Item 1. Business
Macquarie Infrastructure Company Trust, a Delaware statutory trust which we refer to as the trust, owns its businesses and investments through Macquarie Infrastructure Company LLC, a Delaware limited liability company which we refer to as the company. Except as otherwise specified, “Macquarie Infrastructure Company,” “we,” “us,” and “our” refer to both the trust and the company and its subsidiaries together. The company owns the businesses located in the United States through a Delaware corporation, Macquarie Infrastructure Company Inc., or MIC Inc., and those located outside of the United States through Delaware limited liability companies. Macquarie Infrastructure Management (USA) Inc., which we refer to as our Manager, is part of the Macquarie Group of companies, which we refer to as the Macquarie Group, which comprises Macquarie Bank Limited and its subsidiaries and affiliates worldwide.
GENERAL
The trust and the company were each formed on April 13, 2004. On December 21, 2004, we completed our initial public offering and concurrent private placement of shares of trust stock representing beneficial interests in the trust. Each share of trust stock corresponds to one LLC interest of the company. We used the majority of the proceeds of the offering and private placement to acquire our businesses and investments and to pay related expenses.
We own, operate and invest in a diversified group of infrastructure businesses in the United States and other developed countries. We offer investors an opportunity to participate directly in the ownership of infrastructure businesses, which traditionally have been owned by governments or private investors, or have formed part of vertically integrated companies. Our businesses consist of the following:
• an airport services business conducted through Atlantic and AvPorts;
• an airport parking business, conducted through Macquarie Parking;
• a district energy business, conducted through Thermal Chicago and a 75% controlling interest in Northwind Aladdin; and
• a toll road business, through our 50% ownership of the company that operates Yorkshire Link, a 19-mile highway in the United Kingdom.
Our investments consist of:
• a 17.5% interest in the holding company that owns South East Water, or SEW, a regulated water utility in southeastern England; and
• approximately 4.3% of Macquarie Communications Infrastructure Group, or MCG, a communications infrastructure fund managed by an affiliate of our Manager.
Our Manager
We have entered into a management services agreement with our Manager, which will manage our day-to-day operations and affairs and will oversee the management teams of our operating businesses. Neither the trust nor the company have or will have any employees. Our Manager has assigned, or seconded, to the company, on a permanent and wholly dedicated basis, two of its employees to assume the offices of chief executive officer and chief financial officer and will make other personnel available as required. The services performed for the company are provided at our Manager’s cost, including the compensation of our seconded officers. Each of our initial businesses has seasoned management teams who have day-to-day responsibility for enhancing the operations of their respective businesses and who are responsible for profitability and internal growth.
We pay our Manager a management fee based primarily on our market capitalization. In addition, to incentivize our Manager to maximize shareholder returns, we pay performance fees to our Manager equal to 20% of the outperformance, if any,
of quarterly total returns to our shareholders compared to a benchmark index, provided that total shareholder returns for the quarter are positive.
Our Manager is a member of the Macquarie Group, which, together with its associated entities worldwide, is a global investment banking group headquartered in Australia with over 6,500 employees in 23 countries as of February 16, 2005. The Macquarie Group is one of the global leaders in advising on the acquisition, disposition and financing of infrastructure assets and the management of infrastructure investment vehicles on behalf of third-party investors.
We believe that the Macquarie Group’s demonstrated expertise and experience in the management, acquisition and financing of infrastructure businesses will provide us with a significant advantage in pursuing our strategy. Our Manager is part of the Macquarie Group’s Infrastructure and Specialised Funds division, which manages over AUD $24.5 billion ($19 billion) of funds as of February 16, 2005 on behalf of retail and institutional investors, invested in infrastructure assets and businesses, including toll roads, airports and airport-related infrastructure, communications, electric and gas systems, water utilities and rail. This division has been operating since 1996 and employed over 270 professionals as of February 16, 2005. The global infrastructure portfolio managed by the Macquarie Group on behalf of its managed funds and institutional investors, as of February 25, 2005, included 64 infrastructure assets in 14 countries, including the United States, Canada, United Kingdom, Australia, Germany, South Korea and Japan.
We expect that the Macquarie Group’s infrastructure advisory division, which employs over 260 professionals globally, including over 40 in North America, will be an important source of acquisition opportunities and financial and acquisitions advice for us. During 2004, the Macquarie Group globally advised on infrastructure transactions valued at more than AUD $44 billion ($35 billion). While the Macquarie Group’s advisory division is separate from the Infrastructure and Specialised Funds division, historically the Macquarie Group’s advisory group has presented the various infrastructure investment vehicles under its management with a significant number of high quality infrastructure acquisition opportunities, although it has no contractual obligation to do so. We expect that through our Manager we will be presented with similar opportunities. Pursuant to the terms of the management services agreement, our Manager is obliged to present to us, on a priority basis, acquisition opportunities in the United States that are consistent with our strategy, as discussed below. The Macquarie Group is also our preferred financial adviser.
We also believe that our relationship with the Macquarie Group will enable us to take advantage of its expertise and experience in debt financing for infrastructure assets. As infrastructure assets are usually able to support high levels of debt relative to equity, we believe that the ability of our Manager and our preferred financial advisor, the Macquarie Group, to source and structure low-cost project and other debt financing provides us with a significant advantage when acquiring assets and will enable us to maximize returns to shareholders from those assets on an ongoing basis.
U.S. Acquisition Priorities
Under the terms of the management services agreement, the company has first priority ahead of all current and future entities managed by our Manager or by members of the Macquarie Group within the Infrastructure and Specialised Funds division in each of the following infrastructure acquisition opportunities that are within the United States:
Sector
Airport fixed base operations
District energy
Airport parking
User pays assets, contracted assets and regulated assets (as defined below) that represent an investment of greater than AUD $40 million ($31.8 million), subject to the following qualifications:
Roads:
The company has second priority after Macquarie
Infrastructure Group
Airport ownership:
The company has second priority after Macquarie Airports (consisting of Macquarie Airports Group and Macquarie Airports)
Communications:
The company has second priority after Macquarie
Communications Infrastructure Group
Regulated Assets (including, but not limited to, electricity and gas transmission and distribution and water services):
The company has second priority after Macquarie Essential Assets Partnership, or MEAP, until such time as MEAP has invested a further CAD $45 million ($32.5 million) in the United States. Thereafter the company will have first priority.
User pays assets means businesses that are transportation-related and derive a majority of
their revenues from a per use fee or charge.
Contracted assets means businesses that derive a majority of their revenues from long-term contracts with other businesses or governments.
Regulated assets means businesses that are the sole or predominant providers of at least one essential service in their service areas and where the level of revenue earned or charges imposed are regulated by government entities.
The company has first priority ahead of all current and future entities managed by our Manager or any Manager affiliate in all investment opportunities originated by a party other than our Manager or any Manager affiliate where such party offers the opportunity exclusively to the company and not to any other entity managed by our Manager or any Manager affiliate within the Infrastructure and Specialised Funds division of the Macquarie Group.
Industry
Infrastructure businesses provide basic services that are used everyday, such as parking, roads and water. We focus on the ownership and operation of infrastructure businesses with the following types of long-life physical assets:
• “User Pays” Assets. These assets are generally transportation infrastructure-related that depend on a per use system for their main revenue source. Demand for use of these assets is relatively unaffected by macroeconomic conditions because people use these types of assets on an everyday basis. While some “user pays” assets, such as airports and toll roads, are generally owned by government entities in the United States, other types, such as airport- and rail-related infrastructure, are typically owned by the private sector in the United States. Where the private sector owner has been granted a lease or concession by a government entity to operate the business, the business will be subject to any restrictions or provisions contained in the lease or concession.
• Contracted Assets. These assets provide services through long-term contracts with other businesses or governments. These contracts typically can be renewed on comparable terms when they expire because there are no or limited providers of comparable services. Contracted assets, such as communications towers, district energy systems and contracted power generation plants, are generally owned by the private sector in the United States. Where the private sector owner has been granted a lease or concession by a government entity to operate the business, the business will be subject to any restrictions or provisions contained in the lease or concession.
• Regulated Assets. Businesses that own these assets are the sole or predominant providers of essential services in their service areas and, as a result, are typically regulated by government entities with reference to the level of revenue earned or charges imposed. Government regulated revenues typically enable the service provider to cover operating costs, depreciation and taxes and achieve an adequate return on debt and equity capital invested. Water utilities and electric and gas distribution and transmission networks are examples of regulated assets. In the United States, regulated assets are generally owned by publicly listed utilities, although some are owned by government entities.
By their nature, these businesses have sustainable and growing long-term cash flows due to consistent customer demand and the businesses’ strong competitive positions. Consistent customer demand is driven by the basic, everyday nature of the services provided. The strong competitive position results from high barriers to entry, including:
• high initial development and construction costs, such as the cost to build roads;
• difficulty in obtaining suitable land, such as the difficulty in obtaining suitable land near or at airports for parking facilities or fixed base operations (“FBOs”);
• required government approvals, which may be difficult or time-consuming to obtain, such as approvals for a network of communications towers, or approvals to lay water pipes under city streets; and
• long-term exclusive concessions and customer contracts, such as contracts to provide broadcasting services to broadcast television companies or cooling services to a building.
These barriers to entry have the effect of protecting the cash flows generated by the infrastructure assets owned by these businesses. These barriers to entry largely arise because services provided by infrastructure businesses, such as parking, roads, and water, can generally only be delivered by relatively large and costly physical assets in close proximity to customers. These services cannot be delivered over the internet, and cannot be outsourced to other countries, and are therefore not susceptible to the competitive pressures that other industries, including manufacturing industries, typically face. We will not seek to acquire infrastructure businesses that face significant competition, such as merchant electricity generation facilities.
The prices charged for the use of infrastructure assets that are our focus can also generally be expected to keep pace with inflation due to the pricing power generally enjoyed by “user pays” assets, the contractual terms of contracted assets, and for regulated assets the regulatory process
that determines revenues and typically provides for an inflation adjustment.
Infrastructure assets, especially newly constructed assets, tend to be long-lived, require minimal maintenance capital expenditure and are generally not subject to major technological change or physical deterioration. This generally means that significant cash flow is often available from infrastructure businesses to service debt, make distributions to shareholders expand the business, or all three. Exceptions exist in relation to much older infrastructure assets, such as SEW’s water network, which due to its age requires significant maintenance capital expenditure.
The sustainable and growing long-term cash flows of infrastructure assets mean their capital structures can typically support more debt than other businesses. As a result, financial structuring and capital optimization is a key component in maximizing returns to owners of infrastructure assets.
Strategy
We have two primary strategic objectives. First, we intend to pursue revenue growth and gross operating income improvement, as well as to optimize the financing structure of our businesses. We will also seek to realize synergies and improve our competitive position through complementary acquisitions. Second, we intend to acquire businesses in attractive infrastructure sectors other than those in which our global businesses and investments currently operate. A key component of our strategy is our association with the Macquarie Group, which is a leader in the management, acquisition and financing of infrastructure businesses worldwide.
Operational Strategy
We will rely on the Macquarie Group’s demonstrated expertise and experience in the management of infrastructure businesses to execute our operational strategy. In managing infrastructure businesses, the Macquarie Group (1) recruits and incentivizes talented operational management teams, (2) instills financial management discipline consistently across the businesses, (3) sources and executes acquisitions, and (4) structures and arranges debt financing for the businesses to maximize returns to shareholders.
We plan to increase the cash generated in our global businesses through initiatives to increase revenues and improve gross operating income. We have in place seasoned management teams at each of our businesses who will be supported by the demonstrated infrastructure management expertise and experience of the Macquarie Group in the execution of this strategy.
• Improving and expanding our existing marketing programs. We expect to enhance the client services and the marketing programs offered by our businesses. Both Macquarie Parking and Atlantic have established marketing programs that are sophisticated relative to those of most other industry participants, and we intend to expand these programs and extend them to any locations that we acquire in the future.
• Making selective capital expenditures. We intend to expand capacity of our existing locations and improve their facilities through selective capital expenditures. Specifically, we will make expenditures that we believe will generate additional revenues in the short-term. Such opportunities exist, notably, in relation to our district energy business.
• Strengthening our competitive position through complementary acquisitions in our operating businesses. We intend to acquire and integrate additional FBO and airport parking businesses or facilities. Ownership in these sectors continues to be very fragmented, and, given the desire of industry participants for liquidity, we believe that attractive acquisition opportunities will arise. For example, the Macquarie Group was responsible for successfully expanding our airport parking business, through acquisitions by funds managed by the Macquarie Group, into the largest operator in its sector in the United States in terms of number of sites. Opportunities to acquire additional district energy businesses also exist due to fragmented ownership and the desire of diversified energy utilities to sell off non-core assets. We believe that complementary acquisitions will improve our overall performance by: (1) leveraging our brand and marketing programs in Atlantic, AvPorts and Macquarie Parking to increase the revenues of additional FBO and parking operations that we acquire and integrate into our company; (2) realizing cost synergies by allocating the corporate overhead expenses of our businesses across a larger number of operations and by implementing improved management practices; and (3) taking advantage of the size and diversification of our combined businesses to achieve lower financing costs than can be achieved by the businesses that we acquire on a stand-alone basis.
Acquisition Strategy
We expect our acquisition strategy to benefit from the Macquarie Group’s deep industry knowledge and ongoing identification of acquisition opportunities in the infrastructure sector, where opportunities often are not widely offered, well-understood or properly valued. The Macquarie Group also has significant expertise in the execution of such acquisitions, which can be time-consuming and complex.
We intend to acquire infrastructure businesses and investments in sectors other than those sectors in which our businesses currently operate, where we expect attractive returns and where the Macquarie Group has built relationships and expertise. While our focus is on acquiring businesses in the United States, we will also consider opportunities in other developed countries. Generally, we will seek to acquire controlling interests, but we may acquire minority positions in attractive sectors where those acquisitions generate immediate dividends and where our partners have similar objectives to our own. Our acquisitions of SEW and MCG are consistent with this philosophy. We believe that the sectors in which SEW and MCG operate will continue to present attractive acquisition opportunities and that partnering with other Macquarie Group-managed vehicles with experience in those sectors is an appropriate way to pursue opportunities in those sectors. In the United States, we may choose to acquire non-controlling interests in regulated assets, in order to avoid being regulated under the Public Utility Holding Company Act of 1935.
As a consequence of the exercise of the underwriters’ over-allotment option during our initial public offering, we received net cash proceeds of approximately $75 million in excess of the cash we required to acquire our initial businesses and investments and to establish prudent reserves. We are actively seeking to invest these excess funds in a manner consistent with our acquisition strategy and are currently evaluating a number of opportunities, both in the sectors where we operate and in other infrastructure sectors.
Acquisition Opportunities
Infrastructure sectors that may present attractive acquisition candidates include, in addition to our initial businesses, electricity and gas transmission and distribution networks, water and sewerage networks, contracted power generation and communications infrastructure. We expect that acquisition opportunities will arise from two main sources: the private sector and the public (government) sector.
• Private sector opportunities. Increasingly, private sector owners of infrastructure assets are choosing to divest these assets for competitive, creditor or regulatory reasons. For instance, vertically integrated electric, gas and telecommunications utilities are increasingly disposing of infrastructure assets because they wish to concentrate on their core customer-focused business rather than the infrastructure supporting it, because they are over-leveraged and wish to pay down debt, because their capital structure and shareholder expectations do not allow them to finance these assets as efficiently as a dedicated owner of the assets, or due to regulatory pressure to unbundle their vertically integrated product offering.
• Public (government) sector opportunities. Traditionally, governments around the world have financed the provision of infrastructure to the economy with taxation revenues and government borrowings. Over the last few decades, many governments have pursued an alternative model for the provision of infrastructure as a result of budgetary pressures. This trend towards increasing private sector participation in the provision of infrastructure is well established in Australia, Europe and Canada, and it is just beginning in the United States. We believe the level of participation of the private sector in the provision of infrastructure in the United States will increase over time, providing us with attractive investment opportunities due to growing budgetary pressures, exacerbated by baby boomers reaching retirement age, and the significant under-investment in critical infrastructure systems in the United States.
Financing
We expect to fund any acquisitions initially from the proceeds of the over-allotment option exercised in connection with our initial public offering and thereafter with a combination of new debt at the company or MIC Inc. level, subsidiary non-recourse debt and issuance of additional shares of trust stock. We expect that a significant amount of our cash from operations will be used to support our dividend policy. We therefore expect that in order to fund significant acquisitions, in addition to new debt financing, we will also need to either offer more equity or offer our shares to the sellers of businesses that we wish to acquire.
Our businesses and investments have generally been financed with subsidiary non-recourse debt that is repaid solely from the businesses’ revenues. The debt is generally secured by the physical assets, major contracts and agreements, when appropriate, cash accounts and, in certain cases, our ownership interest in that business. This type of financing is referred to as “project financing.” Project financing transactions generally are structured so that all revenues of a project or business are deposited directly with a bank or other financial institution acting as escrow or security deposit agent. These funds are then payable in a specified order of priority set forth in the financing documents to ensure that, to the extent available, they are used first to pay operating expenses, senior debt service and taxes and to fund reserve accounts. Thereafter, subject to satisfying debt service coverage ratios and certain other conditions, available funds may be disbursed for dividends or payments under shareholder loans or subordinated debt, where applicable.
These project financing structures are designed to prevent the lenders from looking to us or to our other businesses for repayment; that is, they are “non-recourse” to us and the other businesses and investments not involved in the specific project or business, unless we specifically agree to assume liability for certain liabilities or contingent obligations. This structure effectively results in each of the businesses being isolated from the risks of any other business we own or in which we have invested.
We do not currently have any debt at the company level. However, we may in the future seek to raise debt at company level to finance acquisitions pending a subsequent equity offering, for working capital purposes or on a permanent basis. In addition, we may consider incurring debt at MIC Inc. instead of project financing to decrease debt service costs and increase flexibility in managing our consolidated cash flows.
OUR BUSINESSES AND INVESTMENTS
Airport Services Business
Overview
Our airport services business comprises Atlantic and AvPorts. Atlantic operates fixed-based operations, or FBOs, at twelve airports throughout the United States, including two FBOs in California which were acquired on January 14, 2005. AvPorts operates five FBOs and one heliport site in the eastern and southeastern United States. AvPorts also operates five regional and general aviation airports under management contracts, although airport management constitutes a very small portion of our airport services business. Our airport services business principally services the general aviation industry and seeks to distinguish its FBOs through the provision of high quality services. Our FBOs are not dependent on any individual customer for a material amount of their total revenue.
Atlantic was founded by the Du Pont family in the 1930s and remained a family-owned company until 1997. North America Capital Holding Company, or NACH, acquired 100% of the shares in Executive Air Support Inc., or EAS, the parent of the Atlantic operating companies, on July 29, 2004. On December 22, 2004, we acquired all the shares in NACH from Macquarie Investment Holdings, Inc., a member of the Macquarie Group. Since the date of our acquisition of Atlantic, the Atlantic business had revenues of $1.7 million and an operating loss of $21,000 for the 2004 fiscal year, and total assets of $320.3 million at December 31, 2004. Revenues from Atlantic comprised 34.2% of our total revenues for the 2004 fiscal year.
AvPorts is one of the oldest airport operators and aviation services providers in the world. It was originally founded in 1927 as a division of Pan American World Airways. In 2002, the Macquarie Global Infrastructure Fund, through its 100% owned subsidiary, Macquarie Airports North America Inc., or MANA, acquired the business of AvPorts. On December 22, 2004, we acquired all the shares of MANA plus $12 million of subordinated debt issued by MANA pursuant to a stock purchase agreement from the Macquarie Global Infrastructure Fund. Since the date of our acquisition of AvPorts, the AvPorts business had revenues of $907,000 and operating income of $10,000 for the 2004 fiscal year, and total assets of $91.7 million at December 31, 2004. Revenue from AvPorts comprised 17.9% of our total revenue for the 2004 fiscal year.
Our Acquisitions
Atlantic
On December 22, 2004, we purchased 100% of the ordinary shares in NACH, parent company of the Atlantic business, from Macquarie Investment Holdings Inc., a wholly owned indirect subsidiary of Macquarie Bank Limited, for a purchase price of $118.2 million (including transaction costs) plus $130 million of assumed senior debt pursuant to a stock purchase agreement.
On July 29, 2004, NACH acquired 100% of the shares of EAS, the parent company of the Atlantic business, and assumed $500,000 of debt pursuant to a stock purchase agreement. Pursuant to the agreement between the selling shareholders of EAS and NACH, the selling shareholders of EAS have provided NACH with standard representations, warranties and indemnities. Specific limitations on these indemnities include that:
• there is no liability under the agreement for breaches of representations and warranties or covenants and pending litigation and disputes until the aggregate of claims for such breaches and indemnities exceeds a $1 million deductible, from which point the indemnity is available for all claims. Liability for claims relating to breaches of the representations and warranties for tax and employment matters is not subject to such threshold. Notwithstanding the above, the selling shareholders or EAS will not be liable for individual claims of less than $25,000; and
• the selling shareholders’ indemnity is capped at $20 million for most matters covered by the indemnification provisions. Significant exceptions include breaches of key representations and warranties regarding capital stock, capitalization and fraud.
In addition, a $2.5 million cash escrow account was established following closing of the acquisition by NACH, from which indemnity payments will be able to be drawn. The funds in the escrow account will be released twelve months after closing, unless a claim is outstanding, including the legal proceeding discussed below under “Legal Proceedings” in Part I, Item 3.
On January 14, 2005, NACH acquired all of the membership interests in General Aviation Holdings, LLC, or GAH, which operates two FBOs in California, for $53.5 million (including a working capital adjustment, transaction costs and funding of the debt service reserve). $32 million of the purchase price was funded by an increase in NACH’s senior debt facility with the balance funded by proceeds from the company’s initial public offering. Pursuant to the membership interest purchase agreement, the selling members of GAH provided NACH with standard representations, warranties and indemnities. Specific limitations on these indemnities include that:
• there is no liability under the membership interest purchase agreement for claims that do not exceed $500,000. No such threshold limitation applies to claims arising as a result of GAH’s breach of certain representations, including those representations with respect to debt disclosure, ownership of membership interests, taxes and employee benefit plans, or claims based on fraud, willful misconduct or intentional misrepresentation; and
• GAH indemnified NACH for most matters covered by the indemnification provisions. Generally, the indemnity cap is $7.5 million; however, the cap is the purchase price for losses incurred as a result of breaches of certain representations and warranties regarding due organization and status, authority and enforceability, capital membership interests and fraud, willful misconduct or intentional misrepresentation, no undisclosed liabilities and debt and the specific indemnity provision for pre-closing tax liability.
AvPorts
On December 22, 2004, we acquired the AvPorts business from Macquarie Specialised Asset Management Limited, as Trustee for and on behalf of Macquarie Global Infrastructure Funds A and C, and Macquarie Specialised Asset Management 2 Limited, as Trustee for and on behalf of Macquarie Global Infrastructure Funds B and D, for cash consideration of $42.4 million (including transaction costs) and assumption of existing debt.
Industry Overview
FBOs predominantly service the general aviation industry. General aviation, which includes corporate and leisure flying, pilot training, helicopter, medevac and certain air freight operations, is the largest segment of U.S. civil aviation and represents the largest percentage of the active civil aircraft fleet. General aviation does not include commercial air carriers or military operations. In order to attract independent operators to service general aviation aircraft, local airport authorities grant FBO operators the right to sell fuel. Fuel sales provide most of an FBO’s revenue.
FBOs generally operate in an environment with limited competition and high barriers to entry. Airports have limited physical space for additional FBOs, due in part to safety restrictions that limit construction in the vicinity of runways. Airport authorities generally do not have the incentive to add additional FBOs unless there is a significant demand for capacity, as profit-making FBOs are more likely to reinvest in the airport and provide a broad range of services, which attracts increased airport traffic. Government approvals and design and construction of a new FBO can also take significant time.
Demand for FBO services is driven by total general aviation aircraft in operation and average flight hours per aircraft. Both factors have recently experienced strong growth. According to the FAA, from 1995 to 2003, the fleet of fixed wing turbine aircraft, which includes jet aircraft but excludes smaller turbine aircraft, increased at an average rate of 6.1% per year. Fixed wing turbine aircraft are the major consumers of FBO services, especially fuel. Over the same period, the general aviation hours flown by fixed wing turbine aircraft have increased at an average rate of 5.3% per year. These factors have contributed to an average annual growth rate in general aviation jet fuel consumption of 7.2% from 1995 to 2003. This growth is and has been driven by a number of factors, in addition to general economic growth over the period, which include the following:
• passage of the General Aviation Revitalization Act in 1994, which significantly reduced the liability facing general aviation aircraft manufacturers;
• dissatisfaction with the increased inconvenience of commercial airlines and major airports as a result of security-related delays;
• growth in programs for the fractional ownership of general aviation aircraft (programs for the time share of aircraft), including NetJets, FlexJet and Flight Options; and
• a tax package passed by Congress in May 2003, which allows companies to depreciate 50% of the value of new business jets in the first year of ownership if the jets were purchased and owned by the end of 2004.
We believe generally that the events of September 11, 2001 have increased the level of general aviation activity. We believe that safety concerns for corporate staff combined with increased check-in and security clearance times at many airports in the United States have increased the demand for private and corporate jet travel.
As a result of these factors, the FAA is forecasting continued growth in general aviation jet fuel consumption, on average, of 5.6% per year from 2004 to 2016.
The growth in the general aviation market has driven demand for the services provided by FBOs, especially fuel sales. The general aviation market is serviced by FBOs located throughout the United States at various major and regional airports. According to Aviation International News, there are approximately 4,500 FBOs throughout North America, with generally one to five operators per airport. Most of the FBOs are privately owned by operators with only one or two locations. There are, however, a number of larger industry participants, including Signature Flight Support, which is owned by BBA plc.
Strategy
We believe that our FBO business will continue to benefit from the overall growth in the corporate jet market and the demand for the services that our business offers. However, we believe that our airport services business is in a position to grow at
a rate in excess of this industry growth through our internal growth, marketing and acquisitions strategies and selective combination of the operations of Atlantic and AvPorts.
Internal Growth. We plan to grow revenues and profits by continuing to focus on attracting pilots and passengers to our FBOs who desire full service and quality amenities. We will continue to develop our staff training to provide a level of service higher than that provided by discount fuel suppliers. In addition, we will make selective capital expenditures that will increase revenues and reinforce our reputation for service and high quality facilities, potentially allowing us to increase profits on fuel sales and other services over time.
Marketing. We plan to improve, expand and capitalize on our existing marketing programs, including our proprietary point of sale system and associated customer information database, and our “Atlantic Awards” program. Through our marketing programs, we expect to improve revenues and margins by generating greater customer loyalty, encouraging “upselling” of fuel, cross-selling services at additional locations to existing customers, and attracting new customers.
Acquisitions. We will focus on acquisitions at major airports and locations where there is likely to be growth in the general aviation market. We believe we can grow through acquisitions and derive increasing synergies from economies of scale, including revenue and marketing, head office and other cost synergies. We believe the highly fragmented nature of the industry and the desire of existing owners for liquidity provide attractive acquisition candidates, including both individual facilities and portfolios of facilities. In considering potential acquisitions, we will analyze factors such as capital requirements, the terms and conditions of the lease for the FBO facility, the condition and nature of the physical facilities, the location of the FBO, the size and competitive conditions of the airport and the forecast operating results from the FBO. An example of this is at New Orleans, where Atlantic acquired two FBOs on December 31, 2003. By implementing Atlantic’s marketing programs and service style, these facilities have performed well in 2004.
Combining Operations. We believe that there are opportunities for AvPorts and Atlantic to benefit from a selective combination of operations. We are currently evaluating the opportunities to integrate operational functions of the businesses to determine whether they result in a benefit of cost savings, revenue enhancements or greater growth prospects.
Business
Operations
Our airport services business has high-quality facilities and operations and focuses on attracting customers who desire high-quality service and amenities. Fuel sales represented approximately 71% of our airport services business revenue for fiscal year 2004. Other services provided to these customers include de-icing, aircraft parking, hangar services and catering. Fuel is stored in fuel farms and each FBO operates refueling vehicles owned or leased by the FBO, and either maintains or has access to fuel storage tanks to support its fueling activities. Services are also provided to commercial carriers and include refueling from the carrier’s own fuel supplies stored in the carrier’s fuel farm, de-icing and ground and ramp handling services.
The price for fuel is largely dependent on the wholesale market price. Our airport services business sells fuel to the users of its FBOs either at a contracted price, at a price negotiated directly with the customer or at the fuel price. While fuel prices can be volatile, we are generally able to pass fuel cost increases through to customers. To a lesser extent, our airport services business also provides fueling services, de-icing and some ground-handling services to commercial airlines at some locations.
Locations
Our FBO facilities operate on long-term leases from airport authorities or local government agencies. Our airport services business and its predecessors have a strong history of successfully renewing their leases at their FBOs, and has held some of its leases since the 1940s, 1950s and 1960s. The leases have an average length of approximately 17 years.
Atlantic’s FBOs:
The airport authority, for each lease, has termination rights under the lease. Standard to most contracts are terms allowing termination if the tenant defaults on the terms and conditions of the lease or abandons the property or if the tenant is insolvent or bankrupt. In addition, Atlantic’s FBOs at Chicago Midway, Philadelphia, Northeast Philadelphia, New Orleans International and Orange County may be terminated with notice by the airport authority for convenience. In each case, there are compensation agreements or obligations of the authority to make best efforts to relocate the FBO. Most of the leases allow for the lease to be terminated if there are liens filed against the property.
AvPorts’ FBOs:
The airport authority, for each lease, has termination rights under the lease. Standard to most contracts are terms allowing termination if the tenant defaults on the terms and conditions of the lease or abandons the property or if the tenant is insolvent or bankrupt. The proposed new operating agreement at Metroport East 34th Street Heliport will also contain provisions allowing the authority to terminate the operating agreement for convenience. In this case, the authority will be obligated to pay compensation to AvPorts equal to the level of AvPorts’ unamortized cost of capital expenditure at the heliport.
Airport Management Contracts
AvPorts manages and operates five airports on behalf of local authorities under management contracts. Under these contracts, AvPorts is responsible for the day-to-day operation of the airfield and terminal and is paid a fixed annual fee for providing these services. The management fee is paid to the manager irrespective of the number of passengers that pass through the airport and, therefore, is unaffected by changes in airport activity. Management contracts accounted for less than 5% of AvPorts’ revenue for fiscal year 2004.
AvPorts operates five regional or general aviation airports under management contracts at the following locations:
• Atlantic City International Airport;
• Republic Airport;
• Teterboro Airport;
• Tweed-New Haven Regional Airport; and
• Westchester County Airport.
Marketing
We believe our airport services business has an experienced marketing team and marketing programs that are sophisticated relative to those of other industry participants. Our airport services business’ marketing activities support its focus on high-quality service and amenities and are intended to generate greater customer loyalty, encourage “upselling” of fuel, cross-selling services at additional locations to existing customers, and attract new customers.
Atlantic has established two key programs. Each utilizes an internally developed point-of-sale system that operates at all locations. This system tracks all aircraft utilizing the airport and records which FBO the aircraft uses. To the extent that the aircraft is a customer of another Atlantic FBO but did not use the FBO at that location, a member of Atlantic’s customer service team will send a letter alerting the pilot or flight department of Atlantic’s presence at that site and inviting them to visit next time they are at that location.
The second key program is the “Atlantic Awards” program. This program operates through the point-of-sale system. For each 100 gallons of fuel purchased, the pilot is given a voucher for five “Atlantic Awards.” The pilot can begin accumulating points after registering the voucher on Atlantic’s website. Once 100 Atlantic Awards have been accumulated, the pilot is sent a pre-funded American Express card, branded with Atlantic’s logo. The card is recharged each time the pilot registers additional vouchers on Atlantic’s website. This program has rapidly gained acceptance by pilots and is encouraging “upselling” of fuel, where pilots purchase a larger portion of their overall fuel requirement at our location. These awards are recorded as a reduction in revenue in the Company’s consolidated financial statements.
As part of our analysis of the potential benefits that could be derived from integrating certain functions of Atlantic and AvPorts, we are evaluating whether extending these programs to AvPorts’ sites will increase our revenues from these sites.
Competition
Competition in the FBO business exists on a local basis at most of the airports at which our airport services business operates. Six of our FBOs are located at airports where currently only one FBO operates, either because of the lack of suitable space at the airfield, or because the level of demand for FBO services at the airport does not support more than one FBO. The remaining eleven FBOs have a number of competitors located at the airports. Our airport services business positions itself at these airports as a provider of professional service and quality staff. Staff are provided with comprehensive training on an ongoing basis to ensure high and consistent quality of service. Our airport services business markets to high net worth individuals and corporate flight departments for whom fuel price is of less importance for FBO choice than service and facilities. While each airport is different, generally there are significant barriers to entry preventing new FBO competitors from entering the markets in which our airport services business operates, including limited availability of suitable land.
There are several competitors with operations at five or more U.S. airports. These competitors tend to be privately held or owned by much larger companies, such as Signature Flight Support Corporation, Mercury Air Centers, Inc., Piedmont Hawthorne Holdings Inc. and Million Air
Interlink, Inc. Some present and potential competitors have or may obtain greater financial and marketing resources than we do, which may negatively impact our ability to compete at each airport or to compete for acquisitions. We believe that the airport authorities from which our airport services business leases space are satisfied with the performance of its FBOs and are therefore not seeking to solicit additional service providers.
Regulation
The aviation industry is overseen by a number of regulatory bodies, the main one being the FAA.
At its FBOs, our airport services business is largely regulated by the local airport authorities through lease contracts with those authorities. Our airport services business must comply with federal, state and local environmental statutes and regulations associated in part with numerous underground fuel storage tanks. These requirements include, among other things, tank and pipe testing for tightness, soil sampling for evidence of leaking and remediation of detected leaks and spills. Our airport services business’ operations are subject to regular inspection by federal and local environmental agencies and local fire and airline quality control departments. With respect to environmental and compliance requirements, we do not expect to have to undertake material capital expenditures nor do we expect that compliance and related remediation work will have a material negative impact on earnings or the competitive position of our airport services business. To date, our airport services business has not received
notice of any cease and abatement proceeding by any government agency as a result of failure to comply with applicable environmental laws and regulations.
Management
The day-to-day operations management of our airport services business is undertaken by individual site managers. Local managers at each site are responsible for all aspects of the operations at their site. Responsibilities include ensuring that customer requirements are met by the staff employed at their sites and that revenue from the sites is collected, and expenses incurred, in accordance with internal guidelines. In order to maximize the revenue earned at the FBOs, local managers are, within the specified guidelines, empowered to make decisions as to fuel pricing and other services. In this way, our airport services business is able to respond to its customers’ needs efficiently and provide them with high quality service.
The management of our airport services business at the site level is overseen by two separate management teams. Atlantic’s and AvPorts’ operations, respectively, are managed and overseen by a group of senior personnel responsible for each business who, on average, have over 19 years experience in the aviation industry. Most of the business management team members have been employed at Atlantic or AvPorts (or their predecessors) for over 11 years and have established close and effective working relationships and understanding with local authorities, customers, service providers and subcontractors. These teams are responsible for, among other things, overseeing the FBO operations, setting strategic direction and ensuring compliance with all contractual and regulatory obligations.
Atlantic’s head office is in Plano, Texas. AvPorts’ head office is in Baltimore, Maryland. The head offices provide the businesses with central management and perform overhead functions, such as accounting, information technology, human resources, payroll and insurance arrangements for their respective businesses.
Employees
As of February 28, 2005, our airport services business employed over 780 employees at its various sites, of which 423 were Atlantic employees and 364 were AvPorts employees. Approximately 23% of employees are covered by collective bargaining agreements. We believe that employee relations at our airport services business are good.
Agreement with Respect to Republic Airport
Atlantic operates an FBO at Republic Airport. The manager of Republic Airport is AvPorts. There is a potential conflict of interest between Atlantic’s role as the FBO operator and AvPorts’ role as the airport manager, which arises under the terms of AvPorts’ management contract with the Republic Airport authority, now that Atlantic and AvPorts are both owned by us.
To resolve this conflict at Republic, on July 29, 2004, North America Capital entered into a binding memorandum of understanding, or MOU, with AvPorts and the Republic Airport authority, pursuant to which, at the Republic Airport authority’s request, AvPorts must use commercially reasonable efforts to sell, assign or otherwise transfer its management contract with the Republic Airport authority to a third party. The agreement also requires AvPorts and Atlantic to maintain a confidentiality policy and governance structure designed to prevent information available to AvPorts regarding Republic Airport from being disclosed to Atlantic. The MOU also provides for a payment of up to $1.25 million by North America Capital to the Republic Airport authority in return for an extension of the FBO lease at the airport. The exact amount of the payment provided for under the MOU depends on the term of the lease extension granted.
Airport Parking Business
Overview
Our airport parking business, Macquarie Parking, is the largest provider of off-airport parking services in the United States, measured by number of locations, with 24 facilities comprising over 32,000 spaces and over 279 acres at 15 major airports across the United States, including five of the six largest passenger airports. Our airport parking business, operating generally under the names “PCA” or “Avistar,” provides customers with 24-hour secure parking close to airport terminals, as well as transportation via shuttle bus to and from their vehicles and the terminal. Operations are carried out on either owned or leased land at locations near airports. Operations on owned land or land on which Macquarie Parking has leases longer in term than 35 years (including extension options) account for a majority of operating income. Since the date of our acquisition of the airport parking business, it had revenue of $1.7 million and operating income of $277,000 for our 2004 fiscal year, and total assets of $205.2 million at December 31, 2004. Revenues from our airport parking business comprised 33.6% of our total revenues in the 2004 fiscal year.
In 2002, the Macquarie Global Infrastructure Fund, together with other investors, acquired the ten off-airport parking facilities formerly owned and operated by the PCA Group. That transaction closed in December 2002, and the business commenced operations as Macquarie Parking. In October 2003, Macquarie Parking acquired the ten off-airport parking facilities of Airport Satellite Parking LLC, known as Avistar. Since that acquisition was completed, the two businesses have been operated as one merged business. Subsequently, the business acquired an additional four facilities.
Our Acquisition
On December 23, 2004, we acquired 100% of the ordinary shares in Macquarie Americas Parking Corporation, or MAPC, from the Macquarie Global Infrastructure Fund for cash consideration of $33.8 million (including transaction costs). At that time MAPC owned approximately 83% of the outstanding ordinary membership units in Parking Company of America Airports Holdings LLC, or PCAA Holdings. In turn, PCAA Holdings owned approximately 51.9% of the outstanding ordinary membership units in PCAA Parent LLC, or PCAA Parent. PCAA Parent is the 100% owner of a number of subsidiaries that collectively own and operate Macquarie Parking.
On December 23, 2004, we also acquired all of the minority interests in PCAA Holdings for $6.7 million and 34.3% of the outstanding membership units in PCAA Parent for $23.3 million (in each case, including transaction costs). As a result of these transactions, we acquired in aggregate 100% of PCAA Holdings and 87.1% of PCAA Parent, and thereby acquired Macquarie Parking. The affairs of PCAA Parent are governed by its LLC agreement. PCAA Parent has a board of directors and PCAA Holdings has the right to appoint all members to the board of directors. Pursuant to the LLC agreement, most major decisions are referred to the board of directors of PCAA Parent, where decisions are made by majority vote.
Industry Overview
Airport parking can be classified as either on-airport (generally owned by the airport and located on airport land) or off-airport (generally owned by private operators). The off-airport parking industry is relatively new, with the first privately owned parking facilities servicing airports generally only appearing in the last few decades. Industry participants include numerous small, privately held companies as well as on-airport parking owned by airports.
Airports are generally owned by local governments, which often do not operate or market their parking operations as effectively as the privately owned operators, as the parking operations do not form part of the airport’s core function. In many cases, on-airport parking facilities are managed by large parking facility management companies pursuant to cost-plus contracts that do not create incentives to maximize profitability. Most airports have historically increased parking rates rapidly with increases in demand, creating a favorable pricing environment for off-airport competitors.
Airport parking facilities operate as either “self-park” or “valet” parking facilities. Valet parking facilities often utilize “deep-stack” parking methods that allow for a higher number of cars to be parked within the same area than at a self-parking facility of the same size by minimizing space between parked cars. In addition, valet parking provides the customer with superior service, often allowing the parking rates to be higher than at self-park facilities. However, the cost of providing valet parking is generally higher, due to higher labor costs, so self-parking is often more profitable, depending upon how scarce and expensive land is, labor costs and the premium that can be charged for valet service.
The substantial increase in use of the internet to purchase air travel through companies such as Expedia, Orbitz and Travelocity, as well as through airlines’ own websites, provides a strong co-marketing opportunity for larger off-airport parking operators that provide broad nationwide coverage at the busiest airports. In addition, we believe the highly fragmented nature of the industry provides strong consolidation opportunities for larger off-airport parking operators that benefit from economies of scale and national marketing programs, distribution networks and information systems.
Strategy
We believe that we can grow our airport parking business by focusing on achieving operating efficiencies and internal growth, expanding marketing efforts and future acquisitions.
Internal Growth. We will be focused on internal growth by:
• increasing the level of services offered to customers, for example, by expanding the offering of free car washes, complimentary beverages, flight information monitors and automated e-ticket check-in services;
• making improvements to our facilities, for example by constructing covered parking; and
• expanding capacity at capacity constrained locations, for example, by maximizing capacity at Macquarie Parking’s existing locations through more efficient utilization of space, seeking additional leases at adjacent or nearby properties to existing locations or providing valet parking and utilizing “deep-stack” parking.
Operating Efficiencies. Macquarie Parking was enlarged through the merger of two separate businesses in October 2003. While the two businesses have been integrated since that time and costs have been reduced, we believe there are still economies of scale that can be realized due to the increased size, in areas such as combined marketing programs, vehicles and equipment purchases and employee benefits.
Marketing. We intend to expand and improve our existing marketing strategy, which includes the development of an internet reservation capability, opening new distribution channels such as promotional agreements with additional airlines and travel agencies, improving the product offering for corporate accounts and providing personalized web pages and activity reports for corporate accounts.
Acquisitions. We believe we can grow through acquisitions and derive benefits from economies of scale, including revenue and marketing, head office, insurance, shuttle buses and other cost synergies. We believe the highly fragmented nature of the industry, the desire of owners for liquidity and the lingering effects of September 11, 2001 on participants in the off-airport parking industry provide attractive acquisition candidates. Acquiring facilities at major airports where Macquarie Parking does not currently have a facility would allow us to expand Macquarie Parking’s nationwide presence, while opportunities in markets where Macquarie Parking already has a presence should provide increased operating efficiencies and expanded capacity. These acquisitions can take the form of entering into new leases or purchasing land.
Business
Operations
We believe the size and nationwide coverage, the sophisticated marketing programs and the experienced management team of Macquarie Parking provide it with a competitive advantage over other airport parking operators. Macquarie Parking aims to centralize its marketing activities and the manner in which it sells its services to customers. Accordingly, individual location operations can focus on service delivery as diverse reservation services and customer and distribution channel relations are managed centrally. Macquarie Parking’s size enables it to mitigate the risk of a downturn or competitive impact in particular locations or markets due to the diversity of its operations. In addition, its size provides it with the ability to take advantage of incremental growth opportunities in any of the markets it serves as it generally has more capital resources than single facility operators to apply toward those opportunities.
The nationwide presence of Macquarie Parking also allows it to provide “one stop shopping” to internet travel agencies, airlines and major corporations that seek to deal with as few suppliers as possible. The marketing programs of Macquarie Parking and its relationships with national distribution channels are generally more extensive than those of its industry peers. Macquarie Parking markets and provides discounts to numerous group affiliations, tour companies, airlines and online travel agencies. We believe most air travelers have never tried off-airport parking facilities, and Macquarie Parking uses these relationships to attract these travelers as new customers.
Most of Macquarie Parking’s customers fall into two broad categories: business travelers and leisure travelers. Business travelers are typically much less price sensitive and tend to patronize those locations that emphasize service, particularly prompt, consistent and quick shuttle service to and from the airport. Shuttle service is generally provided within five minutes of the customer arriving at the parking facility, or the airport, as the case may be. Leisure travelers often seek the least expensive parking, and Macquarie Parking offers substantial discounts and coupon programs to attract leisure travelers. In addition to reserved parking and shuttle services, Macquarie Parking provides other services at some parking facilities to attract customers to the particular facility and/or to earn additional revenue at the facility, such as car washes or auto repairs, either at no cost to the customer or for a fee.
Locations
Macquarie Parking provides off-airport parking services at the following airports. Each airport is ranked according to the number of passenger enplanements (passengers boarding airplanes) sourced from FAA data for 2003.
*
Denotes valet parking facility(ies) at airport.
**
Denotes valet parking facility at two of the facilities at airport. One of the other facilities is a contracted employee parking facility.
Marketing
The Macquarie Parking marketing team develops new products in order to maximize revenue growth, including internet reservation capability, opening new distribution channels, improving the product offering for corporate accounts and providing personalized web pages and activity reports for corporate accounts. For example, Macquarie Parking’s Express Club provides a premium service and discounts for the highest turnover valet customers in return for an annual membership fee. Further, following the events of September 11, 2001, members of the management team of our airport parking business and others established AirportDiscountParking.com, the first nationwide alliance of off-airport parking businesses which have locations at over fifty airports in the United States. Promotional agreements with airlines and traditional and internet travel agencies attracted prospective customers to the AirportDiscountParking.com websites for coupons, maps and directions. Since its inception, we believe AirportDiscountParking.com has accelerated the rate at which new customers are attracted to try Macquarie Parking’s parking services for the first time.
Macquarie Parking’s facilities operate under various trade names. Macquarie Parking uses the Parking Company of America name pursuant to a perpetual trademark licensing agreement.
Competition
Competition in our airport parking business exists on a local basis at each of the airports at which Macquarie Parking operates. Generally, airport parking facilities compete on the basis of location (relative to the airport and major access roads), quality of facilities (including whether the facilities are covered or not), type of service provided (self-park or valet), security, service (especially relating to shuttle bus transportation), price and marketing. Macquarie Parking faces direct competition from the on-airport parking facilities owned by each airport owner, many of which are located closer to passenger terminals than Macquarie Parking’s locations. Airports generally have significantly more parking spaces than Macquarie Parking does and provide different parking alternatives, including self-park short-term and long-term, off-airport lots and valet parking options. However, as the airports are government-owned, competitive dynamics of service and pricing are generally different than those experienced with privately owned competitors. The airports generally do not view parking operations as their core function, and their pricing strategy is often driven by the fiscal state of the airport authority, which often leads to sudden high price increases. Macquarie Parking also faces competition from existing off-airport competitors at each airport. While each airport is different, there generally are significant barriers to entry preventing new off-airport competitors from entering the markets in which Macquarie Parking operates, including limited availability of suitable land of adequate size near the airport and major access roads, and zoning restrictions. While competition is local at each of the airports at which Macquarie Parking operates, Macquarie Parking faces strong competition from several larger off-airport competitors, including companies such as Pre Flight Airport Parking (owned by General Electric), InterPark Holdings, Inc.,
PRG Parking Management LLC, BCD Holdings N.V., Ampco System Parking Inc. and Central Parking Corporation, that have operations at five or more U.S. airports. In each market in which it operates, Macquarie Parking also faces competition from smaller, locally owned independent parking operators, as well as from hotels or rental car companies that have their own parking facilities. Some present and potential competitors have or may obtain greater financial and marketing resources than we do, which may negatively impact our ability to compete at each airport or to compete for acquisitions.
Indirectly, Macquarie Parking faces competition from other modes of transportation to the airports at which it operates, including public transportation, airport rail links, taxis, limousines and drop-offs by friends and family. Macquarie Parking faces competition from other large off-airport parking providers in gaining access to marketing and distribution channels, including internet travel agencies and airlines.
Regulation
Our airport parking business is subject to federal, state and local regulation relating to environmental protection. Macquarie Parking owns a parcel of real estate that covers an area of land for which a third party has been identified as a potentially responsible party by the Environmental Protection Agency. Although Macquarie Parking did not own the property at the time the contamination is believed to have occurred, Macquarie Parking has purchased an environmental insurance policy for the property as an added precaution against any future claims. The policy expires in July 2007 and is renewable.
Macquarie Parking transports customers by shuttle bus between the airport terminals and its parking facilities, and its shuttle operations are subject to the rules and policies of the local airport. The airports are able to regulate or control the flow of shuttle buses. Some airport authorities require permits and/or levy fees on off-airport parking operators for every shuttle trip to the terminals. These regulations have not materially affected our airport parking business to date. If fees were to be significantly increased, we would seek to pass the increases on to Macquarie Parking’s customers through higher parking rates, which could result in a loss of customers.
The FAA and TSA generally have the authority to restrict access to airports as well as imposing parking and other restrictions near the airport sites. The TSA generally prohibits parking within 300 feet of airport terminals during times of heightened alert. While we believe that existing regulations or the present heightened security alerts at airports may be relaxed in the future, the existing 300 feet rule may be of benefit to Macquarie Parking as in some cases it has prevented its on-airport competitors from using a number of their existing parking spaces.
In addition, municipal and state authorities sometimes directly regulate parking facilities. In addition, Macquarie Parking also may be affected periodically by government condemnation of its properties, in which case it is generally compensated. As a parking facility owner and operator, it is also affected periodically by changes in traffic patterns and roadway systems near its properties. Macquarie Parking is also affected by laws and regulations (such as zoning ordinances) that are common to any business that deals with real estate.
Management
The day-to-day operations of Macquarie Parking are managed by an operating management team located at head offices in Downey, California and Newark, New Jersey. The operating management team has an average of 17 years experience in the parking industry, including an average of five years with either PCAA or Avistar. Each site is operated by local managers who are responsible for all aspects of the operations at their site. Responsibilities include ensuring that customer requirements are met by the staff employed at their site and that revenue from the sites is collected and expenses incurred in accordance with internal guidelines.
Employees
As of February 28, 2005, Macquarie Parking employed approximately 644 individuals. Approximately 22% of its employees are covered by collective bargaining agreements. We believe that employee relations at Macquarie Parking are good.
District Energy Business
Overview
Our district energy business consists of Thermal Chicago and a 75% interest in Northwind Aladdin. We also own all of the senior debt of Northwind Aladdin. The remaining 25% equity interest in Northwind Aladdin is owned by Nevada Electric Investment Company, or NEICO, an indirect subsidiary of Sierra Pacific Resources. Since the date of our acquisition of the district energy business, it had revenues of $726,000 and operating income of $51,000 for the 2004 fiscal year, and total assets of $254 million at December 31, 2004. Revenues from our district energy business comprised 14.3% of our total revenues for the 2004 fiscal year.
Thermal Chicago operates the largest district cooling system in the United States, which serves 98 customers under long-term contracts in downtown Chicago and one in Illinois outside of Chicago. Our district energy business provides chilled water from five modern plants located in downtown Chicago through a closed loop of underground piping for use in the air conditioning systems of large commercial, retail and residential buildings in the central business district. The first of the plants became operational in 1995, and the most recent came on line in June 2002. The total capacity of the downtown system is 83,900 tons of chilled water with deliverable capacity of approximately 94,400 tons due to the reduced rate arrangements with interruptible customers who, when called upon, meet their own cooling needs during peak times.
The table below provides summary data regarding the useable capacity of the downtown Chicago plants:
Thermal Chicago also owns a site-specific heating and cooling plant, P-6, that serves a single customer in Illinois outside of Chicago. The capacity of the P-6 plant for chilled water is 4,900 tons and for heating is 58.2 million British Thermal Units, or BTUs, of heating per hour.
Northwind Aladdin owns and operates a stand-alone facility that provides cold and hot water (for chilling and heating, respectively) and back-up electricity generation to the Aladdin resort and casino and the adjacent Desert Passage shopping mall in Las Vegas, Nevada. Services are provided to both customers under long-term contracts that expire in 2020 with 90% of cash flows generated from the contract with the Aladdin resort and casino.
The Northwind Aladdin plant has been in operation since 2000 and has the capacity to produce 9,270 tons of chilled water, 40 million BTUs of heating per hour and approximately 5 megawatts of electricity.
Our Acquisition
On December 22, 2004, we acquired 100% of the membership interests in Macquarie District Energy Holdings, LLC, or MDEH, the holding company of our district energy business, from Macquarie Investment Holdings Inc., a wholly owned indirect subsidiary of Macquarie Bank Limited, for $67.0 million (including transaction costs) and assumed $120 million of senior debt that was used to partially finance the acquisition of Thermal Chicago and our interest in Northwind Aladdin.
On June 30, 2004, Macquarie District Energy, Inc., or MDE, a wholly owned subsidiary of MDEH, acquired 100% of the shares in Thermal Chicago Corporation, the holding company for Thermal Chicago, from Exelon Thermal Holdings, Inc., a subsidiary of Exelon Corporation, or Exelon, for $135 million plus a working capital adjustment of $2.7 million, with no assumption of debt pursuant to a stock purchase agreement. Because we own MDEH, which is the parent of MDE, we benefit from the protective provisions of the stock purchase agreement between MDE and Exelon. Pursuant to that stock purchase agreement, Exelon has provided MDE with the usual representations, warranties and indemnities. Specific limitations on these indemnities include the following:
• there is no liability under the stock purchase agreement for breaches of representations and warranties or covenants or under the specific indemnities for off-site disposal of hazardous materials and pending litigation and disputes until the aggregate of claims for such breaches and indemnities exceeds a $1 million deductible,
from which point the indemnity is available for all claims beyond that point. Liability for claims other than those described above are not subject to such threshold; and
• Exelon’s indemnity is capped at $30 million for most matters covered by the indemnification provisions. Significant exceptions include breaches of key representations and warranties regarding due organization and status, authority and enforceability, capital stock and subsidiaries and the specific indemnity provision for pre-closing tax liability, for which the cap is the purchase price of $135 million.
On September 29, 2004, MDE acquired all of the shares of ETT Nevada, Inc., which owns a 75% equity interest in Northwind Aladdin, and separately all of the senior debt in Northwind Aladdin from a wholly owned subsidiary of Exelon. The acquisition price for the shares and senior debt was $26.1 million plus a working capital adjustment of $2.0 million. Because we own MDEH, the holding company for MDE, we benefit from the protective provisions of the purchase agreements relating to these transactions. Pursuant to these purchase agreements, Exelon has provided MDE with customary representations, warranties and indemnities. Specific limitations on these indemnities include the following:
• there is no liability under the purchase agreements for breaches of representations and warranties or covenants or under the specific indemnities for off-site disposal of hazardous materials and pending litigation and disputes until the aggregate of claims for such breaches and indemnities exceeds a $200,000 deductible, at which point the indemnity is available for all claims in excess of $200,000. Liability for claims other than those described above is not subject to such threshold; and
• Exelon’s indemnity is limited to $6 million for most matters covered by the indemnification provisions. Significant exceptions include breaches of key representations and warranties regarding due organization and status, authority and enforceability, capital stock and subsidiaries and the specific indemnity provisions for pre-closing tax liability and the ownership or business operations of Northwind Las Vegas LLC, a former subsidiary of ETT Nevada, Inc., for which the cap is the purchase price.
In addition to the purchase prices under the purchase agreements, MDE incurred fees and other expenses of approximately $9 million in connection with the completion of the acquisition of Thermal Chicago and ETT Nevada, Inc. and required cash for debt service reserves of approximately $4 million.
Industry Overview
District energy is the provision of chilled water, steam and/or hot water to customers from a centralized plant through underground piping for cooling and heating purposes. A typical district energy customer is the owner/manager of a large office or residential building or facilities such as hospitals, universities and other municipal buildings. District energy systems exist in most major North American and European cities where cooling and heating are essential, some of which have been in operation for over 100 years. District energy is not, however, an efficient option for suburban areas where customers are widely dispersed.
In relation to district cooling, water is obtained from the municipal system and is chilled using electric chillers. Within the plant, a refrigerant gas is compressed into a liquid state. This liquid refrigerant is piped into a larger (less pressurized) chamber, allowing it to expand. The chamber is surrounded by water pipes. As part of the expansion process, the refrigerant absorbs heat from the water in the pipes into the expanding gas, causing the water to be chilled. The chilled water is then sent down a system of underground pipes to buildings where the thermal energy (cold temperature) is transferred into the buildings’ internal systems. System water does not mix with in-building water; instead the thermal energy is transferred via a heat exchanger. Water is then returned to the plant for re-chilling through the same system. While the process is relatively simple, operating a district energy system at high levels of availability and optimum levels of efficiency is complex. The key operating risks are limited primarily to the availability of electricity (i.e., blackouts) and general system breakdowns (in either plant or distribution systems).
District heating is the provision of steam or hot water through pipes for use as a heating source. The steam is generated through the burning of fuel to boil water in a boiler. The steam is distributed through underground piping. After the steam is used to heat the customer’s facility, the condensed steam is returned to the central plant.
Revenues from providing district energy services under contract are usually comprised of fixed capacity payments and variable usage payments. Capacity payments are made regardless of the actual volume of hot or cold water used. Usage payments are based on the volume of hot or cold water used.
District energy provision is largely unregulated in the United States, although each multi-customer system usually has an agreement with the city in which it operates that provides permission to lay pipes under the streets (generally in the form of a use agreement or concession). The plans for laying of these pipes need to be drawn up and provided to the city engineers for approval. Our district energy business is not subject to specific government regulations; however, our downtown Chicago operations are operated subject to the terms of a Use Agreement with the City of Chicago. See “- Business - Thermal Chicago - City of Chicago Use Agreement.”
Strategy
We believe that we can grow our district energy business through internal growth via capital expenditure and through acquisitions.
Internal Growth. We plan to grow revenues and profits by increasing the output capacity of Thermal Chicago’s plants in downtown Chicago. We anticipate spending up to $7 million over the next three years which, in conjunction with Thermal Chicago’s operational strategy, will increase the saleable capacity of the Chicago downtown system by 13,000 tons. In addition, further minor system modifications have been made that increased capacity by 2,000 tons and we anticipate another 1,000 tons will be added by the end of 2005. A portion of this increased capacity will be used to accommodate four customers who will automatically convert from interruptible to continuous service in 2006, with the balance sold to new or existing customers. We anticipate that the expanded capacity sold to new or existing customers will be under contract or subject to letters of intent prior to Thermal Chicago committing to the capital expenditure.
Acquisitions. We will seek to grow our district energy business through acquisitions of other district energy systems on favorable economic terms. The ownership of district energy systems in the United States is highly fragmented, and we believe the sector has potential for consolidation. Also, a number of diversified electric utilities with non-core district energy operations may seek to sell their systems. We anticipate that these systems, once acquired, will continue to be operated under the direct control of local management.
Business - Thermal Chicago
Customers
Thermal Chicago has 98 customers in downtown Chicago and one outside the downtown area that comprise a diverse customer base consisting of retail stores, office buildings, residential buildings, theaters and government facilities. Customers include a number of landmark Chicago buildings. Office and commercial buildings comprise approximately 70% of the customers. No one customer accounts for more than eight percent of total contracted capacity and only four customers account for more than five percent of total contracted capacity each. The largest 21 customers account for approximately 70% of contracted capacity.
Our downtown business has sold 83,292 tons of chilling capacity pursuant to contracts under which it is obligated to provide continual service and 12,875 tons of chilling capacity to interruptible customers, whose service may be discontinued at any time and who in return pay lower prices for the service. Thermal Chicago is able to sell continual service capacity in excess of the capacity of its system (83,900 tons) because customers do not all use their full capacity at the same time. Historically, because of this diversity in customer usage patterns, Thermal Chicago has had to discontinue service to interruptible customers only once. Four of these interruptible customers will become customers requiring continual service in 2006. The total capacity contracted to these four customers is approximately 6,700 tons and Thermal Chicago has the ability to increase output capacity to accommodate this conversion with minimal capital expenditure. The conversion of these customers will lead to revenue increases of approximately $1 million per year as these customers will lose the discounts currently applicable to interruptible customers.
Customer Contracts - General
Thermal Chicago enters into contracts with the owners of the buildings to which the chilling service is provided. The terms of customer contracts vary from customer to customer; however, there are a number of contract terms that are generally consistent across all customers. The majority of customer contracts expire in the period from 2016 to 2020. The weighted average life of customer contracts as of March 2, 2005 is approximately 15 years.
Customer Contract Expiry
At expiration, 67% of our customer contracts either automatically renew unless our district energy business terminates them or are silent in relation to renewal. This effectively gives Thermal Chicago the ability to re-price these contracts at expiry subject to agreement with the customer. The automatic renewal terms range from five to ten years. The rest of the customer contracts provide the customer with the option to renew the contract at the existing contract pricing for similar renewal terms of five to ten years.
Because of a lack of competition from other district energy systems and district energy’s advantages over alternative sources of cooling for customers, we believe that a substantial majority of existing contracts of Thermal Chicago will be renewed at expiry. See “- Competition.”
Contract Pricing
Under the customer contracts, customers pay two charges to receive chilling services: a fixed charge, or capacity charge, and a variable charge, or consumption charge. The capacity charge is a fixed monthly charge based on the capacity of chilled water that Thermal Chicago has contracted to make available to the customer. The consumption charge is a variable charge based on the volume of chilled water actually used during a billing period. Approximately half of the revenues of Thermal Chicago come in the form of capacity charges and the balance in the form of consumption charges.
Adjustments to the capacity charge and consumption charge occur periodically, typically annually, either based on changes in certain economic indices or, under some contracts, at a flat rate. Thermal Chicago makes the necessary adjustments and then invoices the customer appropriately. Capacity charges generally either increase at a fixed rate or are indexed to the Consumer Price Index, or CPI, which is a broad measure of inflation. Consumption charges are generally indexed to changes in a number of economic indices. These economic indices measure changes in the costs of electricity, labor and chemicals in the region in which Thermal Chicago operates. While the indices used vary from contract to contract, consumption charges in 90% of contracts (by capacity) are indexed to indices weighted at least 50% to increases in the cost of electricity with the balance indexed to costs of labor and chemicals.
This weighting is comparable to the composition of direct expenses, approximately 40% of which are for electricity. Each of the five downtown plants has contracted to purchase electricity under rates that are optimal for the electricity usage profile of the plants as a portfolio. Electricity markets in Illinois are currently scheduled to be deregulated on January 1, 2007. At present, electricity prices in Illinois are effectively frozen, and it is likely that once deregulation occurs, prices will increase and become more volatile. While the inclusion of electricity costs in the indices used to adjust consumption charges significantly protects operating income in the event of an increase in electricity prices in Illinois, our district energy business is exposed to the risk that its actual unit cost of electricity could increase by more in relative terms than the electricity index included in the indices used to index consumption charges. This could occur because the electricity index used is an index that reflects the cost of electricity across a broad geographic region in the Midwest of the United States that may not necessarily exactly reflect the electricity costs of Thermal Chicago in Chicago. An increase in the volatility of electricity prices subsequent to deregulation could exacerbate any divergence between changes in our actual unit costs of electricity and changes in the electricity index.
Other Contract Terms
Events of Default and Contract Termination. Customer contracts generally permit termination by the customers if, after an appropriate cure period, Thermal Chicago fails to provide the chilled water service or otherwise fails to comply with the terms of the contract. Thermal Chicago can terminate the contracts if, after an appropriate cure period, customers fail to make payments to it or otherwise fail to comply with the terms of the contract.
Make Whole Payments. Except for two contracts that comprise less than 1% of capacity sold, if a customer wishes to terminate a contract early or Thermal Chicago terminates the contract for customer default, then the customer is required to pay a lump sum. While the formulas vary across contracts, the basic principle is that the lump sum payment enables Thermal Chicago to recover a portion of the capital that it invested to provide the service to the customer.
System Failure Damage. If the chilling system fails for reasons other than temporary shutdown for maintenance or force majeure and Thermal Chicago defaults under its contracts, it is generally liable to some degree for damages to the customer. The most common forms of system failure damages provided by the terms of the customer contracts are:
• capacity charges are abated, typically after three to five consecutive days of no chilled water service;
• our district energy business becomes responsible for all resulting losses and damages; and
• our district energy business becomes responsible for all costs of renting and installing temporary chilling equipment.
Losses and damages are typically defined in the contracts, and in these cases are restricted to physical damages to property, etc. Some contracts are vague in regard to the definitions of losses and damages and therefore give rise to the risk of suit for consequential damages. As a result of these potential damages, Thermal Chicago operates with a high level of reliability and the necessary level of redundancy.
Change of Ownership Assignment. Generally, the customer requires the consent of Thermal Chicago to assign its obligations under the contract (which may occur if the customer wishes to sell the property to which we provide service). In some cases, the contract may be assigned without the consent of Thermal Chicago, provided that the assignee meets certain credit standards.
Operations
Each chilling plant is manned when in operation and has a central control room from which the plant can be operated and monitored and customer site parameters can be monitored and controlled. The plant operators can monitor, and in some cases control, the functions of other plants allowing them to cross-monitor critical functions at the other plants when those plant operators are out of their respective control rooms. The control room at Plant 2 is set up as the primary system control room with extensive monitoring and control functions and is where the majority of day-to-day system operating decisions are made.
Since the commencement of operations, there have been no unplanned interruptions of service to any customer. Occasionally, Thermal Chicago has experienced plant or equipment outages due to electricity loss or equipment failure; however, in these cases Thermal Chicago had sufficient idle capacity to maintain customer loads. When maintenance work performed on the system has required customer interruption, Thermal Chicago has been able to coordinate its operations for periods of time to meet customer needs. The effect of major electric outages is generally mitigated since both customers and the plants are equally affected; the plants affected by the outages cannot produce cooling and affected customers are unable to use the cooling service.
Corrective maintenance is typically performed by qualified contract personnel and off-season maintenance is performed by a combination of plant staff and contract personnel.
The largest and most variable direct expense of the operation is electricity. As a consequence, operating personnel manage this cost in accordance with a strategy that takes into account system hydraulic requirements and the costs and efficiencies of each plant based on their design, operation and the electricity rate plan. Also, four of the downtown plants and the stand-alone plant outside the downtown area have large tanks in which ice can be made overnight to store thermal energy when electricity costs are generally lower. This ice is then used during the day to chill water when electricity costs are highest.
Competition
Thermal Chicago is not subject to substantial competitive pressures. Pursuant to customer contracts, customers are generally not allowed to cool their premises by means other than chilled water service provided by our district energy business. The exception is when Thermal Chicago cannot or chooses not to provide additional capacity. The customer also may be allowed to operate separate cooling units to be used as back-up for critical operations.
In addition, the major alternative cooling system available to building owners is the installation of a stand alone In-House Heating, Ventilation and Cooling System (HVAC). While we consider that competition from HVAC exists, we do not consider that it has a material impact on the likelihood that the current contracts will be renewed with existing customers at their scheduled maturity. Installation of an HVAC system requires significant building reconfiguration and space and capital expenditure, and our district energy business can take advantage of economies of scale in terms of plant efficiency, staff and fuel sourcing.
We believe competition from an alternative district energy system in the Chicago downtown market is unlikely. There are significant barriers to entry including the significant capital investment required, the need to obtain City of Chicago consent and the difficulty in obtaining sufficient customers given the number of buildings in downtown Chicago already committed under long-term contracts to the use of the system owned by Thermal Chicago.
City of Chicago Use Agreement
Thermal Chicago is not subject to specific government regulation, but our downtown Chicago operations are operated subject to the terms of a Use Agreement with the City of Chicago. The Use Agreement establishes the rights and obligations of our district energy business with the City of Chicago for the utilization of certain public ways of the City of Chicago for the operation of our district cooling system in downtown Chicago. Under the Use Agreement, Thermal Chicago has a non-exclusive right to construct, install, repair, operate and maintain the plants and facilities essential in providing district cooling chilled water and related air conditioning service to customers. The principal provisions of this agreement are summarized below:
• Thermal Chicago is required to pay annual compensation to the City of Chicago for the right to use the public ways in the amount of the greater of (i) $552,000 or (ii) 3% of the total revenue related to the operation, lease, exchange or use of our district cooling system, subject to the City of Chicago’s right to adjust compensation every five years. If the compensation rate is adjusted to exceed 4% of total revenue, then Thermal Chicago has certain rights, including arbitration, to dispute the rate increase. Thermal Chicago also pays certain surcharges for the use of the City of Chicago’s tunnels;
• the City of Chicago retains the right to use the public ways for a public purpose and may request that Thermal Chicago remove, modify, replace or relocate its facilities at our expense;
• Thermal Chicago is required to post a surety bond or provide a letter of credit in the amount of $5 million to ensure its performance obligations;
• the City of Chicago has the right to contract with Thermal Chicago and its affiliates for the provision of a chilled water service under no less favorable than the most advantageous terms and conditions offered to and accepted by any other customers of Thermal Chicago in similar or identical transactions;
• any expansion of Thermal Chicago’s plants and facilities requires approval by ordinance of the City Council of Chicago; and
• a prior approval of the City Council of Chicago will be required in the event of a change in control or any transfer or assignment of the Use Agreement.
The Use Agreement expires on December 31, 2020. Any proposed renewal, extension or modification of the Use Agreement will be subject to the approval by the City Council of Chicago. Prior to the expiration date, the agreement may be terminated by the City of Chicago for uncured material breaches of its terms and conditions by Thermal Chicago. If Thermal Chicago installs any facilities that are not properly authorized under the Use Agreement or if the district cooling system does not conform with the standards generally applied by the City of Chicago, the City of Chicago may impose upon Thermal Chicago liquidated damages in the amount of $6,000 per day if we fail to remove, modify, replace or relocate its facilities when requested by the City of Chicago.
Management
The Thermal Chicago management team has a broad range of experience that includes engineering, construction and project management, business development, facility operations and maintenance, project consulting, energy performance contracting, and retail electricity sales. The team also has significant financial and accounting experience.
Business - Northwind Aladdin
Customers
Approximately 90% of Northwind Aladdin’s cash flows are generated from a long-term contract with the Aladdin resort and casino, with the balance generated from a contract with the Desert Passage shopping mall. The Aladdin resort and casino is located at the center of Las Vegas Boulevard in Las Vegas and includes a 2,567-room hotel, a 100,000 square foot casino and a 75,000 square foot convention and conference facility.
In 2001, the then owner of the Aladdin resort and casino filed for bankruptcy protection under Chapter 11. Pursuant to a settlement agreement approved by the bankruptcy court, Opbiz, LLC, a consortium comprised of Starwood Hotels and Resorts, Robert Earl, the chairman of Planet Hollywood, and Bay Harbor Management acquired the Aladdin resort and casino in September 2004 for approximately $600 million including the assumption of debt and equity commitments. Opbiz also assumed the obligations of the Aladdin resort and casino under the contract with Northwind Aladdin.
Contracts
The existing customer contracts with Aladdin resort and casino and the Desert Passage shopping mall both expire in February 2020. At expiry of the contracts, the plant will either be abandoned by Northwind Aladdin and ownership will pass to the Aladdin resort and casino for no compensation, or the plant will be removed by Northwind Aladdin at the cost of the Aladdin resort and casino.
Operations
The Northwind Aladdin plant has been in operation since 2000 and has the capacity to produce 9,270 tons of chilled water, 40 million BTU of heating per hour and approximately 5 megawatts of electricity. The plant has a central control room which is manned 24 hours a day. The plant supplies district energy services to its customers via an underground pipe system.
Northwind Aladdin LLC Limited Liability Company Agreement
Northwind Aladdin LLC’s limited liability company agreement, or the operating agreement, dated March 18, 1999 (as amended on March 15, 2002) provides for, among other things, the ownership rights of its members, NEICO, and ETT Nevada, Inc., respectively. The operating agreement provides that the business and affairs of Northwind Aladdin are managed by or under the direction of a board of managers to which ETT Nevada, Inc. is entitled to appoint three members and NEICO is entitled to appoint one member. Provided all members of the board of managers are present, decisions of the board of managers require the approval of three of the four directors, except for certain reserved matters, including approval of the budget and capital calls, which require unanimous approval. With respect to amendments to the operating agreement, the approval of members owning not less than 80% of the interests is required in addition to unanimous board approval. In the event of a deadlock, the dispute is referred to the chief executive officers of the ultimate parent companies of the members and, if the deadlock remains unresolved, the members can elect to exercise a buy-out mechanism.
Terms of Senior Secured Notes Issued by MDE
Under the terms of the senior secured notes issued by MDE, MDE and its subsidiaries are required to either:
• confirm that they are not subject to regulation by the Public Utilities Commission of Nevada; or
• obtain a certificate of public convenience and necessity from the Public Utilities Commission of Nevada.
If MDE and its subsidiaries are unable to meet the above requirements by June 29, 2006, the debt service coverage ratio calculation with respect to the senior secured notes will be adjusted to exclude from cash flow the revenue, but not the operating, maintenance and capital expenditure costs, derived from Northwind Aladdin’s operations unless an indemnity is obtained from the direct or indirect parent of MDE that satisfies certain creditworthiness requirements.
Employees
Our district energy business has 42 full-time employees and one part-time employee. There are 34 plant staff members employed under the terms of contracts with the International Union of Operating Engineers. In Chicago, these contracts run for three years and expire on January 14, 2006. In Las Vegas, the contract term is currently four years and expires on March 31, 2009.
Toll Road Business
Overview
Connect M1-A1 Limited operates the M1-A1 Link Road, or Yorkshire Link, a highway of approximately 19 miles in length that links the M1 and M62 highways south of Leeds and the A1 highway south of Wetherby in England. Connect M1-A1 Limited is responsible under a concession with the U.K. government’s Transport Secretary for the design, building, financing and operation of Yorkshire Link, until 2026. Yorkshire Link is part of the U.K. national highway network and provides a major road link for both national and regional traffic. It also serves a local function by providing a bypass around Leeds and access for employment in the East of Leeds area. Connect M1-A1 Limited had revenue of £46.3 million and operating income of £32.4 million during the year ended March 31, 2004.
In return for building and operating Yorkshire Link, Connect M1-A1 Limited receives revenues under a shadow tolling system. Under a shadow tolling system, road users do not pay tolls; instead, the U.K. government pays fees or “shadow tolls” to Yorkshire Link based on the volume of user traffic on Yorkshire Link. Revenue is subject to a predetermined cap, but is protected from reductions in traffic to the extent that projected traffic exceeds the capped revenue level. Traffic has been steadily growing and has been relatively stable and predictable.
Our Acquisition
On December 22, 2004 we acquired 100% of Macquarie Yorkshire Limited, or Macquarie Yorkshire, from Macquarie European Infrastructure plc, or MEIP, an entity that is a member of the Macquarie Infrastructure Group, or MIG, for a total purchase price of $84.7 million including transaction costs. MIG is an infrastructure fund managed by the Macquarie Group that is listed on the Australian Stock Exchange.
Macquarie Yorkshire owns 50% of Connect M1-A1 Holdings Limited, or CHL, which owns 100% of Connect M1-A1 Limited. Connect M1-A1 Limited is the holder of the Yorkshire Link concession. The remaining 50% interest in CHL is held by Balfour Beatty, one of the U.K.’s leading construction companies, concession owners, infrastructure service operators and maintenance providers, for whom the U.K. road sector is a core business.
We set aside a further £1 million ($1.9 million) of the cash acquired through our acquisition of Macquarie Yorkshire to cash collateralize a letter of credit of the same amount required by a lender to Connect M1-A1 Limited as security for funding breakage costs on their fixed rate loan. This cash will be released when certain financial tests are met by Connect M1-A1 Limited. We currently anticipate that these tests will be met in December 2005.
Industry Overview
Toll roads exist in almost every developed country in the world. Using “user pays” tolls to finance the development of essential road infrastructure represents an alternative to imposing general tax increases. Governments in various countries, including Australia and the United Kingdom, faced with fiscal pressures and growing needs for new road infrastructure have since the 1980s and 1990s sought to have the private sector develop new toll roads. This privatization offers several advantages for governments, including allowing a transfer of development risk, including construction time and costs, actual traffic usage and future maintenance costs, to the private sector.
Significant impediments limit new road construction, including required governmental and environmental permits and approvals, scarcity of available land on which to build and significant time and upfront construction costs. For example, construction of Yorkshire Link took approximately three years and cost approximately £300 million.
Operational toll roads are generally attractive to owners in that road traffic growth, and therefore revenue growth, has historically been quite resilient.
The use of shadow toll road programs has an established history of operations in the United Kingdom. Yorkshire Link is one of eight shadow toll road programs implemented by the U.K. government since 1996 and was one of the first road programs procured under the U.K. government’s Private Finance Initiative. As compared to a toll road, the shadow tolling system provides a benefit to owners by not requiring the construction and staffing of tollbooths. Furthermore, the only revenues that need to be accounted for are for payments that are received monthly from the Transport Secretary. Drivers, in turn, do not have to contend with the delays caused by tollbooths.
Business
Operations
In March 1996, Connect M1-A1 Limited signed a concession with the Transport Secretary to design, build, finance and operate Yorkshire Link for a 30-year contract term in return for shadow tolling revenues. Pursuant to the concession, Yorkshire Link must be operated and maintained by Connect M1-A1 Limited throughout the 30-year period. The concession expires in 2026, when Connect M1-A1 Limited will no longer be entitled to receive revenues and will not be responsible for the maintenance of Yorkshire Link.
Construction on Yorkshire Link was completed in 1999, and vehicles began using the road that same year. Yorkshire Link is a mature operational phase road with five years of operational history. Therefore, a base level of traffic has been established, and there is substantial management experience within Connect M1-A1 Limited in operating Yorkshire Link.
Concession Revenue
Pursuant to the concession, shadow toll revenue paid by the Transport Secretary is based on two factors:
• Traffic Volume. The volume of traffic using Yorkshire Link is categorized either as heavy goods vehicles, which are vehicles over 17 feet in length, such as trucks, and other vehicles, such as cars and motorcycles. Vehicles are counted by traffic measuring equipment placed along the length of the road. For traffic measurement purposes, the total length of all the sections of Yorkshire Link is 26.3 kilometers (16.4 miles).
• Fees. A fee per vehicle-kilometers, or vkms, which varies annually, is determined based upon the type of vehicle and the number of vkms traveled in various (4) “bands,”
pursuant to a formula.
Calculation of Revenue
The amount payable to Connect M1-A1 Limited for each vkm traveled by heavy goods vehicles and other vehicles is determined through the use of bands. Each vehicle category has four traffic volume bands, and different amounts are payable per vkm in each band.
Historical revenue calculations under each band are as follows:
For the concession year ended March 31, 2004, other vehicles traffic was 624.8 million vkms, and revenue calculations were as follows:
For the concession year ended March 31, 2004, heavy goods vehicles traffic was 144.6 million vkms, and revenue calculations were as follows:
For the concession year ended March 31, 2003, other vehicles traffic was 602.8 million vkms, and revenue calculations were as follows:
For the concession year ended March 31, 2003, heavy goods vehicles traffic was 140.5 million vkms, and revenue calculations were as follows:
Each year the bands are adjusted and payments per vkm of traffic in the various bands are subject to a series of escalation adjustments as follows:
• Band 1 increases in size each year by 2% for other vehicles and 2.5% for heavy goods vehicles. Bands 2 and 3 are also increased to maintain a constant width in vkms, and Band 4 has no upper limit. In addition, the payment per vkm of traffic for Band 1 is reduced by an equivalent proportion. The net effect of these changes is that if annual traffic is above Band 1, then the revenue generated from Band 1 remains constant, ignoring the other two revenue adjustments discussed below. The same result applies if annual traffic is above Band 2 and Band 3 - revenue generated from those bands remains constant, ignoring the other two revenue adjustments discussed below;
• the payments per vkm of traffic in each of the bands are partially indexed to movement in the U.K. Retail Price Index, a measure of inflation in the United Kingdom. Band 1 payments per vkm are escalated by 38% of the Retail Price Index and Bands 2 and 3 by 40% of the Retail Price Index each year;
• it should be noted that in the absence of traffic growth or inflation, total revenues will decline through time as a consequence of these band adjustments; and
• a final global factor, which varies from time to time, is applied to the payment per vkm of traffic in all bands. This global factor remains constant until September 2007, when it decreases by 0.2% and then increases in September 2010 by 8.9%. In March 2014, this global factor will have the effect of reducing revenue per vkm significantly, and less significant downward revisions will also occur in 2017 and 2020. These global factors were set in 1996 when the concession was signed, the purpose of which was to ensure that revenues generally followed the underlying cost profile of Connect M1-A1 Limited (as originally projected) and, in particular, its debt service obligations. The current debt repayment schedule recognizes and accommodates these revenue reductions in the future.
Adjustments are also made for lane closure charges and certain other matters, if required. Lane closure charges have been very minor to date, and they have been largely passed through to subcontractors responsible for such lane closures. The calculation is made within a few months after the end of the concession year when all the required variables have been determined.
Under the concession, the Transport Secretary makes provisional payments to Connect M1-A1 Limited each month, equal to the previous year’s traffic payment divided by twelve. In practice, it may take a few months to agree on the final traffic payment for each concession year, in which case monthly provisional payments continue at the prevailing rate. When the payment due to Connect M1-A1 Limited under the concession has been finally calculated, there is an annual reconciliation so that any under- or over-payment to date is corrected. The traffic payment for the year ended March 31, 2004 was £46.4 million ($89.3 million). As a result, in the concession year ending March 31, 2005, Connect M1-A1 Limited has provisional payments of approximately £3.87 million ($7.4 million) per month.
Factors Likely to Affect Future Traffic Flows
We believe that two new road developments will affect future traffic flows on Yorkshire Link. One is the East Leeds Link, a new road connecting an existing junction near the midpoint of Yorkshire Link to Leeds city center. The other development is the A1(M) improvement between Darrington, south of the M62, and Dishforth, about 35 kilometers north of Yorkshire Link. It will result in the whole of the A1 being widened and improved along sections of the route to dual three-lane roadways to allow for higher speed traffic.
We expect that East Leeds Link will slightly increase traffic on Yorkshire Link when it opens, which is currently expected to be in 2007. The second road development, the improvement to the A1(M), is currently under construction and, when completed, which is expected to be by the end of 2006, traffic on Yorkshire Link is expected to decrease by a modest amount.
The West Yorkshire Local Transport Plan, or LTP, which was published in 2000, sets forth the local context for transportation in which Yorkshire Link operates, although Yorkshire Link also carries longer-distance traffic and is less sensitive to local factors than the surrounding local roads. The target for traffic growth on all roads in West Yorkshire established by the LTP is 5% from 1999 to 2006. This compares with U.K. government forecasts of between 8.5% and 15.2% for the region over the same period. Regional traffic actually decreased by 2% from 1999 to 2002 and 2003. Thus, the growth observed on Yorkshire Link has been achieved in spite of lower-than-expected growth of regional traffic.
The LTP also includes plans for the Leeds Supertram network of three tram lines, which may have some negative impact on growth of Yorkshire Link traffic. The lines were programmed to be fully operational in 2007, but the project is delayed by a government review of options and the opening date is uncertain.
Operations and Maintenance
Under the terms of the concession, Connect M1-A1 Limited is responsible for the operation and maintenance of Yorkshire Link. Connect M1-A1 Limited is also responsible for the lighting and associated energy costs and the communications systems on the road. The police are responsible for managing traffic flow, although Connect M1-A1 Limited is required to provide assistance in the event of accidents.
The operations and maintenance activity and the management of the concession requirements are managed and coordinated by a small operations team consisting of a staff of six seconded from Balfour Beatty, the cost of which is recovered from Connect M1-A1 Limited based on a cost-plus formula. Operations have been substantially subcontracted under short- to medium-term contracts of varying duration, and there are an additional 14 full-time staff members on site from subcontractor organizations.
These subcontractor contracts represented approximately 80% of the routine maintenance costs for the 2004 concession year.
Connect M1-A1 Limited has met the operational requirements of the concession over the five years it has operated and maintained Yorkshire Link. The operations and maintenance requirements of the concession can be described in the following categories:
• routine operations and maintenance, including landscape management, cleaning work, replacing faulty lighting, repairing fencing and crash barriers resulting from traffic accidents, maintaining the communications and traffic counting equipment, structural inspections, spreading salt and clearing snow and periodically verifying the traffic counting data; and
• periodic maintenance, consisting mainly of repair, resurfacing and reconstruction work that is required from time to time to restore basic qualities, such as skid resistance, to the road pavement, and to extend the life of the road by adding extra strength to cater to increased traffic loadings.
There are penalty point and warning notice provisions in the concession that may be imposed if there are deficiencies in the way Connect M1-A1 Limited manages its operations and maintenance responsibilities. Connect M1-A1 Limited has not received any penalty points or warning notices since Yorkshire Link opened.
Traffic Counting
Traffic is counted by traffic measurement equipment, which has been installed in accordance with the specifications of the U.K. Highways Agency. Traffic is counted in each direction at nine sites that lie between each junction of Yorkshire Link. At each site, each lane, including the hard shoulder, is equipped with a pair of electromagnetic inductive loops buried in the roadway. The loops detect passing vehicles and are recorded by a counter unit. The loops also enable the length of vehicles to be measured in order to categorize vehicles into heavy goods vehicles and other vehicles. Software in the roadside equipment compares the output from adjacent lanes and automatically allows for the effects of vehicles straddling lanes. Periodic reports are generated from the central computer to form the basis of the annual calculation of vkms on which payment to Connect A1-M1 Limited is based. When data is missed, a patching procedure to which the U.K. Highways Agency has agreed is used to estimate the missed vehicles. In addition, traffic flows are recorded on video and compared with loop data for consistency.
Warranty for Defects
Connect M1-A1 Limited subcontracted the design and building of Yorkshire Link to a construction joint venture consisting of Balfour Beatty CE Ltd. and Skanska Construction U.K. Ltd. In addition to the construction of the new route, the initial construction works included improvements to sections of the existing road.
The construction joint venture is obligated under a twelve-year warranty for latent defects that expires in 2011. The construction joint venture also has extended the warranty to cover defects in the sections of the road that were in existence when its works began. The construction joint venture has indemnified Connect M1-A1 Limited in respect of any consequential losses, except in relation to the sections of the existing road, and any lane closure charges that may be incurred as a result of such defects. The obligations of the construction joint venture partners are joint and several, and they are supported by guarantees from Balfour Beatty and Skanska AB. Cracking defects have been identified on the road surface on certain sections of Yorkshire Link that have required resurfacing repairs to be carried out at the construction joint venture’s expense. Connect M1-A1 Limited believes any such further defects would be the responsibility of the construction joint venture, which is investigating the problem with the help of its consultants. Connect M1-A1 Limited is waiting to receive a proposal from the construction joint venture as to how the construction joint venture intends to deal with the problem in the longer term.
Employees
Connect M1-A1 Limited has no employees. All operational staff are either employed by Balfour Beatty and seconded to Connect M1-A1 Limited or employed by the various subcontractors.
Shareholders’ Agreement
We are a party to a shareholders’ agreement with Balfour Beatty that governs the relationship of the shareholders in CHL (formerly Yorkshire Link (Holdings) Limited) and Connect M1-A1 Limited (formerly Yorkshire Link Limited). The shareholders’ agreement effectively requires the consent of Macquarie Yorkshire and Balfour Beatty for any decisions relating to these companies.
Based on current shareholdings, Macquarie Yorkshire and Balfour Beatty are each allowed to appoint three directors to the boards of CHL and Connect M1-A1 Limited. Currently, each has appointed two directors. Voting is pro rata with the shareholding being represented. All routine matters are decided by majority vote. Certain matters are reserved and determined on the basis of approval by not less than 90% of total shares. Such matters include amending the shareholders’ agreement or the constitutional documents of CHL or Connect M1-A1 Limited, the winding up of CHL or Connect M1-A1 Limited, acquisitions and disposals of companies by CHL or Connect M1-A1 Limited, and tendering for new work by CHL or Connect M1-A1 Limited. In addition, certain other matters relating to CHL and Connect M1-A1 Limited are reserved, requiring approval of directors appointed by a shareholder holding not less than 49% of the total shares. The shares of CHL and Macquarie Yorkshire are subject to preemption rights, and, in CHL’s case, they also are subject to tag-along rights by shareholders owning more than 5% of the total shares.
In addition, the shareholders’ agreement requires all post-tax profits to be paid to shareholders as dividends, to the extent permitted by law and subject to making prudent reserves.
Our Investment in MCG
Overview
MCG is an investment vehicle that has been listed on the Australian Stock Exchange (ASX) since August 2002. MCG’s investment mandate is to acquire investments in communications infrastructure, such as broadcast transmission towers, wireless communications towers and satellite infrastructure, around the world. We have invested in MCG because it seeks to provide investors with sustainable dividend yields and the potential for capital growth through investments in communications infrastructure businesses or assets. Currently, MCG has two investments. MCG owns a 100% holding in Broadcast Australia, an Australian television and radio broadcast transmission provider, and a 54% interest in ntl:Broadcast, a provider of broadcast transmission and site leasing infrastructure operator in the U.K. and Republic of Ireland, which it acquired on January 31, 2005.
Our Acquisition
On December 22, 2004 we acquired 16.5 million stapled securities issued by MCG from Macquarie Investments Australia Pty Limited, for a total purchase price of $70 million.
Our investment represents a 4.3% interest in Macquarie Communications Infrastructure Group, which owns 100% of Broadcast Australia and a 54% interest in ntl:Broadcast.
Business
Operations
Broadcast Australia is the owner and operator of the most extensive broadcasting tower network in Australia and provides transmission services to the Australian Broadcasting Corporation, or ABC, and Special Broadcasting Service Corporation, or SBS, plus other services to regional television and other media, telecommunications and community organizations. Broadcast Australia operates approximately 600 transmission tower sites located across metropolitan, regional and rural Australia. Broadcast Australia owns or operates under leases at the majority of its sites.
Broadcast Australia derived approximately 87% of its revenue for the fiscal year ended June 30, 2004 under contracts with ABC and SBS, prior to the acquisition of ntl:Broadcast. Generally, the contracts with ABC and SBS are over the long term, often 10 to 15 years. ABC and SBS receive most of their funding from the Australian Commonwealth government under a triennial funding arrangement. The funding allocated by the Commonwealth government for the purposes of broadcast transmission cannot be applied to other uses.
Broadcast Australia is in the process of rolling out digital transmission services that it is contracted to introduce under its agreements with ABC and SBS prior to the acquisition of ntl:Broadcast. Under the agreements, as Broadcast Australia rolls out digital transmission services across its sites, it will earn additional revenue from the provision of digital broadcasts. The rollout of digital transmission will require significant capital expenditure, which is expected to be funded through an existing AUD 150 million Broadcast Australia debt facility. This debt facility was drawn to AUD 20 million on February 7, 2005. It is expected that future drawdowns may be made depending on Broadcast Australia’s future capital expenditure requirements. To the extent that the facility is drawn on its maturity date on June 26, 2006, it will need to be renewed or refinanced.
ntl:Broadcast is one of the leading national broadcast transmission and site leasing infrastructure operators in the U.K. and is the second largest independent wireless site leasing provider. The business comprises three operating divisions. The Media Solutions division provides analogue and digital terrestrial transmission services to TV and radio broadcasters and end-to-end satellite transmission and playout services to direct-to-home and other customers. The Wireless Solutions division operates the second largest independent portfolio of wireless towers and sites available for lease in the U.K., providing services to all major mobile network operators and other network owners. The Public Safety division is the largest provider of managed radio communications services to emergency service organizations across the U.K. and the Republic of Ireland.
Future Investments
It is expected that MCG will make investments in other communications infrastructure businesses or assets in the future, although it will need to raise new equity to fund any significant acquisitions. It is possible that these investments will be partly funded through the issue of new MCG securities. We may have the opportunity to purchase additional MCG securities in such instances; however, we will have no obligation to do so.
Management
MCG is managed by Macquarie Communications Infrastructure Management Limited, an affiliate of the Manager, which is entitled to a base fee and a performance fee. The base fee is calculated and paid quarterly based on the net investment value (market capitalization plus borrowings and commitments less cash and cash equivalents). The performance fee is paid semi-annually based on MCG’s performance above the S&P ASX 200 Industrials Accumulation Index.
Base fees payable by us to our Manager are reduced by the fees paid by MCG to the Macquarie Group that are attributable to our interest in MCG. As a result, there is no duplication of base management fees received by members of the Macquarie Group with respect to MCG.
Trading History
The securities of MCG were listed on the ASX on August 13, 2002 at an issue price of AUD 2.00. The table below outlines the quarterly trading history of MCG securities in Australian dollars from listing through the quarter ended December 31, 2004. Since its inception, MCG has paid distributions per stapled security of AUD 0.075 on February 12, 2003, AUD 0.08 on August 12, 2003, AUD 0.112 on February 12, 2004, AUD 0.118 on August 12, 2004, and AUD 0.144, on February 14, 2005.
Our Investment in South East Water
Overview
South East Water, or SEW, is a regulated utility located in southeastern England that is the sole provider of water to almost 600,000 households and industrial customers. It is the second largest water only company in England, supplying approximately 105 million gallons of water per day to 1.4 million people across two sub-regions. Its supply area covers approximately 1,390 square miles of Kent, Sussex, Surrey, Hampshire and Berkshire.
Our Acquisition
We own 17.5% of SEW through an equivalent holding in Macquarie Luxembourg Water SarL, or Macquarie Luxembourg, which is indirectly the holding company for SEW. We acquired this investment because we believe that the cash yields and total returns available from investments in regulated utilities in the United Kingdom are attractive given the mature and transparent regulatory environment. A 50.1% controlling interest in SEW is held through a controlling interest in Macquarie Luxembourg by the Macquarie European Infrastructure Fund, or MEIF, which is managed by an affiliate of our Manager. MEIF is an unlisted infrastructure investment fund focused on making medium-term investments in infrastructure assets in Europe. We believe MEIF’s approach to the ownership and oversight of SEW is consistent with our approach. Three other institutional investors hold minority interests in SEW through minority interests in Macquarie Luxembourg including another investment vehicle managed by the Macquarie Group, which holds 7.4%. Members of the Macquarie Group are paid fees for providing management services to SEW. The base fees payable by us to our Manager under the management services agreement will be reduced by the portion of such non-performance-based management fees paid by SEW to the Macquarie Group that are attributable to our interest in SEW. As a result, there will be no duplication of base management fees received by members of the Macquarie Group with respect to SEW.
Industry Overview
The water sector in England and Wales was privatized by the U.K. government in 1989 and 1990 and consists of ten water and sewerage companies and twelve water-only companies. Water supply activities in England and Wales are principally regulated by the provisions of the Water Industry Act of 1991 and the Water Act of 2003, which we together refer to as the Water Industry Act, and regulations made under the Water Industry Act. Water-only companies are granted a license pursuant to that legislation. The provisions of the Water Industry Act, together with the license, are administered by the Director General of Water Services, who is aided by the Office of Water Services, or Ofwat, which is headed by the Director General. The responsibilities of Ofwat include the setting of limits on allowed water charges and monitoring and enforcing license obligations. In addition, water companies in England and Wales are required to meet drinking water quality standards monitored by the U.K. Drinking Water Inspectorate and general environmental law enforced by the U.K. Environment Agency.
As water and sewage companies and water-only companies are natural monopolies, the prices that they are allowed to charge their customers for water are regulated by Ofwat. Every five years, Ofwat determines prices for the provision of water services for the upcoming five years based on an inflation and efficiency calculation. On December 2, 2004, Ofwat released its determination with respect to the prices that English and Welsh water companies, including SEW, are permitted to charge for the next price review period, which will run from April 1, 2005 to March 31, 2010. See “-Business-Regulation” below.
Business
Operations
Currently, approximately 70% of SEW’s water is supplied from boreholes and aquifers, 20% is supplied from rivers and reservoirs and 10% is supplied under bulk supply contracts with Three Valleys Water plc and Southern Water Services Ltd., which are neighboring water utilities. The U.K. Environment Agency has supported a plan, expected to be completed in March 2005, to increase SEW’s deployable output through the provision of enhanced bulk supply infrastructure. Based on the known parameters of the categorization, the completion of this project is expected to improve SEW’s security of supply rating from Ofwat, which was C for the year ending March 31, 2004, to B (the second highest rating).
SEW has a sophisticated telemetry-based system for monitoring water quality, flows, pressures and reservoir levels. Each water treatment works has a local monitoring system that checks these variables and relays data to an outstation unit that regulates activity levels at the treatment works and feeds data to a centralized operation center at the Haywards Heath headquarters, which is manned constantly.
SEW balances supply and demand in line with industry best practice and is required to establish a 25-year plan for sustainable water resources acceptable to the U.K. Environment Agency and Ofwat. This plan is a combination of resource development and demand management measures, all of which are assessed on an economic basis before inclusion.
Leakage detection and control continues to play an important role in demand management within SEW. SEW had the greatest percentage reduction of leakage levels in the year ended March 31, 2002 compared to any other water company in England and Wales. SEW met its leakage targets for March 2003 and 2004 and is on target to reach Ofwat’s economic level of leakage target for March 2005.
In common with other water companies in England and Wales, SEW’s assets vary widely in age (with some over 100 years old), size and type but are generally constructed using industry-standard materials and technology in use at the time of their construction. SEW has developed a sophisticated system for the management and replacement of its assets based principally on the assessed risk and consequences of failure. Overall capital investment levels are targeted at maintaining a constant average level of risk across SEW’s area of supply. Individual programs aim to reduce risk in high risk areas. Water industry assets tend to be long-lived and SEW’s assets are no exception to the industry norm. Major assets are rarely completely replaced; short- to medium-life items (e.g., pumps, electrical switch-gear, instruments) can be replaced several times during the life of a treatment facility and a new plant can be fitted into existing buildings. Higher quality standards are often met by incrementally adding new treatment processes. Further capacity can be met by adding additional process streams to existing facilities. SEW is planning £75.7 million of capital expenditure to improve the reliability of supply and to fund expansion over the next five years, which it expects to finance through drawings under its existing debt facilities. As discussed below, pursuant to the approach utilized by Ofwat to determine SEW’s pricing, SEW will be entitled to earn sufficient revenue from its customers that enables it to adequately service this increased indebtedness.
Regulation
Ofwat determines the prices that SEW can charge its customers using an approach designed to enable SEW to earn sufficient revenues to recover operating costs, capital infrastructure renewal and taxes and to generate a return on invested capital, while creating incentives for SEW to operate efficiently. The outcome of the regulatory review process is the publication of k-factors by Ofwat for each year in the price review period. The k-factor is the amount that SEW is allowed to adjust its prices for water services for each year relative to inflation. For example, a k-factor of 5% in a given year would mean that SEW is allowed to increase its prices by inflation plus 5% in that year.
The use of the k-factor also is designed to create incentives for water-only companies and water and sewage companies to generate efficiencies that can later be passed on to customers. Performance targets are established by reference to a company’s individual circumstances and its performance relative to other companies in the sector. Over the course of the current price review period, SEW has improved in all of its key performance areas, including customer service, leakage, water quality and operating efficiency.
In the year ended March 31, 2004, Ofwat ranked SEW third (tied) out of the 22 companies in the water sector in England and Wales across a broad range of performance measures.
In determining the annual k-factors, Ofwat is under a statutory duty to consider:
• SEW’s ability to properly carry out its functions (including legal obligations such as meeting drinking water quality standards monitored by the Drinking Water Inspectorate);
• the revenue SEW will need to finance its functions and earn a reasonable rate of return on its investment needed to meet its legal obligations;
• the promotion of efficiency and economy (through rewards and penalties); and
• the facilitation of competition.
The following annual k-factors were set for SEW in the 1999 price review for the April 1, 2000 to March 31, 2005 price review period:
The reduction in prices for the year to March 31, 2001 reflected the return to customers of efficiencies achieved by SEW in the five years prior to March 31, 2000, together with a new target for further efficiencies. SEW has to date outperformed this regulatory target for the 1999 price review period. On December 2, 2004, Ofwat issued its final determination for the April 1, 2005 to March 31, 2010 price review period. The determination establishes an average k-factor over the period of 3.7% (i.e., SEW is permitted to increase prices at an annual rate of inflation plus 3.7%) with the following k-factor for each year in the period:
Environmental
SEW is required to comply with various environmental legislation, including the U.K. Wildlife and Countryside Act of 1981, and the environmental requirements of the Water Industry Act. These obligations are proactively managed pursuant to SEW’s sustainable development policy.
Employees
As of March 6, 2005, SEW had approximately 430 employees. A minority of SEW’s employees are members of trade unions.
At December 31, 2004, SEW’s defined benefit plans had assets of £89.2 million ($171.0 million). At March 31, 2005, SEW had a deficit against the actuarial assessment of liabilities of £12.5 million ($23.9 million). SEW has taken a number of steps to address this deficit, including closing the plan to new members in July 2002 and increasing employer contributions from 13.8% to 20.0% of pensionable remuneration beginning January 1, 2004 and to 30% beginning April 2005. SEW also increased employee contributions from 6% to 7% of pensionable remuneration beginning January 1, 2004. In addition, SEW raised the age required to qualify for an unreduced pension upon redundancy to 55 for those who were not yet 50 years old by July 1, 2003. Also SEW limited the conditions to qualify for an incapacity pension.
SEW believes they have efficiently managed their defined benefit pension plans. In addition to the measures discussed above, in its final determination Ofwat has permitted SEW to recover half of its deficit as of March 31, 2004 through increased prices. To the extent that future funding costs increase beyond the level of funding provided by Ofwat, these future costs may be recoverable in future pricing.
Shareholders’ Agreement
Following the acquisition of our interest in SEW, we became a party to a shareholders’ agreement relating to Macquarie Luxembourg. The other parties to the agreement are MEIF, which holds 50.1% of Macquarie Luxembourg, and three other minority investors, which hold a combined 32.4% of Macquarie Luxembourg including another investment vehicle managed by the Macquarie Group, which holds 7.4%.
We have no influence over the choice of the board of directors of Macquarie Luxembourg. The board of directors is authorized to make all decisions necessary to manage the affairs of Macquarie Luxembourg, except for certain reserved matters that require approval of 75% of the shareholders and other matters that require approval of all shareholders.
The shareholders’ agreement requires all shareholders to use their powers to cause Macquarie Luxembourg’s directly owned subsidiary to make the maximum possible distribution to shareholders each year. This provision cannot be changed without our consent.
The shares of Macquarie Luxembourg are subject to preemption rights. Our ability to subsequently transfer our interest in Macquarie Luxembourg is subject to rights of first refusal that are exercisable by MEIF in priority to the other shareholders (with whom we have the right to exercise such rights on the same terms). In the event that MEIF sells all (but not some) of its interest in Macquarie Luxembourg, all other shareholders are required to sell their interests to the same buyer on the same terms. In the event that MEIF sells some but not all of its interest in Macquarie Luxembourg, all other shareholders may sell some or all of their interests on the same terms.
AVAILABLE INFORMATION
We file annual, quarterly and current reports, proxy statements and other information with the SEC. You may read and copy any document we file with the SEC at the SEC’s public reference room at 450 Fifth Street, NW, Washington, DC 20549. Please call the SEC at 1-800-SEC-0330 for information on the operations of the public reference room. The SEC maintains a website that contains annual, quarterly and current reports, proxy and information statements and other information that issuers (including Macquarie Infrastructure Company) file electronically with the SEC. The SEC’s website is www.sec.gov.
Our website is www.macquarie.com/mic. You can access our Investor Center through this website. We make available free of charge, on or through our Investor Center, our proxy statements, annual report on Form 10-K, quarterly reports on Form 10-Q, current reports on Form 8-K and any amendments to those reports filed or furnished pursuant to the Securities Exchange Act of 1934, as amended, or the Exchange Act, as soon as reasonably practicable after such material is electronically filed with, or furnished to, the SEC. We also make available through our Investor Center statements of beneficial ownership of the trust stock filed by our Manager, our directors and officers, any 10% or greater shareholders and others under Section 16 of the Exchange Act.
You can also access our Governance webpage through our Investor Center. We post the following on our Governance webpage:
• Trust Agreement of Macquarie Infrastructure Company Trust
• Operating Agreement of Macquarie Infrastructure Company LLC
• Management Services Agreement
• Charters for our Audit Committee, Compensation Committee and Nominating and Corporate Governance Committee
• Corporate Governance Guidelines
• Code of Ethics and Conduct
• Information for Shareholder Communication with our Board of Directors, our Audit Committee and our Lead Independent Director
• Policy for Shareholder Nomination of Candidates to Become Directors of Macquarie Infrastructure Company
Our Code of Ethics and Conduct applies to all of our directors, officers and employees as well as all directors, officers and employees of our Manager. We will post any amendments to the Code of Ethics and Business Conduct, and any waivers that are required to be disclosed by the rules of either the SEC or the New York Stock Exchange, or NYSE, on our website. The information on our website is not incorporated by reference into this report.
You can request a copy of these documents at no cost, excluding exhibits, by contacting Investor Relations at 600 Fifth Avenue, 21st floor, New York, NY 10020 (212-548-6538).
Item 1A.
Item 1A. Risk Factors
An investment in shares of trust stock involves a number of risks. Any of these risks could result in a significant or material adverse effect on our results of operations or financial condition and a corresponding decline in the market price of the shares.
Risks Related to Our Business
We have only operated as a combined company since December 2004 and we may not be able to successfully manage our businesses on a combined basis.
We completed our initial public offering and the acquisition of our businesses and investments in December 2004. Our businesses have only been operated as a combined company since that time. As a result, we are in the process of developing effective systems and procedures, including accounting and financial reporting systems, to manage our operations. If we fail to do so in a timely manner, we may not be able to manage the combined enterprise on a profitable basis.
In the event of the underperformance of our Manager, we may be unable to remove our Manager, which could limit our ability to improve our performance and could adversely affect the market price of our shares.
Under the terms of the management services agreement, our Manager must significantly underperform in order for the management services agreement to be terminated. The company’s board of directors cannot remove our Manager unless:
• our shares underperform a benchmark index by more than 30% in relative terms and more than 2.5% in absolute terms in 16 out of 20 consecutive quarters prior to and including the most recent full quarter, and the holders of a minimum of 66 2/3% of the outstanding trust stock (excluding any shares of trust stock owned by our Manager or any affiliate of the Manager) vote to remove our Manager;
• our Manager materially breaches the terms of the management services agreement and such breach continues unremedied for 60 days after notice;
• our Manager acts with gross negligence, willful misconduct, bad faith or reckless disregard of its duties in carrying out its obligations under the management services agreement, or engages in fraudulent or dishonest acts; or
• our Manager experiences certain bankruptcy events.
Our Manager’s performance is measured by the market performance of our shares relative to the benchmark index. As a result, even if the absolute market performance of our shares does not meet expectations, the company’s board of directors cannot remove our Manager unless the market performance of our shares also significantly underperforms the benchmark index. If we were unable to remove our Manager in circumstances where the absolute market performance of our shares does not meet expectations, the market price of our shares could be negatively affected.
Our Manager can resign on 90 days’ notice and we may not be able to find a suitable replacement within that time, resulting in a disruption in our operations which could adversely affect our financial results and negatively impact the market price of our shares.
Our Manager has the right, under the management services agreement, to resign at any time on 90 days’ notice, whether we have found a replacement or not. Australian banking regulations that govern the operations of Macquarie Bank Limited and all of its subsidiaries, including our Manager, require that subsidiaries of Australian banks providing management services have these resignation rights.
If our Manager resigns, we may not be able to find a new external manager or hire internal management with similar expertise within 90 days to provide the same or equivalent services on acceptable terms, or at all. If we are unable to do so quickly, our operations are likely to experience a disruption, our financial results could be adversely affected, perhaps materially, and the market price of our shares may decline. In addition, the coordination of our internal management, acquisition activities and supervision of our businesses and investments are likely to suffer if we were unable to identify and reach an agreement with a single institution or group of executives having the expertise possessed by our Manager and its affiliates.
Furthermore, if our Manager resigns, the trust, the company and its subsidiaries will be required to cease using the Macquarie brand entirely, including changing their names to remove any reference to “Macquarie.” This may cause the value of the company and the market price of our shares to decline.
Our holding company structure may limit our ability to make regular distributions to our shareholders because we will rely on distributions both from our subsidiaries and the companies in which we hold investments.
We are a holding company with no operations. Therefore, we are dependent upon the ability of our businesses and investments to generate earnings and cash flows and distribute them to us in the form of dividends and upstream debt payments to enable us to meet our expenses and to make distributions to our shareholders. The ability of our operating subsidiaries and the businesses in which we will hold investments to make distributions to us is subject to limitations under the terms of their debt agreements and the applicable laws of their respective jurisdictions. If, as a consequence of these various limitations and restrictions, we are unable to generate sufficient distributions from our businesses and investments, we may not be able to declare or may have to delay or cancel payment of distributions on our shares.
Our businesses and the businesses in which we have invested have substantial indebtedness, which could inhibit their operating flexibility.
As of December 31, 2004, on a consolidated basis, we had total long-term debt of $415 million, excluding affiliated debt relating to our toll road business. All of this debt is at the subsidiary level and has recourse only to the relevant business. The companies in which we have investments also have debt. The terms of this debt generally require our operating businesses and the companies in which we have investments to comply with significant operating and financial covenants. The ability of each of our businesses and investments to meet their respective debt service obligations and to repay their outstanding indebtedness will depend primarily upon cash produced by that business.
This indebtedness could have important consequences, including:
• limiting the payment of dividends and distributions to us;
• increasing the risk that our subsidiaries and the companies in which we hold investments might not generate sufficient cash to service their indebtedness;
• limiting our ability to use operating cash flow in other areas of our businesses because our subsidiaries or the companies in which we hold investments must dedicate a substantial portion of their operating cash flow to service their debt;
• limiting our and our subsidiaries’ ability to borrow additional amounts for working capital, capital expenditures, debt services requirements, execution of our internal growth strategy, acquisitions or other purposes; and
• limiting our ability to capitalize on business opportunities and to react to competitive pressures or adverse changes in government regulation.
If any of our subsidiaries or the companies in which we hold investments is unable to comply with the terms of its respective debt agreements, it may be required to refinance a portion or all of its debt or to obtain additional financing. It may be unable to refinance or obtain additional financing because of its high levels of debt and the debt incurrence restrictions under its debt agreements. It may be forced to default on its debt obligations if cash flow is insufficient and refinancing or additional financing is unavailable, and, as a result, the relevant debt holders may accelerate the maturity of their obligations.
The audited financial statements of the company at and for the year ended December 31, 2004 do not include meaningful comparisons to prior years.
The audited financial statements of the company at and for the year ended December 31, 2004 will include consolidated results of operations and cash flows only for the period from the date of acquisition to year end. Since we purchased our businesses and investments after the closing of our initial public offering in December 2004, our audited financial statements will not contain full-year consolidated results of operations and cash flows until the end of our 2005 fiscal year. Consequently, meaningful year-to-year comparisons will not be available, at the earliest, until after the end of our 2006 fiscal year.
We own minority interests in our investments and may acquire similar minority interests in future investments, and consequently cannot exercise significant influence over their business or the level of their distributions to us, which could adversely affect our results of operations and our ability to generate cash and make distributions.
We own minority positions in the investments in MCG and SEW and have limited legal rights to influence the management of those businesses or any other businesses in which we make minority investments. MCG is managed by an affiliate of our Manager and SEW is majority owned by an entity that is managed by an affiliate of our Manager. These entities may develop different objectives than we have and may not make distributions to us at levels that we anticipate. Our inability to exercise significant influence over the operations, strategies and policies of the businesses in which we have, or may acquire, a minority interest means that decisions could be made that could adversely affect our results and our ability to generate cash and pay distributions on our shares.
Our ability to acquire additional infrastructure businesses is subject to factors beyond our control and, as a result, we may not be able to successfully execute our acquisition strategy due to higher acquisition prices and fewer opportunities.
A major component of our strategy is to acquire additional infrastructure businesses both within the sectors in which we currently operate and in sectors where we currently have no presence. Acquisitions involve a number of special risks, including failure of the acquired business to achieve expected results, failure to identify material risks or liabilities associated with the acquired business prior to its acquisition, diversion of our management’s attention, and the failure to retain key personnel of the acquired business, some or all of which could have a material adverse effect on our business, cash flow and ability to pay distributions on our shares. We expect to face competition for acquisition opportunities, and some of our competitors may have greater financial resources or access to financing on more favorable terms than we will. This competition may limit our acquisition opportunities, may lead to higher acquisition prices or both. While we expect that our relationship with the Macquarie Group will help us in making acquisitions, we cannot assure you that the benefits we anticipate will be realized.
We may not be able to successfully fund future acquisitions of new infrastructure businesses due to the unavailability of debt or equity financing on acceptable terms, which could impede the implementation of our acquisition strategy and negatively impact our business.
In order to make acquisitions, we will generally require funding from external sources. Since the timing and size of acquisitions cannot be readily predicted, we may need to be able to obtain funding on short notice to benefit fully from attractive opportunities. Debt to fund an acquisition may not be available on short notice or may not be available on terms acceptable to us. In addition, the level of our subsidiary indebtedness will impact our ability to borrow at the holding company level. We intend to fund the balance of the consideration for future acquisitions through the issuance of additional shares. If our shares do not maintain a sufficient market value, issuance of new shares may result in dilution of our then-existing shareholders. Alternatively, we may not be able to complete the issuance of the required amount of shares on short notice or at all due to a lack of investor demand for the shares at prices that we consider to be in the interests of then-existing shareholders. As a result of a lack of funding, we may not be able to pursue our acquisition strategy successfully.
Our businesses and investments are dependent on our relationships, on a contractual and regulatory level, with government entities that may have significant leverage over us. Government entities may be influenced by political considerations to take actions adverse to us.
Many of our businesses and investments (such as our airport services business, our district energy business, our toll road business and SEW) are, and our future businesses and investments may be, subject to substantial regulation by governmental agencies. In addition, their operations do and may rely on government permits, licenses, concessions, leases or contracts. Government entities, due to the wide-ranging scope of their authority, have significant leverage over us in their contractual and regulatory relationships with us which they may exercise in a manner that causes us delays in the operation of our business or pursuit of our strategy, or increased administrative expense. Furthermore, government permits, licenses, concessions, leases and contracts are generally very complex and may result in a dispute over interpretation or enforceability. If we fail to comply with these regulations or contractual obligations, we could be subject to monetary penalties or we may lose our rights to operate the affected business, or both. Where our ability to operate an infrastructure business is subject to a concession or lease from the government, the concession or lease may restrict our ability to operate the business in a way that maximizes cash flows and profitability. Further, our ability to grow our current and future businesses will often require consent of numerous government regulators. These consents may be costly to seek and we may not be able to obtain them. Failure to obtain any required consents could limit our ability to achieve our growth strategy.
The leases or concessions may also contain clauses more favorable to the government counterparty than a typical commercial contract. For instance, a lease or concession may enable the government to terminate the lease or concession in certain circumstances without requiring them to pay adequate compensation. In addition, government counterparties also may have the discretion to change or increase regulation of our operations, or implement laws or regulations affecting our operations, separate from any contractual rights they may have. Governments have considerable discretion in implementing regulations that could impact these businesses. Because our businesses provide basic, everyday services, and face limited competition, governments may be influenced by political considerations to take actions which may hinder the efficient and profitable operation of our businesses and investments.
Governmental agencies may determine the prices we charge and may be able to restrict our ability to operate our business to maximize profitability.
Where our business is the sole or predominant service provider in its service area and provides services that are essential to the community, such as SEW, it is subject to rate regulation by governmental agencies that will determine the prices it may charge. We may be subject to unfavorable price determinations that may be final with no right of appeal or which, despite a right of appeal, as in the case of SEW, could result in our profits being negatively affected. Businesses and investments we acquire in the future may also be subject to rate regulation.
Our results are subject to quarterly and seasonal fluctuations that may adversely affect the market price of our shares.
Our airport services business, airport parking business and district energy business can be subject to seasonal variations. Our airport services business, airport parking business and district energy businesses generally experience greater revenues and profitability in the summer months, although the causes of seasonality are specific to each of these businesses. Accordingly, our operating results for any particular quarter may not be indicative of the results that can be expected for any other quarter or for the entire year and this may adversely affect the market price of our shares.
The ownership of businesses and investments located outside of the United States exposes us to currency exchange risks that may result in a decrease in the carrying value of our investments and a decrease in the amount of distributions we receive from our businesses and investments, which could negatively impact our results of operations.
Our interests in CHL, MCG and SEW are subject to risk from fluctuations in currency exchange rates, as the reporting currencies of CHL and SEW are Pounds Sterling, and the reporting currency of MCG is Australian dollars. We receive distributions from CHL, MCG and SEW denominated in these currencies. Fluctuations in the currency exchange rates for Pounds Sterling and Australian dollars against the U.S. dollar resulting in losses from any such fluctuations will be reflected in our results. A strengthening of the U.S. dollar against these currencies would reduce the U.S. dollar amount of the distributions we receive from these foreign operations.
Certain provisions of the management services agreement, the operating agreement of the company and the trust agreement make it difficult for third parties to acquire control of the trust and the company and could deprive you of the opportunity to obtain a takeover premium for your shares.
In addition to the limited circumstances in which our Manager can be terminated under the terms of the management services agreement, the management services agreement provides that in circumstances where the trust stock ceases to be listed on a recognized U.S. exchange or on the Nasdaq National Market as a result of the acquisition of trust stock by third parties in an amount that results in the trust stock ceasing to meet the distribution and trading criteria on such exchange or market, the Manager has the option to either propose an alternate fee structure and remain our Manager or resign, terminate the management services agreement upon 30 days’ written notice and be paid a substantial termination fee. The termination fee payable on the Manager’s exercise of its right to resign as our Manager subsequent to a delisting of our shares could delay or prevent a change in control that may favor our shareholders. Furthermore, in the event of such a delisting, any proceeds from the sale, lease or exchange of a significant amount of assets must be reinvested in new assets of our company. We are also prohibited from incurring any new indebtedness or engaging in any transactions with the shareholders of the company or its affiliates without the prior written approval of the Manager. These provisions could deprive the shareholders of the trust of opportunities to realize a premium on the shares of trust stock owned by them.
The operating agreement of the company, which we refer to as the LLC agreement, and the trust agreement contain a number of provisions that could have the effect of making it more difficult for a third party to acquire, or discouraging a third party from acquiring, control of the trust and the company. These provisions include:
• restrictions on the company’s ability to enter into certain transactions with our major shareholders, with the exception of our Manager, modeled on the limitation contained in Section 203 of the Delaware General Corporation Law;
• allowing only the company’s board of directors to fill vacancies, including newly created directorships and requiring that directors may be removed only for cause and by a shareholder vote of 66 2/3%;
• requiring that only the company’s chairman or board of directors may call a special meeting of our shareholders;
• prohibiting shareholders from taking any action by written consent;
• establishing advance notice requirements for nominations of candidates for election to the company’s board of directors or for proposing matters that can be acted upon by our shareholders at a shareholders meeting;
• having a substantial number of additional shares of authorized but unissued trust stock;
• providing the company’s board of directors with broad authority to amend the LLC agreement and the trust agreement; and
• requiring that any person who is the beneficial owner of ten percent or more of our shares make a number of representations to the City of Chicago in its standard form of Economic Disclosure Statement, or EDS, the current form of which is included in our LLC agreement, which is incorporated by reference as an exhibit to this report.
Macquarie Parking and AvPorts have a substantial amount of senior debt due to mature in 2006 and 2007, respectively. The inability to extend, refinance or repay these debts when due would have a material adverse effect on those businesses. In addition, if interest rates increase, the cost of servicing any debt that Macquarie Parking, AvPorts and Atlantic raise to refinance the maturing debts will increase, reducing their profitability and ability to pay dividends to us.
Macquarie Parking has $126 million of senior debt due in 2006 and AvPorts has $36 million of senior debt due in 2007. These loans will have to be extended or refinanced on the respective maturity dates or repaid. We cannot assure you that replacement loans will be available. If available, replacement loans may only be available at substantially higher interest rates or margins or with substantially more restrictive covenants. Either event may limit the operational flexibility of the businesses and their ability to upstream dividends and distributions. We also cannot assure you that we or the other owners of Macquarie Parking will be able to make capital contributions to repay some or all of the debt if required. If Macquarie Parking, AvPorts or Atlantic are unable to repay their debts when due, they would become insolvent. If interest rates increase, Macquarie Parking, AvPorts and Atlantic will pay higher rates of interest on any debts that they raise to refinance the senior debts, thereby reducing their profitability and, consequently, having an adverse impact on their ability to pay dividends to us.
Our businesses and investments have environmental risks that may impact our future profitability.
The operations of our businesses and investments are, and businesses we acquire or investments we make in the future may be, subject to numerous statutes, rules and regulations relating to environmental protection. In particular, our airport services business is subject to environmental protection requirements relating to the storage, transport, pumping and transfer of fuel, and our district energy business is subject to requirements relating mainly to its handling of significant amounts of hazardous materials. Certain statutes, rules and regulations might also require that our businesses, or businesses we acquire in the future, address possible prior or future environmental contamination, including soil and groundwater contamination, that results from the spillage of fuel, hazardous materials or other pollutants.
Under various federal, state, local and foreign environmental statutes, rules and regulations, a current or previous owner or operator of real property may be liable for noncompliance with applicable environmental and health and safety requirements and for the costs of investigation, monitoring, removal or remediation of hazardous materials. These laws often impose liability, whether or not the owner or operator knew of, or was responsible for, the presence of hazardous materials. The presence of these hazardous materials on a property could also result in personal injury or property damage or similar claims by private parties.
Persons who arrange for the disposal or treatment of hazardous materials may also be liable for the costs of removal or remediation of those materials at the disposal or treatment facility, whether or not that facility is or ever was owned or operated by that person.
Any liability resulting from noncompliance or other claims relating to environmental matters could have a material adverse effect on our results of operations, financial condition, liquidity and prospects.
The internal controls of our businesses have not yet been integrated and we have only recently begun to examine the internal controls that are in place.
We are required under applicable law and regulations to integrate the various systems of internal controls over financial reporting of our businesses and we are evaluating these businesses’ existing internal controls versus the standards adopted by the Committee of Sponsoring Organizations of the Treadway Commission (COSO). During the course of our ongoing evaluation and integration of the internal controls of our businesses, we may identify areas requiring improvement, and may have to design enhanced processes and controls to address issues identified through this review. This could result in significant delays and cost to the company and require us to divert substantial resources, including management time, from other activities. We cannot be certain that our auditors will not have to report a material weakness in connection with the presentation of our 2005 financial statements.
We are dependent on certain key personnel, and the loss of key personnel, or the inability to retain or replace qualified employees, could have an adverse effect on our business, financial condition and results of operations.
We operate our businesses on a stand-alone basis, relying on existing management teams for day-to-day operations. Consequently, our operational success, as well as the success of our internal growth strategy, will be dependent on the continued efforts of the management teams of our businesses, who have extensive experience in the day-to-day operations of these businesses. Furthermore, we will likely be dependent on the operating management teams of businesses that we may acquire in the future. The loss of key personnel, or the inability to retain or replace qualified employees, could have an adverse effect on our business, financial condition and results of operations.
Atlantic has pending litigation that may not be adequately covered by insurance or indemnity agreements, which could have a material adverse effect on our liquidity and financial condition.
Two Atlantic companies, which are part of our airport services business, and one former Atlantic company are defendants in a claim brought by the families of two pilots killed in a plane crash in 2000. The plaintiffs are each seeking $100 million in punitive damages, $100 million for wrongful death and $5 million for pain and suffering. The defendant FBO operating company carries liability insurance for an amount of up to $50 million and the other two defendant companies, the current parent of the Atlantic operating company and its former subsidiary, each hold policies for coverage of up to $1 million. In addition, the sale and purchase agreement for Executive Air Support, Inc., the holding company for Atlantic, provides for a $20 million indemnity, which would apply in the event of a judgment for damages against the defendant Atlantic companies. However, the selling shareholders of Executive Air Support, Inc. may not have sufficient resources to meet their indemnity obligation in the event we seek to claim an amount pursuant to this indemnification provision. We are unable at this time to estimate what the ultimate liability may be, and it is possible that we may be required to pay judgments or settlements, and incur expenses, in excess of the insurance coverage or available indemnity in aggregate amounts that would have a material adverse effect on our financial condition, results of operations or liquidity.
Atlantic’s EBITDA must increase in order for it to meet certain ratio requirements under its term loan facility. If Atlantic does not meet these requirements, it will constitute an event of default and our ability to make distributions on our shares may be materially adversely affected.
Under the terms of its term loan facility, which it entered into as of October 15, 2004, Atlantic is required to maintain certain ratios of debt to earnings before interest, tax, depreciation and amortization, or EBITDA. The ratios are calculated quarterly based on debt outstanding as of that date and EBITDA for the twelve-month period ending on that date. If Atlantic’s EBITDA does not increase sufficiently for it to meet the debt to EBITDA ratio requirements, Atlantic will be in default under its term loan facility. Upon such an event of default, Atlantic’s lenders will have the right to prohibit Atlantic from making distributions to us. As a consequence, we may have to significantly reduce payment of distributions on our shares.
Any adverse development in the general aviation industry that results in less air traffic at airports we service would have a material adverse impact on our FBO business.
A large part of the revenue at FBOs is generated from fuel sales and other services provided to general aviation customers. Air travel and air traffic volume of general aviation customers can be affected by airport-specific occurrences as well as events that have nationwide and industry-wide implications. The events of September 11, 2001 had a significant adverse impact on the aviation industry, particularly in terms of traffic volume due to forced closures. Immediately following September 11, 2001, thousands of general aviation aircraft were grounded for weeks due to the FAA’s “no-fly zone” restrictions imposed on the operation of aircraft. Airport specific circumstances include situations in which our major customers relocate their home base or preferred fueling stop to alternative locations. Additionally, the general economic conditions of the area where the airport is located will impact the ability of our FBOs to attract general aviation customers or generate fuel sales, or both. Significant increases in fuel prices may also decrease the demand for our services, including refueling services, or result in lower fuel sales margins, or both, leading to lower operating income.
Changes in the general aviation market as a whole may adversely affect our airport services business. General aviation travel is more expensive than alternative modes of travel. Consequently, during periods of economic downturn, FBO customers may choose to travel by less expensive means, which could impact the earnings of our FBO business. Travel by commercial airlines may become more attractive for general aviation travelers if the cost of commercial airline travel decreases or if service levels improve. Under these circumstances, our FBOs may lose customers to the commercial air travel market, which may decrease our earnings.
Our FBO business is subject to a variety of competitive pressures, and the actions of competitors may have a material adverse effect on the revenues of our FBO business.
FBO operators at a particular airport compete based on a number of factors, including location of the facility relative to runways and street access, service, value-added features, reliability and, to a lesser extent, price. Eleven of our FBOs compete with one or more FBOs at their respective airports, and, to a much lesser extent, some of our FBOs compete with FBOs at nearby airports. We cannot predict the actions of competitors who may seek to increase market share. Some present and potential competitors have or may obtain greater financial and marketing resources than we do, which may negatively impact our ability to compete at each airport.
Our six sole provider FBOs do not have the right to be the sole provider of FBO services at any of our FBO locations. The authority responsible for each airport has the ability to grant other FBO leases at the airport and new competitors could be established at those FBO locations. The addition of new competitors is particularly likely if we are seen to be earning significant profits from these FBO operations. Any such actions, if successful, may reduce, or impair our ability to increase, the revenues of the FBO business.
The termination for cause or convenience of one or more of the FBO leases would damage our airport services business significantly.
Our airport services revenues are derived from long-term FBO leases at airports and one heliport. If we default on the terms and conditions of our leases, the relevant authority may terminate the lease without compensation, and we would then lose the income from that lease, and would be in default under the loan agreements of our airport services business and be obliged to repay our lenders a portion or all of our outstanding loan amount. Our leases at Chicago Midway, Philadelphia, North East Philadelphia, New Orleans International and Orange County, and the Metroport 34th Street Heliport in New York City allow the relevant authority to terminate the lease at their convenience. If the relevant authority were to terminate any of those leases, we would then lose the income from that lease and be obliged to repay our lenders a portion or all of the then outstanding loan amount.
Occupancy of Macquarie Parking’s parking facilities is dependent on the level of passenger traffic at the airports at which Macquarie Parking operates and reductions in passenger traffic could negatively impact our results of operations.
Macquarie Parking’s parking facilities are dependent upon parking traffic primarily generated by commercial airline passengers and are therefore susceptible to competition from other airports and to disruptions in passenger traffic at the airports at which Macquarie Parking operates. For example, the events of September 11, 2001 had a significant impact on the aviation industry and, as a result, negatively impacted occupancy levels at parking facilities. In the first few days following September 11, 2001, revenue from Macquarie Parking’s parking facilities was negligible and did not fully recover until some months after the event. Other events such as wars, outbreaks of disease, such as SARS, and terrorist activities in the United States or overseas
may reduce airport traffic and therefore occupancy rates. In addition, traffic at an airport at which Macquarie Parking has facilities may be reduced if airlines reduce the number of flights at that airport.
Our airport parking business is exposed to competition from both on-airport and off-airport parking, which could slow our growth or harm our business.
At each of the locations at which Macquarie Parking operates, it competes with both on-airport parking facilities, many of which are located closer to passenger terminals, and other off-airport parking facilities. If an airport expands its parking facilities or if new off-airport parking facilities are opened or existing facilities expanded, customers may be drawn away from Macquarie Parking’s sites or Macquarie Parking may have to reduce its parking rates, or both.
Parking rates charged by Macquarie Parking at each of its locations are set with reference to a number of factors, including prices charged by competitors and quality of service by on-airport and off-airport competitors, the location and quality of the facility and the level of service provided. Additional sources of competition to Macquarie Parking’s operations may come from new or improved transportation to the airports where Macquarie Parking’s parking facilities are located. Improved rail, bus or other services may encourage Macquarie Parking’s customers not to drive to the airport and therefore negatively impact revenue.
Changes in regulation by airport authorities or other governmental bodies governing the transportation of customers to and from the airports at which Macquarie Parking operates may negatively affect our operating results.
Macquarie Parking’s shuttle operations transport customers between the airport terminals and its parking facilities and are regulated by, and are subject to, the rules and policies of the relevant local airport authority, which may be changed at their discretion. Some airport authorities levy fees on off-airport parking operators for the right to transport customers to the terminals. There is a risk that airport authorities may deny or restrict Macquarie Parking’s access to terminals, impede its ability to manage its shuttle operations efficiently, impose new fees or increase the fees currently levied.
Further, the FAA and the Transportation Security Administration, or TSA, regulate the operations of all the airports at which our airport parking business has locations. The TSA has the authority to restrict access to airports as well as to impose parking and other restrictions around the airports. The TSA could impose more stringent restrictions in the future that would inhibit the ability of customers to use Macquarie Parking’s facilities.
Pursuant to the terms of a use agreement between Thermal Chicago and the City of Chicago, the City of Chicago has rights that, if exercised, could have a significant negative impact on Thermal Chicago’s business.
In order to operate our district cooling system in downtown Chicago, Thermal Chicago has obtained the right to use certain public ways of the City of Chicago under a use agreement, which we refer to as the Use Agreement. Under the terms of the Use Agreement, the City of Chicago retains the right to use the public ways for a public purpose and has the right in the interest of public safety or convenience to cause Thermal Chicago to remove, modify, replace or relocate its facilities at our own expense. If the City of Chicago exercises these rights, we could incur significant costs and our ability to provide service to our customers could be disrupted, which would have an adverse effect on our business, financial condition and results of operations. In addition, the Use Agreement is non-exclusive, and the City of Chicago is entitled to enter into use agreements with potential competitors to Thermal Chicago.
The Use Agreement expires on December 31, 2020 and may be terminated by the City of Chicago for any uncured material breach of its terms and conditions. The City of Chicago also may require us to pay liquidated damages of $6,000 a day if Thermal Chicago fails to remove, modify, replace or relocate its facilities when required to do so, if it installs any facilities that are not properly authorized under the Use Agreement or if our district cooling system does not conform to the City of Chicago’s standards. Each of these noncompliance penalties could result in substantial financial loss or effectively shut down our district cooling system in downtown Chicago.
Any proposed renewal, extension or modification of the Use Agreement requires approval by the City Council of Chicago. Extensions and modifications subject to the City of Chicago’s approval include those to enable the expansion of chilling capacity and the connection of new customers to the district cooling system. The City of Chicago’s approval is contingent upon the timely filing of an Economic Disclosure Statement, or EDS, by us and each of the beneficial owners of ten percent or more of the shares of trust stock. If any of these investors fails to file a completed EDS form within 30 days of the City of Chicago’s request or files an incomplete or inaccurate EDS, the City of Chicago has the right to refuse to provide the necessary approval for any extension or modification of the Use Agreement or to rescind the Use Agreement altogether. If the City of Chicago declines to approve extensions or modifications to the Use Agreement, we may not be able to increase the
capacity of our district cooling system and pursue our growth strategy for Thermal Chicago. Furthermore, if the City of Chicago rescinds or voids the Use Agreement, our district cooling system in downtown Chicago would be effectively shut down and our business, financial condition and results of operations would be materially and adversely affected as a result.
Our ten percent investors will be required to comply with certain disclosure requirements of the City of Chicago and noncompliance may result in the City of Chicago’s rescission or voidance of the Use Agreement and any other arrangements Thermal Chicago may have with the City of Chicago at the time of the noncompliance.
In order to secure approval of our acquisition of Thermal Chicago, we agreed with the City of Chicago that any person who acquires ten percent or more of our shares would be required to make a number of representations to the City of Chicago by filing a completed EDS. Our LLC agreement and our trust agreement require that in the event that we need to obtain approval from the City of Chicago in the future for any specific matter, including to expand the district cooling system or to amend the Use Agreement, we and each of our then ten percent investors would need to submit an EDS to the City of Chicago within 30 days of the City of Chicago’s request. In addition, our LLC agreement and our trust agreement require each ten percent investor to provide any supplemental information needed to update any EDS filed with the City of Chicago as required by the City of Chicago and as requested by us from time to time.
Any EDS filed by a ten percent investor may become publicly available. By completing and signing an EDS, a ten percent investor will have waived and released any possible rights or claims which it may have against the City of Chicago in connection with the public release of information contained in the EDS and also will have authorized the City of Chicago to verify the accuracy of information submitted in the EDS. The requirements and consequences of filing an EDS with the City of Chicago will make compliance with the EDS requirements difficult for our ten percent investors. If a ten percent investor fails to provide us and the City of Chicago with the information required by an EDS, we will have the right to seek specific performance by such ten percent investor under the terms of our LLC and trust agreements. However, any action for specific performance we bring may not be successful in securing timely compliance of every ten percent investor with the EDS requirements.
If any ten percent investor fails to comply with the EDS requirements on time or the City of Chicago determines that any information provided in any EDS is false, incomplete or inaccurate, the City of Chicago may rescind or void the Use Agreement or any other arrangements Thermal Chicago has with the City of Chicago and pursue any other remedies available to them under the Use Agreement. If the City of Chicago rescinds or voids the Use Agreement, our district cooling system in downtown Chicago would be effectively shut down and our business, financial condition and results of operations would be adversely affected as a result.
Thermal Chicago may not be able to fully pass increases in electricity costs through to its customers, thereby resulting in lowered operating income. This risk may be increased by the deregulation of electricity markets in Illinois scheduled for January 1, 2007, which may result in higher and more volatile electricity prices.
The cost of electricity is the largest operating cost of Thermal Chicago, comprising 50% of direct expenses in 2004. Thermal Chicago attempts to pass through increases in electricity costs to its customers by partially indexing what it charges its customers for services to a market index for the cost of electricity in the geographic region in which it operates, which we refer to as the market index. However, the prices that Thermal Chicago actually pays for electricity may increase by more than the market index, reducing its profitability. Electricity markets in Illinois are currently scheduled to be deregulated on January 1, 2007. At present, electricity prices in Illinois are effectively frozen and it is likely that, once deregulation occurs, electricity prices will increase and become more volatile, increasing the potential for Thermal Chicago’s actual electricity costs to increase more than the market index, which could adversely affect our and Thermal Chicago’s results of operations.
If certain events within or beyond the control of our district energy business occur, our district energy business may be unable to perform its contractual obligations to provide chilling and heating services to its customers. If, as a result, its customers elect to terminate their contracts, our district energy business may suffer loss of revenues. In addition, our district energy business may be required to make payments to such customers for damages.
In the event of a shutdown of one or more of our district energy business’ plants due to operational breakdown, strikes, the inability to retain or replace key technical personnel or events outside its control, such as an electricity blackout, or unprecedented weather conditions in Chicago, our district energy business may be unable to continue to provide chilling and heating services to all of its customers. As a result, our district energy business may be in breach of the terms of some or all of its customer contracts. In the event that such customers elect to terminate their contracts with our district energy business as a consequence of their loss of service, its revenues may be materially adversely affected. In addition, under a number of contracts, our district energy business may be required to pay damages to a customer in the event that a cessation of service results in loss to that customer.
Northwind Aladdin currently derives approximately 90% of its cash flows from a contract with a single customer, the Aladdin resort and casino, that recently emerged from bankruptcy. If this customer were to enter into bankruptcy again, our contract may be amended or terminated and we may receive no compensation, which could result in the loss of our investment in Northwind Aladdin.
Northwind Aladdin derives approximately 90% of its cash flows from a contract with the Aladdin resort and casino in Las Vegas to supply cold and hot water and back-up electricity. The Aladdin resort and casino emerged from bankruptcy immediately prior to MDE’s acquisition of Northwind Aladdin in September 2004, and, during the course of those proceedings, the contract with Northwind Aladdin was amended to reduce the payment obligations of the Aladdin resort and casino. If the Aladdin resort and casino were to enter into bankruptcy again and a cheaper source of the services than Northwind Aladdin provides can be found, our contract may be terminated or amended. This could result in a total loss or significant reduction in our income from Northwind Aladdin, for which we may receive no compensation.
Our toll road business’ revenues may be adversely affected if traffic volumes remain stable or decline.
Since the shadow toll revenues payable by the U.K. government’s Secretary of State for Transport, or the Transport Secretary, are linked to the volume of traffic using Yorkshire Link, our toll road business’ revenues will be adversely affected if traffic volumes decline. A decline in traffic volume could result from a number of factors, including recession, increases in fuel prices, attractive alternative transport routes or improvements in public transportation.
In addition, pursuant to the formulas provided by the terms of the concession, shadow toll revenues will decrease through time if there is no growth in traffic volume. The magnitude of the decrease varies depending on the total volume of traffic; however, in the year ended March 31, 2004, in the absence of traffic volume growth or inflation, revenues of Yorkshire Link would have declined by approximately £0.56 million or 1.3% compared to revenues for the year ended March 31, 2003.
Also, the concession provides for a significant reduction in the shadow toll revenues payable by the Transport Secretary from 2014.
The Transport Secretary may terminate the concession without compensation to our toll road business or with insufficient compensation, which would reduce the value of our investment and negatively affect our operating results.
If our toll road business defaults on its obligations set out in the concession, the Transport Secretary may terminate the concession without compensation to our toll road business. Even if our toll road business does not default on its obligations under the concession, the Transport Secretary may terminate the concession in the event that:
• the performance of the concession becomes impossible without the exercise of a statutory power by the Transport Secretary;
• the Transport Secretary chooses not to exercise that power following a request from our toll road business; and
• our toll road business and the Transport Secretary fail to agree on an alternative means of performance within a period of 90 days.
We are unable to predict if or when such circumstances might occur. The concession also may be terminated by the Transport Secretary in certain other circumstances, including an event of force majeure. The compensation required to be paid in such circumstances may be insufficient for us to recover our full investment in our toll road business. Failure to compensate our toll road business in the event of termination may result in the value of our investment in our toll road business being reduced to nothing since our toll road business would likely default on its debt obligations in these circumstances.
We share control of our toll road business equally with our partner Balfour Beatty and, as a result, are not in a position to control operations, strategies or financial decisions without the concurrence of Balfour Beatty.
We hold a 50% interest in our toll road business and the remaining 50% is held by Balfour Beatty. We are not in a position to control operations, strategies or financial decisions without the agreement of Balfour Beatty. Conflicts may arise in the future between our business objectives and those of Balfour Beatty. If this were to occur, decisions to take action necessary, in our view, for the proper management of the business might not be made.
MCG’s investments in Broadcast Australia and ntl:Broadcast rely upon key customers. If contracts with these customers were terminated and Broadcast Australia or ntl:Broadcast were not adequately compensated, or if the contracts were not renewed, MCG’s revenues would be significantly reduced.
MCG’s only investments at present are 100% ownership of Broadcast Australia and a 54% stake in ntl:Broadcast. Broadcast Australia’s two key customers are the government-owned national broadcasters, the Australian Broadcasting Corporation, or the ABC, and Special Broadcasting Service, or SBS, which together accounted for approximately 87% of Broadcast Australia’s total revenue in its fiscal year ended June 30, 2004. ABC and SBS both currently receive Australian government funding to provide transmission services, but that funding could be reduced or withdrawn. Broadcast Australia has entered into a series of long-term contracts with ABS and SBS, with terms generally ending between 2008 and 2024. The majority of ntl:Broadcast’s revenue is earned under long-term contracts with a small number of customers, with terms generally ending between 2007 and 2015. If these contracts are terminated and Broadcast Australia or ntl:Broadcast are not adequately compensated, or the contracts are not renewed at their expiration, Broadcast Australia’s or ntl:Broadcast’s operations would be materially adversely affected.
A change in the ownership of the ABC or SBS may cause Broadcast Australia to be in default under its loan agreements, which would adversely affect dividends paid by MCG to us.
An event of default occurs under Broadcast Australia’s loan agreements if the Australian government ceases to own more than 50% of the issued shares of the ABC and if Broadcast Australia’s medium-term notes have not been repaid within 270 days, or if the Australian government ceases to own or control more than 50% of the issued shares of the ABC or SBS and this has a material adverse effect on Broadcast Australia’s ability to perform its obligations under the loan agreements. If such an event of default occurs, it will adversely affect the amount of dividends paid by MCG to us.
SEW’s revenues are subject to regulation and SEW may receive unfavorable treatment from U.K. regulatory authorities, which could negatively impact its revenue in the future.
As the sole water-only supplier in its service areas, the prices that SEW charges for its services are subject to review and approval every five years by Ofwat, the water regulator for England and Wales. In the event that Ofwat were to deny recovery of certain operating expenses and/or capital expenditures (which are significant for SEW, in common with other water companies in England and Wales, due to the age of some parts of their water network) through the prices that SEW charges for its services, or were to determine that a reduced return on invested capital should be allowed, there would be a negative impact on the future revenues of SEW.
SEW is dependent on the availability of water supplies and, if required to increase supply beyond the expected levels, could incur substantial costs, which, despite the existence of interim pricing review mechanisms, may not be adequately compensated.
SEW requires sufficient water to supply its customer base. The availability of water is subject to, among other things, SEW continuing to benefit from water abstraction licenses, contractual arrangements for the supply of water from neighboring water companies, investment in increasing water resources to match customer growth and short-term issues affecting water supply, such as drought. Ofwat has placed SEW, along with other southern water companies, in the lowest quartile in terms of security of water supply. In the event of water shortage, SEW will be exposed to additional costs and reputational damage. There are significant uncertainties beyond SEW’s control affecting the amount of water resources, including climate change, the amount of annual rainfall, the rate of house building and industrial development in SEW’s service areas and other factors. If SEW is required to increase supply beyond the expected levels, it could incur substantial costs which, despite the existence of interim pricing review mechanisms, may not be adequately compensated.
SEW is required to comply with government regulations with respect to water quality. If SEW failed to comply, SEW could be fined, become subject to other punitive regulatory action and/or become liable for any injury caused to its customers by inadequate water quality, any of which could have a significant negative impact on SEW’s profitability.
SEW’s water quality is required to meets standards set by the UK government’s Drinking Water Inspectorate. In addition, SEW is required to meet other UK government guidelines in relation to the security of its facilities. If SEW failed to comply with these guidelines, SEW could be fined, become subject to other punitive regulatory action and/or become liable for any injury caused to its customers by inadequate water quality, any of which could have a significant negative impact on SEW’s profitability.
We may face a greater exposure to terrorism than other companies because of the nature of our businesses and investments.
We believe that infrastructure businesses face a greater risk of terrorist attack than other businesses, particularly those businesses that have operations within the immediate vicinity of metropolitan and suburban areas. Any terrorist attacks that occur at or near our business locations would likely cause significant harm to our employees and assets. As a result of the terrorist attacks in New York on September 11, 2001, insurers significantly reduced the amount of insurance coverage available for liability to persons other than employees or passengers for claims resulting from acts of terrorism, war or similar events. A terrorist attack that makes use of our property, or property under our control, may result in liability far in excess of available insurance coverage. In addition, any further terrorist attack, regardless of location, could cause a disruption to our business and a decline in earnings. Furthermore, it is likely to result in an increase in insurance premiums and a reduction in coverage, which could cause our profitability to suffer.
The market price and marketability of our shares may from time to time be significantly affected by numerous factors beyond our control, which may adversely affect our ability to raise capital through future equity financings.
The market price of our shares may fluctuate significantly. Many factors that are beyond our control may significantly affect the market price and marketability of our shares and may adversely affect our ability to raise capital through equity financings. These factors include the following:
• price and volume fluctuations in the stock markets generally;
• significant volatility in the market price and trading volume of securities of registered investment companies, business development companies or companies in our sectors, which may not be related to the operating performance of these companies;
• changes in our earnings or variations in operating results;
• any shortfall in revenue or net income or any increase in losses from levels expected by securities analysts;
• changes in regulatory policies or tax law;
• operating performance of companies comparable to us; and
• loss of a major funding source.
A significant and sustained increase in the price of oil could have a negative impact on the revenues of a number of our business.
A significant and sustained increase in the price of oil could have a negative impact on the revenues of a number of our business. Higher prices for jet fuel could result in less use of aircraft by general aviation customers which would have a negative impact on the revenues of our airport services business. Higher prices for jet fuel will increase the cost of traveling by commercial aviation which could result in lower enplanements at the airports where our airport parking business operates and therefore less patronage of our parking facilities and lower revenues. Higher fuel prices could also result in less traffic using Yorkshire Link and therefore lower shadow toll payments and would increase the cost of power to our district energy business which it may not be able to fully pass on to customers pursuant to the terms of our contracts with them.
Risks Related to Taxation
Shareholders may be subject to taxation on their share of our taxable income, whether or not they receive cash distributions from us.
Shareholders may be subject to U.S. federal income taxation and, in some cases, state, local, and foreign income taxation on their share of our taxable income, whether or not they receive cash distributions from us. Shareholders may not receive cash distributions equal to their share of our taxable income or even the tax liability that results from that income. In addition, if we invest in the stock of a controlled foreign corporation (or if one of the corporations in which we invest becomes a controlled foreign corporation, an event which we cannot control), we may recognize taxable income, which shareholders will be required to take into account in determining their taxable income, without a corresponding receipt of cash to distribute to them.
If the company fails to satisfy the “qualifying income” exception, all of its income, including income derived from its non-U.S. assets, will be subject to an entity-level tax in the United States, which could result in a material reduction in our shareholders’ cash flow and after-tax return and thus could result in a substantial reduction in the value of the shares.
A publicly traded partnership will not be characterized as a corporation for U.S. federal income tax purposes so long as 90% or more of its gross income for each taxable year constitutes “qualifying income” within the meaning of Section 7704(d) of the Code. We refer to this exception as the qualifying income exception. The company has concluded that it is classified as a partnership for U.S. federal income tax purposes. This conclusion is based upon the fact that: (a) the company has not elected and will not elect to be treated as a corporation for U.S. federal income tax purposes; and (b) for each taxable year, the company expects that more than 90% of its gross income is and will be income that constitutes qualifying income within the meaning of Section 7704(d) of the Code. Qualifying income includes dividends, interest and capital gains from the sale or other disposition of stocks and bonds. If the company fails to satisfy the “qualifying income” exception described above, items of income and deduction would not pass through to shareholders and shareholders would be treated for U.S. federal (and certain state and local) income tax purposes as shareholders in a corporation. In such case, the company would be required to pay income tax at regular corporate rates on all of its income, including income derived from its non-U.S. assets. In addition, the company would likely be liable for state and local income and/or franchise taxes on all of such income. Distributions to shareholders would constitute ordinary dividend income taxable to such shareholders to the extent of the company’s earnings and profits, and the payment of these dividends would not be deductible by the company. Taxation of the company as a corporation could result in a material reduction in our shareholders’ cash flow and after-tax return and thus could result in a substantial reduction of the value of the shares.
The current treatment of qualified dividend income and long-term capital gains under current U.S. federal income tax law may be adversely affected, changed or repealed in the future. Further, should the dividends we receive from CHL, MCG and SEW no longer be treated as qualified dividend income, your distributive share of any dividends we receive from such companies will be taxed at the tax rates generally applicable to ordinary income, which could negatively impact your after-tax return.
Under current law, qualified dividend income and long-term capital gains are taxed to non-corporate investors at a maximum U.S. federal income tax rate of 15%. This tax treatment may be adversely affected, changed or repealed by future changes in tax laws at any time and is currently scheduled to expire for tax years beginning after December 31, 2008. We anticipate we will report each shareholder’s distributive share of dividends we receive from SEW as qualified dividend income, but it is possible that the Internal Revenue Service, or the IRS, may take a contrary view under existing law or that regulations or other administrative guidance interpreting the qualified dividend income provisions will prevent dividends received by the company from SEW from constituting qualified dividend income. Further, because the ownership and activities of CHL, MCG and SEW are not within our control, each of such entities could experience a change of ownership or activities that could result in dividends we receive from such corporations no longer being considered qualified dividend income, and we will be unable to stop such a change from occurring.
Item 2.
Item 2. Properties
Airport Services Business
Our airport services business does not own any real property. Its operations are carried out under various leases. Our airport services business leases office space for the head offices of Atlantic and AvPorts in Plano, Texas, and Baltimore, Maryland, respectively. For more information regarding our FBO locations see “Business - Our Businesses and Investments - Airport Services - Business Locations” in Part I, Item 1. The lease in Plano expires in 2008 and the lease in Baltimore expires in 2006. We believe that these facilities are adequate to meet current and foreseeable future needs.
At its FBO sites, our airport services business owns or leases a number of vehicles, including fuel trucks, as well as other equipment needed to service customers. Some phased replacement and routine maintenance is performed on this equipment. We believe that the equipment is generally well maintained and adequate for present operations.
Airport Parking Business
Macquarie Parking has 24 off-airport parking facilities located at 15 airports throughout the United States. The land on which the facilities are located is either owned or leased by Macquarie Parking. The material leases are generally long-term in nature. Please see the description under “Business - Our Businesses and Investments - Airport Parking Business - Locations” in Part I, Item 1 for a fuller description of the nature of the properties where these facilities are located.
The lease on the property at LaGuardia airport expires in April, 2006. The owner of the property has indicated they may have an alternate use for the property.
Macquarie Parking also leases office space for its head office in Downey, California. The lease expires in 2010. We believe that the leased facility is adequate to meet current and foreseeable future needs.
Macquarie Parking operates a fleet of shuttle buses to transport customers to and from the airports at which it operates. The buses are either owned or leased. The total size of the fleet is approximately 131 shuttle buses. Some routine maintenance is performed by its own mechanics, while Macquarie Parking outsources more significant maintenance. We believe that these vehicles are generally well maintained and adequate for present operations. Macquarie Parking replaces the shuttle fleet approximately every three to five years.
District Energy Business
Thermal Chicago owns or leases six plants as follows:
Plant Number
Ownership or Lease Information
P-1
Thermal Chicago has a long-term ground lease until 2043 with an option to renew for 49 years. The plant is owned by Thermal Chicago.
P-2
Property and plant are owned by Thermal Chicago.
P-3
Thermal Chicago has a ground lease that expires in 2017 with a right to renew for ten years. The plant is owned by Thermal Chicago but the landlord has a purchase option over one-third of the plant.
P-4
Thermal Chicago has a ground lease that expires in 2016 and we may renew the lease for another 10 years for the P-4B plant unilaterally, and for P-4A, with the consent of the landlord. Thermal Chicago acquired the existing P-4A plant and completed the building of the P-4B plant in 2000. The landlord can terminate the service agreement and the plant A premises lease upon transfer of the property, on which the A and B plants are located, to a third party.
P-5
Thermal Chicago has an exclusive perpetual easement for the use of the basement where the plant is located.
P-6
Thermal Chicago has a contractual right to use the property pursuant to a service agreement. Thermal Chicago will own the plant until the earliest of 2025 when the plant reverts to the customer or until the customer exercises an early purchase option. The customer has recently indicated that it intends to exercise its early purchase option.
Northwind Aladdin’s plant is housed in its own building on a parcel of land within the perimeter of the Aladdin resort and casino which is leased from the owner. The lease is co-terminus with the supply contract with the Aladdin resort and casino. The plant is owned by Northwind Aladdin and upon termination of the lease the plant is required to either be abandoned or removed at the landlord’s expense.
Toll Road Business
Connect M1-A1 Limited does not own any real estate. It has a license to occupy the land on which Yorkshire Link has been constructed, and it has a lease over the site used as the maintenance compound for the duration of the concession.
SEW
SEW owns four reservoirs, 171 storage towers and 64 treatment plants. As of December 31, 2004, the unaudited book value of SEW’s tangible assets was £410 million ($785.5 million). Its main network extends some 6,000 miles. A review by SEW of the condition of its assets, which was accepted by Ofwat, indicated that 87% of SEW’s assets are in average or better than average condition with the majority of the balance nearing the end of their useful life and thus requiring replacement over the next 10 years and a small percentage that require replacement in the short term.
Item 3.
Item 3. Legal Proceedings
Airport Services Business
On or about May 15, 2002, the families of two pilots killed in a plane crash in 2000 filed complaints in the Supreme Court of New York against a number of parties including EAS and a formerly owned subsidiary, Million Air Interlink, Inc., or Million Air Interlink, asserting claims for punitive damages, wrongful death and pain and suffering. The plaintiffs are each seeking $100 million in punitive damages, $100 million for wrongful death and $5 million for pain and suffering. The plaintiffs’ claim arises out of the facts surrounding a plane crash allegedly caused by one of the aircraft’s engines losing power, which caused the plane to crash, killing all on board. The engine lost power as a result of fuel starvation. The plaintiffs allege this was caused by insufficient fuel or design fault. The plane had last been refueled prior to the accident at the Farmingdale FBO operated by Flightways of Long Island, Inc., or Flightways, on the day of the accident.
EAS and Million Air Interlink moved to dismiss the complaints for lack of jurisdiction because Flightways, rather than EAS or Million Air Interlink, was the entity that operated the Farmingdale FBO, and that employed the person who refueled the plane in question. The court denied the motion, permitting discovery to go forward on the jurisdictional issues, and with leave for the defendants to re-file the motion if discovery warranted doing so. Flightways was added as a defendant. USAIG, the insurer of Flightways under the primary insurance policy, has assumed the defense on behalf of the three Atlantic defendants, has denied any liability and is vigorously contesting the claims made. Discovery is proceeding. The Atlantic defendants believe that the risk of a judgment by the court against them for an amount of damages approaching the amounts claimed by the plaintiffs is remote. In addition, liability insurance for an amount of up to $50 million is available in the event Flightways is found liable, and liability insurance for an amount of up to $1 million is available to each of EAS and Million Air Interlink in the event either or both companies are found liable. The sale and purchase agreement with EAS provides for an indemnity of $20 million, which would be available in the event of a judgment against any of the Atlantic entities party to the suit. However, there is no assurance the EAS selling shareholders will have sufficient resources to meet their indemnity obligation in the event we seek to claim an amount pursuant to this indemnification provision. The Atlantic defendants believe the likelihood is remote that a judgment for damages against them will be in excess of the indemnity or the insurance coverage available or both.
On February 28, 2005, Rohan Foster and Margaret Foster filed a complaint in the Supreme Court of New Jersey, Passaic County, naming several defendants, including Atlantic Aviation Services, Inc. and AvPorts, Inc., based on injuries they allegedly suffered when a Challenger CL-600 aircraft failed to ascend during take off from the Teterboro Airport and ran off of the runway, the airport grounds, onto and across a public highway. The complaint alleges, among other things, negligence in the maintenance and control of the aircraft and maintenance, operation, management and control of the airport, and seeks an unspecified amount of compensatory and special damages. Although it is not possible to predict the outcome of the litigation at this early stage due to the many uncertainties that exist, the company believes it has a strong defense. Atlantic did not service the aircraft in question. AvPorts, which manages the Teterboro Airport, received a verbal briefing, following a post-incident visual inspection of the runway by it and the FAA, to the effect that there was no evidence to suggest that pavement surface or any other condition at the airport was a contributing factor.
Toll Road Business
Neither Macquarie Yorkshire nor CHL or Connect M1-A1 Limited is currently a party to any material legal proceedings.
On March 20, 2004, a fatal road accident occurred on Yorkshire Link. The accident is currently the focus of an ongoing investigation by local police authorities. As part of their investigation, the police have interviewed several employees of Connect M1-A1 Limited and, pursuant to a search warrant, have collected certain documentation from Connect M1-A1 Limited’s offices. No charges have been brought against Connect M1-A1 Limited to date and Connect M1-A1 Limited is fully cooperating with the police investigation. Connect M1-A1 Limited’s management has received no further information with respect to the outcome of the police investigation. Connect M1-A1 Limited has conducted an internal investigation and believes that its maintenance of the section of Yorkshire Link where the accident occurred was in compliance with its obligations under the Concession.
The seller to us of our interest in Yorkshire Link has indemnified us for our proportional share of any loss of revenue, penalties awarded by a court in potential civil or criminal proceedings or imposed by the Transport Secretary under the concession and legal expenses and other costs associated with any claim arising from this accident up to a maximum of £2.75 million.
SEW
In 2003 and 2004, V.A.S. Maddison Ltd., a previous contractor of SEW, contacted SEW, claiming approximately £1.4 million with respect to the alleged incorrect allocation of two contracts during the period from 1997 to 2001, and £5.1 million in lost profits and bid costs with respect to alleged breaches of procurement rules in relation to the award of a contract in 2001. In addition, V.A.S. Madison claims that SEW owes an additional £2.6 million relating to work performed. SEW does not believe any additional amounts are owed. To date, no formal claim has been made.
Saur International had been engaged by SEW, then owned by Saur UK and part of the Bouygues Group, to develop and implement a new billing system for SEW, for completion by the end of 2004. Following extended delays and technical problems with the software, SEW notified Saur International of its intention to terminate the project in December 2004. By the end of January, the parties were unable to reach agreement or agree to mediate the dispute. Saur alleges to have suffered damages in the amount of $7.96 million as a result of termination of the project. SEW believes that it has claims for both damages and repayment of amounts previously paid under the contract. SEW submitted its claim on February 28, 2005. Saur has not yet filed a counterclaim.
Item 4.
Item 4. Submission of Matters to a Vote of Securityholders
None
Part II
Item 5.
Item 5. Market for Registrants’ Common Equity, Related Stockholder Matters and Issuer Purchases of Equity Securities
Market Information
Our trust stock trades on the NYSE under the symbol “MIC.” During the period from December 16, 2004 (the first day of trading in our trust stock) through December 31, 2004 (the ending date of this report), the highest and lowest trading prices per share of trust stock were $29.35 and $25.00, respectively.
As of March 15, 2005 we had 26,610,100 shares of trust stock outstanding that were held by approximately 40 holders of record; however, we believe the number of beneficial owners of our shares exceeds this number.
Disclosure of NYSE-Required Certifications
The NYSE requires that companies listed on the NYSE disclose in their annual report to shareholders that their Chief Executive Officer filed with the NYSE the annual certification required by Section 12(a) of the NYSE’s Corporate Governance listing standards relating to compliance with the NYSE’s Corporate Governance listing standards. This Section 12(a) certification is required to be filed within 30 days of our annual meeting of shareholders. Our initial public offering of shares of trust stock and listing of our trust stock on the NYSE occurred in December 2004, and we have not yet held an annual meeting of shareholders since our trust stock was listed on the NYSE. Therefore, our Chief Executive Officer was not required to file a Section 12(a) certification during 2004.
We are filing with the SEC, as an Exhibit to this Annual Report on Form 10-K, the CEO/CFO certifications required under Section 302 of the Sarbanes-Oxley Act of 2002.
Dividends
We intend to declare and pay regular quarterly cash distributions on all outstanding shares. We intend to declare and pay an initial quarterly distribution for the quarter ending March 31, 2005 of $0.50 per share. We also intend to pay an initial distribution, prorated for the period from the initial public offering date to December 31, 2004, of $0.0877 per share. We have set this initial distribution on the basis of the current results of operations of our businesses and investments, all of which have significant operating histories.
Our dividend policy is based on the predictable and stable cash flows of our businesses and investments and our intention to pay out as distributions to our shareholders the majority of our cash available for distributions and not to retain significant cash balances in excess of
prudent reserves in our operating subsidiaries. We intend to finance our internal growth strategy primarily with selective operating cash flow and using existing resources at the company level. We intend to finance our acquisition strategy primarily through a combination of issuing new equity and incurring debt and not through operating cash flow. If our strategy is successful, we expect to maintain and increase the level of our distributions to shareholders in the future.
The declaration and payment of our initial distribution, our initial quarterly distribution and any future distribution will be subject to a decision of the company’s board of directors, which includes a majority of independent directors. The company’s board of directors will take into account such matters as general business conditions, our financial condition, results of operations, capital requirements and any contractual, legal and regulatory restrictions on the payment of distributions by us to our shareholders or by our subsidiaries to us, and any other factors that the board of directors deems relevant. In particular, all of our businesses and investments have substantial debt commitments, which must be satisfied before any of them can distribute dividends or make distributions to us. These factors could affect our ability to continue to make distributions, in the initial quarterly per share amounts or at all. See “Management’s Discussion and Analysis of Financial Condition and Results of Operations - Liquidity and Capital Resources” in Part II, Item 7.
We will require approximately $2.3 million to pay the initial distribution and $13.5 million to pay the initial quarterly distribution on the expected shares outstanding at March 31, 2005.
Securities Authorized for Issuance Under Equity Compensation Plans
The table below sets forth information with respect to shares of trust stock authorized for issuance as of December 31, 2004:
(1)
Information represents number of shares of trust stock issuable upon the vesting of director stock units pursuant to our independent directors’ equity plan, which was approved and became effective in December 2004. Under the plan, each independent director elected at our annual meeting of shareholders is entitled to receive a number of director stock units equal to $150,000 divided by the average closing sale price of the trust stock during the 10-day period immediately preceding our annual meeting. In connection with our initial public offering, we granted director stock units to our independent directors based on the initial public offering price of $25.00 per share and on pro rata basis relating to the period from the closing of the offering through the anticipated date of our annual meeting of shareholders. To date, we have reserved 9,600 shares of trust stock for future issuance under the plan.
Sales of Unregistered Securities
On December 21, 2004, concurrently with our initial public offering, we issued 2,000,000 shares of trust stock to our Manager in a private placement under Section 4(2) of the Securities Act of 1933 at a purchase price of $25.00 per share, for an aggregate offering price of $50 million. Our Manager may sell up to 30% of these shares at any time, a further 35% at any time from and after December 21, 2005 and the balance at any time from and after December 21, 2007. We have agreed to file a shelf registration statement to cover all shares owned by our Manager as soon as reasonably possible following December 21, 2004 or earlier if requested by our Manager, to cover 30% of our Manager’s initial investment as well as any additional shares purchased by our Manager upon the reinvestment of any of its management fees.
Use of Proceeds from Initial Public Offering
On December 21, 2004, we sold 26,610,000 shares of trust stock in our initial public offering and the concurrent private placement described above for a purchase price of $25.00 per share and an aggregate offering price of $665,250,000, following which the offering terminated. Our initial public offering was effected through a Registration Statement on Form S-1 (File No. 333-116244) that was declared effective by the SEC on December 16, 2004. Merrill Lynch, Pierce, Fenner & Smith Incorporated, Citigroup Global Markets Inc., Jeffries & Company, Inc., Legg Mason Wood Walker, Incorporated, Macquarie Securities (USA) Inc., RBC Capital Markets Corporation and Raymond James & Associates, Inc. were underwriters for the offering.
The following table describes the source and use of proceeds from our initial public offering from December 21, 2004 to December 31, 2004:
(1)
$3.2 million of these expenses were paid to Macquarie Securities (USA) Inc., an affiliate of ours.
(2)
$8 million of these expenses were paid to our Manager as a structuring fee under the terms of a management services agreement.
(3)
We purchased NACH, the parent company of Atlantic, from Macquarie Investment Holdings, Inc., an affiliate of ours. In addition, $9.4 million of the purchase price was paid to various members of the Macquarie Group in connection with advisory and debt arranging services, and bridge loan, hedging and equity underwritings.
(4)
We purchased AvPorts from an investment vehicle managed by a member of the Macquarie Group, an affiliate of ours. The purchase price above includes the acquisition of $12 million of subordinated debt and $266,000 in accrued interest.
(5)
We purchased Macquarie Parking from an investment vehicle managed by a member of the Macquarie Group. The purchase price above includes $30 million of inter-company loans to enable MAPC to acquire equity in other Macquarie Parking group companies.
(6)
We purchased MDEH, the parent company of Thermal Chicago and Northwind Aladdin, from Macquarie Investment Holdings, Inc. In addition, $6.6 million of the purchase price was paid to various members of the Macquarie Group in connection with advisory and debt arranging services, and bridge loan, hedging and equity underwritings.
(7)
We purchased CHL from an investment vehicle managed by a member of the Macquarie Group. The purchase price includes $919,000 paid to Macquarie Bank Limited in connection with foreign currency hedging arrangements.
(8)
We purchased our interest in MCG from a wholly owned subsidiary of Macquarie Bank Limited.
(9)
We purchased our interest in SEW, indirectly, from a wholly owned subsidiary of Macquarie Bank Limited. The purchase price includes $437,000 paid to Macquarie Bank Limited in connection with foreign currency hedging arrangements.
(10)
Included in cash on hand is $1 million to pre-fund compliance costs for Sarbanes-Oxley.
Subsequent to December 31, 2004, we used $21 million of the net proceeds of the offering to make an equity contribution to NACH to fund the acquisition of all of the membership interests in GAH, which owns two FBOs in California, and to fund related expenses.
Item 6.
Item 6. Selected Financial Data
The selected financial data represents the results of operations, cash flow and balance sheet data of NACH, which was deemed to be our predecessor. We have included the results of operations and cash flow data of NACH for the years ended December 31, 2001 through December 31, 2003, for the period from January 1, 2004 through July 29, 2004 and for the period July 30, 2004 through December 22, 2004. The period from December 23, 2004 through December 31, 2004 includes the results of operations and cash flow data for our businesses and investments from December 23 through December 31, 2004 and the results of the Company from April 13, 2004 through December 31, 2004. We have included the balance sheet data of NACH at December 31, 2003, and 2002 and the consolidated balance sheet data of the Company at December 31, 2004.
Item 7.
Item 7. Management’s Discussion and Analysis of Financial Condition and Results of Operations
The following discussion of the financial condition and results of operations of the company should be read in conjunction with the consolidated financial statements and the notes to those statements included elsewhere herein. This discussion contains forward-looking statements that involve risks and uncertainties and are made under the safe harbor provisions of the Private Securities Litigation Reform Act of 1995. Words such as “anticipates,” “expects,” “intends,” “plans,” “believes,” “seeks,” “estimates,” and similar expressions identify such forward-looking statements. Our actual results and timing of certain events could differ materially from those anticipated in these forward-looking statements as a result of certain factors, including, but not limited to, those set forth under “Risk Factors” in Part I, Item 1A. Unless required by law, we undertake no obligation to
update forward-looking statements. Readers should also carefully review the risk factors set forth in other reports and documents filed from time to time with the SEC.
GENERAL
The trust and the company were each formed on April 13, 2004. On December 21, 2004 we completed an initial public offering and concurrent private placement of shares of trust stock representing beneficial interests in the trust, with each share corresponding to one LLC interest in the company. We used an aggregate of $486 million, or 73%, of the proceeds of the offering and private placement to acquire our businesses and investments and to pay related acquisition expenses. We have included the results of our businesses in our results of operations since the dates of our respective acquisitions beginning December 23, 2004.
We own, operate and invest in a diversified group of infrastructure businesses, which are businesses that provide basic, everyday services, such as parking, roads and water, through long-life physical assets. We offer investors an opportunity to participate directly in the ownership of infrastructure businesses in the United States and other developed countries that traditionally have been owned by governments or private investors, or have formed part of vertically integrated companies. These infrastructure businesses operate in sectors with limited competition and high barriers to entry. As a result, they have sustainable and growing long-term cash flows. We operate and finance our businesses in a manner that maximizes these cash flows. We intend to make acquisitions complementary to our businesses and acquisitions in other attractive infrastructure sectors.
We are dependent upon cash distributions from our businesses and investments to meet our corporate overhead and management fee expenses and to pay dividends. We expect to receive dividends from our airport services business, airport parking business and district energy business through our directly owned holding company MIC Inc. for all of our businesses based in the United States. We will receive interest and principal on our subordinated loans to, and dividends from, our toll road business and dividends from our investments in MCG and SEW through directly owned holding companies that we have formed to hold our interest in each business and investment.
Distributions received from our businesses and investments by the above-mentioned directly owned subsidiaries of the company, net of any tax payable by these subsidiaries, will be available first to meet management fees and corporate overhead expenses of these subsidiaries, the company and the trust and then to fund dividend payments by the company to the trust and then to holders of trust stock. Base and performance management fees payable to our Manager will be allocated between the company and the directly owned subsidiaries based on the company’s internal allocation policy.
We intend to pursue a policy of paying regular distributions per share. Our dividend policy is based on the predictable and stable cash flows of our businesses and investments and on our intention to pay out as distributions to our shareholders the majority of our cash available for distributions and not to retain significant cash balances in excess of what is required as prudent reserves in our operating subsidiaries. We therefore intend to finance our acquisition strategy primarily through a combination of issuing new equity and incurring debt and not through retained earnings. We would expect new debt to be incurred either on a non-recourse basis at the operating business level, at the MIC Inc. level or, in limited circumstances, at the company level. If our strategy is successful, we would expect to increase the level of distributions we are able to make in the future.
We are exposed to currency fluctuations with respect to our toll road business (denominated in Pounds Sterling) and our investments in SEW (denominated in Pounds Sterling) and MCG (denominated in Australian dollars). The impact of currency fluctuations on our earnings and cash flows is discussed below under “Quantitative and Qualitative Disclosures about Market Risk” in Part II, Item 7A.
Item 7A. Quantitative and Qualitative Disclosures About Market Risk
Currency Risk
We are exposed to currency risk on cash flows we receive from our businesses and investments located outside of the United States and on the translation of earnings. Our current policy is not to hedge over the long term the currency risk associated with foreign currency denominated income and cash flows, due to the uncertain size and timing of the distributions we expect to receive. However, we may from time to time seek to hedge our currency risk for short to medium periods, up to two years at a time. We have hedged our currency exposures through 2006 through various forward contracts, which are described below.
Toll Road Business
Our cash flows are exposed to the impact of fluctuations in the Pound Sterling/U.S. dollar exchange rate on the interest income and dividends from Connect M1-A1 Limited and CHL, respectively. Based on the interest and dividends expected to be received in 2005 by Macquarie Yorkshire, a hypothetical 1% appreciation in the U.S. dollar against the Pound Sterling would reduce our interest income from Connect M1-A1 Limited by $18,000 per year and our dividends from CHL by $53,000 per year.
The principal payments we will receive on the subordinated loans are also denominated in Pounds Sterling and fluctuations in the Pound Sterling/U.S. dollar exchange rate will cause fluctuations in the actual cash we receive in U.S. dollars.
We have entered into various forward exchange contracts to hedge our exposure to the impact of Pound Sterling/U.S. dollar fluctuations on our expected 2005 and 2006 interest, principal and dividends for Macquarie Yorkshire. The forward exchange contract rates range from £0.5278 to £0.5378 per $1.00.
Investments in SEW and MCG
In relation to our investment in SEW, we are exposed to the impact of the Pound Sterling/U.S. dollar exchange rate on our dividend income. Based on our expected dividend income from SEW in 2005, a hypothetical 1% appreciation of the U.S. dollar against the Pound Sterling would reduce our dividend income and cash flows by $85,000 per year.
We have entered into various forward exchange contracts to hedge our exposure to the impact of Pound Sterling/U.S. dollar fluctuations on our expected 2005 and 2006 dividends from SEW. The forward exchange contract rates range from £0.5238 to £0.5385 per $1.00.
In relation to our investment in MCG, we are exposed to the impact of the Australian dollar/ U.S. dollar exchange rate on our dividend income. Based on our expected dividend income from MCG in 2005, a hypothetical 1% appreciation of the U.S. dollar against the Australian dollar would reduce our dividend income and cash flows prior to any withholding taxes by $40,000 per year.
We have entered into various forward exchange contracts to hedge our exposure to the impact of Australian dollar/U.S. dollar fluctuations on our expected 2005 and 2006 dividends from MCG. The forward exchange contract rates range from AU$1.3275 to AU$1.3516 per $1.00.
Interest Rate Risk
We are exposed to interest rate risk in relation to the borrowings of our businesses. Our current policy is to enter into derivative financial instruments to fix variable rate interest payments covering at least half of the interest rate risk associated with the borrowings of our businesses, subject to the requirements of our lenders. As of March 22, 2005, we have total debt outstanding at our consolidated businesses of $447.2 million. Of this total debt outstanding, $124.7 million is fixed rate and $322.5 million is floating. Of the $322.5 million of floating rate debt, $147.4 million is hedged with interest rate swaps, $126 million is hedged with an interest rate cap, and $49.1 million is unhedged.
Atlantic
The senior debt for Atlantic is held by NACH and comprises a partially amortizing $160.5 million floating rate facility maturing in 2011.
A 1% increase in the interest rate on the Atlantic debt would result in a $1.6 million increase in the interest cost per year. A corresponding 1% decrease would result in a $1.6 million decrease in interest cost per year.
Atlantic’s exposure to interest rate changes through the senior debt has been 75% hedged through the use of interest rate swaps. These hedging arrangements will partially offset any additional interest rate expense incurred as a result of increases in interest rates. However, if interest rates decrease, the value of our hedge instruments will also decrease. A 10% relative decrease in interest rates would result in a decrease in the fair market value of the hedge instruments of $2.2 million. A corresponding 10% relative increase would result in a $2.1 million increase in the fair market value.
AvPorts
AvPorts has a $36 million, non-amortizing, floating rate senior debt facility maturing in 2007.
The impact of a 1% movement in the interest rate on AvPorts’ debt results in a $360,000 increase in the interest cost per year. A corresponding 1% decrease results in a $360,000 decrease in interest cost per year.
AvPorts also has in place an interest rate swap with a notional amount of $27 million. This interest rate swap will partially offset any additional interest rate expense incurred as a result of increases in interest rates. However, if interest rates decrease, the value of our hedge instrument will also decrease. A 10% relative decrease in interest rates would result in a decrease in the fair market value of the interest rate swap of $278,000. A corresponding 10% relative increase would result in a $274,000 increase in the fair market value.
Macquarie Parking
Macquarie Parking has two senior debt facilities: a $126 million non-amortizing floating rate facility maturing in 2006, and a partially amortizing $4.7 million fixed rate facility maturing in 2009. Due to a requirement imposed by our lender we were unable to enter into any interest rate swap agreements in relation to the $126 million facility. Instead, we purchased an interest rate cap agreement at a base rate of LIBOR equal to 4.5% for a notional amount of $126 million for the term of the loan.
A 1% increase in the interest rate on the $126 million facility will increase the interest cost by $1.3 million per year. A 1% decrease in interest rates will result in a $1.3 million decrease in interest cost per year.
Macquarie Parking has a fixed rate exposure on the $4.7 million debt facility and therefore a 10% relative increase in interest rates will decrease the fair market value of the $4.7 million facility by $91,000. A 10% relative decrease in interest rates will result in a $93,000 increase in the fair market value.
In relation to the interest rate cap instrument, the 30-day LIBOR rate as at December 31, 2004 was 2.4056%, compared to our interest rate cap of a LIBOR rate of 4.5%. As interest rates are currently much lower than the interest rate cap, we are not currently receiving any payments under the cap.
Thermal Chicago/Northwind Aladdin
MDE, a subsidiary of MDEH and the direct holding company for Thermal Chicago and our interest in Northwind Aladdin, has issued $120 million of aggregate principal amount of fixed rate senior secured notes maturing December 31, 2023, with variable quarterly amortization commencing June 30, 2007. MDE has a fixed rate exposure on these notes and therefore a 10% relative increase in interest rates will result in a $6.5 million decrease in the fair market value of the notes. A 10% relative decrease in interest rates will result in a $7.1 million increase in the fair market value of the notes.
Connect M1-A1 Limited
We receive floating rate interest payments on Connect M1-A1 Limited’s senior subordinated loan. A 1% increase in the interest rate on this loan results in a £50,000 increase in the interest received per year. A 1% decrease in the interest rate results in a £50,000 decrease in the interest received per year.
We have an exposure to changes in interest rates through Connect M1-A1 Limited’s junior subordinated loan provided at a fixed rate by Macquarie Yorkshire. For a 10% increase in interest rates, the fair market value of this loan will decrease by £261,000. For a 10% decrease in interest rates, the fair market value will increase by £291,000.
Connect M1-A1 Limited has floating interest rate exposure on its commercial senior debt facility. For a 1% increase in the interest rate the interest cost will increase by £2 million per year. A 1% decrease will result in a decrease in the interest cost of £2 million per year.
The interest rate exposure on 70% of the commercial senior debt facility of Connect M1-A1 Limited has been hedged through a combination of five interest rate swaps. These interest swaps will partially offset any additional expense incurred as a result of an increase in interest rates. However, if interest rates decrease, the value of Connect M1-A1 Limited’s hedging instruments will also decrease. The fair market value of these interest rate swaps will decrease by £4.5 million in the event of a 10% decrease in interest rates. A 10% increase in interest rates will result in a £4.3 million increase in the fair market value.
Connect M1-A1 Limited has a fixed rate exposure on its European Investment Bank debt facility. A 10% increase in interest rates will result in a £3.3 million decrease in the fair market value of the facility. A 10% decrease in interest rates will result in a £3.5 million increase in the fair market value of the facility.
Item 8.
Item 8. Financial Statements and Supplementary Data
MACQUARIE INFRASTRUCTURE COMPANY TRUST
REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
The Stockholders of Macquarie Infrastructure Company Trust:
The Board of Directors of Macquarie Infrastructure Company LLC:
We have audited the accompanying consolidated balance sheet of Macquarie Infrastructure Company Trust (the “Trust”) as of December 31, 2004, and the related consolidated statements of operations, stockholders’ equity and comprehensive income, and cash flows for the period from April 13, 2004 (inception) to December 31, 2004. In connection with the audit of the consolidated financial statements, we have audited the related financial statement schedule. These consolidated financial statements and financial statement schedule are the responsibility of the Trust’s management. Our responsibility is to express an opinion on these consolidated financial statements and financial statement schedule based on our audit.
We conducted our audit in accordance with generally accepted auditing standards as established by the Auditing Standards Board (United States) and in accordance with the auditing standards of the Public Company Accounting Oversight Board (United States). Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the consolidated financial statements are free of material misstatements. The Company is not required to have, nor were we engaged to perform, an audit of its internal controls over financial reporting. Our audit included consideration of internal controls over financial reporting as a basis for designing audit procedures that are appropriate in the circumstances, but not for the purpose of expressing an opinion on the effectiveness of the Company’s internal controls over financial reporting. Accordingly, we express no such opinion. An audit includes examining, on a test basis, evidence supporting the amounts and disclosures in the financial statements. An audit also includes assessing the accounting principles used and significant estimates made by management, as well as evaluating the overall financial statement presentation. We believe that our audit provides a reasonable basis for our opinion.
In our opinion, the consolidated financial statements referred to above present fairly, in all material respects, the consolidated financial position of Macquarie Infrastructure Company Trust as of December 31, 2004 and the consolidated results of its operations and its cash flows for the period from April 13, 2004 (inception) to December 31, 2004, in conformity with accounting principles generally accepted in the United States of America. Also in our opinion, the related financial statement schedule, when considered in relation to the basic consolidated financial statements taken as a whole, presents fairly, in all material respects, the information set forth therein.
MACQUARIE INFRASTRUCTURE COMPANY TRUST
CONSOLIDATED BALANCE SHEET
($ in thousands, except per share amounts)
December 31, 2004
See accompanying notes to the consolidated financial statements.
MACQUARIE INFRASTRUCTURE COMPANY TRUST
CONSOLIDATED STATEMENT OF OPERATIONS
($ in thousands, except per share and shares outstanding)
April 13, 2004 (inception) to December 31, 2004
See accompanying notes to the consolidated financial statements.
MACQUARIE INFRASTRUCTURE COMPANY TRUST
CONSOLIDATED STATEMENT OF STOCKHOLDERS’ EQUITY AND COMPREHENSIVE INCOME
($ in thousands)
April 13, 2004 (inception) to December 31, 2004
See accompanying notes to the consolidated financial statements.
MACQUARIE INFRASTRUCTURE COMPANY TRUST
CONSOLIDATED STATEMENT OF CASH FLOWS
($ in thousands)
April 13, 2004 (inception) to December 31, 2004
See accompanying notes to the consolidated financial statements.
MACQUARIE INFRASTRUCTURE COMPANY TRUST
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
1. Organization and Description of Business
Macquarie Infrastructure Company Trust (the “Trust”), a Delaware statutory trust, was formed on April 13, 2004. Macquarie Infrastructure Company LLC (the “Company”), a Delaware limited liability company, was also formed on April 13, 2004. The Trust is the sole member of 100% of the LLC interests of the Company. Prior to December 16, 2004, the Trust was a wholly-owned subsidiary of Macquarie Infrastructure Management (USA) Inc., (“MIMUSA”). MIMUSA is a subsidiary of the Macquarie Group of companies, which is comprised of Macquarie Bank Limited and its subsidiaries and affiliates worldwide. Macquarie Bank Limited is headquartered in Australia and is listed on the Australian Stock Exchange.
The Trust and the Company were formed to own, operate and invest in a diversified group of infrastructure businesses in the United States and other developed countries. In accordance with the Trust Agreement, the Trust is the sole member of 100% of the LLC interests of the Company and, pursuant to the LLC Agreement, the Company will have outstanding the identical number of LLC interests as the number of outstanding shares of trust stock. The Company is the operating entity with a Board of Directors and other corporate governance responsibilities consistent with that of a Delaware corporation.
On December 21, 2004, the Trust and the Company completed its initial public offering (“IPO”) of 26,610,000 shares of trust stock at a price of $25.00 per share. Total gross proceeds were $665,250,000, before offering costs and underwriting fees of $51,984,849. MIMUSA purchased 2 million shares ($50 million) of the total shares outstanding, through a separate private placement offering. The majority of the proceeds were used to purchase and invest in infrastructure businesses.
On December 22, 2004 and December 23, 2004, the Company purchased the following companies:
(i) North America Capital Holding Company (“NACH”) - an airport service business that is an operator of 10 fixed-based operations or FBOs that provide fuel, de-icing, aircraft parking and other aviation services. The FBOs are located in various locations in the United States, with headquarters in Plano, Texas;
(ii) Macquarie Airports North America, Inc. ( “MANA”) - an airport service business that is an operator of 5 FBOs and 1 heliport that provides fuel, de-icing, aircraft parking, airport management, and other aviation services. The FBOs are located in the northeast and southern regions in the United States, with headquarters in Baltimore, Maryland;
(iii) Macquarie Americas Parking Corporation (“MAPC”) - an airport parking business that provides customers secure 24-hour parking close to airport terminals as well as ground transportation from the parking facilities to the airport terminals. The Company operates 24 off-airport parking facilities located at 15 airports throughout the United States and maintains its headquarters in Downey, California;
(iv) Macquarie District Energy Holdings, LLC (“MDEH”) - a business that provides chilled water services for cooling purposes to large office buildings located in Chicago, Illinois and to a major hotel located in Las Vegas, Nevada. MDEH maintains its headquarters in Chicago, Illinois; and
(v) Macquarie Yorkshire Limited (“MYL”) - an entity that owns a 50% interest in a tollroad located in the United Kingdom, pursuant to a concession agreement with the U.K. government.
Also, on December 22, 2004 the Company purchased an investment interest in an entity that operates a broadcasting tower network in Australia, and a utility company that provides water to households and industrial customers in southeastern England.
The airport services, airport parking and chilled water service businesses are owned by the Company’s wholly-owned subsidiary, Macquarie Infrastructure Company Inc. (“MIC Inc.”), a Delaware corporation that was formed on April 13, 2004. The investments and the business that operates a toll road are owned directly by the Company.
2. Summary of Significant Accounting Policies
Principles of Consolidation
The consolidated financial statements include the accounts of the Company and its wholly owned subsidiaries. All significant intercompany balances and transactions have been eliminated in consolidation. Except as otherwise specified, we refer to Macquarie Infrastructure Company LLC and its subsidiaries collectively as the “Company.” The Company consolidates investments where it has a controlling financial interest. The usual condition for a controlling financial interest is ownership of a majority of the voting interest and, therefore, as a general rule ownership, directly or indirectly, of over 50% percent of the outstanding voting shares is a condition for consolidation. For investments in variable interest entities, as defined by Financial Accounting Standards Board (FASB) Interpretation No. 46, Consolidation of Variable Interest Entities, the Company consolidates when it is determined to be the primary beneficiary of the variable interest entity. As of December 31, 2004, the Company was not the primary beneficiary of any variable interest entity in which it did not own a majority of the outstanding voting stock.
Use of Estimates
The preparation of our consolidated financial statements in conformity with GAAP requires us to make estimates and assumptions. These estimates and assumptions affect the reported amounts of assets and liabilities, the disclosure of contingent assets and liabilities at the date of the consolidated financial statements, and the reported amounts of revenues and expenses during the reporting period. We evaluate these estimates and judgments on an ongoing basis and base our estimates on experience, current and expected future conditions, third party evaluations and various other assumptions that we believe are reasonable under the circumstances. Significant items subject to such estimates and assumptions include the carrying amount of property equipment and leasehold improvements, intangibles, asset retirement obligations and goodwill; valuation allowances for receivables, inventories and deferred income tax assets; environmental liabilities; and valuation of derivative instruments. The results of these estimates form the basis for making judgments about the carrying values of assets and liabilities as well as identifying and assessing the accounting treatment with respect to commitments and contingencies. Actual results may differ from the estimates and assumptions used in the financial statements and related notes.
Cash Equivalents
The Company considers all highly liquid investments with a maturity of three months or less when purchased to be cash equivalents. Included in cash and cash equivalents at December 31, 2004 are U.S. Treasury bills of $76.3 million.
Restricted Cash
The Company classifies all cash pledged as collateral on the outstanding senior debt as restricted in the consolidated balance sheets. At December 31, 2004, the Company has recorded $16.8 million of cash pledged as collateral within other assets in the accompanying consolidated balance sheet. In addition, at December 31, 2004 the Company has classified $1.2 million as restricted cash in current assets relating to the debt of our 75% indirectly owned subsidiary, Northwind Aladdin LLC and to a credit facility requirement of MAPC.
Allowance for Doubtful Accounts
The Company uses estimates to determine the amount of the allowance for doubtful accounts necessary to reduce billed and unbilled accounts receivable to their net realizable value. The Company estimates the amount of the required allowance by reviewing the status of past-due receivables and analyzing historical bad debt trends. Actual collection experience has not varied significantly from estimates due primarily to credit policies and a lack of concentration of accounts receivable. The Company writes off receivables deemed to be uncollectible to the allowance for doubtful accounts. Accounts receivable balances are not collateralized.
Inventory
Inventory consists principally of jet fuel purchased from various third-party vendors. Inventory is stated at the lower of the first-in, first-out cost or market.
Property, Equipment, Land and Leasehold Improvements
Property, equipment, land and leasehold improvements are recorded at cost less accumulated depreciation. Major renewals and improvements are capitalized while maintenance and repair expenditures are charged to expense when incurred. We depreciate our property, equipment and leasehold improvements over their estimated useful lives. The economic useful lives range according to the below table:
Buildings
9 to 40 years
Leasehold and land improvements
3 to 40 years
Machinery and equipment
5 to 26 years
Furniture and fixtures
3 to 10 years
Goodwill and Intangible Assets
Goodwill consists of costs in excess of fair value of tangible and identifiable intangible net assets acquired in the purchase business combinations described in Note 3. Intangible assets acquired in the purchase business combinations include contractual rights, customer relationships, non-compete agreements, trade names, leasehold rights, domain names, and technology. The cost of intangible assets with determinable useful lives are amortized over their estimated useful lives ranging from 2 to 40 years.
Impairment of Long-lived Assets, Excluding Goodwill
Long-lived assets, including amortizable intangible assets, are reviewed for impairment whenever events or changes in circumstances indicate that the carrying amount of an asset or group of assets may not be fully recoverable. These events or changes in circumstances may include a significant deterioration of operating results, changes in business plans, or changes in anticipated future cash flows. If an impairment indicator is present, the Company evaluates recoverability by a comparison of the carrying amount of the assets to future undiscounted net cash flows expected to be generated by the assets. If the assets are impaired, the impairment recognized is measured by the amount by which the carrying amount exceeds the fair value of the assets. Fair value is generally determined by estimates of discounted cash flows. The discount rate used in any estimate of discounted cash flows would be the rate required for a similar investment of like risk.
Impairment of Goodwill
Goodwill is considered impaired when the carrying amount of a reporting unit’s goodwill exceeds its implied fair value, as determined under a two-step approach. The first step is to determine the estimated fair value of each reporting unit with goodwill. The reporting units of the Company for purposes of the impairment test are those components of operating segments for which discrete financial information is available and segment management regularly reviews the operating results of that component. Components are combined when determining reporting units if they have similar economic characteristics.
The Company estimates the fair value of each reporting unit by estimating the present value of the reporting unit’s future cash flows. If the recorded net assets of the reporting unit are less than the reporting unit’s estimated fair value, then no impairment is indicated. Alternatively, if the recorded net assets of the reporting unit exceed its estimated fair value, then goodwill is assumed to be impaired and a second step is performed. In the second step, the implied fair value of goodwill is determined by deducting the estimated fair value of all tangible and identifiable intangible net assets of the reporting unit from the estimated fair value of the reporting unit. If the recorded amount of goodwill exceeds this implied fair value, an impairment charge is recorded for the excess.
Debt Issuance Costs
The Company capitalizes all direct costs incurred in connection with the issuance of debt as debt issuance costs. These costs are amortized over the contractual term of the debt instrument, which ranges from 3 to 19 years.
Derivative Instruments
The Company accounts for derivatives and hedging activities in accordance with FASB Statement No. 133, Accounting for Derivative Instruments and Certain Hedging Activities, as amended, which requires that all derivative instruments be recorded on the balance sheet at their respective fair values.
On the date a derivative contract is entered into, the Company designates the derivative as either a hedge of the fair value of a recognized asset or liability or of an unrecognized firm commitment (fair value hedge), a hedge of a forecasted transaction or the variability of cash flows to be received or paid related to a recognized asset or liability (cash flow hedge), a foreign-currency fair-value or cash-flow hedge (foreign currency hedge), or a hedge of a net investment in a foreign operation. For all hedging relationships the Company formally documents the hedging relationship and its risk-management objective and strategy for undertaking the hedge, the hedging instrument, the item, the nature of the risk being hedged, how the hedging instrument’s effectiveness in offsetting the hedged risk will be assessed, and a description of the method of measuring ineffectiveness. This process includes linking all derivatives that are designated as fair-value, cash-flow, or foreign-currency hedges to specific assets and liabilities on the balance sheet or to specific firm commitments or forecasted transactions. The Company also formally assesses, both at the hedge’s inception and on an ongoing basis, whether the derivatives that are used in hedging transactions are highly effective in offsetting changes in fair values or cash flows of hedged items. Changes in the fair value of a derivative that is highly effective and that is designated and qualifies as a fair-value hedge, along with the loss or gain on the hedged asset or liability or unrecognized firm commitment of the hedged item that is attributable to the hedged risk, are recorded in earnings. Changes in the fair value of a derivative that is highly effective and that is designated and qualifies as a cash-flow hedge are recorded in other comprehensive income to the extent that the derivative is effective as a hedge, until earnings are affected by the variability in cash flows of the designated hedged item. Changes in the fair value of derivatives that are highly effective as hedges and that are designated and qualify as foreign-currency hedges are recorded in either earnings or other comprehensive income, depending on whether the hedge transaction is a fair-value hedge or a cash-flow hedge. However, if a derivative is used as a hedge of a net investment in a foreign operation, its changes in fair value, to the extent effective as a hedge, are recorded in the cumulative translation adjustments account within other comprehensive income. The ineffective portion of the change in fair value of a derivative instrument that qualifies as either a fair-value hedge or a cash-flow hedge is reported in earnings.
The Company discontinues hedge accounting prospectively when it is determined that the derivative is no longer effective in offsetting changes in the fair value or cash flows of the hedged item, the derivative expires or is sold, terminated, or exercised, the derivative is designated as a hedging instrument, because it is unlikely that a forecasted transaction will occur, a hedged firm commitment no longer meets the definition of a firm commitment, or management determines that designation of the derivative as a hedging instrument is no longer appropriate.
In all situations in which hedge accounting is discontinued, the Company continues to carry the derivative at its fair value on the balance sheet and recognizes any subsequent changes in its fair value in earnings. When hedge accounting is discontinued because it is determined that the derivative no longer qualifies as an effective fair-value hedge, the Company no longer adjusts the hedged asset or liability for changes in fair value. The adjustment of the carrying amount of the hedged asset or liability is accounted for in the same manner as other components of the carrying amount of that asset or liability. When hedge accounting is discontinued because the hedged item no longer meets the definition of a firm commitment, the Company removes any asset or liability that was recorded pursuant to recognition of the firm commitment from the balance sheet, and recognizes any gain or loss in earnings. When hedge accounting is discontinued because it is probable that a forecasted transaction will not occur, the Company recognizes immediately in earnings gains and losses that were accumulated in other comprehensive income.
Financial Instruments
The Company’s financial instruments, including cash and cash equivalents, accounts receivable, accounts payable, subordinated debt and variable rate senior debt are carried at cost, which approximates their fair value because of either the short-term maturity, or variable or competitive interest rates assigned to these financial instruments.
Concentrations of Credit Risk
Financial instruments that potentially expose the Company to concentrations of credit risk consist primarily of cash and cash equivalents and accounts receivable. The Company places its cash and cash equivalents with financial institutions and its balances may exceed federally insured limits. The Company’s accounts receivable are derived from fuel sales and services rendered under contract terms with commercial and private customers located primarily in the United States. There were no outstanding accounts receivable due from a single customer, which accounted for more than 10% of the total accounts receivable balance at December 31, 2004.
Additionally, no single customer accounted for more than 10% of the Company’s revenues during the period ending December 31, 2004.
Foreign Currency Translation
The Company’s foreign investments and unconsolidated businesses have been translated into U.S. dollars in accordance with FASB Statement No. 52, Foreign Currency Translation. All assets and liabilities have been translated using the exchange rate in effect at the balance sheet date. Statement of operations amounts have been translated using the average exchange rate for the period. Adjustments from such translation have been reported separately as a component of other comprehensive income in stockholders’ equity.
Earnings (Loss) Per Share
The Company calculates earnings per share in accordance with FASB Statement No. 128, Earnings Per Share. Accordingly, basic earnings per share is computed using the weighted average number of common and dilutive common equivalent shares outstanding during the period. Common equivalent shares consist of shares issuable upon the exercise of stock options (using the treasury stock method); common equivalent shares are excluded from the calculation if their effect is anti-dilutive.
Basic and diluted loss per share was computed on a weighted average basis from the period April 13, 2004 (inception) through December 31, 2004. The weighted average computation of 1,011,887 shares of trust stock outstanding was computed based on 100 shares outstanding for the period from April 13, 2004 through December 21, 2004 and 26,610,100 shares outstanding for the period from December 22, 2004 through December 31, 2004.
Comprehensive Income
The Company follows the requirements of FASB Statement No. 130, Reporting Comprehensive Income, for the reporting and display of comprehensive income and its components. FASB Statement No. 130 requires unrealized gains or losses on the Company’s available for sale securities, foreign currency translation adjustments and change in fair value of interest rate swaps to be included in other comprehensive income (loss).
Advertising
Advertising expenses incurred by our airport parking business will be expensed the first time the advertising takes place. Costs associated with direct response advertising programs may be prepaid and will be charged to expense once the printed materials are distributed to the public.
Revenue Recognition
In accordance with Staff Accounting Bulletin 104, Revenue Recognition, the Company recognizes revenues when persuasive evidence of an arrangement exists, delivery has occurred or services have been rendered, the seller’s price to the buyer is fixed and determinable, and collectibility is reasonably assured.
Airport Services Business
Revenue on fuel sales is recognized when the fuel has been delivered to the customer, collection of the resulting receivable is probable, persuasive evidence of an arrangement exists, and the fee is fixed or determinable. Fuel sales are recorded net of volume discounts and rebates.
Service revenues include certain fueling fees. The Company receives a fueling fee for fueling certain carriers with fuel owned by such carriers. In accordance with Emerging Issues Task Force (“EITF”) Issue 99-19, Reporting Revenue Gross as a Principal versus Net as an Agent, revenue from these transactions are recorded based on the service fee earned and does not include the cost of the carriers’ fuel.
Other FBO revenues consist principally of de-icing services, landing and fuel distribution fees as well as rental income for hangar and terminal use. Other FBO revenues are recorded as the services are rendered to the customer.
The Company also enters into management contracts to operate regional airports or aviation-related facilities. Management fees are recognized pro rata over the service period based on negotiated contractual terms. All costs incurred to perform under contracts are reimbursed entirely by the customer and are generally invoiced with the related management fee. As the Company is acting as an agent in these contracts, the amount invoiced is recorded net of the reimbursable costs.
Airport Parking Business
Parking lot revenue is recorded as services are performed, net of appropriate allowances and local taxes. For customer vehicles remaining at our facilities at year end, revenues for services performed were recorded in other receivables in the accompanying consolidated balance sheet based upon the value of unpaid parking revenues for customer vehicles.
The Company offers various membership programs for which customers pay an annual membership fee. The Company accounts for membership fee revenue on a “deferral basis” whereby membership fee revenue is recognized ratably over the one-year life of the membership. In addition, the Company also sells prepaid parking vouchers which can be redeemed for future parking services. Sales of prepaid vouchers are recorded as “deferred revenue” and recognized as parking revenue when redeemed in the future. The value of unearned membership revenue and prepaid vouchers has been included in deferred revenue in the accompanying consolidated balance sheet.
District Energy Business
Revenues from cooling capacity and consumption are recognized at the time of performance of service. Cash received from customers for services to be provided in the future are recorded as unearned revenue and recognized over the expected service period on a straight-line basis.
Income Taxes
MIC Inc., which is the holding company of the wholly-owned U.S. businesses, will file a consolidated U.S. federal income tax return. As a consequence, all of its direct and indirect U.S. subsidiaries will pay no U.S. federal income taxes, and all tax obligations will be incurred by MIC Inc. based on the consolidated U.S. federal income tax position of the U.S. businesses after taking into account deductions for management fees and corporate overhead expenses allocated to MIC Inc.
We do not expect that the U.S. holding companies for our interests in the toll road business, MCG or SEW will pay any U.S. federal income taxes, as each of these entities has elected to be disregarded as an entity separate from the Company for U.S. federal income tax purposes.
The Company uses the liability method in accounting for income taxes. Under this method, deferred income tax assets and liabilities are determined based on differences between financial reporting and tax bases of assets and liabilities and are measured using the enacted tax rates and laws that will be in effect when the differences are expected to reverse. Valuation reserves are recorded against deferred income tax assets due to the lack of operating history of the Company.
Recently Issued Accounting Standards
In December 2004, the FASB issued Statement No. 123 (revised 2004), Share-Based Payment, which addresses the accounting for transactions in which an entity exchanges its equity instruments for goods or services, with a primary focus on transactions in which an entity obtains employee services in share-based payment transactions. This Statement is a revision to Statement 123 and supersedes APB Opinion No. 25, Accounting for Stock Issued to Employees, and its related implementation guidance. For nonpublic companies, this Statement will require measurement of the cost of employee services received in exchange for stock compensation based on the grant-date fair value of the employee stock options. Incremental compensation costs arising from subsequent modifications of awards after the grant date must be recognized. This Statement will be effective for the Company as of July 1, 2005.
In December 2004, the FASB issued Statement No.151, Inventory Costs, which clarifies the accounting for abnormal amounts of idle facility expense, freight, handling costs, and wasted material (spoilage). Under this Statement, such items will be recognized as current-period charges. In addition, the Statement requires that allocation of fixed production overheads to the costs of conversion be based on the normal capacity of the production facilities. This Statement will be effective for the Company for inventory costs incurred on or after January 1, 2006.
In December 2004, the FASB issued Statement No. 153, Exchanges of Non-Monetary Assets, which eliminates an exception in APB 29 for nonmonetary exchanges of similar productive assets and replaces it with a general exception for exchanges of nonmonetary assets that do not have commercial substance. This Statement will be effective for the Company for nonmonetary asset exchanges occurring on or after January 1, 2006.
In June 2001, the FASB issued Statement No. 143, Accounting for Asset Retirement Obligations, which requires the Company to record the fair value of an asset retirement obligation as a liability in the period in which it incurs a legal obligation associated with the retirement of tangible long-lived assets that result from the acquisition, construction, development, and/or normal use of the assets. The Company also would record a corresponding asset that is depreciated over the life of the asset. Subsequent to the initial measurement of the asset retirement obligation, the obligation would be adjusted at the end of each period to reflect the passage of time and changes in the estimated future cash flows underlying the obligation. The Company was required to adopt Statement 143 on January 1, 2003. As of December 31, 2004 the Company has recorded $3.1 million of asset retirement obligations on the Company’s consolidated financial statements.
In May 2003, the FASB issued Statement No. 150, Accounting for Certain Financial Instruments with Characteristics of both Liabilities and Equity. This Statement establishes standards for the classification and measurement of certain financial instruments with characteristics of both liabilities and equity. The Statement also includes required disclosures for financial instruments within its scope. For the Company, the Statement was effective for instruments entered into or modified after May 31, 2003 and otherwise became effective as of January 1, 2004, except for certain mandatory redeemable financial instruments. For certain mandatory redeemable financial instruments, the Statement will be effective for the Company on January 1, 2005. The effective date has been deferred indefinitely for certain other types of mandatory redeemable financial instruments. The Company currently does not have any financial instruments that are within the scope of this Statement.
In December 2003, the FASB issued Statement No. 132R (revised), Employers’ Disclosures about Pensions and Other Postretirement Benefits. Statement 132 (revised) prescribes employers’ disclosures about pension plans and other postretirement benefit plans; it does not change the measurement or recognition of those plans. The Statement retains and revises the disclosure requirements contained in the original Statement 132. It also requires additional disclosures about the assets, obligations, cash flows, and net periodic benefit cost of defined benefit pension plans and other postretirement benefit plans. The new annual disclosure requirements became effective for the Company as of the year ended December 31, 2004.
In December 2003, the FASB issued FASB Interpretation No. 46R (revised December 2003), Consolidation of Variable Interest Entities, which addresses how a business enterprise should evaluate whether it has a controlling financial interest in an entity through means other than voting rights and accordingly should consolidate the entity. The Company applies FIN 46R to variable interests in VIEs created after December 31, 2003. For variable interests in VIEs created before January 1, 2004, the Interpretation will be applied beginning on January 1, 2005. For any VIEs that must be consolidated under FIN 46R that were created before January 1, 2004, the assets, liabilities and noncontrolling interests of the VIE initially would be measured at their carrying amounts with any difference between the net amount added to the balance sheet and any previously recognized interest being recognized as the cumulative effect of an accounting change. If determining the carrying amounts is not practicable, fair value at the date FIN 46R first applies may be used to measure the assets, liabilities and noncontrolling interest of the VIE.
The Company has evaluated the impact of applying FIN 46R and concluded that there is no impact on its financial statements.
3. Acquisition of Consolidated Businesses
We used the proceeds from our initial public offering to acquire our consolidated businesses for cash from the Macquarie Group or from infrastructure investment vehicles managed by the Macquarie Group.
The businesses described below have been accounted for under the purchase method of accounting. The initial purchase price allocation may be adjusted within one year of the purchase date for changes in estimates of the fair value of assets acquired and liabilities assumed.
The estimated fair value of assets acquired and liabilities assumed that were accounted for as a business combination relating to the acquisitions are summarized below (in thousands):
Acquisition of North America Capital Holding Company (“NACH”)
On December 22, 2004, our wholly owned subsidiary, MIC Inc., acquired 100% of the ordinary shares in NACH for a total of $118.2 million (including transaction costs), plus $130 million of assumed senior debt from Macquarie Investment Holdings Inc., a wholly owned indirect subsidiary of Macquarie Bank Limited. Included in the purchase price was a fee paid to the Macquarie group of approximately $7.4 million, representing capital charges. These charges are defined as the required return on equity by the Macquarie Group for the period from July 29, 2004 through the acquisition date.
On July 29, 2004, NACH acquired 100% of the shares of Executive Air Support, Inc. (“EAS”) for approximately $223 million. Prior to December 22, 2004, NACH paid fees to the Macquarie Group of approximately $10.3 million for advisory and debt arranging services, and services in connection with hedging and equity underwriting facilities provided in connection with the acquisition of EAS. In addition, NACH paid interest and letter of credit fees of $1.6 million to the Macquarie Group in relation to a bridge loan facility utilized to fund a portion of the acquisition of EAS until permanent debt financing was established.
The acquisition has been accounted for under the purchase method of accounting. The results of operations of NACH are included in the accompanying consolidated financial statements since December 22, 2004. The acquisition of NACH resulted in the company assuming the existing income tax bases of the predecessor. In accordance with FASB Statement No. 141, a deferred tax liability was recorded to reflect the increase in the financial accounting bases of the assets acquired over the carryover income tax basis.
The allocation of the purchase price, including transaction costs, was as follows (in thousands):
The Company paid more than the fair value of the underlying net assets as a result of the expectation of its ability to earn a higher rate of return from the acquired business than would be expected if those net assets had to be acquired or developed separately. The value of the acquired intangible assets was determined by taking into account risks related to the characteristics and applications of the assets, existing and future markets and analyses of expected future cash flows to be generated by the business. The airport contract rights are being amortized on a straight-line basis over their useful lives ranging from 20 to 40 years. The weighted average amortization period of the contractual agreements is approximately 38.8 years. The Company expects that goodwill recorded will not be deductible for income tax purposes.
The Company allocated $3.6 million of the purchase price to customer relationships in accordance with EITF 02-17, “Recognition of Customer Relationship Intangible Assets Acquired in a Business Combination.” The Company will amortize the amount allocated to customer relationships over a 5 year period.
Acquisition of Macquarie Airports North America, Inc. (“MANA”)
On December 22, 2004, MIC Inc. acquired 100% of the ordinary shares of Macquarie Airports North America Inc., or MANA, the holding company for AvPorts, for $30.4 million (including transaction costs), from Macquarie Specialised Asset Management Limited, as Trustee for and on behalf of Macquarie Global Infrastructure Funds A and C, and Macquarie Specialised Asset Management 2 Limited, as Trustee for and on behalf of Macquarie Global Infrastructure Funds B and D, or GIF, an investment vehicle managed by the Macquarie Group. Long-term bank debt of $36 million was also assumed in the transaction. In addition, MIC Inc. acquired the subordinated debt and accrued interest of MANA, at par from GIF for $12.2 million. This amount has been eliminated in the consolidated balance sheet.
The MANA and the NACH acquisitions enabled the Company to enter the aviation services market as an established competitor with an existing customer base and corporate infrastructure. The acquisition has been accounted for under the purchase method of accounting. The results of operations of MANA are included in the accompanying consolidated financial statements since December 22, 2004. The acquisition of MANA resulted in the Company assuming the existing income tax basis of the predecessor. In accordance with FASB Statement No. 141, a deferred tax liability was recorded to reflect the increase in the financial accounting bases of the assets acquired over the carryover income tax basis.
The allocation of the purchase price, including transaction costs, was as follows (in thousands):
The Company paid more than the fair value of the underlying net assets as a result of the expectation of its ability to earn a higher rate of return from the acquired business than would be expected if those net assets had to be acquired or developed separately. The value of the acquired intangible assets was determined by taking into account risks related to the characteristics and applications of the assets, existing and future markets and analyses of expected future cash flows to be generated by the business. The airport contract rights are being amortized on a straight-line basis over their useful lives ranging from 10 to 40 years. The weighted average amortization period of the contractual agreements is approximately 30.9 years. The Company expects that goodwill recorded will not be deductible for income tax purposes.
Acquisition of Macquarie Americas Parking Corporation (“MAPC”)
On December 23, 2004, MIC Inc. acquired 100% of the ordinary shares of Macquarie Americas Parking Corporation (“MAPC”) for $33.8 million. MAPC concurrently acquired 100% of the capital stock of Seacoast Holdings (PCAA), Inc. and 35.3% of the membership interests of PCAA Parent, LLC for a total purchase price of $30 million. The Company funded the acquisition of Seacoast Holdings (PCAA) Inc. and the membership interests of PCAA Parent LLC with a shareholder loan to MAPC. This loan eliminates upon consolidation. The total purchase price to the Company was $63.8 million. Included in the minority interest payment was consideration paid of approximately $1 million to Macquarie Securities (USA), Inc, a wholly owned indirect subsidiary of Macquarie Bank Limited to acquire 1.4% of PCAA Parent, LLC. The acquisition has been accounted for under the purchase method of accounting. The results of operations of MAPC are included in the accompanying consolidated financial statements since December 23, 2004. The acquisition of MAPC resulted in the Company assuming the existing income tax basis of the predecessor. In accordance with FASB Statement No. 141, a deferred tax liability was recorded to reflect the increase in the financial accounting bases of the assets acquired over the carryover income tax basis.
The allocation of the purchase price, including transaction costs, was as follows (in thousands):
The Company paid more than the fair value of the underlying net assets as a result of the expectation of its ability to earn a higher rate of return from the acquired business than would be expected if those net assets had to be acquired or developed separately. The value of the acquired intangible assets was determined by taking into account risks related to the characteristics and applications of the assets, existing and future markets and analyses of expected future cash flows to be generated by the business. The Company expects that goodwill recorded will not be deductible for income tax purposes.
The Company allocated $6.4 million of the purchase price to customer relationships in accordance with EITF 02-17, “Recognition of Customer Relationship Intangible Assets Acquired in a Business Combination.” The Company will amortize the amount allocated to customer relationships over an 8 year period.
Acquisition of Macquarie District Energy Holdings, LLC (“MDEH”)
On December 22, 2004, MIC Inc. acquired 100% of the membership interests in Macquarie District Energy Holdings, LLC, or (“MDEH”), for $67 million (including transaction costs), from Macquarie Investment Holdings Inc., a wholly owned indirect subsidiary of Macquarie Bank Limited. Included in the purchase price was a fee paid to the Macquarie group of approximately $4.7 million, representing capital charges. These charges are defined as the required return on equity by the Macquarie Group for the period from June 30, 2004 through the acquisition date.
Prior to our acquisition, on June 30, 2004 Macquarie District Energy Inc (“MDE”), a wholly owned subsidiary of MDEH, acquired 100% of the shares in Thermal Chicago Corporation, the holding company for the Thermal Chicago business, from Exelon Thermal Holdings, Inc., a subsidiary of Exelon Corporation, for $135 million plus working capital adjustments of $2.7 million, with no assumption of debt. In addition, on September 29, 2004, MDE acquired 100% of the shares in ETT Nevada, Inc., the owner of a 75% interest in Northwind Aladdin and all of Northwind Aladdin’s senior debt (which had an outstanding principal balance of $19.3 million as at June 30, 2004) from Exelon Thermal Holdings, Inc. for $26.1 million plus working capital adjustments of $2 million. MDE paid fees of approximately $6.6 million to the Macquarie Group for advisory and debt arranging services and equity underwriting facilities provided in connection with the acquisitions. MDE also paid interest and letter of credit fees of $887,000 to the Macquarie Group in relation to a bridge loan facility utilized to fund a portion of the acquisition of Thermal Chicago until permanent debt financing was established. On September 29, 2004 MDE borrowed $120 million through the issuance of senior secured notes in a private placement.
Prior to MDE’s issuance of senior secured notes in a private placement, MDEH entered into an interest rate swap transaction with the Macquarie Group with a notional principal amount of $47.5 million to hedge against increases in long-term interest rates. This hedge was terminated in September 2004 upon issuance of the notes. Both the execution and termination of the swap occurred at market rates. Due to downward movements in market interest rates, MDEH was required to pay the Macquarie Group $2.2 million to terminate the swap.
The acquisition has been accounted for under the purchase method of accounting. The results of operations of MDEH are included in the accompanying consolidated financial statements since December 22, 2004. The acquisition of MDEH resulted in the Company assuming the existing income tax basis of the predecessor. In accordance with FASB Statement No. 141, a deferred tax liability was recorded to reflect the increase in the financial accounting bases of the assets acquired over the carryover income tax basis.
The allocation of the purchase price, including transaction costs, was as follows (in thousands):
The Company paid more than the fair value of the underlying net assets as a result of the expectation of its ability to earn a higher rate of return from the acquired business than would be expected if those net assets had to be acquired or developed separately. The value of the acquired intangible assets was determined by taking into account risks related to the characteristics and applications of the assets, existing and future markets and analyses of expected future cash flows to be generated by the business. The Company expects that goodwill recorded will not be deductible for income tax purposes.
The Company allocated $14.5 million of the purchase price to customer relationships in accordance with EITF 02-17, “Recognition of Customer Relationship Intangible Assets Acquired in a Business Combination.” The Company will amortize the amount allocated to customer relationships over a weighted average 12.8 year period.
The following unaudited pro forma data summarizes the results of operations for the year ended December 31, 2004 as if acquisitions of consolidated businesses had been completed as of January 1, 2004. The pro forma data give effect to actual operating results prior to the acquisitions and adjustments to interest expense, amortization, depreciation and income taxes. No effect has been given to cost reductions or operating synergies in this presentation. These pro forma amounts do not purport to be indicative of the results that would have actually been achieved if the acquisitions had occurred as of the beginning of the periods presented or that may be achieved in the future. The pro-forma information shown below only includes the acquisitions of our consolidated businesses.
4. Equity Investment in Toll Road Business
On December 22, 2004, our wholly owned subsidiary, Macquarie Yorkshire LLC, acquired 100% of Macquarie Yorkshire Limited (“MYL”), or Macquarie Yorkshire, for $84.7 million (including transaction costs) from Macquarie European Infrastructure plc, an entity that is a member of the Macquarie Infrastructure Group. Macquarie Yorkshire owns 50% of Connect M1-A1 Holdings Ltd., (“CHL”), which in turn owns 100% of Connect M1-A1 Limited. Connect M1-A1 Limited is the holder of the Yorkshire Link concession, a highway of approximately 19 miles located south of Wetherby, England.
The investment in CHL has been accounted for under the equity method of accounting. In addition to the equity investment in CHL, Macquarie Yorkshire has recorded a loan from Connect M1-A1 Limited with an estimated fair value of $19.4 million at December 22, 2004, loans to Connect M1-A1 Limited with an estimated fair value of $21.8 million at December 22, 2004, cash of $300,000, and restricted cash of $1.9 million at December 22, 2004. These balances have been recorded to the accompanying consolidated balance sheet.
For the period from December 22, 2004 through December 31, 2004, the Company has recorded an equity loss in investee of $389,000, swap expense of $38,000 and net interest income of $26,000. In addition, at December 31, 2004, the Company recorded an unrealized loss in foreign currency translation of $469,000. This unrealized loss has been recorded as an adjustment to other comprehensive income.
5. Investment in MCG
On December 22, 2004, our wholly owned subsidiary, Communications Infrastructure LLC acquired 16,517,413 shares (representing approximately 4%) of the stapled securities issued by Macquarie Infrastructure Communications Group (“MCG”) for an aggregate purchase price of $70 million in an at-the-market transaction from Macquarie Investments Australia Pty Limited, a member of the Macquarie Group.
MCG is a public investment vehicle managed by an affiliate of the Macquarie Group. MCG’s sole investment at December 31, 2004 is its 100% ownership of Broadcast Australia Pty Limited, which operates approximately 600 transmission tower sites in Australia. In January 2005 MCG completed its purchase of a 54% interest in ntl:Broadcast, which operates approximately 3,000 transmission towers in the United Kingdom. The Company’s investment in MCG has been recorded as securities available for sale in the accompanying consolidated balance sheet.
At December 31, 2004 the fair value of the MCG investment was $71.3 million. The Company recorded an unrealized gain in foreign currency translation of $1.5 million, offset in part by an unrealized loss in the investment of $0.2 million. This net gain has been recorded as an adjustment to other comprehensive income.
6. Investment in SEW
On December 22, 2004, our wholly owned subsidiary, South East Water LLC, subscribed for 17.5% of the ordinary shares and preferred equity certificates, or PECs, of Macquarie Luxembourg Water SarL, or Macquarie Luxembourg, for approximately $39.6 million from Macquarie Luxembourg. Macquarie Luxembourg used the proceeds of the subscription to acquire 9,712,500 shares in Macquarie Water (U.K.) Limited, or Macquarie Water. Macquarie Water is the indirect holding company for South East Water (“SEW”).
SEW is a regulated utility located in southeastern England that is the sole provider of water to approximately 600,000 households and industrial customers. This investment has been recorded as a noncurrent investment to the accompanying consolidated balance sheet and is accounted for under the cost method of accounting. At December 31, 2004, the Company recorded an unrealized loss in foreign currency translation of $0.2 million on this investment. This loss has been recorded as an adjustment to other comprehensive income.
7. Direct Financing Lease Transactions
The Company has entered into energy service agreements containing provisions to lease certain equipment to customers. Under these agreements, title to the leased equipment will transfer to the customer at the end of the lease terms, which range from 5 to 25 years. The lease agreements are accounted for as direct financing leases. The components of the Company’s consolidated net investments in direct financing leases at December 31, 2004 is as follows (in thousands):
Unearned financing lease income is recognized over the terms of the leases. Minimum lease payments to be received by the Company total approximately $98 million as follows (in thousands):
8. Property, Equipment, Land and Leasehold Improvements
Property, equipment, land and leasehold improvements at December 31, 2004 consist of the following (in thousands):
9. Intangible Assets
Intangible assets at December 31, 2004 consists of the following (in thousands):
Aggregate amortization expense of intangible assets for the period April 13, 2004 through December 31, 2004 totaled $281.
The estimated amortization expense for intangible assets to be recognized for the years ending December 31 is as follows (in thousands): 2005 - $11,007; 2006 - $10,980; 2007 - $9,835; 2008 - $8,621; 2009 - $8,533 and thereafter - $169,008.
10. Accrued Expenses
Accrued expenses at December 31, 2004 are comprised of the following (in thousands):
11. Long-term Debt
The Company capitalizes its operating businesses separately using non-recourse, project finance style debt. The Company currently has no indebtedness at the MIC LLC, Trust or MIC Inc. level.
At December 31, 2004 our consolidated long-term debt consists of the following (in thousands):
At December 31, 2004, future maturities of long-term debt are as follows (in thousands):
(a) MDEH
On September 29, 2004, MDE, the wholly owned subsidiary of MDEH borrowed $120 million under a series of senior secured notes (“MDE Senior Notes”) with various financial institutions. The proceeds of the MDE Senior Notes were used to repay the previously outstanding Bridge Facility, finance the acquisition by MDE of Northwind Aladdin and pay certain transaction costs associated with these transactions.
The MDE Senior Notes consist of two notes payable:
1) $100 million, with fixed interest at 6.82%.
2) $20 million, with fixed interest at 6.40%.
The MDE Senior Notes are secured by all the assets of MDE and its subsidiaries, excluding the assets of Northwind Aladdin. MDE has further reserved $4.1 million to support its debt services, which is included in restricted cash in the accompanying consolidated balance sheet. The MDE Senior Notes are due in 2023, with principal repayments of the MDE Senior Notes starting in the quarter ending December 31, 2007.
In addition, MDE entered into a $20 million three year revolving credit facility with a financial institution that may be used to fund capital expenditures, working capital or to provide letters of credit. As of December 31, 2004, MDE has issued three separate letters of credit totaling $7.2 million against this facility in the favor of the City of Chicago.
Debt arranging fees of $600,000 were paid to MSUSA, a related party, by MDE prior to our acquisition of MDEH, and are included in deferred financing costs. These costs are amortized over the life of the long-term debt.
(b) NACH
The acquisition of EAS by NACH on July 29, 2004 was partially financed with a $130 million bridge loan facility provided by the Macquarie Group. On October 21, 2004, NACH refinanced its bridge loan facility by borrowing $130 million under a new credit facility (“Term Facility”) maturing on October 21, 2011.
The Term Facility originally consisted of two tranches:
1) Tranche A - $25 million at LIBOR plus 2.25%.
2) Tranche B - $105 million at LIBOR plus 3.00%.
Principal repayments with respect to Tranche A will commence in 2007 however an early repayment of $1.5 million was made on December 31, 2004. Tranche B is payable at maturity. A syndicate of three banks, including Macquarie Bank Limited, granted the Term Facility. Under the terms of the Term Facility, 100% of available cash flows of NACH and its subsidiaries must be applied to the repayment of the Term Facility during the last two years of the debt. The Term Facility is secured by all of the assets and stock of NACH and its subsidiaries and is non-recourse to the Company and its other subsidiaries. NACH has also provided a six-month debt service reserve of $3.9 million as security. This reserve is included in restricted cash on our accompanying consolidated balance sheet at December 31, 2004.
In addition to the Term Facility, NACH has entered into a $3 million, two-year revolving credit facility with a bank that may be used to fund working capital requirements or to provide letters of credit. This facility ranks equally with the Term Facility. As of December 31, 2004, $700,000 of this facility has been utilized to provide letters of credit pursuant to certain FBO leases.
The Macquarie Group has provided $52 million of the Term Facility. Interest paid on the Macquarie Group’s portion of this loan for the period December 23, 2004 through December 31, 2004 was $63,000 and has been included in interest expense in the accompanying consolidated statement of operations. Financing costs of $520,000 were paid by NACH in October 2004 to the Macquarie Group in relation to this loan and are included in deferred financing costs. The deferred financing costs are amortized over the life of the long-term debt.
In addition, debt arranging fees of $650,000 were paid to MSUSA, a related party, prior to our acquisition of NACH and are included in deferred financing costs on the accompanying consolidated balance sheet. These costs are amortized over the life of the long-term debt.
(c) MANA
In November 2002, to finance the acquisition of certain assets and liabilities of MANA, a $36 million senior debt facility was issued to a European bank. The debt accrues interest at either the Eurodollar rate or at the Company’s option, the 30, 60 or 180-day LIBOR plus a margin of 1.875%, increasing to a margin of 2.25% in 2006. Interest only payments are to be made quarterly with the principal balance due in full in November 2007. Borrowings under the debt facility are secured by all assets as well as pledged stock of MANA and its subsidiaries. A debt service reserve of $1.25 million is included in restricted cash on our accompanying consolidated balance sheet at December 31, 2004.
(d) MAPC
On October 1, 2003, MAPC, through its controlled subsidiaries, (“PCA Group”), entered into a $126 million credit facility (the “Facility”) with GMAC Commercial Mortgage Corporation. The proceeds of the Facility were used to repay previously outstanding long-term debt and fund the Avistar acquisition. The Facility is secured by all the assets of the PCA Group. In addition, guarantees of $1 million have been made by two members of MAPC. The Facility matures on October 1, 2006, but may be extended at the option of the Company for up to two additional years. MAPC is required to maintain reserves equal to $5.7 million at December 31, 2004, which is included in restricted cash in the accompanying consolidated balance sheet. The Facility bears interest at the floating base rate (defined as the one month LIBOR), plus 3.44% and is payable monthly in arrears.
In addition, MAPC entered into a separate $4.75 million credit facility (the “O’Hare Facility”) with GMAC Commercial Mortgage Corporation in order to purchase certain property in Chicago, Illinois. The O’Hare Facility is secured by all the assets of PCAA Chicago, LLC. The O’Hare Facility matures on January 1, 2009, bears interest at 5.3% and requires monthly payment of principal and interest in the amount of $28,675.
All of the term debt described above contain customary financial covenants including maintaining or exceeding certain financial ratios, and limitations on capital expenditures and additional debt. In addition, the Company has entered into swap agreements for the NACH, MANA, and MAPC debt (see Note 12).
12. Derivative Instruments and Hedging Activities
The Company has interest-rate related and foreign-exchange related derivative instruments to manage its interest rate exposure on its debt instruments, and to manage its exchange rate exposure on its future cash flows from its non-US investments. In addition, the Company used foreign exchange option contracts to acquire its stake in Macquarie Yorkshire Limited and its investment in South East Water. The Company does not enter into derivative instruments for any purpose other than interest rate hedging or cash-flow-hedging purposes. That is, the Company does not speculate using derivative instruments.
By using derivative financial instruments to hedge exposures to changes in interest rates and foreign exchange rates, the Company exposes itself to credit risk and market risk. Credit risk is the failure of the counterparty to perform under the terms of the derivative contract. When the fair value of a derivative contract is positive, the counterparty owes the Company, which creates credit risk for the Company. When the fair value of a derivative contract is negative, the Company owes the counterparty and, therefore, it does not possess credit risk. The Company minimizes the credit risk in derivative instruments by entering into transactions with high-quality counterparties.
Market risk is the adverse effect on the value of a financial instrument that results from a change in interest rates or currency exchange rates. The market risk associated with interest rate is managed by establishing and monitoring parameters that limit the types and degree of market risk that may be undertaken.
Anticipated future cash flows
The Company entered into foreign exchange forward contracts for its anticipated cash flows in order to hedge the market risk associated with fluctuations in foreign exchange rates. The forward contracts limit the unfavorable effect that foreign exchange rate changes will have on cash flows. All of the Company’s forward contracts relating to anticipated future cash flows have been designated as cash flow hedges. The maximum term over which the Company is currently hedging exposures to the variability of foreign exchange rates is 24 months.
Changes in the fair value of forward contracts designated as cash flow hedges that effectively offset the variability of cash flows associated with anticipated distributions are reported in other comprehensive income. These amounts subsequently are reclassified into other expense when the contract is expired or executed. During the period December 22, 2004 through December 31, 2004, the Company recognized a comprehensive loss of $286,000, relating to foreign exchange forward contracts for anticipated cash flows. These amounts have not been recorded net of income taxes since the underlying income of the investments are not subject to tax.
Debt Obligations
The Company has in place variable-rate debt. The debt obligations expose the Company to variability in interest payments due to changes in interest rates. Management believes that it is prudent to limit the variability of a portion of its interest payments. To meet this objective, management enters into interest rate swap agreements to manage fluctuations in cash flows resulting from interest rate risk. These swaps change the variable-rate cash flow exposure on the debt obligations to fixed cash flows. Under the terms of the interest rate swaps, the Company receives variable interest rate payments and makes fixed interest rate payments, thereby creating the equivalent of fixed-rate debt for the portion of the debt that is swapped.
Changes in the fair value of interest rate swaps designated as hedging instruments that effectively offset the variability of cash flows associated with variable-rate, long-term debt obligations are reported in other comprehensive income. These amounts subsequently are reclassified into interest expense as a yield adjustment of the hedged interest payments in the same period in which the related interest affects earnings. In accordance with FASB Statement No. 133, the Company concluded that the interest rate swaps qualify as cash flow hedges bearing no ineffectiveness at inception. The Company anticipates the hedges to remain perfectly effective on an ongoing basis because the critical terms of the interest rate swaps and the hedged debt obligations are expected to coincide throughout the term of the interest rate swaps. During the period December 22, 2004 through December 31, 2004, the Company recognized comprehensive income, net of income taxes of $287,000 relating to the fair value of interest rate swaps of future debt payments. The total fair value of interest rate swaps for future debt payments at December 31, 2004 is an asset balance of $723,659, and is included in other long-term assets in the accompanying consolidated balance sheet. The term over which the Company is currently hedging exposures relating to debt is through October 2009.
Non-US Acquisitions
The Company used foreign exchange option contracts to hedge the purchase prices of its acquisitions of Macquarie Yorkshire and SEW. The Company recognized an expense of approximately $56,000 relating to these hedge contracts and has recorded these amounts as interest expense to the accompanying consolidated statement of operations.
13. Notes Payable and Capital Leases
The Company has existing notes payable with various finance companies for the purchase of equipment. The notes are secured by the equipment and require monthly payments of principal and interest. The Company also leases certain equipment under capital leases. The following is a summary of the maturities of the notes payable and the future minimum lease payments under capital leases, together with the present value of the minimum lease payments, as of December 31, 2004 (in thousands):
The net book value of equipment under capital lease at December 31, 2004 was $3,486.
14. Stockholders’ Equity
The Trust is authorized to issue 500,000,000 shares of trust stock, and the Company is authorized to issue a corresponding number of LLC interests. Unless the Trust is dissolved, it must remain the sole holder of 100% of the Company’s LLC interests and, at all times, the Company will have the identical number of LLC interests outstanding as shares of trust stock. Each share of trust stock represents an undivided beneficial interest in the Trust, and each share of trust stock corresponds to one underlying LLC interest in the Company. Each outstanding share of the trust stock is entitled to one vote for each share on any matter with respect to which members of the Company are entitled to vote.
On December 15, 2004 our board of directors and stockholders adopted the Company’s independent director equity plan, which provides for automatic, non-discretionary awards of director stock units as an additional fee for the independent directors’ services on the board. The purpose of this plan is to promote the long-term growth and financial success of the Company by attracting, motivating and retaining independent directors of outstanding ability. Only the Company’s independent directors may participate in the plan.
On the date of each annual meeting, each director will receive a grant of stock units equal to $150,000 divided by the fair market value of one share of trust stock as of the date of each annual meeting of the trust’s stockholders. The stock units vest, assuming continued service by the director, on the date immediately preceding the next annual meeting of the Company’s stockholders.
Upon the completion of our offering on December 21, 2004, each independent director was granted 2,548 stock units, for a total of 7,644 stock units. These stock units, which equal $150,000 divided by the initial public offering price of $25.00 per share and on a pro rata basis relating to the period from the closing of the offering through the anticipated date of our first annual meeting of stockholders, vests on the day immediately preceding our annual meeting of the Company’s stockholders. The compensation expense related to this grant for 2004 (in accordance with Accounting Principles Board Opinion No. 25, Accounting for Stock Issued to Employers, as interpreted), did not have a significant effect on operations.
15. Reportable Segments
The Company’s operations are classified into four reportable business segments: Airport Services Business- Atlantic, Airport Services Business- AvPorts, Airport Parking Business, and District Energy Business. All of the business segments are managed separately.
The reportable segments of Airport Services Business- Atlantic and Airport Services Business- AvPorts principally derive income from fuel sales and from airport services. Airport services revenue includes management fees, de-icing services, and other related airport services. All of the revenues of the airport services businesses are derived in the United States. The Atlantic business operates 10 FBOs and the AvPorts business operates 5 FBOs , 1 heliport and manages 5 airports under management contracts.
The revenues from the Airport Parking Business reportable segment are included in service revenues and primarily consist of off-site airport parking services, transportation services and airport related hotel transportation services. The Company operates or leases 24 off-airport parking locations located in California, Arizona, Colorado, Texas, Georgia, Tennessee, Missouri, Pennsylvania, Connecticut, New York, New Jersey and Illinois.
The revenues from the District Energy Business reportable segment are included in service revenues and financing and equipment lease income. Included in service revenues are capacity charge revenues which relate to monthly fixed contract charges, and consumption revenues which relate to contractual rates applied to actual usage. Financing and equipment lease income relate to direct financing lease transactions and equipment leases to the Company’s various customers. The Company provides such services to buildings throughout greater Chicago area and services to a hotel located in Las Vegas, Nevada.
Selected information by reportable segment is presented in the following tables (in thousands):
Revenue from external customers for the Company’s segments from date of acquisition to December 31, 2004 are as follows:
Financial data by reportable business segments are as follows (in thousands):
The above table does not include financial data for our equity and cost investments.
(1) Segment profit includes revenues less cost of sales. For the Airport Parking and District Energy businesses, depreciation of $55 and $140 respectively, are included in cost of sales.
(2) Includes depreciation of property, plant and equipment and amortization of intangibles. Amounts also include depreciation charges for Airport Parking and District Energy business.
Reconciliation of reportable segment profit to consolidated loss before income taxes and minority interests for the period April 13, 2004 to December 31, 2004 (in thousands):
16. Related Party Transactions
Management Services Agreement with Macquarie Infrastructure Management (USA) Inc. (“MIMUSA”)
The Company entered into a management services agreement (“Management Agreement”) with MIMUSA effective December 16, 2004 pursuant to which MIMUSA manages the Company’s day-to-day operations and oversight of the management teams of our operating businesses. In addition, MIMUSA has seconded a chief executive officer and a chief financial officer to the Company and makes other personnel available as required.
In accordance with the Management Agreement, MIMUSA is entitled to a base management fee based primarily on our market capitalization. In addition, in order to provide an incentive to MIMUSA to maximize stockholder returns, we have agreed to pay performance fees equal to 20% of the outperformance, if any, of quarterly total returns to our stockholders compared to a benchmark index, provided that total stockholder returns for the quarter are positive. For the fiscal quarter ended December 31, 2004, a base management fee of approximately $271,000 and a performance fee of $12.1 million were payable to MIMUSA. These amounts are included as due to manager in the accompanying consolidated balance sheet at December 31, 2004.
MIMUSA has agreed to reinvest 100% of the above-mentioned performance fee in company stock with the reinvestment price to be set using the volume weighted average trading price of company stock over the 15 trading days commencing on the third trading day after the date of the December 31, 2004 earnings release by the Company.
MIMUSA is not entitled to any other compensation and all costs incurred by MIMUSA including compensation of seconded staff, are paid out of its management fee. However, the Company is responsible for other direct costs including, but not limited to, expenses incurred in the administration or management of the Company and its subsidiaries and investments, income taxes, audit and legal fees, and acquisitions and dispositions and its compliance with applicable laws and regulations.
In addition, for services rendered in preparing the Trust and Company for the IPO, MIMUSA was paid a structuring fee in December 2004 of $8 million. This amount has been recorded as a reduction to paid in capital to the accompanying consolidated balance sheet at December 31, 2004. Furthermore, MIMUSA was reimbursed for certain direct pre-IPO costs totaling $4.3 million. These amounts have been recorded as expenses or capitalized and included as acquisition costs to our business acquisitions.
MIMUSA acquired 2,000,000 shares of company stock concurrently with the closing of the initial public offering with an aggregate purchase price of $50 million, at a purchase price per share equal to the initial public offering price of $25. Pursuant to the terms of the Management Agreement, MIMUSA may sell up to 30% of these shares at any time. At any time from and after December 21, 2005, (being the first anniversary of the IPO closing) MIMUSA may sell up to a further 35% of these shares and may sell the balance at any time from and after December 21, 2007 (being the third anniversary of the IPO closing).
Advisory and Other Services from the Macquarie Group
The Macquarie Group has provided various advisory services and has incurred expenses in connection with the Company’s acquisitions and underlying debt associated with the businesses. In addition, the Company has incurred “capital charges” in relation to the businesses and investments acquired from the Macquarie Group or investment vehicles managed but not controlled by the Macquarie Group, defined as the required return on equity by the Macquarie Group in anticipation of the IPO offering. The advisory fees and the capital charges relating to the acquisitions have been capitalized and are included as part of the purchase price of the acquisitions. Further details on these amounts are contained in Notes 3 and 21. The debt arranging fees have been deferred and are amortized over the life of the relevant debt facilities. Further details on these amounts are contained in Notes 11 and 21.
Other Related Party Transactions
a. The Macquarie Group has extended a loan to a subsidiary within our group. Details on this loan are disclosed in Note 11.
b. Macquarie Holdings (USA) Inc. (“MHUSA”) is an indirect wholly owned subsidiary of Macquarie Bank Limited. We paid $219,000 to MHUSA as reimbursement for out-of-pocket expenses in relation to NACH and MDEH.
c. Macquarie Securities (USA) Inc. (“MSUSA”) is another indirect wholly owned subsidiary of Macquarie Bank Limited, and acted as one of the underwriters for our IPO. MSUSA is expecting a fee of $3.2 million from the lead underwriter.
17. Income Taxes
Macquarie Infrastructure Company Trust will be classified as a grantor trust for U.S. federal income tax purposes and therefore, will not be subject to income taxes. Accordingly, the Trust stockholders should include their pro rata portion of the Trust’s income or loss in their respective federal and state income tax returns. In addition, Macquarie Infrastructure Company LLC will be treated as a partnership for U.S. federal income tax purposes and will not be subject to income taxes.
MIC Inc. and its wholly owned subsidiaries are subject to federal and state income taxes.
Components of MIC Inc.’s income tax expense (benefit) are as follows (in thousands):
The tax effects of temporary differences that give rise to significant portions of the deferred tax assets and deferred tax liabilities at December 31, 2004 are presented below (in thousands):
At December 31, 2004, MIC, Inc. has net operating loss carryforwards for federal income tax purposes of approximately $27 million which is available to offset future taxable income, if any, through 2024. Approximately $11 million of these net operating losses will be limited, on an annual basis, due to the change of control of the respective subsidiaries in which such losses were incurred.
In assessing the realizability of deferred tax assets, management considers whether it is more likely than not that some portion or all of the deferred tax assets will not be realized. The ultimate realization of deferred tax assets is dependent upon the generation of future taxable income during the periods in which those temporary differences become deductible. Management considers the scheduled reversal of deferred tax liabilities, projected future taxable income, and tax planning strategies in making this assessment. In order to fully realize the deferred tax asset, the Company will need to generate future taxable income prior to the expiration of the net operating loss carry forwards expiring through 2024. Due to the lack of operating history of the Company, we have applied a valuation reserve on a portion of the deferred tax assets. The amount of the deferred tax asset considered realizable, however, could be reduced in the near term if estimates of future taxable income during the carry forward period are reduced.
The Company has approximately $122 million in net deferred tax liabilities. A significant portion of the Company’s deferred tax liabilities relate to tax basis temporary differences of both intangible assets and property and equipment. For financial accounting purposes we recorded the acquisitions of our consolidated businesses under the purchase method of accounting and accordingly recognized a significant increase to the value of the intangible assets and to property and equipment. For tax purposes we assumed the existing tax basis of the acquired businesses. To reflect the increase in the financial accounting basis of the assets acquired over the carryover income tax basis, a deferred tax liability was recorded. The liability will reduce in future periods as these temporary differences reverse.
A reconciliation of the reported income tax expense to the amount that would result by applying the U.S. federal tax rate to the reported net losses is as follows (in thousands):
18. Leases
The Company leases land, buildings, office space and certain office equipment under noncancellable operating lease agreements that expire through April 2031.
Future minimum rental commitments at December 31, 2004 are as follows (in thousands):
Rent expense under all operating leases for the period ended December 31, 2004 was $417,000.
19. Employee Benefit Plans
The subsidiaries of MIC Inc. maintain defined contribution plans allowing eligible employees to contribute a percentage of their annual compensation up to an annual amount as set by the Internal Revenue Service. The employer contribution to these plans ranges from 0% to 6% of eligible compensation. For the period December 23 through December 31, 2004, contributions of approximately $4,000 were made.
The NACH subsidiary also sponsors a retiree medical and life insurance plan available to certain employees for Atlantic Aviation. Currently, the plan is funded as required to pay benefits, and at December 31, 2004, the plan had no assets. The Company accounts for postretirement healthcare and life insurance benefits in accordance with FASB Statement No. 106, Employers’ Accounting for Postretirement Benefits Other Than Pensions. This Statement requires the accrual of the cost of providing postretirement benefits during the active service period of the employee. The accumulated benefit obligation at December 31, 2004, using an assumed discount rate of 5.75%, was approximately $700,000. There have been no changes in plan provisions during 2004. Estimated contributions by Atlantic Aviation in 2005 should approximate $156,000.
20. Legal Proceedings and Contingencies
The subsidiaries of MIC Inc. are subject to legal actions arising in the ordinary course of business. In management’s opinion, the company has adequate legal defenses and/or insurance coverage with respect to the eventuality of such actions, and does not believe any settlement would be material to the company’s financial position or results of operations.
On or about May 15, 2002, the families of two pilots killed in a plane crash in 2000 filed complaints in New York County Supreme Court against a number of parties including EAS, and a formerly owned subsidiary, MillionAir Interlink, Inc., or MillionAir Interlink, asserting claims for punitive damages, wrongful death and pain and suffering. The plaintiffs are each seeking $100 million in punitive damages, $100 million for wrongful death and $5 million for pain and suffering. The plaintiffs’ claim arises out of the facts surrounding a plane crash allegedly caused by one of the aircraft’s engines losing power, which caused the plane to crash, killing all on board. The engine lost power as a result of fuel starvation. The plaintiffs allege this was caused by insufficient fuel or design fault. The plane had last been refueled prior to the accident at EAS’ Farmingdale FBO operated by Flightways of Long Island, Inc., or Flightways, on the day of the accident.
EAS and MillionAir Interlink moved to dismiss the complaints for lack of jurisdiction because Flightways, rather than EAS or MillionAir Interlink, was the entity that operated the Farmingdale FBO and that employed the person who refueled the plane in question. The court denied the motion, permitting discovery to go forward on the jurisdictional issues, and with leave for the defendants to re-file the motion if discovery warranted doing so. Flightways was added as a defendant. USAIG, the insurer of Flightways under the primary insurance policy, has assumed the defense on behalf of the three defendants, has denied any liability, and is vigorously contesting the claims made. Discovery is proceeding, though not much has been taken in the cases thus far. EAS believes that the risk of a judgment by the court against it for an amount of damages approaching the amounts claimed by the plaintiffs is unlikely. In addition, liability insurance for an amount of up to $50 million is available in the event Flightways is found liable and liability insurance for an amount of up to $1 million to each of EAS and MillionAir Interlink in the event either or both companies are found liable. The sale and purchase agreement with the Company provides for an indemnity of $20 million, which would be available in the event of a judgment against any of the defendants. However, there is no assurance EAS’ selling stockholders will have sufficient resources to meet their indemnity obligation in the event the Company seeks to claim an amount pursuant to this indemnification provision. The Company believes it is unlikely that a judgment for damages against it will be in excess of the indemnity or the insurance coverage available or both.
MDEH has been in discussions with the City of Chicago of their intent to exercise its early buyout option with respect to Plant 6, which supplies heating and cooling services to a facility in Illinois. MDEH would receive approximately $11 million from the buyout all of which would be used to pay down debt. MDEH may be obliged to continue operating the facility on behalf of the City of Chicago. MDEH is reviewing its obligations under the early buyout option to determine what impact the buyout would have on its ongoing operations.
Laws and regulations relating to environmental matters may affect the operations of the Company. The Company believes that its policies and procedures with regard to environmental matters are adequate to prevent unreasonable risk of environmental damage and related financial liability. Some risk of environmental and other damage is, however, inherent in particular operations of the Company. The Company maintains adequate levels of insurance coverage with respect to environmental matters. As of December 31, 2004, management does not believe that environmental matters will have a significant effect on the Company’s operations.
21. Subsequent Events
On January 14, 2005, NACH acquired all of the membership interests in General Aviation Holdings, LLC (“GAH”), which, through its subsidiaries, operates two FBOs in California, for a purchase price of approximately $49 million with no assumption of debt, and subject to working capital adjustments. NACH funded the acquisition with contributed capital and an expansion of its Class A Note to $29.6 million and Class B Note to $130.9 million. NACH had entered into the membership interest purchase agreement on August 18, 2004.
Out-of-pocket acquisition expenses of $425,000 were paid to MSUSA in December 2004 in connection with the acquisition of GAH by NACH and are included in other current assets in the accompanying consolidated balance sheet at December 31, 2004. In January 2005, when the GAH acquisition closed, financial advisory and facility fees of $2 million, additional out-of-pocket expenses of $16,000 and debt arranging fees of $160,000 were paid to MSUSA.
On February 28, 2005, Rohan Foster and Margaret Foster filed a complaint in the Supreme Court of New Jersey, Passaic County, naming several defendants, including Atlantic Aviation Services, Inc. and Avports, Inc., based on injuries they allegedly suffered when a Challenger CL-600 aircraft failed to ascend during take off from the Teterboro Airport and ran off of the runway, the airport grounds, onto and across a public highway. The complaint alleges, among other things, negligence in the maintenance and control of the aircraft and maintenance, operation, management and control of the airport, and seeks an unspecified amount of compensatory and special damages. Although it is not possible to predict the outcome of the litigation at this early stage due to the many uncertainties that exist, the company believes it has a strong defense. Atlantic did not service the aircraft in question. AvPorts, which manages the Teterboro Airport, received a verbal briefing, following a post-incident visual inspection of the runway by it and the FAA, to the effect that there was no evidence to suggest that pavement surface or any other condition at the airport was a contributing factor.
NORTH AMERICA CAPITAL HOLDING COMPANY
(Successor to Executive Air Support, Inc.)
Consolidated Financial Statements
Periods January 1 through July 29, 2004,
July 30, 2004 through December 22, 2004, and
the twelve months ended December 31, 2003 and 2002
(With Report of Independent Registered Public Accounting Firm Thereon)
Report of Independent Registered Public Accounting Firm
The Board of Directors and Stockholders
North America Capital Holding Company:
We have audited the accompanying consolidated balance sheet of North America Capital Holding Company (the Company), (Successor to Executive Air Support, Inc. or EAS), a Delaware corporation, and subsidiaries as of December 31, 2003, and the related consolidated statements of operations, stockholders’ equity (deficit) and comprehensive loss, and cash flows for the periods January 1, 2004 through July 29, 2004, July 30, 2004 through December 22, 2004, and for each of the years in the two-year period ended December 31, 2003. These consolidated financial statements are the responsibility of the Company’s management. Our responsibility is to express an opinion on these consolidated financial statements based on our audits.
We conducted our audits in accordance with generally accepted auditing standards as established by the Auditing Standards Board (United States) and in accordance with the auditing standards of the Public Company Accounting Oversight Board (United States). Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the financial statements are free of material misstatement. The Company is not required to have, nor were we engaged to perform, an audit of its internal control over financial reporting. Our audit included consideration of internal controls over financial reporting as a basis for designing audit procedures that are appropriate in the circumstances, but not for the purpose of expressing an opinion on the effectiveness of the Company's internal controls over financial reporting. Accordingly, we express no such opinion. An audit includes examining, on a test basis, evidence supporting the amounts and disclosures in the financial statements. An audit also includes assessing the accounting principles used and significant estimates made by management, as well as evaluating the overall financial statement presentation. We believe that our audits provide a reasonable basis for our opinion.
In our opinion, the consolidated financial statements referred to above present fairly, in all material respects, the consolidated financial position of North America Capital Holding Company and subsidiaries as of December 31, 2003, and consolidated results of their operations and their cash flows for the periods January 1, 2004 through July 29, 2004, July 30, 2004 through December 22, 2004, and for each of the years in the two-year period ended December 31, 2003, in conformity with accounting principles generally accepted in the United States of America.
As discussed in note 2 to the consolidated financial statements, on January 1, 2002, the Company adopted the provisions of Statement of Financial Accounting Standard No. 142, Goodwill and Other Intangible Assets.
Dallas, Texas
March 22, 2005
/s/ KPMG LLP
NORTH AMERICA CAPITAL HOLDING COMPANY
(Successor to Executive Air Support, Inc.)
Consolidated Balance Sheet
See accompanying notes to consolidated financial statements.
NORTH AMERICA CAPITAL HOLDING COMPANY
(Successor to Executive Air Support, Inc.)
Consolidated Statements of Operations
(Dollars in thousands)
See accompanying notes to consolidated financial statements.
NORTH AMERICA CAPITAL HOLDING COMPANY
(Successor to Executive Air Support, Inc.)
Consolidated Statements of Stockholders’ Equity (Deficit) and Comprehensive Income (Loss)
(Dollars in thousands)
See accompanying notes to consolidated financial statements.
NORTH AMERICA CAPITAL HOLDING COMPANY
(Successor to Executive Air Support, Inc.)
Consolidated Statements of Cash Flows
(Dollars in thousands)
See accompanying notes to consolidated financial statements.
NORTH AMERICA CAPITAL HOLDING COMPANY
(Successor to Executive Air Support, Inc.)
Notes to Consolidated Financial Statements
December 22, 2004, December 31, 2003 and 2002
(1) Basis of Presentation
The consolidated financial statements of North America Capital Holding Company (the Company or NACH) for the period from January 1, 2004 to July 29, 2004 and for the twelve months ended December 31, 2003 and 2002 represent the results of operations of Executive Air Support, Inc. (EAS) as the predecessor company. The consolidated financial statements for the period from July 30, 2004 through December 22, 2004 reflect the acquisition of EAS and subsequent acquisition of the Company by Macquarie Infrastructure Company Inc. (MIC), as described in note 4 - Business Combination. The acquisition has been accounted for using the purchase method of accounting as prescribed in SFAS No. 141, Business Combinations (SFAS No. 141). In accordance with SFAS No. 141, the purchase price has been allocated to the assets acquired and liabilities assumed based on estimates of their respective fair values at the date of acquisition. Fair values were determined principally by independent third-party appraisals and supported by internal studies. See note 4 - Business Combination for details of the purchase price allocation.
(2) The Company and Corporate Restructuring
The Company, a Delaware corporation, was formed on June 2, 2004 for the purpose of acquiring the aircraft service and support operations of EAS, a Delaware corporation, and subsidiaries. Effective with the closing of the acquisition of EAS on July 29, 2004, the Company and its subsidiaries are engaged primarily in the aircraft service and support business. The Company currently operates ten fixed base operation (FBO) sites at airports throughout the United States and its activities consist of fueling, hangar leasing, and related services. Prior to July 30, 2004, the Company itself had no significant operations. See notes 15 and 16 for acquisition descriptions.
Upon the closing of the July 29, 2004 transaction, the Company succeeded EAS, and the historical financial information contained herein reflects EAS’ status as the predecessor.
On October 12, 2004, MIC, a wholly owned indirect subsidiary of Macquarie Infrastructure Company Trust, entered into a second amended and restated stock purchase agreement with Macquarie Investment Holdings Inc., a wholly owned indirect subsidiary of Macquarie Bank Limited, to acquire 100% of the ordinary shares in NACH. The closing date for the acquisition was December 22, 2004 and resulted in a purchase price of $118.2 million. The $130 million of senior debt, with recourse only to the Company and its subsidiaries, that the Company incurred to partially finance the acquisition of EAS remains in place after the acquisition of the Company.
Pursuant to a stock purchase agreement, entered into by Macquarie Investment Holdings Inc. on April 28, 2004, and subsequently assigned to the Company, the Company acquired 100% of the shares of EAS for $223.1 million, which includes capital expenditure and working capital adjustments of $4.6 million, estimated acquisition costs of $2 million, and $500,000 of assumed debt. Cash acquired at acquisition was $7.5 million. Additional costs of acquisition totaling $3 million were capitalized subsequent to the acquisition date. The Company incurred fees and other expenses of approximately $10.3 million paid to the Macquarie Group in connection with the completion of the acquisition and debt arranging services on the bridge debt put in place to fund the acquisition. Of these fees, $3 million was capitalized to the cost of the investment in EAS (in December 2004), $650,000 was deferred as financing costs and will be amortized over the life of the debt facility and $6.7 million was included as an expense in the Company’s statement of operations.
NORTH AMERICA CAPITAL HOLDING COMPANY
(Successor to Executive Air Support, Inc.)
Notes to Consolidated Financial Statements
December 22, 2004, December 31, 2003 and 2002
The stock purchase agreement relating to EAS includes an indemnity from the selling shareholders for breaches of representations and warranties that is limited to $20 million, except for breaches of representations and warranties regarding title, capitalization, taxes and any claims based on fraud, willful misconduct or intentional misrepresentation, for which the maximum amount payable in respect thereof is an amount equal to the purchase price.
(3) Summary of Significant Accounting Policies
(a) Basis of Consolidation
The consolidated financial statements include the accounts of the Company and its subsidiaries. All intercompany transactions are eliminated in consolidation.
(b) Revenue Recognition
In accordance with Staff Accounting Bulletin 104, Revenue Recognition, the Company recognizes fuel and service revenue when: persuasive evidence of an arrangement exists, delivery has occurred or services have been rendered, the seller’s price to the buyer is fixed and determinable, and collectibility is reasonably assured. In addition, all sales incentives received by customers on fuel purchases under the Company’s Atlantic Awards program are recognized as a reduction of revenue during the period incurred.
Service revenues include certain fueling fees. The Company receives a fueling fee for fueling certain carriers with fuel owned by such carriers. In accordance with Emerging Issues Task Force (EITF) Issue 99-19, Reporting Revenue Gross as a Principal versus Net as an Agent, revenue from these transactions is recorded based on the service fee earned and does not include the cost of the carriers’ fuel.
(c) Accounting Estimates
The preparation of financial statements, in conformity with accounting principles generally accepted in the United States of America, requires management to make estimates and assumptions that affect the reported amounts of assets and liabilities and disclosures of contingent assets and liabilities at the date of the financial statements, and the reported amounts of revenues and expenses. Actual results could differ from these estimates.
(d) Cash and Cash Equivalents
Cash and cash equivalents includes cash and highly liquid investments with original maturity dates of 90 days or less.
NORTH AMERICA CAPITAL HOLDING COMPANY
(Successor to Executive Air Support, Inc.)
Notes to Consolidated Financial Statements
December 22, 2004, December 31, 2003 and 2002
(e) Accounts Receivable
Accounts receivable consists primarily of amounts due from corporations and individuals and has been shown net of an allowance for doubtful accounts of $220 as of December 31, 2003.
Financial instruments that potentially subject the Company to concentrations of credit risk consist primarily of trade receivables. Concentrations of credit risk with respect to trade receivables are limited due to the Company’s large number of customers and the diverse industries which they represent. As of December 31, 2003, the Company had no significant concentrations of credit risk. The Company establishes an allowance for doubtful accounts based upon factors surrounding the credit risk of specific customers, historical trends and other information.
(f) Property and Equipment
Property and equipment in the accompanying consolidated balance sheets are stated at cost, net of accumulated depreciation and amortization. For financial reporting purposes, depreciation of machinery and equipment is computed on the straight-line method over the estimated service lives of the respective property, which vary from 5 to 10 years. The cost of leasehold improvements is amortized, on a straight-line basis, over the shorter of the estimated service life of the improvement and the respective term of the lease, generally 20 years. Expenditures for renewals and betterments are capitalized, and expenditures for maintenance and repairs are charged to expense as incurred.
The Company accounts for income taxes using the asset and liability method of accounting. Under this method, deferred tax assets and liabilities are recognized for the future tax consequences attributable to differences between the financial statement carrying amounts of existing assets and liabilities and their respective tax basis and for operating loss and tax credit carryforwards. Deferred tax assets and liabilities are measured using enacted tax rates expected to apply to taxable income in the years in which those temporary differences are expected to be recovered or settled. Valuation allowances are provided for the deferred tax assets when realization of the assets is not reasonably assured.
(h) Goodwill and Other Intangible Assets
Goodwill represents the excess of purchase price and related costs over the value assigned to the net tangible and identifiable intangible assets of businesses acquired. Pursuant to the provisions of SFAS No. 142, Goodwill and Other Intangible Assets, goodwill and indefinite-lived intangible assets are not amortized, but are reviewed annually at the end of the Company’s fiscal year for impairment (and in interim periods if certain events occur indicating that the carrying value of goodwill and/or indefinite-lived intangible assets may be impaired).
On January 1, 2002, the Company adopted SFAS No. 142, Goodwill and Other Intangible Assets. As a result of these periodic reviews, there have been no adjustments to the carrying value of intangible assets or goodwill except for the impairment of goodwill related to the sale of the Flight Services division (note 14).
NORTH AMERICA CAPITAL HOLDING COMPANY
(Successor to Executive Air Support, Inc.)
Notes to Consolidated Financial Statements
December 22, 2004, December 31, 2003 and 2002
In conjunction with the adoption of SFAS No. 142, the Company re-evaluated the estimated useful lives of its intangible assets and determined that the useful life of the Atlantic Aviation trade name is indefinite and that the useful life of its intangible assets that represent rights to operate at the respective airports should be increased from 20 years to the lower of the life of the lease or 40 years. The effect of these changes in estimates was a reduction of 2002 amortization expense of approximately $1.5 million.
The changes in the carrying value of goodwill for the years ended December 31, 2003 and 2002 are as follows (in thousands):
Intangible assets as of December 31, 2003 are as follows (in thousands):
Amortization expense related to intangible assets totaled $0.8, $2.3, $1.4 and $1.5 million for the periods January 1, 2004 through July 29, 2004, July 30, 2004 through December 22, 2004 and for the years ended December 31, 2003 and 2002, respectively.
(i) Accounting for Stock-Based Employee Compensation Arrangements
The Company applies the intrinsic value-based method of accounting for stock-based employee compensation arrangements. No stock option based employee compensation costs are reflected in the Company’s net income (loss), as all options granted had an exercise price greater than the market value of the Company’s underlying common stock at the date of grant. Had the Company elected to recognize compensation cost based on the fair value of the stock options at the date of grant under SFAS No. 123, such compensation expense would have been insignificant. These options were exercised and redeemed upon acquisition of EAS by the Company on July 29, 2004.
NORTH AMERICA CAPITAL HOLDING COMPANY
(Successor to Executive Air Support, Inc.)
Notes to Consolidated Financial Statements
December 22, 2004, December 31, 2003 and 2002
(j) Derivative Financial Instruments
The Company adopted SFAS No. 133, Accounting for Derivative Instruments and Hedging Activities, at the beginning of its fiscal year 2001. The standard requires the Company to recognize all derivatives on the balance sheet at fair value. Derivatives that are not hedges must be adjusted to fair value through the statement of operations. If the derivative is a hedge, depending on the nature of the hedge, changes in the fair value of derivatives will either be offset against the change in fair value of the hedged assets, liabilities, or firm commitments through earnings, or recognized in other comprehensive income (loss) until the hedged item is recognized in earnings. The ineffective portion of a derivative’s changes in fair value will be immediately recognized in earnings.
(k) New Accounting Pronouncements
In January 2003, the Financial Accounting Standards Board (FASB) issued Interpretation No. 46, Consolidation of Variable Interest Entities, an Interpretation of ARB No. 51, which addresses the consolidation by business enterprises of variable interest entities. This provision had no impact on the consolidated financial statements.
In April 2003, the FASB issued SFAS No. 149, Amendment of Statement 133 on Derivative Instruments and Hedging Activities, which amends and clarifies financial accounting and reporting for derivative instruments, including certain derivative instruments embedded in other contracts and for hedging activities under SFAS No. 133. This provision had no impact on the Company’s consolidated financial statements.
In May 2003, the FASB issued SFAS No. 150, Accounting for Certain Financial Instruments with Characteristics of both Liabilities and Equity, which establishes standards for how an issuer classifies and measures certain financial instruments with characteristics of both liabilities and equity. This provision had no impact on the Company’s consolidated financial statements.
In December 2003, FASB issued SFAS No. 132 (revised), Employers’ Disclosures about Pensions and Other Postretirement Benefits. Statement No. 132 (revised) prescribes employers’ disclosures about pension plans and other post retirement benefit plans; it does not change the measurement or recognition of those plans. The statement retains and revises the disclosure requirements contained in the original Statement No. 132. It also requires additional disclosures about the assets, obligations, cash flows and net periodic benefit cost of defined benefit pension plans and other postretirement benefit plans. See note 8 for revised requirements applicable to the Company for the period from January 1, 2004 through December 22, 2004 and year ended December 31, 2003.
In December 2004, the FASB issued Statement No. 123 (revised 2004), Share-Based Payment, which addresses the accounting for transactions in which an entity exchanges its equity instruments for goods or services, with a primary focus on transactions in which an entity obtains employee services in share-based payment transactions. This Statement is a revision to Statement 123 and supersedes APB Opinion No. 25, Accounting for Stock Issued to Employees, and its related implementation guidance. For nonpublic companies, this Statement will require measurement of the cost of employee services received in exchange for stock compensation based on the grant-date fair value of the employee stock options. Incremental compensation costs arising from subsequent modifications of awards after the grant date must be recognized. This Statement will be effective for the Company as of July 1, 2005.
NORTH AMERICA CAPITAL HOLDING COMPANY
(Successor to Executive Air Support, Inc.)
Notes to Consolidated Financial Statements
December 22, 2004, December 31, 2003 and 2002
In December 2004, the FASB issued Statement No.151, Inventory Costs, which clarifies the accounting for abnormal amounts of idle facility expense, freight, handling costs, and wasted material (spoilage). Under this Statement, such items will be recognized as current-period charges. In addition, the Statement requires that allocation of fixed production overheads to the costs of conversion be based on the normal capacity of the production facilities. This Statement will be effective for the Company for inventory costs incurred on or after January 1, 2006.
In December 2004, the FASB issued Statement No. 153, Exchanges of Non-Monetary Assets, which eliminates an exception in APB 29 for nonmonetary exchanges of similar productive assets and replaces it with a general exception for exchanges of nonmonetary assets that do not have commercial substance. This Statement will be effective for the Company for nonmonetary asset exchanges occurring on or after January 1, 2006.
(l) Fair Market Value of Financial Instruments
The carrying amount reported for long-term debt approximates fair value because the underlying instruments are at rates similar to current rates offered to the Company for debt with the same remaining maturities. The carrying value of the Company’s trade and other receivables and accounts payable approximate fair value due to their short-term maturities.
(m) Reclassifications
Certain amounts reported in the 2003 and 2002 consolidated financial statements have been reclassified to conform to the 2004 presentation.
(n) Impairment of Long-Lived Assets
Long-lived assets, including identifiable intangible assets, except goodwill and indefinite lived assets, are reviewed for impairment whenever events or changes in circumstances indicate that the carrying value of assets may not be recoverable. Recoverability of assets to be held and used is measured by a comparison of the carrying amount of an asset to future net cash flows expected to be generated by the asset. If such assets are considered to be impaired, the impairment to be recognized is measured by the amount by which the carrying amount of the assets exceeds the fair value of the assets. Assets to be disposed of are reported at the lower of the carrying amount or fair value less costs to sell.
(o) Impairment of Goodwill
Goodwill is considered impaired when the carrying amount of goodwill exceeds its implied fair value, as determined under a two-step approach. The first step is to determine the estimated fair value of goodwill. The Company estimates the fair value by estimating the present value of future cash flows. If the recorded net assets are less than the estimated fair value, then no impairment is indicated. If the recorded net assets exceed its estimated fair value, then goodwill is assumed to be impaired and a second step is performed. In the second step, the implied fair value of the goodwill is determined by deducting the estimated fair value of all tangible and identifiable intangible net assets from the estimated fair value. If the recorded amount of goodwill exceeds this implied fair value, an impairment charge is recorded for the excess.
NORTH AMERICA CAPITAL HOLDING COMPANY
(Successor to Executive Air Support, Inc.)
Notes to Consolidated Financial Statements
December 22, 2004, December 31, 2003 and 2002
(4) Business Combination
On July 29, 2004, the Company acquired the capital stock of EAS for $223.1 million. The acquisition of EAS enabled the Company to enter the aviation services market as an established competitor with an existing customer base and corporate infrastructure. The acquisition has been accounted for under the purchase method of accounting. As a result of the business combination, the Company succeeded EAS, and the historical financial information presented reflects the results of operations and cash flows of EAS as the predecessor company. The basis for the allocation of the purchase price is described in note 1 - Basis of Presentation.
The acquisition of EAS resulted in the Company assuming the existing income tax bases of the predecessor. In accordance with SFAS No. 141, a deferred tax liability was recorded to reflect the increase in the financial accounting bases of the assets acquired over the carryover income tax bases.
The preliminary allocation of the purchase price on July 29, 2004, including transaction costs, was as follows (in thousands):
The net working capital acquired consisted of cash, accounts receivable, inventories, prepaid expenses, accounts payable, and other current assets and liabilities.
The Company paid more than the fair value of the underlying net assets as a result of the expectation of its ability to earn a higher rate of return from the acquired business than would be expected if those net assets had to be acquired or developed separately (see note 3(h)). The value of the acquired intangible assets was determined by taking into account risks related to the characteristics and applications of the assets, existing and future markets and analyses of expected future cash flows to be generated by the business. The airport contract rights are being amortized on a straight-line basis over their useful lives ranging from 20 to 40 years. The weighted average amortization period of the contractual agreements is approximately 34 years. The Company expects that goodwill recorded will not be deductible for income tax purposes.
The Company allocated $3.9 million of the purchase price, respectively, to customer relationships in accordance with EITF 02-17, Recognition of Customer Relationship Intangible Assets Acquired in a Business Combination. The Company will amortize the amount allocated to customer relationships over a 5 year period.
NORTH AMERICA CAPITAL HOLDING COMPANY
(Successor to Executive Air Support, Inc.)
Notes to Consolidated Financial Statements
December 22, 2004, December 31, 2003 and 2002
(5) Property and Equipment
Property and equipment are summarized as follows (in thousands):
(6) Long-Term Debt
Long-term debt at December 31, 2003 consists of the following (in thousands):
North America Capital Holding Company
The Company has two term notes. The first term note (Class A Note) is a $25 million note payable to a bank and bears interest at LIBOR, plus a margin of 2.25%. As of December 22, 2004, the outstanding balance of Class A Note was $25 million. Amortization payments for Class A Note begin in December 2007 with quarterly amortization payments required through September 30, 2011, the maturity date of the note.
The second term note (Class B Note) is a $105 million note payable to a bank and bears interest at LIBOR, plus a margin of 3.0%. As of December 22, 2004, the outstanding balance of Class B Note was $105 million. No amortization payments are required for the Class B Note and it also matures on September 30, 2011.
NORTH AMERICA CAPITAL HOLDING COMPANY
(Successor to Executive Air Support, Inc.)
Notes to Consolidated Financial Statements
December 22, 2004, December 31, 2003 and 2002
The Company has a $3 million revolving credit agreement with a bank subject to certain limitations. As of December 22, 2004, there were no borrowings outstanding under the revolving credit agreement and the Company had available borrowing capacity of approximately $2.3 million. Borrowings bear interest, at the Company’s discretion, at LIBOR plus a margin of 2.35% or at a base rate which is the greater of prime rate or federal funds rate, plus a margin of 0.5%. The revolving credit agreement expires on October 15, 2006. The term notes and the revolving credit agreement are secured by substantially all the assets of the Company. The term notes contain customary financial covenants that include maintaining or exceeding certain financial ratios, limitations on sales of assets, limitations on capital expenditures and limitations on additional debt.
Macquarie Bank Limited, a related party, maintains a 40% commitment for both the Class A Note and Class B Note. It is anticipated that this commitment percentage will be reduced following the syndication of the two notes, subsequent to December 22, 2004. See note 10 for related party discussion.
On October 21, 2004, the Company entered into two interest rate swap agreements with a notional amount of $97.5 million in order to mitigate interest rate risk on the term loans. The swap transactions resulted in exchanging a floating rate debt instrument for a fixed rate derivative instrument with rates of 3.35% from October 21, 2004 to September 28, 2007 and 4.57% from September 28, 2007 to October 21, 2009. Under the terms of the agreement, the Company pays interest based on the fixed rate and receives interest based on a floating rate of LIBOR (2.01% at December 22, 2004). In accordance with SFAS No. 133, the Company concluded that the interest rate swap qualified as a cash flow hedge bearing no ineffectiveness at inception. The Company anticipates the hedge to remain perfectly effective on an ongoing basis because the critical terms of the interest rate swap and the hedged debt obligation are expected to coincide throughout the term of the interest rate swap.
Executive Air Support, Inc.
EAS had two term notes. The first term note (Term Note A) was a $20 million note payable to a bank and bore interest at either the bank’s base rate or LIBOR, at EAS’ discretion, and a margin, as defined, which varied from 0.75% to 2.25%, for interest based on the bank’s base rate and from 2.25% to 3.75% for interest based on LIBOR (4.15% at December 31, 2003). As of December 31, 2003, the outstanding balance of Term Note A was $9.4 million.
The second term note (Term Note B) was a $10 million note payable to a bank and bore interest at either the bank’s base rate or LIBOR, at EAS’ discretion and a margin, as defined, which varied from 2.0% to 2.25% for interest based on the bank’s base rate and from 3.5% to 4.0% for interest based on LIBOR (4.65% at December 31, 2003). As of December 31, 2003, the outstanding balance of Term Note B was $8.4 million.
EAS had a $10 million revolving credit agreement with a bank subject to certain limitations. As of December 31, 2003, there was $1 million outstanding under the revolving credit agreement and EAS had available borrowing capacity of approximately $3.2 million. Borrowings bore interest at rates consistent with the interest rate terms of Term Note A. The revolving credit agreement had an expiration date of December 21, 2005.
NORTH AMERICA CAPITAL HOLDING COMPANY
(Successor to Executive Air Support, Inc.)
Notes to Consolidated Financial Statements
December 22, 2004, December 31, 2003 and 2002
The term notes and the revolving credit agreement were secured by substantially all the assets of EAS. On July 29, 2004 the term notes were paid in full upon the acquisition of EAS by the Company. There was no outstanding balance under the revolving credit agreement at the time of acquisition.
The subordinated debt was unsecured and consisted of four notes payable aggregating $17.9 million. Two of the subordinated notes, totaling $17.5 million, were payable to two of the EAS’ shareholders, bore interest at 13% and were payable in 2007. These notes were issued at a discount of approximately $1.0 million, which was being amortized over the life of the notes. The unamortized discount was $583,000 as of December 31, 2003. Subordinated debt also included a $250,000 note payable to a shareholder and a $100,000 note payable to a third party. These two notes bore interest at 6% and were payable in 2005. Total subordinated debt payable to shareholders, net of discount, of $17.2 million as of December 31, 2003 is classified as long-term debt, related parties in the accompanying balance sheets. The subordinated debt was paid in full upon the acquisition of EAS by the Company.
The term notes and subordinated notes contained customary financial covenants that included maintaining or exceeding certain financial ratios, limitations on sales of assets, limitations on capital expenditures and limitations on additional debt.
During 2001, EAS entered into a $15 million interest rate swap agreement in order to hedge its exposure to fluctuations in interest rates on its term notes. Under the terms of the agreement, EAS would pay interest based on a fixed rate of 5.74% through January 9, 2006, and would receive interest based on a floating rate of LIBOR (1.17% at December 31, 2003). In accordance with SFAS No. 133, EAS concluded that the interest rate swap qualified as a cash flow hedge bearing no ineffectiveness at inception. EAS anticipated the hedge to remain perfectly effective on an on-going basis because the critical terms of the interest rate swap and the hedged debt obligation were expected to coincide throughout the term of the interest rate swap. The fair value of the agreement was a liability of approximately $1.1 million at December 31, 2003, which is included in other long-term liabilities on the accompanying consolidated balance sheets with an offsetting amount recorded in accumulated other comprehensive loss. The swap agreement was terminated upon the acquisition of EAS by the Company and EAS recognized the accumulated other comprehensive income of $0.4 million, net of associated tax benefit, in interest expense for the period from January 1 to July 29, 2004.
NORTH AMERICA CAPITAL HOLDING COMPANY
(Successor to Executive Air Support, Inc.)
Notes to Consolidated Financial Statements
December 22, 2004, December 31, 2003 and 2002
(7) Income Taxes
The income tax provision (benefit) consisted of the following for the period from January 1, 2004 through July 29, 2004, the period from July 30, 2004 through December 22, 2004, (including stub periods), and the years ended December 31, 2003, and 2002 (in thousands):
NORTH AMERICA CAPITAL HOLDING COMPANY
(Successor to Executive Air Support, Inc.)
Notes to Consolidated Financial Statements
December 22, 2004, December 31, 2003 and 2002
The difference between the actual provision (benefit) for income taxes from continuing operations and the “expected” provision for income taxes computed by applying the U.S. federal corporate tax rate to income from continuing operations before taxes is attributable to the following (in thousands):
NORTH AMERICA CAPITAL HOLDING COMPANY
(Successor to Executive Air Support, Inc.)
Notes to Consolidated Financial Statements
December 22, 2004, December 31, 2003 and 2002
The deferred income tax assets and liabilities as of December 31, 2003 are as follows (in thousands):
In assessing the realizability of deferred tax assets, management considers whether it is more likely than not that some portion or all of the deferred tax asset will not be realized. The ultimate realization of deferred tax assets is dependent upon the generation of future taxable income during the periods in which those temporary differences become deductible. Management considers the scheduled reversal of deferred tax liabilities, projected future taxable income and tax-planning strategies in making this assessment. At December 22, 2004 and December 31, 2003, the Company has determined, based primarily on the history of net operating losses sustained by other members of the consolidated group, that the recovery of the federal and state net operating loss carryforwards would not be realized. In addition, due to the Company’s inability to generate future capital gains within the carryforward period, the Company has determined that the recovery of the capital loss carryforwards would not be realized. Consequently, the Company has reduced these deferred tax assets by approximately $5.7 million as of December 22, 2004 through an increase to the valuation allowance.
NORTH AMERICA CAPITAL HOLDING COMPANY
(Successor to Executive Air Support, Inc.)
Notes to Consolidated Financial Statements
December 22, 2004, December 31, 2003 and 2002
At December 22, 2004, the Company had available federal and state net operating loss carryforwards of approximately $2 million. The federal net operating loss carryforwards available for use are limited, on an annual basis, due to the change in control of the respective subsidiaries in which such losses were incurred. These losses begin to expire in 2005. In addition, the Company had capital loss carryforwards of approximately $11.9 million at December 22, 2004. These losses begin to expire in 2006 and are only available to offset capital gains that the Company may generate in the carryforward period.
(8) Employee Benefit Plans
The Company’s union employees located at Philadelphia International and Teterboro Airports are covered by the International Association of Machinists National Pension Fund. Contributions payable to the Plan for the period January 1, 2004 through December 22, 2004 and 2003 were approximately $239,000 and $205,000, respectively.
The Company also sponsors a retiree medical and life insurance plan available to certain employees for Atlantic Aviation. Currently, the Plan is funded as required to pay benefits, and at December 22, 2004 and December 31, 2003, the Plan had no assets. The Company accounts for postretirement healthcare and life insurance benefits in accordance with SFAS No. 106, Employers’ Accounting for Postretirement Benefits Other Than Pensions. This Statement requires the accrual of the cost of providing postretirement benefits during the active service period of the employee. The accumulated benefit obligation at December 22, 2004 and December 31, 2003, using an assumed discount rate of 5.75% and 6%, was approximately $0.7 million and $0.8 million, respectively, and the net periodic postretirement benefit costs during 2004 and 2003 were approximately $82,000 and $102,000, using an assumed discount rate of 6% and 6.75%, respectively. The post retirement benefit cost was determined using January 1, 2004 and 2003 data. There have been no changes in plan provisions during 2004 or 2003. For measurement purposes, a 12% annual rate of increase in the per capita cost of covered health care benefits was assumed for 2004 and assumed to decrease gradually to 5% by 2013 and remain at that level thereafter. A one-percentage-point increase (decrease) in the assumed healthcare cost trend rate would have increased (reduced) the postretirement benefit obligation by approximately $17,000 and ($16,000), respectively. Estimated contributions by the Company in 2005 are approximately $155,000.
The Company has a Savings and Investment Plan (the Plan) that qualifies under Section 401(k) of the Internal Revenue Code. Substantially, all full-time, nonunion employees and, pursuant to union contracts, many union employees are eligible to participate by electing to contribute 1% to 6% of gross pay to the Plan. Under the Plan, the Company is required to make contributions equal to 50% of employee contributions, up to a maximum of 6% of eligible employee compensation. Employees may elect to contribute to the Plan an additional 1% to 9% of gross pay that is not subject to match by the Company. Company matching contributions totaled approximately $74,000, $52,000, $120,000, and $172,000 during the periods January 1, 2004 through July 29, 2004, July 30, 2004 through December 22, 2004 and fiscal 2003 and 2002, respectively. The Company may make discretionary contributions to the Plan; however, there were no discretionary contributions made during fiscal 2004, 2003, and 2002.
NORTH AMERICA CAPITAL HOLDING COMPANY
(Successor to Executive Air Support, Inc.)
Notes to Consolidated Financial Statements
December 22, 2004, December 31, 2003 and 2002
(9) Commitments and Contingencies
The Company leases hangar and other facilities at several airport locations under operating leases expiring between 2005 and 2020, which are generally renewable, at the Company’s option, for substantial periods at increased rentals. These leases generally restrict their assignability and the use of the premises to activities associated with general aviation. The leases provide for supplemental rentals based on certain sales and other circumstances.
At December 22, 2004, the Company was obligated under the lease agreements to construct certain facilities. The total remaining cost of these projects is estimated to be $0.3 million.
Rent expense charged to operations for the periods January 1, 2004 through July 29, 2004, July 30, 2004 through December 22, 2004 and fiscal 2003 and 2002 was approximately $3.5, $2.5, $5.2, and $5.1 million, respectively.
The Company has entered into employment agreements with certain executives. The terms of the agreements provide for compensation levels and termination provisions.
(b) Environmental Matters
Laws and regulations relating to environmental matters may effect the operations of the Company. The Company believes that its policies and procedures with regard to environmental matters are adequate to prevent unreasonable risk of environmental damage and related financial liability. Some risk of environmental and other damage is, however, inherent in particular operations of the Company. The Company maintains adequate levels of insurance coverage with respect to environmental matters. As of December 22, 2004 and December 31, 2003, management does not believe that environmental matters will have a significant effect on the Company’s operations.
(c) Legal Proceedings
On or about May 15, 2002, the families of two pilots killed in a plane crash in 2000 filed complaints in New York County Supreme Court against a number of parties including EAS and a formerly owned subsidiary, MillionAir Interlink, Inc., or MillionAir Interlink, asserting claims for punitive damages, wrongful death and pain and suffering. The plaintiffs are each seeking $100 million in punitive damages, $100 million for wrongful death and $5 million for pain and suffering. The plaintiffs’ claim arises out of the facts surrounding a plane crash allegedly caused by one of the aircraft’s engines losing power, which caused the plane to crash, killing all on board. The engine lost power as a result of fuel starvation. The plaintiffs allege this was caused by insufficient fuel or design fault. The plane had last been refueled prior to the accident at EAS’ Farmingdale FBO operated by Flightways of Long Island, Inc., or Flightways, on the day of the accident.
NORTH AMERICA CAPITAL HOLDING COMPANY
(Successor to Executive Air Support, Inc.)
Notes to Consolidated Financial Statements
December 22, 2004, December 31, 2003 and 2002
EAS and MillionAir Interlink moved to dismiss the complaints for lack of jurisdiction because Flightways, rather than EAS or MillionAir Interlink, was the entity that operated the Farmingdale FBO and that employed the person who refueled the plane in question. The court denied the motion, permitting discovery to go forward on the jurisdictional issues, and with leave for the defendants to refile the motion if discovery warranted doing so. Flightways was added as a defendant. USAIG, the insurer of Flightways under the primary insurance policy, has assumed the defense on behalf of the three defendants, has denied any liability, and is vigorously contesting the claims made. Discovery is proceeding, though not much has been taken in the cases thus far. EAS believes that the risk of a judgment by the court against it for an amount of damages approaching the amounts claimed by the plaintiffs is unlikely. In addition, liability insurance for an amount of up to $50 million is available in the event Flightways is found liable and liability insurance for an amount of up to $1 million to each of EAS and MillionAir Interlink in the event either or both companies are found liable. The sale and purchase agreement with the Company provides for an indemnity of $20 million, which would be available in the event of a judgment against any of the defendants. However, there is no assurance EAS’ selling shareholders will have sufficient resources to meet their indemnity obligation in the event the Company seeks to claim an amount pursuant to this indemnification provision. The Company believes it is unlikely that a judgment for damages against it will be in excess of the indemnity or the insurance coverage available or both.
The Company is involved in various claims and lawsuits incidental to its business. In the opinion of management, these claims and suits in the aggregate will not have a material adverse effect on the Company’s business, financial condition, or results of operations.
On July 29, 2004, the Company drew down $130 million on a Combined Bridge Acquisition and Letter of Credit Facility Agreement with Macquarie Bank Limited, an affiliated company (the Bridge Facility). The Bridge Facility was repaid concurrently with the long-term notes being issued on October 21, 2004. The Company incurred interest expense of $1.6 million and fees of $1.3 million on this Bridge Facility, which are included as expenses in the Company’s results of operations.
The Company paid fees to Macquarie Securities (USA) Inc (MSUSA), a wholly owned subsidiary within the Macquarie Bank group of companies, of $3 million for advisory services provided in connection with the acquisition of EAS. The Company also reimbursed MSUSA $1.4 million and another Macquarie group company, Macquarie Holdings (USA) Inc $0.2 million, for direct acquisition costs. These fees and expenses have been capitalized and included as part of the purchase price of the EAS acquisition. The Company also paid fees to MSUSA of $0.7 million for debt arranging services in relation to the long-term debt issued in October 2004. These fees have been deferred and are amortized over the life of the debt facility. Fees paid to MSUSA of $3.8 million and $0.7 million for equity underwriting facilities and bridge debt facilities, respectively, which have now matured or ceased have been included as expenses in the Company’s results of operations.
As discussed in note 6, Macquarie Bank Limited loaned $52 million of the long-term debt of the Company on October 21, 2004. The Company paid Macquarie Bank Limited an upfront lending fee of $520,000 which has been deferred and amortized over the life of the debt facility. Interest expense on this related party portion of the long-term debt was $434,000 for the period October 21, 2004 to December 22, 2004.
EAS issued 699,500 warrants during fiscal 2000 to a shareholder. The warrants had an exercise price of $3.62 per share and were exercisable upon the earlier of August 31, 2010 or the sale of EAS. These warrants were purchased and subsequently cancelled by the Company for $1.56 million upon the acquisition of EAS by the Company.
NORTH AMERICA CAPITAL HOLDING COMPANY
(Successor to Executive Air Support, Inc.)
Notes to Consolidated Financial Statements
December 22, 2004, December 31, 2003 and 2002
On December 21, 2000, EAS issued 1,104,354 warrants to a shareholder (the Warrant Holder) in conjunction with the issuance of subordinated debt. The warrants had an exercise price of $0.01 per share and were exercisable at any time through December 21, 2010. Beginning in the first quarter of 2007, EAS could buy the warrants from the Warrant Holder at the then fair value of the warrants, as defined. Beginning in the first quarter of 2006, the Warrant Holder could sell the warrants to EAS at the then fair value of the warrants, as defined. Due to the warrant holder’s ability to sell the warrants to EAS for cash, EAS recorded the fair value of the warrants as a liability in accordance with EITF 00-19, Accounting for Derivative Financial Instruments Indexed to, and Potentially Settled in, a Company’s Own Stock.
As of December 31, 2003, the fair value of these warrants was approximately $2.24 million, and was included in other long-term liabilities in the accompanying consolidated balance sheet as of December 31, 2003. The warrants were reflected at fair value and subsequent changes in fair value were reflected in EAS’s operating results. EAS recorded an increase in the fair value of the warrants of approximately $5.2 million in other expense on the accompanying consolidated statement of operations for the period from January 1, 2004 through July 29, 2004. The warrants were purchased and canceled by the Company for $7.53 million upon the acquisition of EAS by the Company on July 29, 2004.
(11) Common and Redeemable, Convertible Preferred Stock
Executive Air Support, Inc.
The EAS preferred stock of $64,099,000 was redeemable at any time after March 15, 2005, at the option of the preferred stockholders. Each share of preferred stock would automatically convert into shares of common stock at a defined conversion price plus cash of $1.81 per share upon the public sale of EAS common stock or upon the sale of the Company’s common stock or assets in excess of a certain value, as defined. Dividends related to the preferred stock were cumulative and accrued at 8% per year. Dividends in arrears were approximately $17.5 million at December 31, 2003 and were paid out on acquisition of EAS by the Company on July 29, 2004. The preferred stock was convertible into shares of EAS common stock determined by dividing the conversion price, as defined, by $3.62 per share. The Company acquired the preferred stock of EAS from the holders at its conversion price of $64,099,000 upon its acquisition of EAS on July 29, 2004. Since the preferred stock is now held by the Company, it has been eliminated in the consolidated financial statements from the date of acquisition.
North America Capital Holding Company
During the 2004 year, the Company issued preferred stock designated as Series A Preferred Stock at an aggregate amount of $1,023,400. Such preferred stock had a liquidation preference equal to the Series A Preferred Stock issue price, as determined by the board of directors, plus accrued unpaid dividends at a rate of 1.5% per year (the Series A Liquidation Value). The Series A Preferred Stock was automatically redeemable at the Series A Liquidation Value in certain circumstances that qualified as a change in control. The holder of the Series A Preferred Stock was entitled to elect one director, providing the holder of the preferred stock with an effective 33.3% voting interest for a board composition of three directors. When the Company was sold to MIC on December 22, 2004, the Series A Preferred Stock were redeemed for a total amount of $1,029,176 comprising the aforementioned issue price and accrued dividends of $5,776.
NORTH AMERICA CAPITAL HOLDING COMPANY
(Successor to Executive Air Support, Inc.)
Notes to Consolidated Financial Statements
December 22, 2004, December 31, 2003 and 2002
In 2000, EAS adopted a stock option plan whereby EAS would grant incentive stock options or nonqualified stock options to employees to purchase EAS’ common stock, hereinafter referred to as the “Plan”. The incentive stock options or nonqualified options were to be granted at no less than the fair market value of the shares at the date of grant. Under the Plan, stock options would expire ten years after issuance and generally would vest ratably over five years. The stock options were fully vested and were sold by the option holders upon the acquisition of EAS by the Company on July 29, 2004. Activity under the Plan for the years ended December 22, 2004, and December 31, 2003 and 2002 is as follows:
Options exercisable at December 31, 2003 and 2002 were 823,229 and 516,319, respectively, with a weighted average exercise price of $3.62. The weighted average remaining contractual life of the options outstanding at December 31, 2003 and 2002 was 6.7 years and 7.7 years, respectively.
NORTH AMERICA CAPITAL HOLDING COMPANY
(Successor to Executive Air Support, Inc.)
Notes to Consolidated Financial Statements
December 22, 2004, December 31, 2003 and 2002
In December of 2001, EAS committed to a plan to sell its MillionAir Interlink subsidiary. In April 2002, EAS sold the subsidiary to a third party for $1.25 million in cash and a $500,000 note receivable. Income from operations of $0, $0, $0, and $91,000 and the loss on disposal of $0, $0, $265,000, and $320,000, respectively, were reflected in discontinued operations during the periods January 1, 2004 through July 29, 2004, July 30, 2004 through December 22, 2004 and fiscal 2003 and 2002, respectively. During 2003, EAS fully reserved the remaining portion of the note receivable of approximately $442,000 due to uncertainty of collectibility. Million Air Interlink revenues for 2002 were approximately $195,177.
During 2002, EAS committed to a plan to sell its Flight Services division. On February 28, 2003 EAS entered into an agreement to sell the division. Based on estimated net proceeds from the sale of $1 million, EAS recorded a loss on disposal of approximately $11.5 million, which included an impairment of goodwill and intangible assets of approximately $11.2 million. The income from operations of $275,000, $0, $121,000, and $106,000 for the periods January 1, 2004 through July 29, 2004, July 30, 2004 through December 22, 2004 and fiscal 2003 and 2002, respectively, and the loss on disposal of $0, $0, $170,000, and $11.3 million for the periods January 1, 2004 through July 29, 2004, July 30, 2004 through December 22, 2004 and fiscal 2003 and 2002, respectively, have been reflected as discontinued operations in the accompanying consolidated statements of operations. The liabilities for the Flight Services division have been presented separately in the accompanying consolidated balance sheet for 2003. Flight Services revenues for the periods January 1, 2004 through July 29, 2004, July 30, 2004 through December 22, 2004 and fiscal 2003 and 2002 were approximately $0, $0, $2 million, and $15 million, respectively.
On December 31, 2003, EAS acquired 100% of the outstanding common shares of General Aviation LLC (GA), a fixed base operations facility located in New Orleans. On December 31, 2003, the Company also acquired the net assets of General Aviation New Orleans (GANO), another fixed base operations facility in New Orleans. These facilities were acquired under the Member Interests Purchase Agreement which was signed on December 17, 2003. The net assets of these entities were included in the consolidated financial statements of the Company as of December 31, 2003. The aggregate purchase price was approximately $6.1 million, of which $3.7 million was paid in cash, $0.4 million of cash was acquired and $0.4 million of cash was collected in January 2004 related to the cash surrender value of certain life insurance policies acquired. The remaining consideration consisted of an assumed note payable of $2.4 million, which was paid January 2, 2004. Total tangible net assets acquired were $4.3 million. Of the remaining consideration, $2.9 million was recorded in other intangibles related to airport leases, which is being amortized over 20 years, and $1.1 million was recorded in related deferred tax liabilities. EAS’ unaudited pro forma revenue and net income (loss) would have been $87.2 million and $5.5 million for 2003 and $76.4 million and ($6.7) million for 2002, respectively, had it owned GA and GANO as of January 1, 2002.
NORTH AMERICA CAPITAL HOLDING COMPANY
(Successor to Executive Air Support, Inc.)
Notes to Consolidated Financial Statements
December 22, 2004, December 31, 2003 and 2002
The following table summarizes the estimated fair value of the assets acquired and liabilities assumed at the date of acquisition (in thousands):
(16) Subsequent Event
On August 18, 2004, the Company entered into a membership interest purchase agreement to acquire all of the membership interests in General Aviation Holdings, LLC (GAH), which, through its subsidiaries, operates two FBOs in California. On January 14, 2005, the acquisition was completed with a purchase price of approximately $49 million with no assumption of debt, and subject to working capital adjustments. The Company funded the acquisition with contributed capital and an expansion of its Class A Note to $29.6 million and Class B Note to $130.9 million. In January 2005, the Company paid MSUSA advisory fees of $1.1 million in connection with the acquisition of GAH. The Company also reimbursed MSUSA $16,000 and $425,000 in January 2005 and December 2004 respectively for direct GAH acquisition costs. The Company also paid fees to MSUSA in January 2005 of $0.9 million for equity underwriting facilities and bridge debt facilities.
SCHEDULE II - VALUATION AND QUALIFYING ACCOUNTS
(in thousands)
Item 9.
Item 9. Changes in and Disagreements with Accountants on Accounting and Financial Disclosure
Previously reported in the registrants’ Registration Statement on Form S-1 (Registration No. 333-116244) and in their current report on Form 8-K filed on December 27, 2004.
Item 9A.
Item 9A. Controls and Procedures
Under the direction and with the participation of our chief executive officer and chief financial officer, we evaluated our disclosure controls and procedures (as such term is defined under Rule 13(a)-15(e) of the Exchange Act). Based on that evaluation, our chief executive officer and chief financial officer concluded that our disclosure controls and procedures were effective as of December 31, 2004. No change in our internal control over financial reporting (as defined in Rule 13a-15(f) of the Exchange Act) occurred during the period covered by this report that materially affected, or is reasonably likely to materially affect, our internal control over financial reporting.
Item 9B.
Item 9B. Other Information
None.
Part III
Item 10.
Item 10. Directors and Executive Officers of the Registrants
The company will furnish to the Securities and Exchange Commission a definitive proxy statement not later than 120 days after the end of the fiscal year ended December 31, 2004. The information required by this item is incorporated herein by reference to the proxy statement.
Item 11.
Item 11. Executive Compensation
The information required by this item is incorporated herein by reference to the proxy statement.
Item 12.
Item 12. Security Ownership of Certain Beneficial Owners and Management and Related Stockholder Matters
The information required by this item is incorporated herein by reference to the proxy statement.
Item 13.
Item 13. Certain Relationships and Related Transactions
The information required by this item is incorporated herein by reference to the proxy statement.
Item 14.
Item 14. Principal Accounting Fees and Services
The information required by this item is incorporated herein by reference to the proxy statement.
Part IV
Item 15.
Item 15. Exhibits, Financial Statement Schedules
Financial Statements and Schedules
The consolidated financial statements in Part II, Item 8, and schedule listed in the accompanying exhibit index are filed as part of this report.
Exhibits
The exhibits listed on the accompanying exhibit index are filed as a part of this report.
Signatures
Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.
Pursuant to the requirements of the Securities Exchange Act of 1934, this report has been signed below by the following persons on behalf of the Registrant and in the capacities and on the dates indicated.
Signatures
Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.
Power of Attorney
We, the undersigned directors and executive officers of Macquarie Infrastructure Company LLC, hereby severally constitute Peter Stokes and David Mitchell, and each of them singly, our true and lawful attorneys with full power to them and each of them to sign for us, and in our names in the capacities indicated below, any and all amendments to the Annual Report on Form 10-K filed with the Securities and Exchange Commission, hereby ratifying and confirming our signatures as they may be signed by our said attorneys to any and all amendments to said Annual Report on Form 10-K.
Pursuant to the requirements of the Securities Exchange Act of 1934, this report has been signed below by the following persons on behalf of the Registrant and in the capacities and on the dates indicated.
Exhibit Index

Confidential treatment granted as to certain portions, which were separately filed with the SEC.