax analyses) provided to such Party or such Person relating to such
tax treatment and tax structure, except to the extent necessary to comply with
any applicable federal or state securities laws.  This authorization
is not intended to permit disclosure of any other information including (without
limitation) (i) any portion of any materials to the extent not related to the
tax treatment or tax structure of the transactions contemplated by this
Agreement, (ii) the identities of participants or potential participants, (iii)
the existence or status of any negotiations, (iv) any pricing or financial
information (except to the extent such pricing or financial information is
related to the  tax treatment or tax structure of the transactions
contemplated by this Agreement), or (v) any other term or detail not relevant to
the tax treatment or tax structure of the transactions contemplated by this
Agreement.




*     *     *     *     *


41


IN
WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the date
first above written.




MACQUARIE
      INFRASTRUCTURE
                            COMPANY
      INC.By:
                          /s/ James HookeName:
                          James HookeTitle:
                          Chief Executive OfficerBy:
                          /s/
      Todd WeintraubName:
                          Todd WeintraubTitle:
                          Chief Financial OfficerJOHN
      HANCOCK LIFE INSURANCE
                            COMPANYBy:
                          /s/
      Gerald C. Hanrahan, Jr.Name:
                          Gerald C. Hanrahan, Jr.Title:
                          Managing DirectorJOHN
      HANCOCK LIFE INSURANCE
                            COMPANY
      (U.S.A.)By:
                          /s/
      Gerald C. Hanrahan, Jr.Name:
                          Gerald C. Hanrahan, Jr.Title:
                          Authorized
  Signatory