0001140361-19-001799.txt : 20190130 0001140361-19-001799.hdr.sgml : 20190130 20190130071629 ACCESSION NUMBER: 0001140361-19-001799 CONFORMED SUBMISSION TYPE: S-1/A PUBLIC DOCUMENT COUNT: 53 FILED AS OF DATE: 20190130 DATE AS OF CHANGE: 20190130 FILER: COMPANY DATA: COMPANY CONFORMED NAME: Virgin Trains USA LLC CENTRAL INDEX KEY: 0001737516 STANDARD INDUSTRIAL CLASSIFICATION: RAILROADS, LINE-HAUL OPERATING [4011] IRS NUMBER: 364893027 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-1/A SEC ACT: 1933 Act SEC FILE NUMBER: 333-228447 FILM NUMBER: 19550364 BUSINESS ADDRESS: STREET 1: 161 NW 6TH STREET, SUITE 900 CITY: MIAMI STATE: FL ZIP: 33136 BUSINESS PHONE: (305) 521-4800 MAIL ADDRESS: STREET 1: 161 NW 6TH STREET, SUITE 900 CITY: MIAMI STATE: FL ZIP: 33136 FORMER COMPANY: FORMER CONFORMED NAME: Brightline Holdings LLC DATE OF NAME CHANGE: 20180413 S-1/A 1 s002218x10_s1a.htm S-1/A

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As filed with the Securities and Exchange Commission on January 30, 2019

Registration No. 333-228447

UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549

AMENDMENT NO. 3
TO
FORM S-1
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933

Virgin Trains USA LLC*

(Exact Name of Registrant as Specified in Its Charter)

Delaware
4011
36-4893027
(State or Other Jurisdiction of
Incorporation or Organization)
(Primary Standard Industrial
Classification Code Number)
(I.R.S. Employer Identification Number)

161 NW 6th Street, Suite 900
Miami, FL 33136
(305) 521-4800

(Address, including zip code, and telephone number, including area code, of Registrant’s principal executive offices)

Cameron MacDougall, Esq.
Ivy Hernandez, Esq.
c/o Fortress Investment Group LLC
1345 Avenue of the Americas, 45th floor
New York, NY 10105
(212) 798-6100

(Name, address, including zip code, and telephone number, including area code, of agent for service)

Copies to:

Michael J. Zeidel, Esq.
Michael J. Schwartz, Esq.
Skadden, Arps, Slate, Meagher & Flom LLP
Four Times Square
New York, New York 10036
(212) 735-3000
Richard D. Truesdell, Jr., Esq.
Marcel Fausten, Esq.
Davis Polk & Wardwell LLP
450 Lexington Avenue
New York, New York 10017
(212) 450-4000

Approximate date of commencement of proposed sale to the public: As soon as practicable after the effective date of this registration statement.

If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, check the following box. o

If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. o

If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. o

If this Form is a post-effective amendment filed pursuant to Rule 462(d) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. o

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company” and “emerging growth company” in Rule 12b-2 under the Securities Exchange Act of 1934.

Large accelerated filer o
Accelerated filer o
Non-accelerated filer ☒
Smaller reporting company o
 
Emerging Growth company ☒

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided to Section 7(a)(2)(B) of the Securities Act. o

CALCULATION OF REGISTRATION FEE

Title of Each Class of Securities
To Be Registered
Amount to be Registered(1)
Proposed Maximum Offering Price Per Share(2)
Proposed Maximum
Aggregate Offering Price(2)
Amount Of
Registration Fee(3)
Common stock, $0.01 par value per share
 
32,584,100
 
$
19.00
 
$619,097,900
$75,034.67

(1) Includes 4,250,100 shares which may be sold pursuant to the underwriters' over-allotment option.
(2) Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(o) under the Securities Act of 1933, as amended.
(3) The registrant previously paid $12,120.00 of the total registration fee in connection with a previous filing of this Registration Statement.

THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF THE SECURITIES ACT OF 1933, AS AMENDED, OR UNTIL THIS REGISTRATION STATEMENT SHALL BECOME EFFECTIVE ON SUCH DATE AS THE SECURITIES AND EXCHANGE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A), MAY DETERMINE.

* The registrant is currently a Delaware limited liability company named Virgin Trains USA LLC. Prior to the closing of this offering, the registrant will be converted to a Delaware corporation and change its name to Virgin Trains USA Inc.

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The information in this preliminary prospectus is not complete and may be changed. We may not sell these securities until the registration statement filed with the Securities and Exchange Commission is effective. This preliminary prospectus is not an offer to sell these securities and it is not soliciting an offer to buy these securities in any state where the offer or sale is not permitted.

Subject to Completion, dated January 30, 2019

Preliminary Prospectus

28,334,000 Shares

Virgin Trains USA Inc.
Common Stock

This is an initial public offering of common stock of Virgin Trains USA Inc. We are selling shares of our common stock. After this offering and the concurrent private placements, AAF Holdings LLC (the “Virgin Trains Stockholder”), an entity owned primarily by private equity funds managed by an affiliate of Fortress Investment Group LLC (“Fortress”), will own approximately 81.6% of our common stock, or 79.5% if the underwriters’ over-allotment option is fully exercised.

We expect the public offering price to be between $17.00 and $19.00 per share. Currently, no public market exists for the shares. We have applied to list our shares of common stock on The Nasdaq Stock Market LLC (the “Nasdaq”) under the symbol “VTUS.”

We are an “emerging growth company” as that term is defined in the Jumpstart Our Business Startups Act of 2012 and, as such, will be subject to certain reduced public company reporting requirements. See “Prospectus Summary—Implications of Being an Emerging Growth Company.”

Investing in our common stock involves risks. See “Risk Factors” beginning on page 20 to read about certain factors you should consider before buying our common stock.

 
Per Common
Share
Total
Initial public offering price
$
     
 
$
           
 
Underwriting discounts and commissions(1)
$
 
 
$
 
 
Proceeds, before expenses, to us
$
 
 
$
 
 
(1)See “Underwriting” for additional information regarding underwriting compensation.

Corvina Holdings Limited (“Corvina”), an affiliate of Virgin Enterprises Limited (“VEL”), each a part of the Virgin Group, has entered into an agreement pursuant to which it has agreed to purchase from us, at a price per share equal to the initial public offering price, shares of newly issued common stock in an amount equal to less than 2% of the number of shares outstanding immediately following this offering. In addition, certain individuals and/or entities affiliated with Fortress (including our Chairman Nominee) have indicated an interest in purchasing shares of our common stock at a price per share equal to the initial public offering price. Because indications of interest are not binding agreements or commitments to purchase, any of the individuals and/or entities affiliated with Fortress described above may determine to purchase more, fewer or no shares of our common stock. Such individuals will pay a fee on any shares purchased equal to the underwriting discount on the shares sold to the public in this offering.

To the extent that the underwriters sell more than 28,334,000 shares of common stock, the underwriters have the option to purchase up to an additional 4,250,100 shares from us at the initial public offering price, less underwriting discounts and commissions, for 30 days after the date of this prospectus.

Neither the Securities and Exchange Commission (the “SEC”) nor any state securities commission has approved or disapproved of these securities or passed upon the adequacy or accuracy of this prospectus. Any representation to the contrary is a criminal offense.

The underwriters expect to deliver the shares of common stock against payment on or about            , 2019.

Barclays
J.P. Morgan
Morgan Stanley
BofA Merrill Lynch
Allen & Company LLC
JMP Securities
Raymond James
Stephens Inc.

Prospectus dated         , 2019

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For investors outside the United States: neither we nor the underwriters have done anything that would permit this offering or possession or distribution of this prospectus or any free writing prospectus we may provide to you in connection with this offering in any jurisdiction where action for that purpose is required, other than in the United States. You are required to inform yourselves about and to observe any restrictions relating to this offering and the distribution of this prospectus and any such free writing prospectus outside of the United States.

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We have not, and the underwriters have not, authorized anyone to provide you with different or additional information or to make any representations other than those contained or in any free writing prospectuses we have authorized for use with respect to this offering. We take no responsibility for, and can provide no assurance as to the reliability of, any other information that others may give you or any representation that others may make to you. We are not making an offer of these securities in any state, country or other jurisdiction where the offer is not permitted. You should not assume that the information in this prospectus or any free writing prospectus is accurate as of any date other than the date of the applicable document regardless of its time of delivery or the time of any sales of our common stock. Our business, financial condition, results of operations or cash flows may have changed since the date of the applicable document.

Presentation of Information

Except as otherwise noted, all information in this prospectus is based on the following assumptions:

an initial public offering price of $18.00 per share of common stock, the midpoint of the price range set forth on the cover page of this prospectus;
the underwriters do not exercise their option to purchase additional shares;
the conversion of Virgin Trains USA LLC into a Delaware corporation occurs prior to the closing of this offering;
that our certificate of incorporation and bylaws are in effect, pursuant to which the provisions under “Description of Capital Stock” are in effect;
excludes shares of common stock available for issuance as equity incentive awards to our management; and

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includes shares of common stock that Corvina has agreed to purchase from us and excludes shares of common stock in which certain individuals and/or entities of Fortress (including our Chairman Nominee) have indicated an interest in purchasing.

In this prospectus, we refer to the portion of our Florida passenger rail system running between Miami, Florida and West Palm Beach, Florida as the “South Segment.” We refer to the portion of our Florida passenger rail system that is expected to run between West Palm Beach, Florida and Orlando, Florida as the “North Segment.” We refer to the portion of our Florida passenger rail system that is expected to run between Orlando, Florida and Tampa, Florida as the “Tampa Expansion” and to our passenger rail system that is expected to run between Las Vegas, Nevada and Southern California as the “Vegas Expansion.” We anticipate our Florida passenger rail service (including the South Segment from Miami to West Palm Beach, the North Segment from West Palm Beach to Orlando and the Tampa Expansion from Orlando to Tampa) will stabilize by the fourth quarter of 2023 or the first quarter of 2024 following an approximately two-year ramp up period during which ridership is expected to increase as travelers become acquainted with the new rail service and adjust their trip-making habits. We anticipate stabilization of operations for our Vegas Expansion will also occur by the fourth quarter of 2023 or the first quarter of 2024. However, our expectations for stabilized operations are subject to risks and uncertainties and are subject to change based on various factors. See “Special Note Regarding Forward-Looking Statements and Industry Data” and “Risk Factors” in this prospectus for more information on how we might not achieve our expectations.

Trademarks and Trade Names

We own or have rights to various trademarks, service marks and trade names that we use in connection with the operation of our business. This prospectus may also contain trademarks, service marks and trade names of third parties, which are the property of their respective owners. Our use or display of third parties’ trademarks, service marks, trade names or products in this prospectus is not intended to, and does not imply a relationship with, or endorsement or sponsorship by us. Solely for convenience, the trademarks, service marks and trade names referred to in this prospectus may appear without the ®, TM or SM symbols, but the omission of such references is not intended to indicate, in any way, that we will not assert, to the fullest extent under applicable law, our rights or the right of the applicable owner of these trademarks, service marks and trade names.

Market and Industry Data and Forecasts

Certain market and industry data included in this prospectus has been obtained from third party sources that we believe to be reliable. In addition, this prospectus contains discussion of certain conclusions and analyses contained in the Ridership and Revenue Study (the “Florida Ridership and Revenue Study”) and the Operations and Maintenance and Ancillary Revenue Report (the “Florida Operations and Maintenance And Ancillary Revenue Report”), each of which was commissioned by us and conducted by Louis Berger U.S., Inc. (“Louis Berger”). We utilize estimates of ridership, average fares and other conclusions and analyses from the Florida Ridership and Revenue Study and Florida Operations and Maintenance and Ancillary Revenue Report, but in light of our updated business and management’s estimates, we have made additional adjustments to items, such as ancillary revenue, to account for changing market conditions as described below. Louis Berger has not verified any such adjustments.

This prospectus also contains discussion of certain conclusions, analyses and estimates of our management that are derived in part from the Investment Grade Ridership and Revenue Forecasts (the “High Desert Corridor Study”) conducted by Steer Davies & Gleave Ltd. (“Steer Davies Gleave”), after giving effect to certain adjustments to take into account differences between the Victorville Phase (as defined below) and the Vegas Expansion. The High Desert Corridor Study was commissioned by the High Desert Corridor Joint Powers Authority, a joint powers authority formed by the counties of San Bernadino and Los Angeles and the cities of Adelanto, Victorville, Apple Valley, Lancaster and Palmdale, to study a proposed high-speed rail line linking Las Vegas to Burbank, Los Angeles and Anaheim. Among other phases, the High Desert Corridor Study contemplates a high-speed rail connection between Las Vegas and Victorville (the “Victorville Phase”), which would represent substantially the same route as the Vegas Expansion. Our management's estimates with respect to the Vegas Expansion are derived in part from estimates of ridership, average fares and other conclusions and analyses about the Victorville Phase and the Southern California and Las Vegas markets contained in the High Desert Corridor Study, including giving effect to the sensitivity tests contained in the High Desert Corridor Study as described below. However, the High Desert Corridor Study was not commissioned in connection with or in contemplation of the Vegas Expansion or this registration statement, and no third party, including Steer Davies Gleave, was involved in making our conclusions, analyses, adjustments or estimates. No third party, including Steer Davies Gleave, has independently verified our conclusions, analyses and

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estimates with respect to the Vegas Expansion. Accordingly, the conclusions, analyses and estimates with respect to the Victorville Phase contained in the High Desert Corridor Study are not directly applicable and may differ from those for the Vegas Expansion, and these differences may be material. In addition, the High Desert Corridor Study was dated March 2017 and, except as set forth therein, all information in the study speaks only as of such date.

Our market estimates are calculated by using independent industry publications, government publications, and third party forecasts in conjunction with our assumptions about our markets. We have not independently verified such third party information. While we are not aware of any misstatements regarding any market, industry or similar data presented herein, such data involves risks and uncertainties and is subject to change based on various factors, including those discussed under the headings “Special Note Regarding Forward-Looking Statements and Industry Data” and “Risk Factors” in this prospectus.

We have made certain adjustments to the conclusions, analyses and estimates in the Florida Ridership and Revenue Study, the Florida Operations and Maintenance and Ancillary Revenue Report and the High Desert Corridor Study.

To derive expected ridership for the Vegas Expansion, we utilized the base case ridership projection provided in the High Desert Corridor Study and adjusted it using certain of the sensitivities provided in the study, applying a 12% reduction of ridership from the base case to give effect to potential increased journey time and decreased frequency of our service in comparison to the service assumed in the study’s base case:

an 8.4% reduction of ridership to give effect to potential increases in travel time;
a 3.6% reduction of ridership to give effect to potential reduced frequency in our expected schedule compared to the base case assumption of train service frequency of every 20-30 minutes, based on the High Desert Corridor Study’s projection of a 3.5% reduction in ridership if train service frequency were reduced by half.

The sensitivities provided in the High Desert Corridor Study are not provided in the study in contemplation of solely the Victorville Phase in isolation, nor do such sensitivities contemplate the cumulative effect of increases in travel time and reduced frequency of schedule. As a result, our management’s estimates of expected ridership may differ from actual results and such difference may be material.

To project expected ancillary revenue for the Vegas Expansion, we utilized the projections provided in the Florida Operations and Maintenance and Ancillary Revenue Report and increased the expected ancillary revenue by $5 per passenger to reflect, in management's judgment, the characteristics of the Vegas Expansion market, primarily due to the expected higher demand for onboard and in-station food and beverage.

We based our ridership and ancillary revenue expectations for the Florida system on the Florida Ridership and Revenue Study prepared by Louis Berger, with no changes to the base case projections for 2023.

For both the Florida system and Vegas Expansion fare projections, we assumed a 2.8% annual increase in fares, based on expected inflation and fare growth, from 2016 for the Florida Ridership and Revenue Study with respect to the South Segment and the North Segment, from 2017 for the Florida Ridership and Revenue Study with respect to the Tampa Expansion and from 2015 for the High Desert Corridor Study with respect to the Vegas Expansion.

In addition, we assumed that we will obtain financing on commercially reasonable terms in order to fund completion of the Florida system and the Vegas Expansion. There can be no assurance that we will be able to obtain financing on commercially reasonable terms, or at all, or that we will have other sources of liquidity available. See “Risk Factors” and “Use of Proceeds”.

The foregoing adjustments and all conclusions, analyses and estimates based upon them, are management’s estimates only and speak only as of the date of this prospectus. All such adjustments, conclusions, analyses and estimates are inherently imprecise and subject to risks and uncertainties that could cause actual results to differ materially from management’s expectations. See “Special Note Regarding Forward-Looking Statements and Industry Data” and “Risk Factors.”

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SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS AND INDUSTRY DATA

Some of the information contained in the sections entitled “Prospectus Summary,” “Risk Factors,” “Management’s Discussion and Analysis of Financial Condition and Results of Operations,” “Business” and elsewhere in this prospectus contain forward-looking statements that reflect our current views with respect to, among other things, future events and financial performance. You can identify these forward-looking statements by the use of forward-looking words such as “outlook,” “believes,” “expects,” “potential,” “continues,” “may,” “will,” “should,” “could,” “seeks,” “approximately,” “predicts,” “intends,” “plans,” “estimates,” “anticipates,” “target,” “projects,” “contemplates” or the negative version of those words or other comparable words. Any forward-looking statements contained in this prospectus are based upon our limited historical performance and on our current plans, estimates and expectations in light of information currently available to us. The inclusion of this forward-looking information should not be regarded as a representation by us, Fortress, the Virgin Trains Stockholder, the underwriters or any other person that the future plans, estimates or expectations contemplated by us will be achieved. Such forward-looking statements are subject to various risks and uncertainties and assumptions relating to our operations, financial results, financial condition, business, prospects, growth strategy and liquidity. Accordingly, there are, or will be, important factors that could cause our actual results to differ materially from those indicated in these statements. We believe that these factors include, but are not limited to:

we may not be able to complete the XpressWest Acquisition, which is subject to customary closing conditions;
cost overruns and delays in the completion of our Florida passenger rail system, the Vegas Expansion and any other future rail system, changes to plans and specifications, as well as difficulties in obtaining requisite approval or sufficient financing to pay for such costs and delays;
reduced revenues as a result of delays in completion of our Florida passenger rail system or any future rail system;
our dependence on third-party contractors for the successful, timely and cost-effective completion and operation of our express passenger rail system or any future rail system;
our dependence on third-party suppliers for the successful, timely and cost-effective completion and operation of our express passenger rail system or any future rail system;
our current limited revenue and cash flow history, and the significant uncertainty regarding our ability to achieve profitability and generate positive cash flows in the future;
our ability to obtain additional funding, including the 2019 Debt Financing (as defined below) or the bridge loan facility, in order to complete our express passenger rail system or any future rail system;
adverse macroeconomic and business conditions in Florida, Southern California, Las Vegas or any other areas into which we may expand;
the potential inaccuracy, incorrectness and inherent uncertainty of the estimates in this prospectus of future ridership and average fare prices for our Florida passenger rail system and the Vegas Expansion;
our ability to achieve the target stabilized operating income margin set forth in this prospectus;
our ability to successfully implement our proposed business strategy, particularly our ability to build passenger rail systems in Florida, Southern California to Las Vegas and beyond;
our ability to achieve stabilized operations for our Florida passenger rail system or any future rail system in our anticipated timeframes;
our ability to maintain or renew any permits necessary to successfully operate our passenger rail systems in Florida, Southern California, Las Vegas and beyond;
our ability to continue to use, maintain, enforce, protect and defend our owned and licensed intellectual property, including the Virgin brand and other intellectual property licensed to us under the Virgin License Agreement;
our ability to successfully rebrand under “Virgin Trains USA”;
our limited operating history;

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rising fuel costs;
failure to obtain and maintain required approvals and permits from governmental, regulatory and non-governmental agencies;
risks, costs and liabilities associated with environmental and other government regulations, including any future changes in such regulations;
our ability to successfully develop real estate adjacent to existing or future stations in our anticipated timeframes;
severe weather and natural disasters;
losses and liability that may not be covered by our insurance;
risks related to the shared use of our corridor with freight operations and potentially commuter rail;
our ability to satisfy the conditions precedent to effectuate agreements with certain government authorities and to enforce our rights under such agreements;
increased labor costs and the unavailability of skilled workers, labor disputes and work stoppages;
our ability to retain key members of management;
losses and adverse publicity stemming from accidents or service disruptions;
acts of terrorism or war;
potential cybersecurity attacks; and
reliance on technology and technology improvements.

These factors should not be construed as exhaustive and should be read in conjunction with the other cautionary statements that are included in this prospectus. The forward-looking statements made in this prospectus relate only to events as of the date on which the statements are made. We do not undertake any obligation to publicly update or review any forward-looking statement except as required by law, whether as a result of new information, future developments or otherwise.

If one or more of these or other risks or uncertainties materialize, or if our underlying assumptions prove to be incorrect, our actual results may vary materially from what we may have expressed or implied by these forward-looking statements. We caution that you should not place undue reliance on any of our forward-looking statements. You should specifically consider the factors identified in this prospectus that could cause actual results to differ before making an investment decision to purchase our common stock. Furthermore, new risks and uncertainties arise from time to time, and it is impossible for us to predict those events or how they may affect us.

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Prospectus Summary

This summary highlights information contained elsewhere in this prospectus and does not contain all the information you should consider before making an investment decision. You should read the entire prospectus carefully, including the sections entitled “Risk Factors,” “Special Note Regarding Forward-Looking Statements and Industry Data,” “Selected Combined Financial Data,” “Management’s Discussion and Analysis of Financial Condition and Results of Operations” and our combined financial statements and the accompanying notes included elsewhere in this prospectus, before making an investment decision. Unless otherwise indicated or the context otherwise requires, all references in this prospectus to “we,” “us,” “our,” the “Company,” “Virgin Trains” and similar terms refer to Virgin Trains USA LLC or to Virgin Trains USA Inc. (depending on whether the statement relates to the period before or after our conversion into a corporation in connection with this offering), and in each case, its subsidiaries, including certain other wholly-owned subsidiaries of the Virgin Trains Stockholder that will be contributed to the Company prior to the closing of this offering.

In addition, this prospectus contains discussion of certain conclusions and analyses contained in the Florida Ridership and Revenue Study and the Florida Operations and Maintenance and Ancillary Revenue Report, each conducted by Louis Berger. Any discussion herein of the Florida Ridership and Revenue Study, the Florida Operations and Maintenance and Ancillary Revenue Report or such report’s conclusions or analyses are expressly qualified by reference to the full text of such report. You should read carefully the Florida Ridership and Revenue Study, the Florida Operations and Maintenance and Ancillary Revenue Report and copies of which have been filed as an exhibit to the registration statement of which this prospectus is a part and are publicly available at www.sec.gov. See “Independent Advisor Reports.”

Our Company

We own and operate an express passenger rail system connecting major population centers in Florida, with plans to expand operations further in Florida, Las Vegas and elsewhere in North America. We are the first new major private passenger intercity railroad in the United States in over a century, and we believe our business represents a scalable model for twenty-first century passenger travel in North America.

We currently operate between Miami and West Palm Beach, one of the most heavily traveled and congested regions in the U.S. We have commenced construction of the expansion of our Florida passenger rail system to Orlando, Florida, and we intend to further expand our rail service to Tampa, Florida. Louis Berger estimates the total potential addressable market of travelers across our Miami to Tampa corridor to be approximately 413 million trips annually. We can operate up to 32 trains daily that are capable of speeds of up to 125 miles per hour, and we own stations located in the heart of downtown cities and major transit hubs in Florida. We believe our passenger rail system offers travel that is faster, safer, more eco-friendly, more reliable, less expensive, more productive and more enjoyable than travel by car or air.

On September 18, 2018, we announced our expansion to the West Coast through our proposed acquisition of DesertXpress Enterprises, LLC and certain related assets (the “XpressWest Acquisition”). The aggregate purchase price for the XpressWest Acquisition is approximately $120 million, of which approximately $60 million will be paid in cash (which we intend to fund with the net proceeds of this offering, the concurrent private placements, and/or other debt or equity financings (including the 2019 Debt Financing (as defined below))) and the balance in shares of our common stock. Pursuant to the XpressWest Acquisition, we have agreed to acquire the rights to develop a high-speed rail project within a corridor between Victorville, California and Las Vegas, Nevada that is expected to be federally approved. The XpressWest Acquisition provides us with the opportunity to develop, operate and connect Las Vegas with Southern California by means of a new passenger rail system. The Vegas Expansion will link one of the most traveled routes in the United States, connecting approximately 13.4 million people living in the Los Angeles metro area with the approximately 2.2 million people living in the Las Vegas metro area, which is one of the most visited cities in the United States. The XpressWest Acquisition is anticipated to close in the first quarter of 2019, subject to customary closing conditions. The closing of the XpressWest Acquisition is not a condition to the closing of this offering, and we cannot assure you that the XpressWest Acquisition will be consummated on our expected timeline or at all.

On November 16, 2018, we announced our partnership with VEL and our intention to rebrand from “Brightline” to “Virgin Trains USA.” Through its affiliated businesses, VEL is a global leader in the passenger transportation sector with involvement in the airline, passenger rail, tour operations, hotel and cruise sectors, serving approximately 53 million customers annually across all of its platforms. Its brand, Virgin, is well recognized globally and is

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associated with high quality service and industry-leading customer experience. Through its Virgin Trains (UK) affiliate, VEL has over 20 years of experience operating high-speed passenger trains throughout the United Kingdom and passengers took over 38 million trips during the fiscal year ended March 31, 2018. We believe our partnership with VEL will help enable us to accelerate our market penetration, leveraging a brand that fits the diversified population and international traveler base of our Florida market as well as the California and Las Vegas markets we intend to serve. We also expect to benefit from cross-marketing, distribution and customer loyalty programs with other VEL passenger travel businesses, many of which conduct operations within our markets. Under the terms of the agreement with respect to the concurrent private placement to Corvina, Corvina has agreed to purchase from us, at a price per share equal to the initial public offering price, shares of newly issued common stock in an amount equal to less than 2% of the number of shares outstanding immediately following the offering.

We intend for our Florida passenger rail service and the Vegas Expansion to generate meaningful profits and serve as a scalable model to expand our operations to a number of other large and congested intercity travel corridors in North America where large and growing travel populations seek a similar solution for medium-distance, “too long to drive, too short to fly” travel.

We aim to execute on our growth strategy by offering three compelling benefits to intercity travelers: speed of travel, customer experience and cost savings:

Speed of Travel – Our express transit service is significantly faster than car travel. For example, our Miami to Orlando service will take approximately 3 hours 15 minutes compared to an estimate of approximately 4 hours 15 minutes by car along I-95 or 3 hours 50 minutes along the Florida Turnpike, which is a toll road. We believe the Vegas Expansion will result in trips between Victorville and Las Vegas taking approximately 1 hour 30 minutes compared to an estimate of approximately 2 hours 50 minutes by car.

Customer Experience – Whether traveling for business or leisure, passengers can maximize productivity, using mobile devices freely, and enjoy a variety of amenities, while traveling from one downtown location to another on a reliable schedule and in an environmentally friendly way. Our trains depart and arrive at our bright, new state-of-the-art stations, and all of our trains are equipped with free high-speed WiFi connections. Additionally, passengers are able to avoid travel time to the airport, airport security and sitting in commuter traffic.

Cost Savings – We expect to offer service between Miami and Orlando for fares that are lower than the cost of driving or flying for individual travelers. Based on our expected fares for an individual traveler, we expect that a trip on our trains between Miami and Orlando will be approximately 25% less expensive than driving and approximately 30% less expensive than flying. We expect the fares between Victorville and Las Vegas will average approximately $60, which is less expensive than the cost of driving (when including parking costs) and the typical cost of flying. For example, the cost of a next day, Friday flight from Los Angeles to Las Vegas can often exceed $150.

These benefits are consistent with factors that have made other express passenger rail systems successful throughout the world.

Our Growth Potential in Florida

When our Florida passenger rail system is fully built-out and operational between Miami and Orlando, we expect to carry approximately 6.6 million passengers annually, as estimated by Louis Berger. Louis Berger estimates that a fully built-out and operational service between Orlando and Tampa would carry an additional 2.9 million passengers annually, which would result in fully operational annual stabilized ridership of approximately 9.5 million passengers for our Florida passenger rail system. The Tampa Expansion is contingent on our ability to obtain certain land rights, which requires that we demonstrate the financial wherewithal to complete our Florida passenger rail system. We expect, based upon certain estimates and assumptions prepared for us by Louis Berger, to generate approximately $810 million of total revenue in our first stabilized year (including the South Segment from Miami to West Palm Beach, the North Segment from West Palm Beach to Orlando and the Tampa Expansion from Orlando to Tampa) after an initial ramp up period of our operations. To arrive at this estimate, our management applied a combined annual fare growth and inflation rate of approximately 2.8% to Louis Berger’s estimates, thereby projecting annualized ticket revenue of approximately $697 million by the fourth quarter of 2023 or the first quarter of 2024. Louis Berger has not verified our management's adjustments. The determination of the year of stabilization is based on information the Company provided to Louis Berger, which information has not been validated by Louis Berger. In addition, our management projects additional revenue of approximately $113 million based on the Florida Operations and Maintenance and Ancillary Revenue Report, which (based on management estimates Louis Berger

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determined were reasonable) expects revenue from food and beverage, parking, naming rights, sponsorships and partnerships, merchandise, advertisement and other fees to equal approximately 14% of total revenue (or approximately $12 per passenger). Our ancillary revenue is expected to consist of food and beverage sales, merchandise sales, parking fees, advertising, sponsorships and marketing affiliations (including naming rights), commissions from our travel partners and ground transportation extensions and other services. Our projections and forecasts are subject to risks and uncertainties and could change based on various factors. See “Special Note Regarding Forward-Looking Statements and Industry Data” and “Risk Factors.” We believe our service will generate compelling returns on investment given our efficient cost structure and predictable operating expenses, and we target a stabilized operating income margin, before depreciation and amortization, of approximately 70% of total revenue. This estimate is based on the Florida Operations and Maintenance and Ancillary Revenue Report, which estimated operating and maintenance expenses in 2023 to be approximately 30% for the South Segment and the North Segment. We expect that this margin will remain static or improve as a result of the Tampa Expansion, as a significant portion of our projected administrative and other costs are calculable or fixed and can support increased revenue without a corresponding increase in cost. In addition, we intend to pursue new real estate development opportunities at or around existing or future stations using land in Miami and Fort Lauderdale that we own and other land we may acquire in Florida. We expect to work with or hire some or all of the same real estate development team of Florida East Coast Industries, LLC (our “Parent”) that has successfully developed commercial real estate in Southern Florida to develop new office, commercial, retail, entertainment, hotel and/or multi-family residential facilities, which we believe will enhance the appeal of our Florida passenger rail system. See “Risk Factors—Risks Related to Our Business—Our pursuit of new real estate development opportunities entails a number of significant risks that may prevent us from fully realizing some or all of the benefits of developing real estate.”

Our Florida Passenger Rail Network


Our Recently Announced Las Vegas Expansion

Pursuant to the XpressWest Acquisition, we have agreed to acquire the rights to develop a high-speed rail project within a corridor between Victorville, California and Las Vegas, Nevada that is expected to be federally approved. The XpressWest Acquisition provides us with the opportunity to develop, operate and connect Las Vegas with Southern California by means of a new passenger rail system. The Vegas Expansion will link one of the most traveled routes in the United States, connecting approximately 13.4 million people living in the Los Angeles metro area with the approximately 2.2 million people living in the Las Vegas metro area, which is one of the most visited cities in the United States.

We estimate a fully operational annual stabilized ridership of 11.3 million passengers for the Vegas Expansion by the fourth quarter of 2023 or the first quarter of 2024. We expect the ramp up of ridership for the Vegas Expansion will proceed at a faster rate than our Florida passenger rail system due in part to the more concentrated travel pattern in the corridor between Las Vegas and Southern California. We expect to generate approximately $863 million in total

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revenue from the Vegas Expansion in its first year of stabilized operations, which includes approximately $674 million in ticket revenue and approximately $189 million in ancillary revenue (which reflects an expected $5 in additional ancillary revenue per passenger as compared to our Florida passenger rail system, based on management’s expectation that the average trip length and nature of the market served by the Vegas Expansion will result in increased demand for food and beverage and potential sponsorship opportunities). Similar to our Florida passenger rail system, we believe that the Vegas Expansion could generate compelling returns, and our goal is to generate a stabilized operating income margin, before depreciation, amortization and interest, of approximately 70% of total revenue.

We intend for the Las Vegas station to be located adjacent to the Las Vegas strip and to serve as a major intermodal hub with access to taxis, buses, ride shares, shuttles and limousines. We expect the initial Southern California station to be located in Victorville, and we also intend to add additional stations and provide connections to California Metrolink.

In connection with the XpressWest Acquisition, we have also entered into an agreement to acquire, subject to customary closing conditions, approximately 38 acres of land adjacent to the Las Vegas strip for construction of the Las Vegas station and mixed-use development for a purchase price of approximately $150 million, of which approximately $140 million will be paid in cash and the balance in shares of our common stock. The XpressWest Acquisition is anticipated to close in the first quarter of 2019, subject to customary closing conditions. The closing of the XpressWest Acquisition is not a condition to the closing of this offering, and we cannot assure you that the XpressWest Acquisition will be consummated on our expected timeline or at all.

The first phase of the Vegas Expansion is expected to be built on a right of way within and adjacent to Interstate 15, traversing 185 miles with no at-grade or pedestrian crossings. We expect to award construction contracts in 2019. Construction is expected to begin in 2019 and initial service is expected to begin after anticipated completion of construction by the fourth quarter of 2022 or the first quarter of 2023. We expect to fund the development costs with the net proceeds from this offering and/or other debt or equity financings.

Our Vegas Expansion Rail Network


Expansion Opportunities Beyond Florida and Las Vegas

The United States dramatically lags behind both Europe and Asia in express passenger rail service despite having one of the most developed rail and highway systems in the world. We believe we can capitalize on this extensive infrastructure to expand our services into new markets. Our expansion plans are initially focused on markets with characteristics and demographics similar to those of our Florida passenger rail system and the Vegas Expansion – connecting highly populated cities with substantial intercity travel and separated by distances of 200 to 300 miles that are “too long to drive, too short to fly.” As we have done in Florida and Las Vegas, we intend to target markets where we believe we can utilize existing transportation corridors – either rail, highway or a combination of both – to cost effectively build our systems, as opposed to developing entirely new corridors at potentially significantly higher costs.

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The map below identifies several major U.S. cities that possess what we believe are key attributes for a successful intercity rail network using existing infrastructure:


By using existing infrastructure, we believe we can plan, permit and build new rail service significantly faster and cheaper than alternative express passenger rail projects in these areas. As the only successful private developer of express passenger rail currently operating in the United States, we believe we are uniquely positioned to leverage our expertise, brand and scalable platform to implement similar intercity passenger rail systems in a number of these markets.

Our Market

Overview

We provide “intercity” passenger rail transportation, which is characterized as service operating within medium-distance travel corridors, generally between 200 to 300 miles, that connect large population centers and experience high and increasing volumes of travelers. Intercity passenger rail services in the U.S. and globally are typically highly profitable. Such services have the ability to offer faster travel times with greater convenience at a lower cost when compared to other available modes of travel in their markets (such as car and air). Our business is differentiated from a “commuter” railroad, which is commonly government-owned and subsidized to maintain artificially low fares and provide high frequency service between large numbers of local stations within a single metro area resulting in high operating costs.

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Examples of these intercity rail services comparable to our business include Amtrak's Acela service in the northeastern U.S. and several privately owned European services, such as the Eurostar service operating between London and Paris, and Italo, which operates between several major cities in Italy and Virgin Trains (U.K.), which operates between London and Manchester. The table and summaries below contain publicly available information for select intercity rail services, including regions served, annual passengers, market share and financial information.

Examples of Intercity Passenger Rail Systems

 
Amtrak
 
 
 
 
Northeast Corridor
(Including Acela)
Acela
Eurostar
Italo
Virgin Trains
(U.K.)
Major Cities Served:
Boston - New York -
Philadelphia - D.C.
London - Paris
Rome - Milan
London - Manchester
 
 
 
 
 
Distance (Miles)*:
215 (Boston - NY)
100 (NY - Phila.)
240 (NY - D.C.)
290
360
160
Annual Passengers (Total System):
12.0mm
3.4mm
10.3mm
12.8mm
38.3mm
 
 
 
 
Market Share**:
15% (Boston - NY)
29% (NY - Phila.)
27% (NY - D.C)
80%
23%
N/A
 
 
 
 
Annual Revenue:
$1.3bn
$615mm
$1.2bn
$0.5bn
$1.5bn
 
 
 
 
EBITDA margin***:
37%
47%
61%
57%
55%
*Represents approximate distances between selected major city pairs only; does not include distance of entire network.
**Sources: Company and industry reports, press releases and news articles.
***Amtrak: Amtrak Monthly Performance Report September 2017 - $471.7mm EBITDA / $1.3bn revenue (Northeast Corridor) and $290.7mm EBITDA / $614.7mm revenue (Acela); Eurostar: Eurostar Strategic Report, Directors’ Report and Financial Statements 2017 - $185.7mm EBITDA + $519.0mm access payments + $14.8mm equipment lease payments / $1.2bn revenue; Italo: Italo 2017 Annual Report - $175.9mm EBITDA + $107.8mm access payments + $8.9mm equipment lease payments / $513.9mm revenue. Virgin: Virgin FY2018 financials based on FY2018 Annual Report - $81.8mm EBIT + $173.6mm rolling stock / lease installments + $241.0mm track access, station and depot access + $322.3mm franchise fees / $1.5bn revenue.

For descriptions of these comparable intercity rail services, see “Intercity Passenger Rail—Industry Overview—Overview—Comparable Intercity Passenger Rail Services.”

Market Capture Rates

Due to their ability to offer travel that is faster, more productive, more convenient and more comfortable along densely traveled corridors, intercity railroads commonly capture a significant share of their relevant travel market, even at fare levels that are often higher than the cost of driving or flying. These markets represent travel destinations that are “too long to drive, too short to fly” for many travelers, making travel by rail the most effective, efficient and viable mode of transportation. Rail travel in the U.S. and throughout the world has reached an all-time high and has continued to grow at a rate faster than any other major mode of travel. According to a recent Brookings Institute report, total U.S. intercity rail passengers grew at a rate of almost double the rate of U.S. gross domestic product and approximately triple the rate of travel by air and car over the same period. Capture rates experienced by peer express passenger rail systems, which operate along some of the most traveled corridors served by intercity railroads, have ranged from 15% to 80%. For more information, see “Intercity Passenger Rail—Industry Overview—Overview—Intercity Passenger Rail—Market Capture Rates.”

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Demonstrated Ramp Up of New Intercity Rail Systems

Upon introduction of service, new intercity rail systems typically experience an initial high growth “ramp up” in ridership and revenue during the first three years of operation and prior to reaching mature ridership levels. This ramp up is a result of market adoption of a new mode of travel. A summary of the historical ramp up of Amtrak Acela, Eurostar and Italo is set forth below.


For more information, see “Intercity Passenger Rail— Industry Overview—Overview—Demonstrated Ramp Up of New Intercity Rail Systems.”

Trends

Intercity travel in the United States has reached all-time highs and we expect several powerful trends to continue to drive ridership and demand for high-speed rail service.

Growing roadway congestion. Growing travel demand, aging infrastructure and significant restrictions on the ability to expand roadways all contribute to increased roadway congestion in many areas of the United States, which includes 10 of the top 25 cities in the world with the worst traffic congestion. U.S. drivers incurred more than $305 billion in direct and indirect costs attributable to congestion in 2017. The average speed of I-95 local lanes directly north of Miami has decreased from 46 mph in 2012 to 33 mph in 2018.
Dependence on mobile devices and productivity. Americans are spending an increasing portion of their days using mobile devices both for work and personal activities.
New first/last-mile travel solutions. The recent emergence of rideshare services, such as Uber and Lyft, facilitate the use of passenger rail service by providing transport to and from rail stations.
Travel preferences are changing. Many Americans, particularly younger Americans, seek a new means of travel in lieu of driving their own cars. Millennials represent approximately 70% of Uber users in the U.S., are three times more likely than certain other age groups to use public transit and are less likely to obtain driver’s licenses (only 45% of 17 year olds held a driver’s license in 2014, compared to 75% in 1978).
Growing focus on safety and the environment. We believe that many U.S. roadways are becoming increasingly dangerous. U.S. motor-vehicle deaths in recent years have hit record numbers and are increasing at an alarming rate, including the I-95 corridor in Miami-Dade which is the deadliest interstate road in America as measured by fatalities per roadway mile. In addition, compared to other modes of travel, rail is substantially more fuel efficient per trip than driving or flying.

Strategy

We are the first new major private passenger intercity railroad in the United States in over a century, and we believe our business represents a scalable model for twenty-first century passenger travel in North America. Our goal is to build railroad systems in North America that connect major metropolitan areas with significant traffic and congestion. We believe that the economics of passenger rail service offer a highly compelling investment opportunity.

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In addition, we believe that passenger volume creates additional opportunities, such as sponsorship deals and transit oriented development of real estate at or near our stations for mixed uses including commercial, retail, restaurants and residential purposes that could generate further meaningful returns.

We intend to achieve our goals by pursuing the following strategies:

Complete the Build-Out of Our Florida Express Passenger Rail System

Over the past several years, we have built three new state-of-the-art rail stations in Miami, Fort Lauderdale and West Palm Beach, acquired rolling stock, including five new train sets (10 locomotives and 20 coaches), secured all necessary operating permits and government authorizations, and commenced service between Miami and West Palm Beach. Short-distance service (Miami to Fort Lauderdale, Miami to West Palm Beach and Fort Lauderdale to West Palm Beach) is expected, based on estimates from Louis Berger, to carry approximately 3.1 million passengers annually by the fourth quarter of 2023 or the first quarter of 2024. The determination of the year of stabilization is based on information the Company provided to Louis Berger, which information has not been validated by Louis Berger. We have commenced construction of the expansion of our Florida passenger rail system to Orlando, and we intend to further expand our rail service to Tampa. We have secured substantially all material permits, government authorizations, real estate and track rights necessary for our expansion to Orlando, and with the net proceeds from this offering, the concurrent private placements and/or other debt or equity financings (including the 2019 Debt Financing), we expect to secure all funding necessary for the projected cost of our expansion to Orlando. We will utilize Florida State Road 528 (“SR528”) as a right-of-way to connect our existing rail corridor to Orlando. Our build-out to Orlando is expected to be complete in approximately three years, and is expected to increase our annual stabilized ridership to approximately 6.6 million passengers at the time of stabilization as estimated by Louis Berger. Based on estimates from Louis Berger, we expect an additional 2.9 million passengers annually on a stabilized basis by expanding our service between Orlando and Tampa.

Capitalize on Virgin Brand Awareness and Generate Cross-Selling Opportunities with Other Virgin Branded Travel Companies

We intend to capitalize on cross-selling opportunities and customer loyalty programs with other Virgin branded travel and hospitality businesses in our markets. Virgin Atlantic, a large global passenger airline, flies over 1 million passenger journeys annually between the United Kingdom and Florida and over 250,000 passenger journeys annually between the United Kingdom and Las Vegas. Virgin Hotels, a U.S hotel chain founded in 2010 and headquartered in Miami, will manage and rebrand the Hard Rock Hotel & Casino in Las Vegas to Virgin Hotels Las Vegas in 2019. Virgin Voyages, a cruise company founded in December 2014, is building four new 2,770-passenger cruise ships. The first of these will be based in Port Miami and is expected to begin voyages in 2020. We believe there are significant opportunities to grow our ridership by directing customers of other Virgin branded companies within our markets on to our rail system, including by using the planned cross-platform loyalty program affiliated with VEL.

Achieve Profitability by Capturing Modest Portion of Travel Market and Offering Competitive Pricing

We believe we can achieve profitability by charging ticket prices – and capturing a percentage of the travelers in our markets – that are lower than those of established express passenger rail systems. We currently charge fares that are substantially lower than those charged by established express rail systems over comparable distances. For example, standard passenger service fares on Amtrak’s Acela service, the most comparable intercity service in the United States to our service, average approximately $180 for short distance trips, such as New York to Philadelphia, while we expect to charge an average of approximately $50 for our Miami to West Palm Beach Service; Acela service for long distance trips, such as New York to Washington, average approximately $300, compared to our expected average fare of approximately $100 for our Miami to Orlando service. Moreover, we believe our fares are highly competitive relative to the cost of travel for the same routes via other modes such as driving, rideshare services and flying. The average cost of a next day flight between Miami and Orlando is approximately $160, and the average cost of rideshare service between Miami and Orlando is approximately $300, both higher than our expected fares. An individual traveling on an airline ticket purchased on this timeline or traveling on their own via rideshare may thus experience significant savings by using our passenger rail service. We expect to achieve our revenue projections by capturing approximately 2.0% of the estimated addressable travel market between Miami and Tampa, which is significantly lower than the approximately 10-30% market share captured by established rail systems such as Acela and Italo. We believe that our relatively lower fares will drive ridership in the early stages of our business and that there is a compelling opportunity to increase both fares and ridership in line with industry levels as our business matures.

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Build Passenger Rail Systems that Connect Major Metropolitan Areas with Significant Intercity Traffic and Congestion

We believe a persuasive opportunity exists to introduce passenger rail systems to connect metropolitan areas of sufficient distance and with significant traffic and congestion. Our expansion plans are initially focused on markets with characteristics and demographics similar to those of our Florida passenger rail system and the Vegas Expansion – connecting highly populated cities with substantial intercity travel and separated by distances of 200 to 300 miles that are “too long to drive, too short to fly.” We intend to expand into markets where we believe we can utilize existing transportation corridors – either rail, highway or a combination of both – to cost effectively build our systems, as opposed to developing entirely new corridors at potentially significantly higher costs.

Our first expansion market outside Florida is a rail service line between Las Vegas, Nevada and Southern California for which we have agreed to acquire the rights pursuant to the XpressWest Acquisition and expect to begin construction in 2019, subject to regulatory approvals. Examples of other potential expansion markets include Atlanta, Georgia to Charlotte, North Carolina (240 miles), Dallas to Houston, Texas (240 miles), Los Angeles to San Diego, California (120 miles) and Portland, Oregon to Vancouver, British Columbia (315 miles). We believe the Virgin brand could provide the opportunity for public relations events to generate media coverage in new markets and that awareness of the Virgin brand could help generate interest from riders in new markets. This increased interest from riders may allow us to penetrate new markets more quickly than we otherwise would. With our expertise, brand and scalable platform, we believe that we are well positioned to implement similar intercity passenger rail systems in a number of these markets.

Drive Organic Growth Through Increased Ridership and Revenue

We intend to grow our ridership and revenue through a number of initiatives, including capturing a larger share of the total travelers within our markets, increasing fares utilizing yield management strategies and increasing our trip frequency in response to demand, especially at peak hours and during special events. Several comparable intercity passenger rail systems typically capture between 10-30% or more of their respective travel markets. We believe we have the ability to approach similar market share as our business matures, although our target financial performance assumes lower travel market share. Louis Berger estimates the total potential addressable market of travelers across our Miami to Tampa corridor to be approximately 413 million trips annually.

Create High-Value Real Estate Development Opportunities

Because of the high number of passengers expected to pass through our downtown stations, there are several attractive retail, residential and commercial transit-oriented real estate development opportunities at or near our station sites. Currently, our Parent is developing approximately 1.5 million square feet of mixed-use office, residential, retail and parking facilities at and around our stations in Miami, Fort Lauderdale and West Palm Beach, and key tenants, including top-tier food and beverage, fashion, fitness and life-style brands, have leased and are in negotiations to lease space. We intend to pursue new real estate development opportunities at or around existing or future stations using land in Miami and Fort Lauderdale that we own and other land we may acquire in Florida. We expect to work with or hire some or all of the same real estate development team of our Parent that has successfully developed commercial real estate in Southern Florida to develop new office, commercial, retail, entertainment, hotel and/or multi-family residential facilities, which we believe will enhance the appeal of our Florida passenger rail system.

In connection with the Vegas Expansion, we also expect to develop commercial real estate to pursue new office, commercial, retail, entertainment, hotel and/or multi-family residential facilities in Las Vegas, which we believe will enhance the appeal of the Vegas Expansion. We have entered into an agreement to acquire approximately 38 acres of land adjacent to the Las Vegas strip for potential station location and real estate development.

We expect the costs involved in pursuing real estate developments to include real estate acquisition costs, construction and permitting costs, as well as financing and leasing costs. We do not intend to use the funds from this offering and/or the concurrent private placements to pursue such real estate development opportunities. Developing real estate entails a number of significant risks such as construction or permitting delays, construction defects or the inability to obtain financing on attractive terms. The occurrence of any of these risks may prevent us from fully realizing some or all of the benefits of developing real estate.

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Capitalize on Passenger Volume to Generate Revenue from Multiple Sources

In addition to ticket sales, we intend to capitalize on passenger volume to generate revenue through a number of high margin ancillary revenue opportunities, including food and beverage sales, merchandise sales, parking fees, advertising, sponsorships and marketing affiliations (including naming rights), commissions from our travel partners and ground transportation extensions and other services. Our trains and stations provide multiple opportunities for advertisers to reach a large and captive audience. We sell advertising space on video screens, monitors, kiosks and displays at each station and on board our fleet of trains and ground transportation facilities. We also actively pursue long-term partnerships and sponsorships with a variety of organizations, including financial institutions and technology companies. In addition, we expect to generate income through travel packaging relationships with third parties such as car rental companies, hotels and theme parks.

Continuously Maintain “Safety First” Culture

The safety of our passengers, employees and the communities in which we operate is our top priority. We strive to be one of the safest rail systems in North America and are upgrading our signal system to be fully-compliant with Positive Train Control (“PTC”) standards. PTC technology facilitates a centrally monitored and controlled network to bring trains to a stop if certain safety requirements are exceeded. Installing PTC systems allow our trains to operate within a dynamic safety environment that constantly monitors speed restrictions, track maintenance and similar items and can intervene to stop a train before it reaches an unsafe condition.

We have undertaken certain initiatives to educate pedestrians and drivers on the importance of rail safety designed to prevent accidents and fatalities. We have also collaborated with Operation Lifesaver, a national nonprofit organization focused on rail safety education, to develop and activate a rail safety campaign, to distribute safety information to students and families in certain school districts in South Florida and to train approximately 40 Virgin Trains teammates to be authorized Operation Lifesaver volunteers. We are further collaborating with Operation Lifesaver to launch a state-wide rail safety initiative, including broadcast and radio public service announcements. In addition, we continuously maintain an aggressive awareness campaign consisting of partnerships with cities and counties along the corridor, the Federal Railroad Administration (“FRA”) and the Florida Department of Transportation (“FDOT”).

Strengths

Strong Momentum and Ridership Growth

Since commencing service in January 2018, we have experienced substantial growth in the number of passengers utilizing our services. We expect this trend to continue over the course of our ramp up period as we approach stabilized ridership for the South Segment, consistent with comparable system ramp up periods experienced by peer express passenger rail systems such as Acela, Eurostar and Italo, which averaged 29%, 81% and 86% of stabilized year four ridership in the first, second and third years, respectively, after each system’s launch. For more information, see “Intercity Passenger Rail—Industry Overview—Overview—Demonstrated Ramp Up of New Intercity Rail Systems.”

We experienced a 42% increase in ridership from 75,000 passengers in the first quarter of 2018 to 106,000 passengers in the second quarter of 2018, experienced an increase of 50% in ridership from 106,000 passengers in the second quarter of 2018 to 160,000 passengers in the third quarter of 2018 and experienced an increase of 50% in ridership from 160,000 passengers in the third quarter of 2018 to 239,000 passengers in the fourth quarter of 2018. The trends driving growth are continuing and, as a result, our management expects that ridership in the first quarter of 2019 will continue to demonstrate strong levels of growth. We believe our new brand and relationship with the Virgin Group could help accelerate our ridership growth in the future as we continue to move toward achieving stabilized ridership.

World-Class Virgin Brand and Partnership

We believe that the Virgin brand is widely recognized in the United States and is known for being innovative and entrepreneurial. We also believe that the brand is recognized worldwide from the Virgin Group’s offerings in music, passenger rail travel, air travel, hotels, wireless service and various other products and services. We believe our riders will associate the Virgin brand with a high-quality and high-value travel experience. We hope to capitalize on the strength of the Virgin brand in order to target riders who value an enhanced travel experience. Upon entering a new market, we believe existing awareness of the Virgin brand could help to generate interest from new riders that will potentially allow us to ramp up ridership faster than we otherwise would.

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Additionally, we believe that, as our partner and a shareholder, Virgin Group will further enhance our operational capabilities in the high-speed intercity passenger rail space. Virgin Group has significant experience investing in the rail sector that we expect to leverage upon, including its ongoing investment in Virgin Trains, a high-speed intercity passenger rail system in the United Kingdom with which passengers took more than 38 million trips during the fiscal year ended March 31, 2018.

Unique and Valuable Infrastructure

We have the distinct advantage of building our Florida passenger rail system primarily on an existing rail corridor, which has the significant benefit of reducing both construction costs and completion times relative to greenfield rail systems. As the only uninterrupted rail corridor connecting Miami to Orlando and major communities along the east coast of Florida, our rail line will be extremely difficult to replicate and creates a significant barrier to entry to the market. Moreover, most passenger rail systems globally operate on corridors that they access under temporary leases or similar arrangements and share with other independent third parties operating passenger or freight rail service. These temporary arrangements increase the cost of operating passenger service (requiring rent, access fees or concession payments), place limitations on operators of passenger rail service, and create renewal uncertainty at the end of the term of the lease. Subject to certain limitations, we own the permanent, perpetual and exclusive rights, privileges and easement in the South Segment and the North Segment, and therefore, we do not need to make concession payments to operate our business, which increases our profit margins.

Attractive Station Locations

We currently own our three stations in Miami, Fort Lauderdale and West Palm Beach. In Orlando, our station will be integrated into the Orlando International Airport’s new South Terminal and is owned by the airport and leased to us. All of our stations in South Florida are located in cities with dense populations, near government/business locations and major travel destinations and with multiple connections to public and private ground transportation, as well as local transit services. For example, our downtown Miami station is located within a five-block radius of numerous destinations, including PortMiami, American Airlines Arena, the Miami-Dade County government center complex and the Adrienne Arsht Center for the Performing Arts. The location is also served by both Metrorail (a 25-mile metropolitan rail service with approximately 20 million annual riders) and Metromover (a free, elevated automated people mover service for easy access to downtown Miami sites with approximately 9.5 million annual riders), and we expect it to become a stop for Tri-Rail (a commuter rail line with approximately 4.3 million annual riders) in the near future. We believe our station locations are irreplaceable and will result in a high level of passengers given the centralized locations and ease of connectivity.

With respect to the Vegas Expansion, we intend for the Las Vegas station to be located adjacent to the Las Vegas strip and to serve as a major inter-modal hub with access to taxis, buses, ride shares, shuttles and limousines. We expect the initial Southern California station to be located in Victorville, within an hour drive of the Los Angeles metro area, and we also intend to add additional stations and provide connections to California Metrolink.

Attractive Financial Profile

We expect that ticket sales will account for a significant majority of our revenue upon stabilization, while the remainder of our revenue will be generated from high-margin ancillary revenue attributable to food and beverage sales, merchandise sales, parking fees and long-term contracts relating to advertising, sponsorships and marketing affiliations (including naming rights), commissions from our travel partners and ground transportation extensions and other services. We believe our operating model is highly efficient and benefits from relatively predictable operating expenses. We believe that several features of our operating model enable us to react quickly to market demand, including scalable operations, flexible train and staff schedules and fares determined based on customer demand (as opposed to regulation), which provides us with the flexibility to reduce costs. Our rolling stock, composed of state-of-the art trains, will be maintained by Siemens Industry Inc. (“Siemens”) under a 30-year contract at a set price with established cost escalators, providing clarity on this meaningful expense. Additionally, while other express passenger rail operations generate high margins, they incur costs associated with leasing their corridors whereas we do not, which will benefit our margins.

Strong Private-Equity Sponsorship and Seasoned Management Team

Immediately following the completion of this offering and the concurrent private placements, Virgin Trains will continue to be indirectly majority owned by funds managed by an affiliate of Fortress (such funds, the “Fortress Funds”), one of the largest global investment managers in the world with significant experience investing in the rail

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sector, including prior successful investments in RailAmerica and Florida East Coast Railway. Our senior management team is comprised of seasoned executives with experience launching, developing and growing large-scale, complex projects involving passenger rail transportation, customer-centric business and the hospitality industry. In addition, our management team’s experience in their previous executive positions has included developing a wide range of complex infrastructure and construction projects both within and outside of Florida.

Concurrent Private Placements

Corvina has entered into an agreement pursuant to which it has agreed to purchase from us, at a price per share equal to the initial public offering price, shares of newly issued common stock in an amount equal to less than 2% of the number of shares outstanding immediately following the offering. In addition, certain individuals and/or entities affiliated with Fortress (including our Chairman Nominee) have indicated an interest in purchasing shares of our common stock at a price per share equal to the initial public offering price. Because indications of interest are not binding agreements or commitments to purchase, any of the individuals and/or entities affiliated with Fortress described above may determine to purchase more, fewer or no shares of our common stock.

License Agreement

On November 15, 2018, we entered into the Virgin License Agreement with VEL. Pursuant to the terms of the Virgin License Agreement, VEL has granted to us, during the term, the right to use the Virgin brand, name, logo and certain other intellectual property as part of our corporate name and in connection with the operation of an intercity private high-speed passenger rail service along certain permitted passenger rail routes in the United States (including our Florida passenger rail system and the Vegas Expansion). As a result, we intend to rebrand from “Brightline” to “Virgin Trains USA.” We expect that our intended rebranding will require us to devote substantial resources to advertising and marketing and will cause us to incur significant costs. For more information about the Virgin License Agreement, see “Business—Intellectual Property.”

Anticipated Debt Financing

We are in discussions with potential lenders, other potential financing sources and advisors regarding a debt financing of up to $2.3 billion (net of any additional borrowings necessary to fund any applicable interest rate reserve) to complete the construction of the North Segment and for the other uses set forth under “Use of Proceeds” (the “2019 Debt Financing”). The 2019 Debt Financing will not be completed prior to the consummation of this offering. In the interim, we are currently in discussions for a commitment for a one-year bridge loan facility (subject to a one-year extension) to permit us to borrow up to $2.3 billion aggregate principal amount, but we have not received any commitments. To the extent that we do not timely obtain all or a portion of the 2019 Debt Financing, we may elect to enter into and borrow under the bridge loan facility (if obtained) or other then-available sources of financing. In addition, we intend to obtain in the future additional debt and/or equity financing primarily to fund all or a portion of the costs to complete construction of the Vegas Expansion and the Tampa Expansion. There can be no assurance that we will obtain the debt financing commitment or the bridge loan facility on commercially reasonable terms, or at all, that we will complete the 2019 Debt Financing or the bridge loan facility or that we will have other sources of liquidity available, and we cannot offer any assurance as to the final terms or availability of such financing. See “Description of Certain Indebtedness—Anticipated Debt Financing.”

Corporate Information

We were formed as AAF Holdings B LLC, a limited liability company in Delaware in August 2013 and effected a name change to Brightline Holdings LLC in March 2018 and to Virgin Trains USA LLC in November 2018. The address of our principal executive offices is currently 161 NW 6th Street, Suite 900, Miami, FL 33136. Our website is currently www.virgintrainsusa.com. Information on or accessible through our website is not part of this prospectus.

Prior to the closing of this offering, we intend to reorganize our existing corporate structure so that the issuer of our common stock is a Delaware corporation named Virgin Trains USA Inc. The reorganization will be effected through the statutory conversion.

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Our Principal Stockholder

We are a subsidiary of the Virgin Trains Stockholder and, prior to the completion of this offering, all of our outstanding equity interests (other than equity incentive awards to our management) are owned by the Virgin Trains Stockholder. Immediately following the completion of this offering and the concurrent private placements, the Virgin Trains Stockholder will own approximately 81.6% of our outstanding common stock, or 79.5% if the underwriters’ over-allotment option is fully exercised. This level of share ownership is sufficient to control the vote on matters and transactions requiring stockholder approval. The Virgin Trains Stockholder is owned primarily by private equity funds managed by an affiliate of Fortress, a leading global investment manager. See “Risk Factors—Risks Related to Our Organization and Structure” and “Principal Stockholder.”

Immediately prior to the completion of this offering, we and the Virgin Trains Stockholder intend to enter into an agreement that will provide a framework for our ongoing relationship with the Virgin Trains Stockholder. For a description of this agreement, see “Certain Relationships and Related Party Transactions—Stockholders’ Agreement.”

While our relationship with the Virgin Trains Stockholder and its affiliates is a significant strength, it is also a source of potential conflicts. Please read “— Controlled Company Status” and “Risk Factors.”

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Organizational Structure

We are a holding company that does not conduct any business operations of our own. The following chart summarizes our organizational structure following our intended rebranding from “Brightline” to “Virgin Trains USA,” completion of this offering and our reorganization as a corporation in connection with this offering and reflects the contribution of certain subsidiaries of the Virgin Trains Stockholder to the Company in connection with this offering.


(1) Certain wholly owned intermediate holding companies omitted for ease of presentation.
(2) Corvina has entered into an agreement pursuant to which it has agreed to purchase from us, at a price per share equal to the initial public offering price, shares of newly issued common stock in an amount equal to less than 2% of the number of shares outstanding immediately following the offering. In addition, certain individuals and/or entities affiliated with Fortress (including our Chairman Nominee) have indicated an interest in purchasing shares of our common stock at a price per share equal to the initial public offering price. Because indications of interest are not binding agreements or commitments to purchase, any of the individuals and/or entities affiliated with Fortress described above may determine to purchase more, fewer or no shares of our common stock.
(3) Includes Brightline Trains LLC, our primary operating subsidiary and the owner of our 50% interest in Florida DispatchCo LLC.
(4) Includes Brightline Property Holdings LLC and AAF Jacksonville Segment LLC, each of which own certain of our real property interests.
(5) Includes Brightline Management LLC, the entity that employs our employees.
(6) Includes VTUSA Property Holdings West LLC. After the consummation of the XpressWest Acquisition, we intend that these subsidiaries will include property ownership companies that we expect to create in connection with the Vegas Expansion.
(7) Includes VTUSA Train Holdings West LLC. After the consummation of the XpressWest Acquisition, we intend that these subsidiaries will include VTUSA TrainsWest LLC (f/k/a DesertXpress Enterprises LLC).
(8) Includes New Flagler Development LLC, a development company that will hold entities that will have employees. Flagler Management LLC employees will be paid by the Management Subsidiary as paymaster and Flagler Management West LLC will become an employment entity.

Controlled Company Status

Because the Virgin Trains Stockholder will initially hold approximately 81.6% of the voting power of our common stock following completion of this offering and the concurrent private placements (or approximately 79.5% if the underwriters' over-allotment option is fully exercised), we expect to be a controlled company as of the completion of the offering under the Sarbanes-Oxley Act and the Nasdaq rules. A controlled company does not need its board of directors to have a majority of independent directors or to form an independent compensation or nominating and corporate governance committee. As a controlled company, we will remain subject to rules of the Sarbanes-Oxley Act and the Nasdaq that require us to have an audit committee composed entirely of independent directors. Under these rules, we must have at least one independent director on our audit committee by the date our common stock is listed on Nasdaq, at least two independent directors on our audit committee within 90 days of the listing date and at least three independent directors on our audit committee within one year of the listing date. We expect to have three independent directors upon the closing of this offering.

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If at any time we cease to be a controlled company, we will take all action necessary to comply with the Sarbanes-Oxley Act and the Nasdaq rules, including, subject to permitted “phase-in” periods, by appointing a majority of independent directors to our board of directors, appointing a majority of independent directors to our compensation committee and appointing a majority of independent directors to our nominating and corporate governance committed.

Implications of Being an Emerging Growth Company

We qualify as an “emerging growth company” as defined in the Jumpstart Our Business Startups Act of 2012, or the JOBS Act. As an emerging growth company, we may take advantage of certain reduced disclosure and other requirements that are otherwise applicable generally to public companies. These provisions include:

not being required to comply with the auditor attestation requirements of Section 404 of the Sarbanes-Oxley Act of 2002, or the “Sarbanes-Oxley Act”;
only two years of audited financial statements are required in addition to any required interim financial statements, and correspondingly reduced disclosure in management’s discussion and analysis of financial condition and results of operations; and
(i) reduced disclosure obligations regarding executive compensation in our periodic reports and proxy statements and (ii) exemptions from the requirements of holding a non-binding advisory vote on executive compensation, including golden parachute compensation.

We may take advantage of these provisions for up to five years or until such earlier time that we are no longer an emerging growth company. We would cease to be an emerging growth company upon the earliest to occur of (1) the last day of the fiscal year in which we have more than $1.07 billion in annual revenue; (2) the date we qualify as a “large accelerated filer,” with at least $700 million of equity securities; (3) the issuance, in any three-year period, by us of more than $1.07 billion in non-convertible debt securities held by non-affiliates; and (4) the last day of the fiscal year ending after the fifth anniversary of our initial public offering.

In addition, Section 107 of the JOBS Act also provides that an emerging growth company can use the extended transition period provided in Section 7(a)(2)(B) of the Securities Act of 1933, as amended (the “Securities Act”) for complying with new or revised accounting standards. This permits an emerging growth company to delay the adoption of certain accounting standards until those standards would otherwise apply to private companies. We intend to take advantage of the exemptions discussed above. Accordingly, the information contained herein may be different than the information you receive from other public companies.

Risks Associated With Our Business

Our ability to implement our business strategy is subject to numerous risks, as more fully described under the heading “Risk Factors” in this prospectus. These risks include, among others, that:

we have limited revenue and cash flows and limited history constructing and operating a passenger railroad;
our historical financial information may not be representative of the results we would have achieved as a separate stand-alone company and may not be a reliable indicator of our future performance or results;
we have not yet acquired all real property interests necessary for the Tampa Expansion or the Vegas Expansion (some of which must be acquired from private parties), and our ability to acquire such interests may be adversely affected by many known and unknown factors;
we have not yet begun construction of the Tampa Expansion or the Vegas Expansion, and there can be no assurance that the Tampa Expansion or the Vegas Expansion will operate as described herein or at all;
we may not be able to complete the XpressWest Acquisition, which is subject to customary closing conditions;
our ability to expand, including the Tampa Expansion and the Vegas Expansion, is dependent on our ability to raise funds through various potential sources, including equity and/or debt financing (including the 2019 Debt Financing and the potential bridge loan facility);

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cost overruns and delays in the completion of the North Segment, the Tampa Expansion or the Vegas Expansion, as well as difficulties in obtaining requisite approval or sufficient financing to pay for such costs and delays, could have a material adverse effect on our business, financial condition, operating results, cash flows, liquidity and prospects;
the development costs of the North Segment, the Tampa Expansion and the Vegas Expansion are estimates only, and actual development costs may be higher than expected;
our ability to complete construction of the North Segment of our Florida passenger rail system will be contingent on our ability to obtain certain land rights from Cocoa to Orlando which will require us to satisfy the conditions precedent to effect a definitive agreement with the Greater Orlando Airport Authority in connection with our Florida passenger rail system;
any expansion through acquisitions, including the Vegas Expansion, carries certain additional risks (including the inability to maintain or renew any permits obtained in connection with such combination or acquisition);
there can be no assurances that our operations will extend beyond our Florida passenger rail system, and our Florida passenger rail system may be our only means of generating revenue;
our ability to extend beyond our Florida passenger rail system, including our pursuit of the Vegas Expansion, may be materially adversely affected by many known and unknown factors;
the estimates of future ridership and revenue of our proposed Florida passenger rail service and the Vegas Expansion contained herein are based on certain assumptions that may prove to be inaccurate or incorrect;
our license agreement with VEL is not for an indefinite period and may be terminated in certain circumstances, and the expiration or termination of such license agreement would require us to change our corporate name and undergo other significant rebranding efforts, which would require significant resources and expenses and may affect our ability to attract and retain customers, all of which may have a material adverse effect on our business, contracts, financial condition, operating results, liquidity and prospects;
we will be required to devote significant resources to our intended rebranding of our business from “Brightline” to “Virgin Trains USA”;
we expect to be a “controlled company” within the meaning of the Nasdaq rules and, as a result, will qualify for and intend to rely on exemptions from certain corporate governance requirements;
adverse macroeconomic and business conditions could have an adverse impact on our business;
rising fuel costs could materially adversely affect our business;
severe weather, including hurricanes, and natural disasters could disrupt normal business operations; and
we face possible catastrophic loss and liability and our insurance may not be sufficient to cover our damages or liability to others.

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THE OFFERING

Common stock offered by us in this offering
28,334,000 shares (or 32,584,100 shares, if the underwriters exercise in full their option to purchase additional shares).
Common stock to be outstanding immediately after this offering and the concurrent private placements
165,813,000 shares (or 170,063,100 shares, if the underwriters exercise in full their option to purchase additional shares).
Common stock to be owned by the Virgin Trains Stockholder after this offering and the concurrent private placements
135,257,000 shares.
Option to purchase additional shares
We have granted the underwriters an option to purchase up to 4,250,100 additional shares. The underwriters may exercise this option at any time within 30 days from the date of this prospectus. See “Underwriting.”
Use of Proceeds
We will receive net proceeds of approximately $467.8 million (or approximately $539.7 million if the underwriters exercise their option to purchase additional shares) from the sale of the common stock by us in this offering assuming an initial public offering price of $18.00 per share (the midpoint of the price range set forth on the cover of this prospectus) and after deducting estimated offering expenses and underwriting discounts and commissions payable by us. Each $1.00 increase (decrease) in the public offering price would increase (decrease) our net proceeds by approximately $26.6 million. We estimate the net proceeds we will receive from the sale of shares of our common stock in the concurrent private placements will be approximately $38.4 million based on the midpoint of the investment range. We intend to use the net proceeds from this offering and the concurrent private placements, together with the net proceeds from the 2019 Debt Financing, if successful, (i) to complete construction of the North Segment, (ii) to fund the XpressWest Acquisition and the related land purchase, (iii) to refinance approximately $700 million aggregate principal amount of our existing indebtedness and to pay related fees and expenses and (iv) for general corporate purposes, including, without limitation, to rebrand under “Virgin Trains USA” and to continue to upgrade the infrastructure in the South Segment (including installing and implementing PTC standards). There can be no assurance that we will be able to obtain the remaining funds necessary to fund all of the uses described above on acceptable terms, on our desired timelines or at all. See “Use of Proceeds.”
Dividends
We do not currently anticipate paying dividends on our common stock. Any declaration and payment of future dividends to holders of our common stock will be at the sole discretion of our board of directors and will depend on many factors, including our financial condition, earnings, capital requirements, level of indebtedness,

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statutory and contractual restrictions applicable to the payment of dividends and other considerations that our board of directors deems relevant. Because we are a holding company and have no direct operations, we will only be able to pay dividends from our available cash on hand and any funds we receive from our subsidiaries. Certain of our debt agreements limit, and our debt agreements in the future may limit, the ability of certain of our subsidiaries to pay dividends or make loans or other distributions to us. See “Management’s Discussion and Analysis of Financial Conditions and Results of Operations—Liquidity and Capital Resources” and “Dividend Policy.”

Stockholders’ Agreement
We expect to enter into a stockholders’ agreement with the Virgin Trains Stockholder that would provide certain rights to the Virgin Trains Stockholder with respect to, among other things, the designation of directors for nomination and election to our board of directors, as well as certain rights to registration for certain of our securities beneficially owned, directly or indirectly, by the Virgin Trains Stockholder and Fortress and its affiliates. See “Certain Relationships and Related Party Transactions—Stockholders’ Agreement.”
Risk Factors
See “Risk Factors” for a discussion of factors you should carefully consider before deciding to invest in our common stock.
Proposed Nasdaq Symbol
We have applied to have our common stock listed on the Nasdaq under the symbol “VTUS.”

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SUMMARY COMBINED FINANCIAL INFORMATION

The following table presents the summary combined financial information for the periods and as of the dates indicated.

The statement of operations data for the nine months ended September 30, 2018 and 2017 and the balance sheet data as of September 30, 2018 have been derived from our unaudited condensed combined financial statements included elsewhere in this prospectus. The statement of operations data for the years ended December 31, 2017 and 2016 and the balance sheet data as of December 31, 2017 and 2016 have been derived from our audited combined financial statements included elsewhere in this prospectus. The unaudited condensed combined financial statements were prepared on the same basis as our audited combined financial statements. In our opinion, such financial statements include all adjustments, consisting of normal recurring adjustments that we consider necessary for a fair presentation of the financial information for those periods.

Our historical combined financial statements have been prepared on a stand-alone basis in accordance with U.S. generally accepted accounting principles (“GAAP”) and are derived from the Virgin Trains Stockholder’s and our Parent’s accounting records using the historical results of operations and assets and liabilities attributed to our operations, and include allocations of expenses from the Virgin Trains Stockholder and our Parent. Our historical results for any prior period are not necessarily indicative of results to be expected in any future period. You should read the summary combined financial information presented below in conjunction with the information included under the headings “Capitalization,” “Selected Combined Financial Data” and “Management’s Discussion and Analysis of Financial Condition and Results of Operations” and the combined financial statements and the related notes included elsewhere in this prospectus.

 
Nine Months Ended September 30,
Year Ended December 31,
(Dollars in thousands)
2018
2017
2017
2016
Statements of Operations Data:
 
 
 
 
 
 
 
 
 
 
 
 
Revenues
 
 
 
 
 
 
 
 
 
 
 
 
Passenger and customer related
$
4,754
 
$
 
$
 
$
 
Other
 
479
 
 
 
 
 
 
 
Total operating revenues
 
5,233
 
 
 
 
 
 
 
Operating expenses
 
 
 
 
 
 
 
 
 
 
 
 
Salaries, wages and benefits
 
21,941
 
 
17,757
 
 
16,487
 
 
13,889
 
Equipment maintenance
 
6,970
 
 
1,535
 
 
2,337
 
 
1
 
Maintenance of way
 
5,592
 
 
2,332
 
 
3,520
 
 
1,065
 
Fuel
 
1,395
 
 
59
 
 
23
 
 
 
Rent
 
3,292
 
 
567
 
 
839
 
 
405
 
Other operating expenses
 
6,741
 
 
2,803
 
 
4,482
 
 
2,325
 
General and administrative
 
22,910
 
 
10,327
 
 
15,833
 
 
6,947
 
Depreciation and amortization
 
18,392
 
 
618
 
 
880
 
 
359
 
Total operating expenses
 
87,233
 
 
35,998
 
 
44,401
 
 
24,991
 
Operating loss
 
(82,000
)
 
(35,998
)
 
(44,401
)
 
(24,991
)
Other income (expense)
 
 
 
 
 
 
 
 
 
 
 
 
Loss on extinguishment of debt
 
 
 
 
 
(327
)
 
 
Interest income (expense), net
 
(5,265
)
 
15
 
 
 
 
 
Other income
 
137
 
 
26
 
 
78
 
 
 
Total other income (expense)
 
(5,128
)
 
41
 
 
(249
)
 
 
Net loss and comprehensive loss
$
(87,128
)
$
(35,957
)
$
(44,650
)
$
(24,991
)
 
As of September 30,
As of December 31,
 
2018
2017
2016
Balance Sheet Data:
 
 
 
 
 
 
 
 
 
Properties, equipment and investment in rail, net
$
1,501,383
 
$
1,332,572
 
$
985,657
 
Total assets
 
1,836,925
 
 
1,774,354
 
 
1,258,870
 
Long-term debt
 
605,449
 
 
581,252
 
 
32,223
 
Invested equity – Parent’s net investment
 
1,061,734
 
 
1,084,210
 
 
1,129,646
 

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Risk Factors

An investment in our common stock involves a high degree of risk. You should carefully consider the risks described below together with other information set forth in this prospectus before investing in our common stock. If any of the following risks or uncertainties actually occur, our business, financial condition, prospects, results of operations and cash flow could be materially and adversely affected. In that case, the market price of our common stock could decline and you may lose all or a part of your investment. The risks discussed below are not the only risks we face. Additional risks or uncertainties not currently known to us, or that we currently deem immaterial, may also have a material adverse effect on our business, financial condition, prospects, results of operations or cash flows. We cannot assure you that any of the events discussed in the risk factors below will not occur.

Risks Related to Our Business

Our limited revenue and cash flows and our limited history constructing and operating a passenger railroad makes evaluating our business and future prospects difficult, and may increase the risk of your investment. There can be no guarantee that we will achieve profitability and generate positive operating cash flows in the future.

We recently commenced service between Miami and West Palm Beach, Florida. Accordingly, we only began generating cash flows from operations in 2018. Prior to the South Segment, we had not independently constructed or managed a passenger railroad, and we have never independently constructed or managed a passenger railroad outside of Florida. We have commenced construction on the North Segment and the related facilities, but do not expect this service to be operational until completion of construction in approximately three years. We are also advancing plans for the construction of the Tampa Expansion and Vegas Expansion and intend to expand to travel corridors in North America in the future. Our limited construction and operating history limits our ability to accurately evaluate our business and future prospects. We will need substantial additional funds to meet our expansion plans, including construction of the Tampa Expansion and the Vegas Expansion, and we have not yet secured such funds. Accordingly, we are subject to all the risks inherent in the establishment of a passenger railroad. Our limited operating history also may limit your ability as an investor to evaluate our prospects due to our lack of historical financial data, our unproven potential to generate profits and our limited experience as a new company in addressing issues that may affect our ability to manage the construction, operation or maintenance of a passenger rail service.

Our future liquidity may be affected by the timing of construction financing availability in relation to the incurrence of construction costs and other outflows and by the timing of receipt of cash flows in relation to the incurrence of project and operating expenses. Also, if we are unable to use available liquidity sources, or if such liquidity sources are not sufficient to cover any unexpected expenses, we may not have access to the funds required to pay the unexpected expenses. Our inability to pay costs as they are incurred could negatively affect us. Moreover, many factors (including factors beyond our control) could result in a disparity between liquidity sources and cash needs, including factors such as construction delays and breaches of agreements. In addition, if our actual capital or operating costs are higher than anticipated, our Florida passenger rail system is not successfully and timely completed, or our revenues are lower than currently anticipated, the profitability of our operations will be harmed, which could adversely affect our ability to generate positive operating cash flows and achieve profitability in the future.

We may not be successful in implementing our proposed business strategy.

Our business strategy is to build passenger rail systems where there is access to existing travel corridors and the potential to connect highly populated cities with substantial intercity travel and separated by distances that are “too long to drive, too short to fly.” There can be no assurances that we will be successful in implementing this strategy. You must consider the risks and difficulties we face as a passenger rail company with limited construction and operating history. If we do not successfully address these risks, our business, prospects, operating results and financial condition will be materially and adversely harmed.

We are significantly dependent, in the near term, upon our service in the South Segment for revenue and cash, and our future success will be dependent upon our ability to develop and construct new passenger rail systems in the North Segment and beyond. We currently operate between Miami and West Palm Beach. Service to Orlando is not expected to commence until completion of construction in approximately three years, with Tampa service expected

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to follow. Our Florida passenger rail system and any future rail systems we may develop are subject to the operating risks described herein, including, but not limited to, our ability to attract passengers, sell tickets, generate revenue and income from ancillary sources or obtain funding from additional financing sources to construct future systems and expansions beyond the South Segment.

If our business strategy is not successfully implemented, we may not be able to generate cash flows, which could have a material adverse impact on our business, contracts, financial condition, operating results, liquidity and prospects.

Our historical financial information may not be representative of the results we would have achieved as a separate stand-alone company and may not be a reliable indicator of our future performance or results.

The historical financial information included in this prospectus has been derived from the Virgin Trains Stockholder’s and our Parent’s accounting records and is limited to only two years of audited combined financial statements. The Virgin Trains Stockholder and our Parent did not separately account for our business, and we did not operate as a separate, stand-alone company for any of the historical periods presented. Therefore, our historical financial information may not reflect what our financial condition, results of operations or cash flows would have been had we been a separate, stand-alone public company prior to the completion of this offering or what our results will be in the future. This is primarily a result of the following factors:

our historical financial results reflect allocations of corporate expenses from the Virgin Trains Stockholder and our Parent instead of the expenses we will incur as a stand-alone public company;
our working capital requirements and our historical construction activities were funded by the Virgin Trains Stockholder, primarily through its borrowings. After this offering, the Virgin Trains Stockholder and our Parent will not be required, and do not intend, to provide us with additional funds to finance our operations or construction activities, so we may in the future need to obtain additional financing from lenders, through one or more public offerings or private placements of debt and/or equity securities, municipal bonds or other sources of governmental or semi-governmental financing, strategic relationships or other arrangements; and
significant changes may occur in our cost structure, management, financing and business operations as a result of our operating as an independent public company. These changes could result in increased costs associated with reduced economies of scale, stand-alone costs for services currently provided by the Virgin Trains Stockholder and our Parent and the legal, accounting, compliance and other costs associated with being a public company with equity securities traded on the Nasdaq.

The Company has not yet begun construction of the Tampa Expansion or the Vegas Expansion, nor has it acquired all real property interests or funding necessary for the Tampa Expansion or the Vegas Expansion, and there can be no assurance that the Tampa Expansion or the Vegas Expansion will operate as described herein or at all.

Though we have engaged in discussions with regulatory authorities with respect to the development of the Tampa Expansion and the Vegas Expansion, we have not yet entered into any legally binding agreements with respect to the Tampa Expansion or the Vegas Expansion, nor have we begun designing, engineering or constructing the related infrastructure or station. We have also not yet obtained all of the necessary real property interests (some of which must be acquired from private parties), regulatory approvals, right of ways, permits, consents, licenses, entitlements or other authorizations for the construction and operation of the Tampa Expansion or the Vegas Expansion. If we are unable to enter into favorable contracts or to obtain necessary regulatory approvals, right of ways, permits, consents, licenses, entitlements or other authorizations, we may not be able to construct and operate the Tampa Expansion or the Vegas Expansion as described herein or at all.

In addition, on November 28, 2018 we received approval from the State of Florida for a right of way required to construct the Tampa Expansion. The state undertook a standard process to offer an opportunity for other parties to make an alternative bid for the right of way. There were no other bidders for the right of way. Expenses related to our pursuit of contracts, regulatory approvals and other authorizations related to the Tampa Expansion may be significant and will be incurred by us regardless of whether the Tampa Expansion is ultimately constructed and operational.

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In addition, construction and operation of the Tampa Expansion and the Vegas Expansion will be subject to the risks applicable to the North Segment and the rest of our Florida passenger rail system as set forth herein, including, but not limited to:

the successful closing of the XpressWest Acquisition;
raising a significant amount of additional funding through various potential sources, including equity and/or debt financing;
we may incur significant cost overruns and delays in the completion of the Tampa Expansion and the Vegas Expansion, as well as difficulties in obtaining requisite approval or sufficient financing to pay for such costs and delays;
if the Tampa Expansion or the Vegas Expansion is not completed or operational on the schedule and in the manner anticipated, we may not generate sufficient revenue to be profitable in our anticipated timeframes or at all;
we will incur significant capital and operating expenditures while we develop and construct the Tampa Expansion and the Vegas Expansion;
construction of the Tampa Expansion and the Vegas Expansion is dependent upon obtaining substantial additional funding from various sources, which may not be available on our desired timeline, or at all, or may only be available on unfavorable terms;
we will be dependent on third-party suppliers for the successful completion and success of the Tampa Expansion and the Vegas Expansion;
our ability to complete construction of the Tampa Expansion and the Vegas Expansion will be contingent on our ability to obtain certain land and/or land rights (including the acquisition of approximately 200 acres of land in Victorville, California currently owned by private parties);
our ability to obtain and maintain required environmental permits or other governmental authorizations and approvals, including the successful completion of any associated environmental impact reviews or other studies;
any liquidated damages provision in our construction contracts may not be sufficient to protect us against exposure to actual damages we may suffer for delay in completion of the Tampa Expansion and the Vegas Expansion;
the financial resources of our contractors may be insufficient to fund cost overruns or liquidated damages for which they are responsible under their contracts with respect to the Tampa Expansion and the Vegas Expansion;
we may be subject to litigation by private parties or governmental authorities regarding aspects of any Tampa Expansion or the Vegas Expansion, which could increase our costs or delay or prevent the expansion; and
we will be subject to governmental regulations relating to the Tampa Expansion and the Vegas Expansion, which could impose significant costs on the Tampa Expansion and the Vegas Expansion and could impede the timely completion or operation of the Tampa Expansion or the Vegas Expansion.

The actual construction and capital costs of the Tampa Expansion and the Vegas Expansion may be significantly higher, and the time to complete the Tampa Expansion and the Vegas Expansion may be significantly longer, than our current estimates. If we are unable to construct and operate the Tampa Expansion or the Vegas Expansion as described herein, or if the Tampa Expansion or the Vegas Expansion, when and if constructed, does not accomplish the goals described herein, our business, financial condition, operating results, cash flows, liquidity and prospects could be materially adversely affected.

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There are no assurances that Company’s operations will extend beyond our Florida passenger rail system, and our Florida passenger rail system may be our only means of generating revenue. The Company’s ability to extend beyond our Florida passenger rail system, including our pursuit of the Vegas Expansion, may be materially adversely affected by many known and unknown factors.

Any expansion outside Florida, including the Vegas Expansion, will require significant planning and development prior to the commencement of any construction or operations. Such development would include identifying and acquiring required approvals, permits and land rights and completing environmental, engineering and ridership studies to determine the desirability and feasibility of constructing and operating a passenger rail system in that market. We currently do not have any experience developing, constructing or operating a passenger rail system outside Florida, and therefore have no experience with construction companies, suppliers, governmental entities or local communities in other markets. As such, we may face obstacles and risks in developing these passenger rail systems that are currently not known. There can be no assurance that we will be able to expand as planned or desired, or that such expansion will occur at all.

Any future rail systems we may develop will be subject to significant economic, competitive, regulatory and operational uncertainties, contingencies and risks, many of which are beyond our control, including, but not limited to:

difficulties in obtaining required land rights, permits, consents, approvals, licenses, entitlements and other authorizations from governmental agencies and other third parties for these potential markets, including the successful completion of any associated environmental impact reviews or other studies;
incurrence of significant expenses, including, but not limited to, costs associated with construction and compliance with state and local laws and regulations (such as permit requirements, environmental regulations and taxation policies);
difficulties in obtaining access to existing transportation corridors in order to quickly and cost effectively plan, permit and build the rail system;
difficulty contracting with local construction companies, suppliers and service providers and obtaining materials used in the construction of rail systems, such as track and rolling stock materials;
litigation by private parties or governmental authorities, which could increase our costs or delay or prevent the construction or operation of rail systems; and
competition from other passenger rail system operators or other modes of transportation.

Furthermore, our ability to expand, including the Tampa Expansion and Vegas Expansion, is dependent on our ability to raise a significant amount of additional funds through various potential sources, including equity and/or debt financing.

If we are not successful expanding our operations beyond our Florida passenger rail system, including the Vegas Expansion, this system will be our only means of generating revenue and we would not be able to generate additional cash flows, which could have a material adverse impact on our business, contracts, financial condition, operating results, liquidity and prospects.

The estimates of future ridership and revenue of our proposed Florida passenger rail service and the Vegas Expansion contained herein are based on certain assumptions and management’s estimates and adjustments that may prove to be inaccurate or incorrect. Actual results could differ from the estimates contained in this prospectus.

This prospectus contains estimates of the future ridership, revenue, profitability and target EBITDA margin of our proposed Florida passenger rail service and the Vegas Expansion. These estimates should not be viewed as guidance or management’s view of the Company’s projected earnings and are not based on the Company’s historical operating results. These estimates are based upon various assumptions, including those set forth in the Florida Ridership and Revenue Study and the Florida Operations and Maintenance and Ancillary Revenue Report. In addition, our management’s estimates with respect to the Vegas Expansion are derived in part from certain information, which management has further adjusted, providing ridership, average fares and other analyses about the Victorville Phase and the Southern California and Las Vegas markets contained in the High Desert Corridor Study. Management has based its adjustment on certain of the sensitivities provided in the study. Such sensitivities are not provided in the study in contemplation of the Victorville Phase in isolation, nor do such sensitivities contemplate the cumulative effect of increases in travel time and reduced frequency of schedule. As a result, our management’s

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estimates of expected ridership may differ from actual results and such difference may be material. In addition, the High Desert Corridor Study was dated March 2017, and Steer Davies Gleave has not updated any of the assumptions, estimates, analyses or conclusions contained in the High Desert Corridor Study and used by our management in making the conclusions, analyses and estimates contained in this prospectus. As a result, the forecasts contained in this prospectus may differ materially from actual results. Our management’s estimates, and the estimates contained in the Florida Ridership and Revenue Study, the Florida Operations and Maintenance and Ancillary Revenue Report, and the High Desert Corridor Study are inherently subject to significant uncertainties, the degree of which increases with each successive period presented. For example, these estimates assume that we will be able to successfully complete and operate the South Segment, the North Segment, the Tampa Expansion and the Vegas Expansion on the schedule and in the manner anticipated. If we are unable to timely complete or operate the North Segment, the Tampa Expansion or the Vegas Expansion, we may have fewer passengers and generate less revenue than as set forth in these estimates. Experience from actual operation of the railroad and construction of our Florida passenger rail system, the Vegas Expansion and any future rail systems we may develop may identify new or unexpected conditions that could reduce the rate of construction below, or increase capital or operating costs above, current estimates for our Florida passenger rail system or the Vegas Expansion. The uncertainty of the estimates, including management’s estimates derived in part from the Florida Ridership and Revenue Study or the Florida Operations and Maintenance and Ancillary Revenue Report or based in part on the High Desert Corridor Study, is particularly heightened given the Company’s limited operating history, track record and historical financial statements on which to base the estimates. Actual results may differ materially, and the assumptions on which these estimates are based are subject to numerous risks and uncertainties, a number of which are beyond the Company’s control. If actual results are less favorable than the estimates and assumptions contained in this prospectus, we could be materially adversely affected.

These estimates were not prepared with a view toward compliance with published guidelines of the SEC, the American Institute of Certified Public Accountants, any regulatory or professional agency or body, or GAAP.

The Virgin License Agreement is not for an indefinite period of time and may be terminated in certain circumstances.

We do not own the Virgin brand or any other Virgin-related assets, as we licensed the right to use the Virgin brand pursuant to the trademark license agreement we entered into with VEL on November 15, 2018 (the “Virgin License Agreement”).

VEL controls the Virgin brand, and the integrity and strength of the Virgin brand will depend in large part on the efforts and businesses of VEL and the other licensees of the Virgin brand and how the brand is used, promoted and protected by them, which will be outside of our control. For example, negative publicity or events affecting or occurring at VEL or other entities who use the Virgin brand, including transportation companies and/or other entities unrelated to us that presently or in the future may license the Virgin brand, may negatively impact the public’s perception of us, which may have a material adverse effect on our business, contracts, financial condition, operating results, liquidity and prospects.

In addition, the license to the Virgin brand granted to us under the Virgin License Agreement will expire in no later than forty years under the terms of the agreement and there is no guarantee that we will renew or replace the Virgin License Agreement on commercially reasonable terms or at all. In addition, there are certain circumstances under which the Virgin License Agreement may be terminated in its entirety or with respect to specific passenger rail routes by VEL, including our breach of the Virgin License Agreement, our insolvency, our improper use of the Virgin brand, our failure to meet certain commercialization milestones, and our undergoing of a change of control to certain entities, including a competitor of VEL. Termination of the Virgin License Agreement would eliminate our rights to use the Virgin brand and may result in our having to negotiate a new or reinstated agreement with less favorable terms or cause us to lose our rights under Virgin License Agreement, including our right to use the Virgin brand, which would require us to change our corporate name and undergo other significant rebranding efforts. These rebranding efforts may require significant resources and expenses and may affect our ability to attract and retain customers, all of which may have a material adverse effect on our business, contracts, financial condition, operating results, liquidity and prospects.

While our rights under the Virgin License Agreement to use the Virgin brand in connection with our U.S. intercity high-speed passenger rail route business are generally exclusive, VEL may grant licenses under the Virgin brand to potential competitors in the United States under certain circumstances, including if we do not commence operations on certain of our routes by a specified time period or do not match a third-party offer to operate a new U.S. intercity high-speed passenger rail route under the Virgin name. Additionally, VEL has only granted us a license

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to use the Virgin brand in the United States, and the Virgin License Agreement is expressly subject to licenses granted to companies who operate similar high-speed passenger rail route businesses outside of the United States. As a result, we may not be able to prevent competitors from operating competitive businesses under the Virgin brand, both inside and outside of the United States, which could have a material adverse effect on our business, financial condition and operating results.

For more information, see “Business—Intellectual Property.”

Protecting and defending against intellectual property claims may have a material adverse effect on our business.

Our success depends in part upon successful prosecution, maintenance, enforcement and protection of our owned and licensed intellectual property, including the Virgin brand and other intellectual property that we license from VEL under the Virgin License Agreement. Under the terms of the Virgin License Agreement, VEL has the primary right to take actions to obtain, maintain, enforce and protect the Virgin brand. If, following our written request, VEL elects not take an action to maintain, enforce or protect the Virgin brand, we may do so, at our expense, so long as doing so would not have a material adverse effect on VEL, any of VEL's other licensees or the Virgin brand and we reasonably believe failing to do so would materially adversely affect our business. Should VEL determine not to maintain, enforce or protect the Virgin brand, we and/or the Virgin brand could be materially harmed and we could incur substantial cost if we elect to take any such action. There is no guarantee that any action to defend, maintain or enforce our owned or licensed intellectual property rights will be successful, and an adverse result in any such proceeding could have a material adverse impact on our business, financial condition, operating results and prospects.

In addition, it is possible that others may claim from time to time that we are infringing the intellectual property rights of third parties. Irrespective of the validity of any such claims, we could incur significant costs and diversion of resources in defending against them, and there is no guarantee any such defense would be successful, which could have a material adverse effect on our business, contracts, financial condition, operating results, liquidity and prospects.

We will be required to devote resources to our intended rebranding our business and any failure of our intended rebranding efforts may affect our ability to attract and retain customers.

VEL has granted to us the right to use its name, logo and certain other intellectual property in connection with the operation of an intercity private high-speed passenger rail service along certain permitted passenger rail routes in the United States (including our Florida passenger rail system and the Vegas Expansion) pursuant to the Virgin License Agreement. As a result, we intend to rebrand from “Brightline” to “Virgin Trains USA.” We expect that our intended rebranding will require us to incur costs, including additional advertising and marketing costs. In addition, our intended rebranding efforts could divert our management’s attention away from the operation of our passenger rail line, which could materially and adversely affect our business. We also cannot assure you that our customers will be receptive to our intended rebranding. A failure in our intended rebranding efforts may affect our ability to attract and retain customers, which may have a material adverse effect on our business, contracts, financial condition, operating results, liquidity and prospects.

Adverse macroeconomic and business conditions could have an adverse impact on our business.

Our ridership will be affected by the overall economic conditions of each potential rail system’s state and local region and dependent on the employment and disposable income of our passengers. Adverse economic conditions could also affect our costs for insurance and our ability to acquire and maintain adequate insurance coverage for risks associated with the passenger rail line business if insurance companies experience credit downgrades or bankruptcies.

Given the localized nature of our initial passenger rail system in Florida and the services we intend to provide with that system, our initial ridership will generally be affected by overall economic conditions in Florida and the Southeastern United States. The condition of international economies, including the Caribbean, South America, Europe and Asian economies, may also affect our revenues, as it may lead to a decreased number of tourists in Florida from these regions.

Furthermore, we will compete directly with other modes of transportation, including cars, buses, other passenger rail services and air travel. If these alternative methods of transportation become more cost-effective or attractive to our customers due to macroeconomic or legislative changes, our operating results, financial condition and liquidity could be materially adversely affected.

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A deterioration of macroeconomic, business and financial conditions, particularly in Florida and the Southeastern United States, could have a material adverse effect on our operating results, financial condition and liquidity.

Rising fuel costs could materially adversely affect our business.

Fuel prices and supplies are influenced significantly by international, political and economic circumstances, and we do not currently hedge against fuel price fluctuations. Accordingly, if fuel supply shortages or unusual price volatility were to arise for any reason, the resulting higher fuel prices would significantly increase our operating costs. Increases in fuel price may only be passed along to our customers through increased ticket prices, which is often with delayed effect. In addition, we may elect not to pass along such increases because they could result in a decrease in ridership. Moreover, there are no assurances that these increases would cover the entire fuel price increase for a given period, or that competitive market conditions will effectively allow us to pass along this cost. While increases in prices may increase ridership, we may not be able to generate sufficient cash flows to offset higher operating costs, which could have a material adverse impact on our business, contracts, financial condition, operating results, liquidity and prospects.

Severe weather, including hurricanes, and natural disasters could disrupt normal business operations, which could result in increased costs and liabilities and decreases in revenues.

Substantially all of our operating assets are currently located on Florida’s eastern seaboard, which has experienced severe weather periodically in the past and may continue to experience severe weather in the future. In addition, climate change could result in an increase in the frequency and severity of these severe weather events, as well as causing sea levels to rise. Any significant future rise in sea level near our Florida operations could result in flooding, which could damage our infrastructure, temporarily or permanently impair our ability to function near-coastal operations effectively, require us to incur costs to protect our assets or adversely impact our customer base. Severe weather conditions and other natural phenomena, including hurricanes and other severe storms, fires and floods, may cause significant damage, destruction and business interruptions and result in increased costs, increased liabilities and decreased revenue. For example, in September 2017, Hurricane Irma caused significant damage and disrupted normal business operations in Florida. Although our operations were not directly affected by Hurricane Irma, there can be no assurance that we will be spared the impact of other major natural disasters, which could have a material adverse effect on our business, financial condition, operating results, cash flows, liquidity and prospects.

We face possible catastrophic loss and liability and our insurance may not be sufficient to cover our damages or liability to others.

The operation of any railroad carries with it an inherent risk of catastrophe, mechanical failure, collision and property loss, notwithstanding the safety protocols we have in place. In the course of constructing and operating a passenger rail service, spills or other environmental mishaps, cargo loss or damage, labor disputes or strikes or adverse weather conditions could result in a loss of revenues or increased liabilities and costs. A collision, derailment, leak, explosion, environmental mishap or other accident could cause serious bodily injury, death or extensive property damage, particularly if such accident occurs in a heavily populated area.

We intend to maintain insurance or otherwise insure against hazards in a manner that is consistent with industry practice against the accident-related risks involved in the conduct of our business and business interruptions due to natural disaster. In addition, due to the location of our assets on Florida’s eastern seaboard, we also intend to maintain windstorm coverage. However, we expect that this insurance will be subject to a number of limitations on coverage and substantial deductibles or self-insured retentions, depending on the nature of the risk insured against. This insurance may not be sufficient to cover our damages or damages to others and this insurance may not continue to be available at commercially reasonable rates. In particular, the market for windstorm coverage remains very limited and costly. It is unknown how much windstorm coverage we will purchase in the future and it is possible that our property will experience windstorm damage and utility service interruption in excess of insurance limits. In addition, we are subject to the risk that one or more of our insurers may become insolvent and would be unable to pay a claim that may be made in the future. Even with insurance, if any catastrophic interruption of service occurs, we may not be able to restore service without a significant interruption to operations which could have an adverse effect on our financial condition. For additional information regarding our insurance program, see “Business—Regulations—Insurance.”

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In addition, certain losses may be either uninsurable or not economically insurable, in whole or in part. Insurance proceeds may not compensate us fully for our losses.

Cost overruns and delays in the completion of the North Segment, the Tampa Expansion and the Vegas Expansion, as well as difficulties in obtaining requisite approval or sufficient financing to pay for such costs and delays, could have a material adverse effect on our business, financial condition, operating results, cash flows, liquidity and prospects.

While construction of the South Segment is substantially complete, construction of the North Segment has only recently commenced and operation of the North Segment is not expected to commence until completion of construction in approximately three years. Construction of the Tampa Expansion and Vegas Expansion has not yet commenced. The actual construction and capital costs of our Florida passenger rail system and the Vegas Expansion may be significantly higher, and the time to complete the North Segment, the Tampa Expansion and the Vegas Expansion may be significantly longer, than our current estimates. While our management team has experience in the construction and operation of major infrastructure projects, including rail lines, we are a relatively new company and are subject to the inherent risks and uncertainty related to any such construction project. We have not yet executed construction contracts for certain aspects of the North Segment the Tampa Expansion or the Vegas Expansion construction and, after doing so, as construction progresses, we may decide or be forced to submit change orders to our contractors that could result in longer construction periods, higher construction costs or both.

Key factors that may affect the timing of, cost of, or our ability to complete construction of the North Segment, the Tampa Expansion and the Vegas Expansion include, but are not limited to:

the ability to obtain additional necessary financing or capital for the construction of the North Segment, the Tampa Expansion and the Vegas Expansion, if necessary;
the issuance and/or continued availability and maintenance of necessary permits, licenses, approvals and agreements from governmental agencies and third parties as are required to construct and operate the rail line and the related facilities;
our ability to enter into satisfactory agreements with contractors and to maintain good relationships with these contractors in order to construct our proposed facilities (including rolling stock) within the expected cost parameters and time frame, and the ability of those contractors to perform their obligations under the contracts and to maintain their creditworthiness;
changes or deficiencies in the design or construction of the North Segment, the Tampa Expansion or the Vegas Expansion;
unforeseen engineering, environmental or geological problems;
potential increases in construction and operating costs due to changes in the cost and availability of fuel, power, materials and supplies;
the availability and cost of skilled labor and equipment;
health, safety and personal injury (to workers and others) incidents and site accidents;
potential opposition from governmental and non-governmental organizations, environmental groups, public interest or citizens groups, local or other groups, such as the opposition rallies that have occurred in certain counties in Florida, which may delay or prevent development activities;
local and economic conditions;
changes in legal and regulatory requirements;
force majeure events, including catastrophes and adverse weather conditions;
labor disputes and work stoppages; and
disputes and defaults with contractors, subcontractors, architects and engineers.

Delays in the completion of the North Segment, the Tampa Expansion or the Vegas Expansion could increase the cost of completion beyond the amounts that we estimate, which could require us to obtain additional sources of financing or capital to fund our operations until the North Segment, the Tampa Expansion or the Vegas Expansion is completed (which could cause further delays). Our ability to obtain financing or capital that may be needed to cover

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increased costs will depend, in part, on factors beyond our control. Even if we are able to obtain financing or capital, we may have to accept terms that are disadvantageous to us and that may have a material adverse effect on our current or future business, contracts, financial condition, operating results, cash flows, liquidity and prospects.

The development costs of the North Segment are estimates only, and actual development costs may be higher than expected.

Although construction of the South Segment of our Florida passenger rail system is substantially complete, we are in the process of soliciting bids in connection with the construction of the North Segment. We have received proposals for the substantial majority of the construction works that are necessary for construction of the North Segment, but we have not yet executed contracts for such construction works. Accordingly, our expected costs based on our plans as of the date of this prospectus are subject to change and may ultimately be higher than expected.

We have experienced cost overruns in connection with the construction of the South Segment and may also experience cost overruns in connection with the construction of the North Segment. For example, unforeseen or unexpected delays may increase the overall budget for our Florida passenger rail system and, under certain circumstances, we may be responsible for the increased costs. Furthermore, budgeted contingencies may not be sufficient to cover the full amount of such expenses.

Our ability to complete construction of the North Segment of our Florida passenger rail system will be contingent on our ability to obtain certain land rights from Cocoa to Orlando which will require us to satisfy the conditions precedent to effectuate a definitive agreement with the Greater Orlando Airport Authority (“GOAA”) in connection with our Florida passenger rail system.

We have executed various agreements with GOAA relating to the North Segment, including the lease for our Orlando station location, the lease of land for the development of a vehicle maintenance facility, and an easement over a portion of the corridor between Cocoa and Orlando, that are subject to the satisfaction of certain conditions in order to be released from escrow or be consummated. The escrowed agreements are set to expire on June 30, 2019. We plan to request an extension should the conditions to release not be timely met; however, there are no assurances that such extension will be granted. We have met all requisite conditions for release, except for the condition that we must have the financial wherewithal to complete our Florida passenger rail system. There can be no assurance that this pending condition will be satisfied. If we are unable to satisfy the condition, we may be unable to implement or complete our business plan and our Florida passenger rail system may ultimately be unsuccessful.

If effectuated, our lease, easement and other use agreements with FDOT, GOAA and the Central Florida Expressway Authority (“CFX”) will contain terms and conditions particular to contracts with governmental entities that are inherently risky and could have an adverse effect on our financial condition.

Our agreements with FDOT, GOAA and CFX for our Florida passenger rail system will not contain reciprocal indemnification obligations and will provide, among other things, that such parties have not waived sovereign immunity in tort under the constitution and laws of Florida and have limited liability in certain cases. As a result, we may not be able to enforce our rights fully under these agreements or obtain an adequate remedy in the event that any of these parties breaches its obligations. Further, the parties to these agreements have rights to terminate these contracts under certain scenarios.

A portion of the costs required to design, develop, construct, equip, license, finance and open our Florida passenger rail system is not guaranteed in that we have not yet entered into contractual commitments for certain aspects of the North Segment.

We have not yet entered into certain construction contracts for the completion of the North Segment, including contracts for the construction of rail infrastructure and our Orlando vehicle maintenance facility, as well as contracts for the completion of signage, off-site roadway work and utility connections. We will be responsible for those costs, including certain cost overruns incurred as part of the completion of all the elements of our Florida passenger rail system. While we believe that the overall budget for the development costs for the North Segment is reasonable, not all the work is currently covered by contractual commitments and these development costs are estimates and the actual development costs may be higher than expected. The estimates for this work may increase and, as a result, we may choose to reduce the scope of the work, revise the design criteria and modify design components to reduce the costs of constructing the North Segment. Any such reduction in scope or change in design criteria or design components could adversely affect our economic prospects, to the detriment of the investors. Any inability by us to pay development costs as they are incurred could negatively affect our company and our business operations and prospects.

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Although we have budgeted $158 million in contingency funds, this amount may not be sufficient to cover the full amount of such overruns. If we are unable to use these contingency funds or if these contingency funds are not sufficient to cover these costs, we may not have the funds required to pay the excess costs, which may adversely impact our business, contracts, financial condition, operating results, liquidity and prospects.

Once established, the limits on pricing under our remaining construction contracts may increase, and we may be responsible for the amount of any increase.

Although we plan to have most of our construction contracts subject to a fixed price or a guaranteed maximum price that requires the contractors to achieve substantial completion of their respective portions of the North Segment within a prescribed schedule, the fixed price and/or guaranteed maximum price may be appropriately increased, and the deadline for substantial completion of construction may be appropriately adjusted, on account of, among other things:

changes of a certain magnitude in the design documents or deficiencies in the design documents;
certain concealed or unknown physical conditions of an unusual nature which differ materially from those indicated in the contract documents or ordinarily encountered;
changes of a certain magnitude requested or directed by us in the scope of the work to be performed pursuant to the construction contract;
abnormal weather conditions, labor disputes or fire, in each case, that are not the responsibility of our contractor(s) or others working for or through such party, or other causes beyond their reasonable control that are or were not preventable or avoidable by reasonable efforts and due diligence by any such party or others working for or through such party;
delays caused by an inability to continue work on the North Segment in accordance with the contemplated schedule; and
delays caused by us, our architects or engineers or any consultant or employee thereof.

While our construction budget provides for a contingency amount of $158 million to cover cost overruns, there can be no guarantee that this contingency amount will be sufficient to cover any or all matters for which we may bear responsibility under these contracts. Similarly, we cannot guarantee that we will be able to obtain the remaining required construction contracts with fixed prices or guaranteed maximum prices on terms satisfactory to us. As a result, we would be responsible for any costs incurred in excess of our budget. Any such cost increase could have a significant negative impact on our financial condition and plan of operations.

We may expand through acquisitions of other companies or the assets of other companies, which may divert our management’s attention, result in additional dilution to our stockholders, increase expenses, disrupt our operations and harm our results of operations.

Our business strategy may, from time to time, include acquiring other companies or the assets of other companies in order to expand our business. We cannot assure you we will successfully identify suitable acquisition candidates, integrate or manage disparate technologies, personnel and corporate cultures, realize our business strategy or manage a geographically dispersed company. Any such acquisition, including the XpressWest Acquisition, could materially and adversely affect our results of operations. Acquisitions, including the XpressWest Acquisition, involve significant risks and uncertainties, including:

the inability to maintain or renew any permits obtained in connection with the combination or acquisition;
the potential failure to achieve the expected benefits of the combination or acquisition;
unanticipated costs and liabilities;
difficulties in integrating new businesses, operations and technology infrastructure in an efficient and effective manner;
the potential loss of key employees of the acquired businesses;
the diversion of the attention of our senior management from the operation of our daily business;
the potential adverse effect on our cash position to the extent that we use cash for the purchase price;

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the potential significant increase of our interest expense, leverage and debt service requirements if we incur additional debt to pay for an acquisition;
the potential issuance of securities that would dilute our stockholders’ percentage ownership;
the potential to incur large and immediate write-offs and restructuring and other related expenses; and
the inability to maintain uniform standards, controls, policies and procedures.

Any acquisition could expose us to unknown liabilities. Moreover, we cannot assure you that we will realize the anticipated benefits of any acquisition. Acquisitions may be subject to closing conditions, including regulatory conditions, and there can be no assurance that any acquisition, including the Vegas Acquisition, will be consummated. In addition, our inability to successfully operate and integrate newly acquired businesses appropriately, effectively and in a timely manner could impair our ability to take advantage of future growth opportunities and other advances in technology, as well as materially adversely affect our business, financial condition, operating results, cash flows, liquidity and prospects.

The liquidated damages provision in our construction contracts may not be sufficient to protect us against exposure to actual damages we may suffer for delay in completion of the North Segment.

Many of our signed construction contracts require, and future agreements are expected to require, our contractors to achieve substantial completion within a prescribed timeframe and many of our contracts (but not all) will impose on them, subject to various permitted exceptions, liquidated damages of a certain per diem amount for each day by which they fail to satisfy that requirement. However, in most circumstances, the aggregate amount of such liquidated damages payable to us will be limited (e.g., the cumulative sum of liquidated damages payable by a contractor may be limited to the sum of the fee to be paid to such contractor under its contract). We cannot assure you that construction will be completed on schedule and, if completion of the construction is delayed, our actual damages will likely be well in excess of any liquidated damages that may be payable to us by our contractors. We will be responsible for bearing any such excess damages, which may adversely affect our ability to complete construction of the North Segment within our anticipated budget, on time or at all. In addition, to the extent that our contracts contain terms that require the payment of liquidated damages in the event of delays, we are subject to the risk that delays are encountered that are not attributable to the party engaged by us and that liquidated damages would not be due to us at all as a result.

Following the closing of this offering, Parent and/or certain of its affiliates will provide a number of services to us pursuant to the Transition Services Agreement (as defined below). When such agreement terminates, we will be required to replace the services, and the economic terms of the new arrangements may be less favorable to us.

Under the terms of the Transition Services Agreement that we expect to enter into with our Parent and/or certain of its affiliates in connection with this offering, our Parent and/or certain of its affiliates will provide us, and we will provide our Parent and/or certain of its affiliates, specified services such as risk management, communications, corporate administration, finance, accounting, audit, legal, information technology, human resources, compliance, employee benefits and stock compensation administration and certain development related services with regard to the completion of certain transit oriented real estate development opportunities. When the Transition Services Agreement terminates, we will be required to either enter into a new agreement with our Parent and/or certain of its affiliates or another services provider or assume the responsibility ourselves for any functions which our Parent and/or certain of its affiliates had provided us. We cannot assure you that the economic terms of the new arrangements will be similar to those under the Transition Services Agreement. If we are unable to renew or replace such arrangements on a comparable basis, our business, financial condition and results of operations may be materially and adversely affected.

For an additional discussion regarding the material terms of the Transition Services Agreement, see “Certain Relationships and Related Party Transactions—Transition Services Agreement.”

We are dependent on third-party suppliers for the successful completion and success of our Florida passenger rail system.

We may face increased prices or significant shortages of locomotive and rail supplies, since we are dependent on certain key suppliers of locomotives and rail who are in short supply. The capital-intensive nature, as well as the industry-specific requirements of the rail industry, limits the number of suppliers of core railroad items, such as locomotives and rolling stock equipment. If any of the current manufacturers stops production or experiences a supply shortage, we could experience a significant cost increase or material shortage.

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Any changes in the competitive landscapes of these limited supplier markets could also result in increased prices or significant shortages of materials. Additionally, we compete with other industries for available capacity and raw materials used in the production of locomotives and certain track and rolling stock materials.

Adverse developments in international relations, new trade regulations, disruptions in international shipping or increases in global demand could make procurement of supplies more difficult or increase our operating costs. Any delay in the receipt of key equipment may impede our ability to complete or operate our Florida passenger rail system in a timely and cost-efficient manner, which could have a material adverse effect on our business, financial condition, operating results, cash flows, liquidity and prospects.

We are dependent on third-party contractors and service providers for the successful completion and operation of our Florida passenger rail system.

Timely and cost-effective design and completion of our Florida passenger rail system in compliance with agreed specifications is central to our business strategy and is highly dependent on the performance of the third-party contractors we engage. Our contractors’ ability to perform successfully is dependent on a number of factors, including, but not limited to, their ability to:

design and engineer each of the required facilities and infrastructure to operate in accordance with specifications and applicable laws;
engage and retain third-party subcontractors and procure equipment and supplies;
respond to difficulties such as equipment failure, delivery delays, schedule changes and failure to perform by subcontractors, some of which are beyond their control;
attract, develop and retain skilled personnel;
post required construction bonds and comply with the terms thereof;
manage the construction process generally, including coordinating with other contractors and regulatory agencies; and
maintain their own financial condition, including adequate working capital.

Although some agreements may provide for liquidated damages if the contractor fails to perform in the manner required with respect to certain of its obligations, the events that trigger a requirement to pay liquidated damages may delay or impair the operation of our Florida passenger rail system, and any liquidated damages that we receive may not be sufficient to cover the damages that we suffer as a result of any such delay or impairment. The obligations of our contractors to pay liquidated damages under any such agreements may be subject to caps on liability. Furthermore, we may have disagreements with our contractors about different elements of the construction process, which could lead to the assertion of rights and remedies under their contracts and increase the cost of our Florida passenger rail system or result in a contractor’s unwillingness to perform further work on our Florida passenger rail system. If any contractor is unable or unwilling to perform according to the negotiated terms and timetable of its respective agreement for any reason or its agreement is terminated, we would be required to engage a substitute contractor, which would require the prior approval of the original contractor’s surety. This would likely result in significant project delays and increased costs, which could have a material adverse effect on our business, contracts, financial condition, operating results, cash flows, liquidity and prospects. See “—We may be subject to litigation, which could have a material adverse effect on our ability to complete our Florida passenger rail system in a timely manner or our business, financial condition, operating results, cash flows, liquidity and prospects.”

Additionally, we depend on a number of service providers in the operation of the railroad. For example, we depend on Siemens to provide all warranty repairs and maintenance on our rolling stock. While our agreement with Siemens defines a standard of performance we do not directly control Siemens. Siemens may fail to meet the performance standards promised to us or suffer disruptions that could negatively impact their service or cause them to fail to perform services reliably, professionally or at the high standard of quality that we expect. Any such failure by Siemens may materially adversely affect our business. In addition, we are highly dependent on Florida East Coast Railway, L.L.C. (“FECR”) for track maintenance and other services they provide in connection with the operation of our system. Our business could be materially adversely affected if our customers believe that our services are unreliable or unsatisfactory.

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Shared use of our rail corridor with freight operations could have an adverse effect on our ability to utilize our railway efficiently, which could impact our operations and financial condition.

FECR owns the fee simple title in the existing rail right-of-way along Florida’s east coast from Miami to Jacksonville and owns the existing railroad infrastructure within our Florida rail corridor (other than portions of the railroad infrastructure in the South Segment and the North Segment owned by us and other than the approximately 40 miles of the railroad infrastructure between Cocoa and Orlando International Airport, which will be owned by us). We own the permanent, perpetual and exclusive rights, privileges and easement over and across the real property within FECR’s main line right-of-way between Miami and Cocoa, Florida for passenger rail purposes. We may also incur additional liability, casualty and property risks as a result of shared use of the corridor with freight railroad operations and, in the event that FECR is unable to pay any maintenance or repair costs, we may be required to pay such costs to maintain our services, which could adversely affect our operations and financial condition.

While the Second Amended and Restated Joint Use and Operating Agreement dated as of December 27, 2016, as amended on June 30, 2017, and as summarized in the Memorandum of Joint Use Agreement (Shared Infrastructure) dated June 30, 2017 (the “Joint Use Agreement”), provides for the allocation of liability between FECR and us in the case of accidents, and requires both carriers to maintain appropriate insurance coverage, there are no assurances that any such liabilities will not have a material adverse effect on our business, financial condition and operating results.

Shared use of our corridor with Tri-Rail could have an adverse effect on our ability to utilize our railway efficiently, which could impact our operations and financial condition.

We are constructing incremental infrastructure at our Miami station that will allow the South Florida Regional Transportation Authority (“SFRTA”) to provide commuter rail service. We estimate the cost for this additional construction to be approximately $65 million. We have entered into an agreement with SFRTA that will obligate the public agency to reimburse the incremental infrastructure costs over a fixed period of time. As of September 30, 2018, we had a balance of $3.6 million related to costs that were not yet reimbursed by SFRTA. Our ability to receive the full reimbursement is contingent on SFRTA receiving funds from several other local and state public agencies. SFRTA has negotiated with these relevant local and state agencies, but each agency will have to issue bonds or appropriate the funds according to the funding schedule, to the extent they have not done so already. There is a risk that a public agency’s revenues will not provide coverage for its funding commitments in a future fiscal year.

Additionally, we have entered into an operating agreement with SFRTA and have finalized associated ancillary agreements to allow SFRTA to expand Tri-Rail commuter rail service and establish a new commuter rail service on our rail corridor. SFRTA will need to secure capital to construct additional infrastructure in the corridor to maintain our on time performance targets, and there is no assurance that SFRTA will get the requisite funding to establish this commuter rail service or that the new rail service, if established, will not adversely affect the efficiency of our rail service.

The financial resources of our contractors may be insufficient to fund cost overruns or liquidated damages for which they are responsible under their contracts.

Under the expected terms of the majority of our construction contracts regarding the North Segment, the parties engaged by us will be responsible for all construction costs covered by the construction contract that exceed the fixed price or guaranteed maximum price contained in the contract, subject to specific conditions and limitations. Nevertheless, we cannot assure you that any contractor will have sufficient financial resources to fund any cost overruns or liquidated damages for which it is responsible under its contract. Furthermore, while bonds or other insurance posted by these parties and/or their subcontractors may be available, those instruments may also be insufficient to cover any shortfall and would require a time-consuming claims process to be pursued in order to obtain recovery. As such, we may need to pay these excess costs in order to complete construction of the North Segment. If the opening of the North Segment is materially delayed, it could materially and adversely affect our plan of operations and financial condition.

We may experience increased labor costs and the unavailability of skilled workers or our failure to attract and retain key personnel could adversely affect us.

We are dependent upon the available labor pool of skilled employees. We compete with other infrastructure and transportation companies and other employers for qualified personnel with the technical skills and experience required to construct and operate a passenger rail line and to provide our customers with the highest quality service.

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We are also subject to the Fair Labor Standards Act, which governs such matters as minimum wage, overtime and other working conditions. A shortage in the labor pool of skilled workers or other general inflationary pressures or changes in applicable laws and regulations could make it more difficult for us to attract and retain personnel and could require an increase in the wage and benefits packages that we offer, thereby increasing our operating costs. In addition, the rail industry in general is heavily unionized, which could increase our labor costs substantially. Any increase in our labor costs could materially and adversely affect our business, contracts, financial condition, operating results, cash flows, liquidity and prospects.

We depend on our senior management team to grow and operate our business, and if we are unable to hire, retain, manage, and motivate our key personnel, or if our new personnel do not perform as we anticipate, our business may be harmed.

Our future success depends on our continued ability to identify, hire, develop, manage, motivate, and retain qualified personnel, particularly those who have specialized skills and experience in the development and operation of passenger rail systems. In particular, we are highly dependent on our president and chief operating officer and certain other members of senior management.

We do not have long-term employment agreements with members of our senior management team, and we do not maintain key person life insurance for any employee. Any changes in our senior management team may be disruptive to our business. If we fail to retain or effectively replace members of our senior management team, or if our senior management team fails to execute our plans and strategies, our business, results of operations and financial condition could be harmed.

We are at risk of losses and adverse publicity stemming from accidents or service disruptions involving rail services.

Incidents involving rail services, media coverage thereof, as well as adverse media publicity concerning the rail industry in general, could impact demand for our service. Equipment failures, delays (including any delay in implementing our PTC system), temporary cancellations of schedules, collisions, derailments, collisions with FECR freight trains or cars, or any deterioration in the performance or quality of any of our services could result in personal injuries, damage of goods, customer claims of damages, customer refunds, significant tort liability and loss of goodwill. These problems may also lead to decreases in passengers and revenue, damage to our reputation and unexpected expenses or may divert management’s attention away from the operation of our passenger rail line, any one of which could materially and adversely affect our business. In addition, any events which impact the rail or travel industry more generally may negatively impact guests’ ability or desire to travel by rail, or interrupt our ability to obtain services and goods from key vendors in our supply chain. Any of the foregoing could have an adverse impact on our results of operations and on future industry performance.

Maintaining a good reputation is critical to our business. Reports and media coverage of rail incidents, including improper conduct by our employees, passengers or agents, crimes, security breaches, terrorist threats and attacks, derailments and other adverse events can result in negative publicity, which could lead to a negative perception regarding the safety of our passenger rail line and the satisfaction of our passengers. Anything that damages our reputation, whether or not justified, could have an adverse impact on demand, which could lead to a reduction in our sales and profitability.

Future acts of terrorism or war, as well as the threat of war, may cause significant disruptions in our business operations.

Terrorist attacks, such as those that occurred on September 11, 2001, as well as the more recent attacks on the transportation systems in Madrid and London, and government response to those types of attacks and war or risk of war may adversely affect our results of operations, financial condition or liquidity. Our Florida passenger rail system could be a direct target or indirect casualty of an act or acts of terror. Such acts could cause significant business interruption and result in increased costs and liabilities and decreased revenues, which could have an adverse effect on our operating results and financial condition. Any act of terror, retaliatory strike, sustained military campaign or war or risk of war may have an adverse effect on our operating results and financial condition by causing or resulting in unpredictable operating or financial conditions, including disruptions of rail lines, volatility or sustained increase of fuel prices, fuel shortages, general economic decline and instability or weakness of financial markets which could restrict our ability to raise capital. In addition, insurance premiums charged for some or all of our coverage could

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increase dramatically or certain coverage may not be available to us in the future. Any such terrorist attack, whether or not insured, could materially and adversely affect our business, contracts, financial condition, operating results, cash flows, liquidity and prospects.

If we fail to maintain the security of information relating to our passengers, employees, contractors or others, whether as a result of cybersecurity attacks or otherwise, we could be exposed to data loss, litigation, government investigations and costly response measures, which could disrupt our operations and harm our reputation.

From time to time, we will have access to, collect, maintain or transmit private or confidential information regarding our passengers, employees, contractors and others, as well as our business. Although we have procedures in place to safeguard such data and information, cyber-attacks are rapidly evolving and becoming increasingly sophisticated. It is possible that computer hackers and others might compromise our security measures or those that we do business with and obtain the personal information of our passengers, employees, contractors and others or our business information. A security breach of any kind could expose us to the risk of data loss, litigation, government investigations and costly response measures, and could disrupt our operations. Any resulting negative publicity could significantly harm our reputation, which could in turn cause us to lose passengers and have an adverse effect on our business and operating results.

Our reliance on technology and technological improvements may negatively impact our company.

We rely on technology and technology improvements in our business operations. If we experience significant disruption or failure of one or more of our information technology systems, including computer hardware, software, and communications equipment, we could experience a service interruption, a security breach, or other operational difficulties. Additionally, if we do not have sufficient capital to acquire new technology or are unable to implement new technology, we may suffer a competitive disadvantage within the rail industry and with companies providing other modes of transportation service.

We may be subject to litigation, which could have a material adverse effect on our ability to complete our Florida passenger rail system in a timely manner or our business, financial condition, operating results, cash flows, liquidity and prospects.

From time to time, we may be involved in or subject to claims, litigation or other proceedings that, if adversely determined, could have a material adverse effect on us and our ability to complete our Florida passenger rail system in a timely manner.

In addition, we may be subject to claims in the ordinary course of business during the construction of our Florida passenger rail system by contractors, construction workers or others who may be injured during such construction. In the course of the operation of our Florida passenger rail system, we may also be subject to claims by our customers as result of any accidents or other incidents that may occur in connection with rail travel or by employees. Risks associated with legal liability are often difficult to assess or quantify and their existence and magnitude may not be known for significant periods of time. While we maintain insurance policies that we believe are appropriate for purposes of the construction of our Florida passenger rail system and the operation of the railroad, the amount of insurance coverage may not cover, or be sufficient to cover, individually or in the aggregate, any pending, threatened or potential future claims involving, or related to, our Florida passenger rail system or the operation thereof.

Sponsorships and advertising sales may not produce revenue at the levels we expect or at all.

We expect to generate a significant portion of our ancillary revenue from advertising placements and sponsorships, including the sale of naming rights for our stations. For example, we have entered into an exclusive agreement with OutFront Media, who has the right and responsibility to market, sell, install, display and remove third-party advertising on advertising displays inside our stations, such as video displays and column wraps, and outside our stations, such as external billboards. We cannot assure you that demand for sponsorships or advertising (including naming rights) will be realized at the levels that we expect or at all. New developments in advertising may render advertising inventory of the type that we offer less desirable than new, more innovative means of reaching consumers, and market downturns or other macroeconomic trends may lead to decreased advertising spend across all media. In addition, a decrease in ridership or foot traffic at our stations would decrease the desirability of these advertising and sponsorship opportunities. If demand for sponsorships or advertising (including naming rights) at our stations is lower than we expect, our advertising inventory may not command the advertising rates that we anticipate, we may not be able to reach agreements with potential advertisers for the sale of our sponsorship or advertising inventory on satisfactory terms or at all, and our revenue and results of operations may be adversely affected.

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Our results of operations may fluctuate due to seasonality and other factors associated with the tourism industry in Florida.

Our results of operations may fluctuate due to seasonality and other factors associated with the tourism industry in Florida given that there is greater travel to Florida during the winter and spring months. As a result, we expect our revenues to be stronger in the first and fourth quarters of the year than revenues in the second and third quarters of the year, which are periods of lower travel demand in Florida. While we expect our results of operations to generally reflect this seasonality, they may also be affected by numerous other factors that are not necessarily seasonal, including, among others, extreme or severe weather, natural disasters, general economic conditions and other factors. As a result, our quarterly operating results are not necessarily indicative of operating results for an entire year and historical operating results in a quarterly or annual period are not necessarily indicative of future operating results.

Our pursuit of new real estate development opportunities entails a number of significant risks that may prevent us from fully realizing some or all of the benefits of developing real estate.

We expect the costs involved in pursuing real estate developments to include real estate acquisition costs, construction and permitting costs, as well as financing and leasing costs. Developing real estate entails a number of significant risks such as construction or permitting delays, construction defects or the inability to obtain financing on attractive terms. The occurrence of any of these risks may prevent us from fully realizing some or all of the benefits of developing real estate.

Risks Related to Our Industry and Regulation

We may not be able to obtain or maintain the required permits, consents, approvals, licenses, entitlements and other authorizations for certain components of the construction and/or operation of our Florida passenger rail system or the Vegas Expansion and any failure or delay in doing so could impede completion and/or operation of our Florida passenger rail system or the Vegas Expansion.

The design, construction and operation of our Florida passenger rail system and the Vegas Expansion are highly regulated activities. Material governmental, regulatory and non-governmental approvals and permits are required in order to construct and operate our Florida passenger rail system. We have yet to receive certain approvals, licenses, consents, permits, entitlements and other authorizations required to construct and operate certain components of the North Segment, the Tampa Expansion and the Vegas Expansion.

In particular, we will be required to obtain and maintain certain approvals for the construction and operation of the North Segment, the Tampa Expansion and the Vegas Expansion. In connection with the North Segment and the Tampa Expansion we will be required to obtain and maintain permits for certain bridges from the U.S. Army Corps of Engineers and the U.S. Coast Guard and concurrence from local municipalities of our proposed crossing closures. In connection with the Vegas Expansion, we will be required to obtain approvals from the FRA, the Federal Highway Administration, the Army Corps of Engineers, the Bureau of Land Management, the U.S. Fish and Wildlife Service, the Surface Transportation Board and other federal, state and local governmental agencies. The authorizations obtained to date from federal and state regulatory agencies contain ongoing conditions to be fulfilled and allow for additional approval and permit requirements to be imposed. Furthermore, many of our approvals, licenses, consents, permits, entitlements and other authorizations, whether already issued or to be issued, are subject to appeal periods which have not yet run and during which challenges may be asserted. We have no control over the outcome of these permit processes and we do not know whether or when any such approvals or permits can be obtained, or whether or not any existing or potential interventions or other actions by third parties will interfere with our ability to obtain and maintain such permits or approvals. There is no assurance that we will obtain and maintain the needed governmental permits, approvals and authorizations, or that we will be able to obtain them on a timely basis, and failure to obtain and maintain any of these permits, approvals or authorizations could have a material adverse effect on our business, financial condition, operating results, cash flows, liquidity and prospects. If we do not obtain or maintain the necessary approvals, licenses, permits, entitlements, consents or other authorizations in a timely manner or on favorable terms and conditions or at all, our ability to complete the North Segment, the Tampa Expansion or the Vegas Expansion or to operate our Florida passenger rail system or the Vegas Expansion may be materially adversely affected.

Laws and regulations governing construction and operation of a passenger rail system may be subject to differing interpretations and may be amended from time to time. We may not be able to comply with all such interpretations and such newly-adopted laws and regulations in the future. Any failure by us to comply may increase the cost to, or delay our ability to complete or operate our Florida passenger rail system.

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We are subject to governmental regulations relating to our Florida passenger rail system and the Vegas Expansion, which could impose significant costs on our Florida passenger rail system or the Vegas Expansion and could impede completion or operation of our Florida passenger rail system or the Vegas Expansion, which would have a material adverse effect on our company.

We are subject to the jurisdiction of various regulatory agencies, including the FRA and other state and federal regulatory agencies for a variety of economic, health, safety, labor, tax, legal and other matters. New rules or regulations by these agencies could increase our operating costs or reduce operating efficiencies. For example, the Rail Safety Improvement Act of 2008 mandated that the installation of an interoperable PTC be completed by December 31, 2015 on main lines that carry certain hazardous materials and on lines that have commuter or passenger operations. The Surface Transportation Extension Act of 2015 amended the Rail Safety Improvement Act to require implementation of PTC by the end of 2018, which deadline may be extended to December 31, 2020, provided certain other criteria are satisfied. However, even if either the regulatory requirements or the implementation date are further revised, the rule will continue to impose significant new costs on us and the rail industry. Noncompliance with these and other applicable laws or regulations could affect operations, erode public confidence in us and can subject us to fines, penalties and other legal or regulatory sanctions.

In addition, under the Americans with Disabilities Act (“ADA”), all public accommodations must meet various federal requirements related to access and use by disabled persons. Compliance with the ADA’s requirements could require costs to attain compliance including removal of access barriers, and non-compliance could result in the imposition of fines or in private litigants winning damages. Although we believe that our trains and stations comply, or will comply, with the present requirements of the ADA, we may be subject to audits or investigations to determine compliance with the ADA.

Railroad regulations and legislative amendments may impose costs and restrictions that could adversely affect our operations.

Under current Florida law, we are exempt from sales taxes with regard to the purchase of certain materials. The Florida legislature may amend current law, including the Florida Revenue Act and/or the Florida Rail Enterprise Act, in a manner that adversely affects the tax, regulatory, operational or other aspects of our company and accordingly increases our cost of conducting business or reduces the volume of our business. For example, amendments to Florida Statute 212.08(7)(bbb) (2013) and/or Florida Statute 341.840 (2013) could subject us to sales taxes from which we are now exempt with regard to the purchase of certain materials.

Our operations are subject to rules and regulations promulgated by various agencies and bodies of the state and local governments which have jurisdiction over such matters as employment, environment, safety, traffic and health. The impact of any new rules and regulations on our operations is unknown and cannot be predicted. Future rules and regulations may require the expenditure by us of substantial sums to effect compliance therewith. In this regard, Florida legislation regarding the regulation of high-speed passenger rails was unsuccessfully introduced during both the 2017 and 2018 legislative sessions in the Florida Senate and the Florida House of Representatives. Senate Bill 572 (the “Florida High-Speed Passenger Rail Safety Act”), filed in October 2017, proposed to shift responsibility for certain construction and maintenance costs associated with grade rail crossings from local government entities to rail companies. In addition, the proposed legislation would have imposed certain fines and penalties, in an amount not to exceed $10,000, for each violation of the Florida High-Speed Passenger Rail Safety Act or rules adopted in relation to the Florida High-Speed Passenger Rail Safety Act. Similar legislation was filed in the Florida House of Representatives (most recently known as House Bill 525, also entitled the “Florida High-Speed Passenger Rail Safety Act”). These bills may be reintroduced in future legislative sessions.

Based on the current decision of the Surface Transportation Board, a federal economic regulatory agency that is charged with resolving railroad rate and service disputes and reviewing proposed railroad mergers, our existing and proposed rail system in Florida is not subject to its regulatory jurisdiction under Title 49 of the United States Code and there are no Surface Transportation Board regulatory laws or issues that could impact claims of the investors. However, if the Surface Transportation Board were to assert jurisdiction over us in the future, then advance approval or exemption would be required before the property could be liquidated. The proceeding before the Surface Transportation Board would be subject to public comment and an independent analysis by the Surface Transportation Board of the viability of the railroad. The Surface Transportation Board could also require the property to be kept in service after authorizing abandonment if a third party offered a subsidy to make us whole during such subsidy period. The Surface Transportation Board also has the power to order the sale of the property of a regulated carrier to a financially responsible third party for the net liquidation value, which consists of the current value of the track

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and materials less the cost of removal and transportation, plus the across-the-fence value of real estate owned in fee simple, less the usual and customary costs of the sale of real estate.

In addition, if the Surface Transportation Board were to assert jurisdiction over us in the future, then advance approval or exemption might be required for our Florida passenger railroad operations and/or the construction and operation of our Florida passenger rail system. Because of the projected number of trains to be operated daily by us, the Surface Transportation Board might also require an environmental review separate or different from that review conducted by the FRA. That review could be either an environmental assessment or environmental impact statement for the new passenger operations, and would most likely be an environmental impact statement with respect to any new construction. The environmental review process could take up to three years and might result in conditions ranging from pro forma to onerous, including a requirement that we construct one or more grade separations along the line at a potentially significant cost. There is also a risk of denial or conditions so costly that we do not proceed at all. The Surface Transportation Board would also have the power to regulate fares and service while we are operating.

We may incur liability under and costs to comply with environmental laws relating to the development and operation of our Florida passenger rail system and the Vegas Expansion.

Our assets and the development and operation of our Florida passenger rail system and the Vegas Expansion are subject to a variety of federal, state and local environmental, health and safety rules and regulations regarding, among other things, discharge of pollutants into the air, water and soil, the generation, handling, storage, transportation, treatment and disposal of waste and other regulated materials, the cleanup of contaminated properties and human health and safety, air emissions associated with locomotive engines and the protection of wetlands, endangered species and other natural resources. We may incur substantial costs in order to maintain compliance with these laws and regulations. Noncompliance with these rules and regulations could result in significant fines or penalties, injunctions limiting or prohibiting our activities, delays in completing our Florida passenger rail system or the Vegas Expansion or additional costs, including liability for investigation, remediation or mitigation costs or any related claims alleging personal injury, property or natural resource damages, all of which could have a material adverse impact on our business, contracts, financial condition, operating results, liquidity and prospects.

At any time, we may be responsible for remediation costs or other liabilities as a result of the use, presence, release or disposal of regulated substances at or from any property we own or operate or to which we have sent waste for treatment or disposal. Liability may be imposed without regard to whether we knew of, or caused, the contamination and, in some cases, liability may be joint or several. We may also face additional costs, liabilities or delays as a result of any proposed or actual impact or damages to any protected species or habitats.

Any environmental liability or obligation could cause us to incur material costs outside of the current development budget for our Florida passenger rail system or the Vegas Expansion or result in material delays. In particular, undiscovered contamination, changes in law or governmental enforcement or oversight, our failure to obtain or maintain environmental permits, authorizations or other approvals, unforeseen environmental liabilities or any environmental claims or challenges by interested parties may result in additional, unexpected costs or could cause significant delays in the completion of our Florida passenger rail system or the Vegas Expansion, prevent us from completing our Florida passenger rail system or the Vegas Expansion or prevent us from developing rail systems in other jurisdictions.

We may be subject to federal, state and local taxes on our income and property and, since we have limited operating history, the impact of such taxes on our company is currently unknown.

We may be subject to federal, state and local taxes on our income and property, including our real estate assets. However, since we have limited operating history, the impact of such taxes on our company is currently unknown. In particular, we may be subject to taxes from authorities in various jurisdictions and can give no assurance as to how such authorities will assess taxes on our income and/or properties. Any tax liability could be substantial and would reduce the amount of cash available.

Changes in laws or regulations related to U.S. federal income taxation could affect us or the holders of our common stock.

The rules dealing with U.S. federal income taxation are constantly under review by persons involved in the legislative process and by the IRS and the U.S. Treasury Department. The recently enacted Tax Cuts and Jobs Act makes substantial changes to the Internal Revenue Code of 1986, as amended (the “Code”). Among those changes

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are a significant permanent reduction in the generally applicable corporate tax rate, changes in the taxation of individuals and other non-corporate taxpayers that generally but not universally reduce their taxes on a temporary basis subject to “sunset” provisions, the elimination or modification of various previously allowed deductions (including substantial limitations on the deductibility of interest and, in the case of individuals, the deduction for personal state and local taxes), and certain additional limitations on the deduction of net operating losses. The effect of these, and the many other, changes made in the Tax Cuts and Jobs Act is uncertain, both in terms of their direct effect on the taxation of an investment in our common shares and their indirect effect on the value of our assets or our common shares or market conditions generally. Furthermore, many of the provisions of the Tax Cuts and Jobs Act will require guidance through the issuance of Treasury regulations in order to assess their effect. There may be a substantial delay before such regulations are promulgated, increasing the uncertainty as to the ultimate effect of the statutory amendments on us. Technical corrections legislation also may be proposed with respect to the Tax Cuts and Jobs Act, the effect of which cannot be predicted.

Risks Related to Our Indebtedness

Although we believe that we will be able to raise sufficient funds to complete our Florida passenger rail system and the Vegas Expansion, there are no assurances that future sources of capital, including the 2019 Debt Financing or the bridge loan facility, will be available on favorable terms, on a timely basis, or at all to accomplish this.

The development and completion of the North Segment, the Tampa Expansion and the Vegas Expansion are dependent upon our ability to raise funds through various potential sources, including a refinancing of the Series 2017 Bonds (as defined below), through a new issuance of private activity bonds in connection with the 2019 Debt Financing or otherwise, and/or other debt or equity financings. The 2019 Debt Financing will not be completed prior to the consummation of this offering. In the interim, we are currently in discussions for a commitment for a one-year bridge loan facility (subject to a one-year extension) to permit us to borrow up to $2.3 billion aggregate principal amount. We do not yet have a commitment for such bridge loan facility. See the section entitled “Description of Certain Indebtedness—Anticipated Debt Financing” for more information. Though we believe we will be able to raise sufficient funds to complete the North Segment, the Tampa Expansion and the Vegas Expansion, we have not yet secured such debt financing and there can be no assurance that such capital will be available at our desired timing, on favorable terms, on a timely basis, or at all or will be sufficient to meet our needs. Instability or disruptions of the capital markets, including credit markets, could restrict or prohibit access to financing sources and could increase the cost of financing sources. Likewise, a significant deterioration of our financial condition due to internal or external factors could also reduce credit ratings and could limit or affect our access to external sources of capital and increase financing costs.

If we are unable to raise sufficient additional capital at a reasonable cost of financing and otherwise on favorable terms and on our desired timing, it could be forced to curtail construction, development and operation activities, which will delay the development and completion of the North Segment, the Tampa Expansion or the Vegas Expansion and could have a material adverse effect on our current or future business, contracts, financial condition, operating results, cash flows, liquidity and prospects.

We have limited revenue and may not be able to generate sufficient cash to service all of our existing and future indebtedness and may be forced to take other actions to satisfy our obligations under our indebtedness, which may not be successful.

Our ability to make scheduled payments on or to refinance our existing and future debt obligations depends on our financial condition and operating performance, which are subject to the profitability of our Florida passenger rail system, prevailing economic and competitive conditions, and certain financial, business and other factors some of which are beyond our control. There can be no guarantee that we will be able to sustain successful operation of our Florida passenger rail system, or that we will complete our Florida passenger rail system as anticipated or at all. As a result, we may not be able to maintain a level of cash flow from operating activities sufficient to pay the principal, premium, if any, and interest on our indebtedness.

If our cash flows and capital resources are insufficient to service our debt obligations and other cash requirements, we could face substantial liquidity problems and may be forced to reduce or delay investments or capital expenditures, or to sell assets or operations, seek additional capital or restructure or refinance our indebtedness. We may not be able to affect any such alternative measures, if necessary, on commercially reasonable terms or at all and, even if successful, such alternative actions may not allow us to meet our scheduled debt service

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obligations. The agreements that govern our indebtedness may restrict us from adopting some of these alternatives. These alternative measures may not be successful and may not permit us to meet our debt obligations.

Our inability to generate sufficient cash flows to satisfy our debt obligations, or to refinance our indebtedness on commercially reasonable terms or at all, would materially and adversely affect our business, financial condition and operating results. If we cannot make scheduled payments on our indebtedness, we would be in default, which could result in an acceleration of any such indebtedness, the termination of lenders’ commitments to loan money and/or, in the case of secured indebtedness, foreclose against the assets securing such indebtedness.

We have a substantial amount of indebtedness, which could adversely affect our business, financial condition and operating results. In addition, we may incur additional debt in the future.

As of January 29, 2019, our total indebtedness is approximately $705 million (excluding deferred financing costs) and is expected to increase substantially in connection with the construction of the North Segment, the Tampa Expansion and the Vegas Expansion. For a description of our indebtedness, see “Description of Certain Indebtedness.” Our substantial indebtedness could have important consequences, including:

increasing our vulnerability to adverse economic, industry or competitive developments;
requiring a substantial portion of cash flow from operations to be dedicated to the payment of principal and interest on our indebtedness;
limiting our ability to obtain additional financing for working capital, capital expenditures, debt service requirements and general corporate or other purposes; and
limiting our flexibility in planning for, or reacting to, changes in our business or the industry in which we operate.

Additionally, we may incur additional debt, which could increase the risks of adversely affecting our financial condition and the risks associated with our ability to service our debt obligations. If new debt is added to our existing debt levels, the related risks regarding our substantial leverage would increase.

Risks Related to Our Organization and Structure

If the ownership of our common stock continues to be highly concentrated, it may prevent you and other minority stockholders from influencing significant corporate decisions and may result in conflicts of interest.

Immediately following the completion of this offering and the concurrent private placements, the Virgin Trains Stockholder, which is primarily owned by private equity funds managed by an affiliate of Fortress, will own approximately 81.6% of our outstanding common stock or 79.5% if the underwriters’ over-allotment option is fully exercised. As a result, the Virgin Trains Stockholder will own shares sufficient for the majority vote over all matters requiring a stockholder vote, including: the election of directors; mergers, consolidations and acquisitions; the sale of all or substantially all of our assets and other decisions affecting our capital structure; the amendment of our certificate of incorporation and our bylaws; and our winding up and dissolution. This concentration of ownership may delay, deter or prevent acts that would be favored by our other stockholders. The interests of the Virgin Trains Stockholder may not always coincide with our interests or the interests of our other stockholders. This concentration of ownership may also have the effect of delaying, preventing or deterring a change in control of us. Also, the Virgin Trains Stockholder may seek to cause us to take courses of action that, in its judgment, could enhance its investment in us, but which might involve risks to our other stockholders or adversely affect us or our other stockholders, including investors in this offering. As a result, the market price of our common stock could decline or stockholders might not receive a premium over the then-current market price of our common stock upon a change in control. In addition, this concentration of share ownership may adversely affect the trading price of our common stock because investors may perceive disadvantages in owning shares in a company with significant stockholders. See “Principal Stockholder” and “Description of Capital Stock—Anti-Takeover Effects of Delaware Law, Our Certificate of Incorporation and Bylaws.”

We are a holding company with no operations and will rely on our operating subsidiaries to provide us with funds necessary to meet our financial obligations and to pay dividends.

We are a holding company with no material direct operations. Our principal assets are the equity interests we directly or indirectly hold in our operating subsidiaries, which own our operating assets. As a result, we will be dependent on loans, dividends and other payments from our subsidiaries to generate the funds necessary to meet our

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financial obligations and to pay dividends on our common stock. Our subsidiaries are legally distinct from us and may be prohibited or restricted from paying dividends or otherwise making funds available to us under certain conditions. For example, certain of our debt agreements limit, and our debt agreements in the future may limit, the ability of certain of our subsidiaries to pay dividends or make loans or other distributions to us. See “Management’s Discussion and Analysis of Financial Conditions and Results of Operations—Liquidity and Capital Resources” and “Dividend Policy.” If we are unable to obtain funds from our subsidiaries, we may be unable to, or our board may exercise its discretion not to, pay dividends.

We do not anticipate paying any dividends on our common stock in the foreseeable future.

We have no plans to pay regular dividends on our common stock, and we anticipate that a significant amount of any free cash flow generated from our operations will be utilized to fund our operations or construction or redeem or prepay outstanding indebtedness, including debt under the loan agreement between Florida Development Finance Corporation and Brightline Trains LLC (f/k/a All Aboard Florida – Operations LLC, a limited liability company in Delaware that effected a name change in May 2018) (“Brightline Trains”) dated December 1, 2017, as amended (the “Senior Loan Agreement”) and accordingly would not be available for dividends. Any declaration and payment of future dividends to holders of our common stock will be at the sole discretion of our board of directors and will depend on many factors, including our financial condition, earnings, capital requirements, level of indebtedness, statutory and contractual restrictions applying to the payment of dividends and other considerations that our board of directors deems relevant. Until such time that we pay a dividend, our investors must rely on sales of their common stock after price appreciation, which may never occur, as the only way to realize any future gains on their investment.

Certain provisions of a stockholders’ agreement we expect to enter into with the Virgin Trains Stockholder (the “Stockholders’ Agreement”), our certificate of incorporation and our bylaws could hinder, delay or prevent a change in control of us, which could adversely affect the price of our common stock.

Certain provisions of the Stockholders’ Agreement, our certificate of incorporation and our bylaws contain provisions that could make it more difficult for a third party to acquire us without the consent of our board of directors or the Virgin Trains Stockholder. These provisions provide for:

a classified board of directors with staggered three-year terms;
removal of directors only for cause and only with the affirmative vote of at least a majority of the voting interest of stockholders entitled to vote (provided, however, that for so long as the Virgin Trains Stockholder and certain affiliates of Fortress and permitted transferees beneficially own at least 50% of our issued and outstanding common stock, directors may be removed with or without cause with the affirmative vote of a majority of the voting interest of stockholders entitled to vote);
provisions in our certificate of incorporation and bylaws prevent stockholders from calling special meetings of our stockholders (provided, however, that for so long as the Virgin Trains Stockholder and certain affiliates of Fortress and permitted transferees beneficially own, directly or indirectly, at least 20% of our issued and outstanding common stock, any stockholders that collectively beneficially own at least 20% of our issued and outstanding common stock may call special meetings of our stockholders);
advance notice requirements by stockholders with respect to director nominations and actions to be taken at annual meetings;
certain rights to the Virgin Trains Stockholder and certain affiliates of Fortress and permitted transferees with respect to the designation of directors for nomination and election to our board of directors, including the ability to appoint a majority of the members of our board of directors, plus one director, for so long as the Virgin Trains Stockholder and certain affiliates of Fortress and permitted transferees continue to beneficially own, directly or indirectly at least 30% of our issued and outstanding common stock. See “Certain Relationships and Related Party Transactions—Stockholders’ Agreement”;
no provision in our certificate of incorporation or bylaws for cumulative voting in the election of directors, which means that the holders of a majority of the outstanding shares of our common stock can elect all the directors standing for election;

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our certificate of incorporation and our bylaws only permit action by our stockholders outside a meeting by unanimous written consent, provided, however, that for so long as the Virgin Trains Stockholder and certain affiliates of Fortress and permitted transferees beneficially own, directly or indirectly, at least 20% of our issued and outstanding common stock, our stockholders may act without a meeting by written consent of a majority of our stockholders; and
under our certificate of incorporation, our board of directors has authority to cause the issuance of preferred stock from time to time in one or more series and to establish the terms, preferences and rights of any such series of preferred stock, all without approval of our stockholders. Nothing in our certificate of incorporation precludes future issuances without stockholder approval of the authorized but unissued shares of our common stock.

In addition, these provisions may make it difficult and expensive for a third party to pursue a tender offer, change in control or takeover attempt that is opposed by the Virgin Trains Stockholder, our management or our board of directors. Public stockholders who might desire to participate in these types of transactions may not have an opportunity to do so, even if the transaction is favorable to stockholders. These anti-takeover provisions could substantially impede the ability of public stockholders to benefit from a change in control or change our management and board of directors and, as a result, may adversely affect the market price of our common stock and your ability to realize any potential change of control premium. See “Description of Capital Stock—Anti-Takeover Effects of Delaware Law, Our Certificate of Incorporation and Bylaws.”

Our relationship with our Parent, including the fact that our Parent owns the mixed-use office, residential, retail and parking facilities at and around our stations in Miami, Fort Lauderdale and West Palm Beach, may create conflicts of interest or the appearance of conflicts of interest, which could adversely affect our business.

Currently, our Parent is developing approximately 1.5 million square feet of mixed-use office, residential, retail and parking facilities at and around our stations in Miami, Fort Lauderdale and West Palm Beach, and key tenants, including food and beverage, fashion, fitness and life-style brands, have leased and are in negotiations to lease space. We do not have any ability to control the decisions made by our Parent with respect to the facilities it owns at and around our stations, which may create actual or perceived conflicts of interest. Our Parent may decide that it is in its or its equityholders’ best interests to pursue such opportunities in a manner that is not consistent with the best interests of us or our stockholders. In addition, they may not desire to, or be able to, maintain such facilities in the future in a condition that meets our expectations. If such facilities were not well maintained, it could have a negative impact on the areas surrounding our passenger rail system, which could have an adverse effect on our business. These risks may be exacerbated if our Parent’s ownership stake in us were to decline over time.

Furthermore, our pursuit of new opportunities at future stations we may establish could create or appear to create potential conflicts of interest. For example, we may wish to pursue the same real estate development activities with the same food and beverage, fashion, fitness and life-style brands that have entered into agreements with our Parent. In addition, we may pursue development activities in concert with our Parent, which could also create conflicts of interest. Such conflict of interests could have a material adverse effect on our business.

Certain of our stockholders have the right to engage or invest in the same or similar businesses as us.

Fortress, the Virgin Trains Stockholder and certain of their respective affiliates engage in other investments and business activities in addition to their ownership of us. Under our certificate of incorporation, Fortress, the Virgin Trains Stockholder and their respective affiliates have the right, and have no duty to abstain from exercising such right, to engage or invest in the same or similar businesses as us, do business with any of our clients, customers or vendors or employ or otherwise engage any of our officers, directors or employees. If Fortress, the Virgin Trains Stockholder, their affiliates or any of their officers, directors or employees acquire knowledge of a potential transaction that could be a corporate opportunity, they have no duty, to the fullest extent permitted by law, to offer such corporate opportunity to us, our stockholders or our affiliates.

In the event that any of our directors and officers who is also a director, officer or employee of any of Fortress, the Virgin Trains Stockholder or their respective affiliates, acquires knowledge of a corporate opportunity or is offered a corporate opportunity, provided that this knowledge was not acquired solely in such person’s capacity as our director or officer and such person acts in good faith to the fullest extent permitted by law, then even if Fortress

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or the Virgin Trains Stockholder pursues or acquires the corporate opportunity or if Fortress or the Virgin Trains Stockholder do not present the corporate opportunity to us, such person is deemed to have fully satisfied such person’s fiduciary duties owed to us and is not liable to us. See “Certain Relationships and Related Party Transactions—Stockholders’ Agreement.”

Our certificate of incorporation and bylaws provide that, unless we consent in writing to the selection of an alternative forum, the Court of Chancery of the State of Delaware will be the sole and exclusive forum for certain stockholder limitation matters, which could discourage stockholder lawsuits or limit our stockholders’ ability to bring a claim in any judicial forum that they find favorable for disputes with us or our officers and directors.

Pursuant to our certificate of incorporation and bylaws, unless we consent in writing to the selection of an alternative forum, the Court of Chancery of the State of Delaware will be the sole and exclusive forum for (i) any derivative action or proceeding brought on our behalf, (ii) any action asserting a claim of breach of a fiduciary duty owed by any of our directors, officers, employees or agents or our stockholders, (iii) any action asserting a claim arising pursuant to any provision of the DGCL or (iv) any action asserting a claim governed by the internal affairs doctrine, in each such case subject to said Court of Chancery having personal jurisdiction over the indispensable parties named as defendants therein. In the event that the Court of Chancery lacks jurisdiction over any such action or proceeding, our certificate of incorporation provides that the sole and exclusive forum for such action or proceeding will be another state or federal court located within the State of Delaware. The forum selection clause in our certificate of incorporation may have the effect of discouraging stockholder lawsuits or limiting our stockholders’ ability to bring a claim in any judicial forum that they find favorable for disputes with us or our officers and directors.

We expect to be a “controlled company” within the meaning of the Nasdaq rules and, as a result, will qualify for and intend to rely on exemptions from certain corporate governance requirements.

Upon completion of this offering, the Virgin Trains Stockholder will hold a majority of the voting power of our shares. As a result, we expect to be a controlled company within the meaning of the Nasdaq corporate governance standards. Under the Nasdaq corporate governance rules, a company of which more than 50% of the voting power for the election of directors is held by an individual, a group or another company is a controlled company and may elect not to comply with certain Nasdaq corporate governance requirements, including the requirements that:

a majority of the board of directors must consist of independent directors as defined under the rules of the Nasdaq;
the nominating and corporate governance committee be composed entirely of independent directors with a written charter addressing the committee's purpose and responsibilities; and
the compensation committee be composed entirely of independent directors with a written charter addressing the committee's purpose and responsibilities.

These requirements will not apply to us as long as we remain a controlled company. A controlled company does not need its board of directors to have a majority of independent directors or to form independent nominating and corporate governance and compensation committees. Following this offering, we intend to utilize some or all of these exemptions. Accordingly, you may not have the same protections afforded to stockholders of companies that are subject to all of the corporate governance requirements of the Nasdaq. See “Management.”

Risks Related to this Offering

An active trading market for our common stock may never develop or be sustained.

Prior to this offering, there has been no public market for our common stock. The initial public offering price for our common stock will be determined through negotiations with the underwriters. This price may not reflect the price at which investors in the market will be willing to buy and sell our shares following this offering. Although we have applied to have our common stock approved for listing on the Nasdaq, an active trading market for our common stock may not develop on that exchange or elsewhere or, if developed, that market may not be sustained. Accordingly, if an active trading market for our common stock does not develop or is not maintained, the liquidity of our common stock, your ability to sell your shares of common stock when desired and the prices that you may obtain for your shares of common stock will be adversely affected. An inactive trading market may also impair our ability to raise capital to continue to fund operations by selling shares and may impair our ability to acquire other companies or technologies by using our shares as consideration.

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The market price and trading volume of our common stock may be volatile, which could result in rapid and substantial losses for our stockholders.

Even if an active trading market develops, the market price of our common stock may be highly volatile and could be subject to wide fluctuations. In addition, the trading volume in our common stock may fluctuate and cause significant price variations to occur. The initial public offering price of our common stock will be determined by negotiation between us and the representatives of the underwriters based on a number of factors and may not be indicative of prices that will prevail in the open market following completion of this offering. If the market price of our common stock declines significantly, you may be unable to resell your shares at or above your purchase price, or at all. The market price of our common stock may fluctuate or decline significantly in the future. Some of the factors that could negatively affect our share price or result in fluctuations in the price or trading volume of our common stock include:

variations in our quarterly or annual operating results;
changes in our earnings estimates (if provided) or differences between our actual financial and operating results and those expected by investors and analysts;
the contents of published research reports about us or our industry or the failure of securities analysts to cover our common stock after this offering;
additions to, or departures of, key management personnel;
our ability to successfully rebrand under “Virgin Trains USA”;
any increased indebtedness we may incur in the future;
announcements by us or others and developments affecting us;
actions by institutional stockholders;
litigation and governmental investigations;
changes in market valuations of similar companies;
speculation or reports by the press or investment community with respect to us or our industry in general;
increases in market interest rates that may lead purchasers of our shares to demand a higher yield;
announcements by us or our competitors of significant contracts, acquisitions, dispositions, strategic relationships, joint ventures or capital commitments; and
general market, political and economic conditions, including any such conditions and local conditions in the markets in which our borrowers are located.

These broad market and industry factors may decrease the market price of our common stock, regardless of our actual operating performance. The stock market in general has from time to time experienced extreme price and volume fluctuations, including in recent months. In addition, in the past, following periods of volatility in the overall market and the market price of a company’s securities, securities class action litigation has often been instituted against these companies. This litigation, if instituted against us, could result in substantial costs and a diversion of our management’s attention and resources.

Future offerings of debt or equity securities by us may materially adversely affect the market price of our common stock.

In the future, we expect to obtain financing or to further increase our capital resources by issuing additional shares of our common stock or offering debt or other equity securities, including senior or subordinated notes, debt securities convertible into equity or shares of preferred stock. In particular, we intend to seek debt financing to complete the construction of the North Segment, the Tampa Expansion and the Vegas Expansion, as well as for transit oriented real estate development opportunities. In addition, we may seek to expand operations in the future to other markets which we would expect to finance through a combination of additional issuances of equity, corporate indebtedness and/or cash from operations.

Issuing additional shares of our common stock or other equity securities or securities convertible into equity may dilute the economic and voting rights of our existing stockholders or reduce the market price of our common stock

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or both. Upon liquidation, holders of such debt securities and preferred shares, if issued, and lenders with respect to other borrowings would receive a distribution of our available assets prior to the holders of our common stock. Debt securities convertible into equity could be subject to adjustments in the conversion ratio pursuant to which certain events may increase the number of equity securities issuable upon conversion. Preferred shares, if issued, could have a preference with respect to liquidating distributions or a preference with respect to dividend payments that could limit our ability to pay dividends to the holders of our common stock. Our decision to issue securities in any future offering will depend on market conditions and other factors beyond our control, which may adversely affect the amount, timing or nature of our future offerings. Thus, holders of our common stock bear the risk that our future offerings may reduce the market price of our common stock and dilute their stockholdings in us. See “Description of Capital Stock.”

The market price of our common stock could be negatively affected by sales of substantial amounts of our common stock in the public markets.

After this offering and the concurrent private placements, there will be 165,813,000 shares of common stock outstanding, or 170,063,100 shares outstanding if the underwriters exercise their over-allotment option in full. Of our issued and outstanding shares, all the common stock sold in this offering will be freely transferable, except for any shares held by our “affiliates,” as that term is defined in Rule 144 under the Securities Act. Following completion of the offering and the concurrent private placements, approximately 81.6% of our outstanding common stock (or 79.5% if the underwriters exercise their over-allotment option in full) will be held by the Virgin Trains Stockholder and can be resold into the public markets in the future in accordance with the requirements of Rule 144. See “Shares Eligible For Future Sale.”

We and our executive officers, directors, the Virgin Trains Stockholder (who will hold in the aggregate approximately 81.6% of our outstanding common stock immediately after the completion of this offering and the concurrent private placements or 79.5% if the underwriters exercise their over-allotment option in full) and Corvina have agreed with the underwriters that, subject to certain exceptions, for a period of 180 days after the date of this prospectus, we and they will not directly or indirectly offer, pledge, sell, contract to sell, sell any option or contract to purchase or otherwise dispose of any common stock or any securities convertible into or exercisable or exchangeable for common stock, or in any manner transfer all or a portion of the economic consequences associated with the ownership of common stock, or cause a registration statement covering any common stock to be filed, without the prior written consent of Barclays Capital Inc., J.P. Morgan Securities LLC and Morgan Stanley & Co. LLC. See “Underwriting.”

Corvina has entered into an agreement pursuant to which it has agreed to purchase from us, at a price per share equal to the initial public offering price, shares of newly issued common stock in an amount equal to less than 2% of the number of shares outstanding immediately following the offering. In addition, certain individuals and/or entities affiliated with Fortress (including our Chairman Nominee) have indicated an interest in purchasing shares of our common stock at a price per share equal to the initial public offering price. Because indications of interest are not binding agreements or commitments to purchase, any of the individuals and/or entities affiliated with Fortress described above may determine to purchase more, fewer or no shares of our common stock. The shares of our common stock purchased by Corvina pursuant to the concurrent private placements will be restricted securities within the meaning of Rule 144 under the Securities Act, but will be eligible for resale subject to applicable restrictions under Rule 144 or pursuant to any other exemption from registration under the Securities Act.

Pursuant to the Stockholders’ Agreement, the Virgin Trains Stockholder and certain of its affiliates and permitted third party transferees have the right, in certain circumstances, to require us to register their approximately shares of our common stock under the Securities Act for sale into the public markets. Upon the effectiveness of such a registration statement, all shares covered by the registration statement will be freely transferable. See “Certain Relationships and Related Party Transactions—Stockholders’ Agreement.”

The market price of our common stock may decline significantly when the restrictions on resale by our existing stockholders lapse. A decline in the price of our common stock might impede our ability to raise capital through the issuance of additional common stock or other equity securities.

The future issuance of additional common stock in connection with our incentive plans or otherwise will dilute all other stockholdings.

After this offering and the concurrent private placements, assuming the underwriters exercise their over-allotment option in full, we will have a total number of shares of our common stock equal to 10% of our outstanding

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shares as of the completion of this offering reserved and available for issuance under our incentive plan, as increased on the first day of each fiscal year beginning in calendar year 2019 by a number of shares of our common stock equal to the excess of 10% of the number of outstanding shares on the last day of the immediately preceding fiscal year, over the number of shares reserved and available for issuance under the Plan as of the last day of the immediately preceding fiscal year. We may issue all of these shares of common stock without any action or approval by our stockholders, subject to certain exceptions. Any common stock issued in connection with our incentive plans, the exercise of outstanding stock options or otherwise would dilute the percentage ownership held by the investors who purchase common stock in this offering.

Investors in this offering will suffer immediate and substantial dilution.

The initial public offering price of our common stock will be substantially higher than the as adjusted net tangible book value per share issued and outstanding immediately after this offering and the concurrent private placements. Our net tangible book value per share as of September 30, 2018 was approximately $805 million and represents the amount of book value of our total tangible assets minus the book value of our total liabilities, after giving effect to the 56.007 for 1 stock split, divided by the number of our shares of common stock then issued and outstanding. Investors who purchase common stock in this offering will pay a price per share that substantially exceeds the net tangible book value per share of common stock. If you purchase shares of our common stock in this offering, you will experience immediate and substantial dilution of $10.09 in the net tangible book value per share, based upon the initial public offering price of $18.00 per share (the midpoint of the estimated initial public offering price range set forth on the cover of this prospectus). Investors that purchase common stock in this offering will have purchased 17.1% of the shares issued and outstanding immediately after the offering and the concurrent private placements, but will have paid 31.6% of the total consideration for those shares.

We will have broad discretion in the use of a significant part of the net proceeds from this offering and may not use them effectively.

Our management currently intends to use the net proceeds from this offering in the manner described in “Use of Proceeds” and will have broad discretion in the application of a significant part of the net proceeds from this offering. The failure by our management to apply these funds effectively could result in financial losses that could harm our business, cause the price of our common stock to decline and delay the development of our operations. Pending their use, we may invest the net proceeds from this offering in a manner that does not produce income or that loses value.

If securities or industry analysts do not publish research or reports about our business or publish negative reports, our stock price could decline.

The trading market for our common stock will be influenced by the research and reports that industry or securities analysts publish about us or our business. If one of more of these analysts ceases coverage of our company or fails to publish reports on us regularly, we could lose visibility in the financial markets, which in turn could cause our stock price or trading volume to decline. Moreover, if one or more of the analysts who cover our company downgrades our common stock or if our reporting results do not meet their expectations, our stock price could decline.

We are an “emerging growth company,” and the reduced disclosure requirements applicable to emerging growth companies may make our common stock less attractive to investors.

We are an “emerging growth company,” as defined in the Jumpstart Our Business Startups Act of 2012, or the JOBS Act, and may remain an emerging growth company for up to five years. For so long as we remain an emerging growth company, we are permitted and plan to rely on exemptions from certain disclosure requirements that are applicable to other public companies that are not emerging growth companies. These exemptions include not being required to comply with the auditor attestation requirements of Section 404 of the Sarbanes-Oxley Act, not being required to comply with any requirement that may be adopted by the Public Company Accounting Oversight Board regarding mandatory audit firm rotation or a supplement to the auditor’s report providing additional information about the audit and the financial statements, reduced disclosure obligations regarding executive compensation, and exemptions from the requirements of holding a nonbinding advisory vote on executive compensation and stockholder approval of any golden parachute payments not previously approved. As a result, the information we provide stockholders will be different than the information that is available with respect to other public companies. In this

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prospectus, we have not included all of the executive compensation related information that would be required if we were not an emerging growth company. We cannot predict whether investors will find our common stock less attractive if we rely on these exemptions. If some investors find our common stock less attractive as a result, there may be a less active trading market for our common stock, and our stock price may be more volatile.

In addition, the JOBS Act provides that an emerging growth company can take advantage of an extended transition period for complying with new or revised accounting standards. This allows an emerging growth company to delay the adoption of certain accounting standards until those standards would otherwise apply to private companies. We intend to take advantage of the exemptions discussed above. Accordingly, the information contained herein may be different than the information you receive from other public companies.

We will incur increased costs as a result of operating as a public company, and our management will be required to devote substantial time to new compliance initiatives and corporate governance practices.

As a public company, and particularly after we are no longer an “emerging growth company,” we will incur significant legal, accounting, and other expenses that we did not incur as a private company. The Sarbanes-Oxley Act, the Dodd-Frank Wall Street Reform and Consumer Protection Act, the listing requirements of the Nasdaq, and other applicable securities rules and regulations impose various requirements on public companies, including establishment and maintenance of effective disclosure and financial controls and corporate governance practices. We expect that we will need to hire additional accounting, finance, and other personnel in connection with our becoming, and our efforts to comply with the requirements of being, a public company, and our management and other personnel will need to devote a substantial amount of time towards maintaining compliance with these requirements. These requirements will increase our legal and financial compliance costs and will make some activities more time-consuming and costly. For example, we expect that the rules and regulations applicable to us as a public company may make it more difficult and more expensive for us to obtain director and officer liability insurance, which could make it more difficult for us to attract and retain qualified members of our board of directors. We are currently evaluating these rules and regulations and cannot predict or estimate the amount of additional costs we may incur or the timing of such costs. These rules and regulations are often subject to varying interpretations, in many cases due to their lack of specificity, and, as a result, their application in practice may evolve over time as new guidance is provided by regulatory and governing bodies. This could result in continuing uncertainty regarding compliance matters and higher costs necessitated by ongoing revisions to disclosure and governance practices. We cannot predict or estimate the amount of additional costs we may incur as a result of becoming a public company or the timing of such costs.

Pursuant to Sarbanes-Oxley Act Section 404, we will be required to furnish a report by our management on our internal control over financial reporting beginning with our second filing of an Annual Report on Form 10-K with the SEC after we become a public company. However, while we remain an emerging growth company, we will not be required to include an attestation report on internal control over financial reporting issued by our independent registered public accounting firm. To achieve compliance with Sarbanes-Oxley Act Section 404 within the prescribed period, we will be engaged in a process to document and evaluate our internal control over financial reporting, which is both costly and challenging. In this regard, we will need to continue to dedicate internal resources, potentially engage outside consultants, adopt a detailed work plan to assess and document the adequacy of internal control over financial reporting, continue steps to improve control processes as appropriate, validate through testing that controls are functioning as documented, and implement a continuous reporting and improvement process for internal control over financial reporting. Despite our efforts, there is a risk that we will not be able to conclude, within the prescribed timeframe or at all, that our internal control over financial reporting is effective as required by Sarbanes-Oxley Act Section 404. If we identify one or more material weaknesses, it could result in an adverse reaction in the financial markets due to a loss of confidence in the reliability of our financial statements.

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USE OF PROCEEDS

We will receive net proceeds from this offering of approximately $467.8 million (or approximately $539.7 million if the underwriters exercise their option to purchase additional shares), after deducting underwriting discounts and commissions and estimated offering expenses, based on an assumed initial public offering price of $18.00 per share (the midpoint of the price range set forth on the cover of this prospectus). If the underwriters exercise their option to purchase additional shares in full, we will receive net proceeds of approximately $71.9 million. See “Underwriting.” We estimate the net proceeds we will receive from the sale of shares of our common stock in the concurrent private placements will be approximately $38.4 million based on the midpoint of the investment range.

We intend to use the net proceeds from this offering and the concurrent private placements, together with the net proceeds from the 2019 Debt Financing, if successful, (i) to complete construction of the North Segment, (ii) to fund the XpressWest Acquisition and the related land purchase, (iii) to refinance approximately $700 million aggregate principal amount of our existing indebtedness and to pay related fees and expenses and (iv) for general corporate purposes, including, without limitation, to rebrand under “Virgin Trains USA” and to continue to upgrade the infrastructure in the South Segment (including installing and implementing PTC standards). For a description of the interest rate, maturity and other terms of the debt to be refinanced, see “Description of Certain Indebtedness.”

We expect the total funds necessary to complete the construction of the North Segment will be approximately $1.9 billion, excluding a $158 million contingency fund, the total cash necessary to complete the XpressWest Acquisition and related land purchase will be approximately $191 million (which amount is net of $9 million in prior payments), the total funds necessary to rebrand under “Virgin Trains USA” will be approximately $10 million to $20 million, the total funds necessary to upgrade the infrastructure in the South Segment (including installing and implementing PTC standards) will be approximately $107 million, the total funds necessary to complete the construction of the Tampa Expansion will be approximately $1.7 billion and the total funds necessary to complete the construction of the Vegas Expansion will be approximately $3.6 billion. We are currently in discussions with potential lenders but have not received any commitments.

There can be no assurance that we will be able to obtain the remaining funds necessary, including the 2019 Debt Financing, to fund all of the uses described above on acceptable terms, on our desired timelines or at all. See “Risk Factors—Risks Relating to Our Indebtedness—Although we believe that we will be able to raise sufficient funds to complete our Florida passenger rail system and the Vegas Expansion, there are no assurances that future sources of capital, including the 2019 Debt Financing or the bridge loan facility, will be available on favorable terms, on a timely basis, or at all to accomplish this.” If we are unable to secure such funds, we expect to prioritize (i) completing the construction of the North Segment, (ii) consummating the XpressWest Acquisition and the related land purchase, (iii) refinancing our existing indebtedness, (iv) the general corporate purposes described above and (v) completing the construction of the Vegas Expansion and the Tampa Expansion. However, our expectation for the prioritization of our future allocation of the net proceeds from this offering is subject to change based on the demands of our business and we cannot predict with certainty, or offer any assurances as to, how we will ultimately allocate any such funds.

Assuming no exercise of the underwriters’ option to purchase additional shares, a $1.00 increase (decrease) in the assumed initial public offering price of $18.00 per share would increase (decrease) the net proceeds from this offering and the concurrent private placements received by us, after deducting the underwriting discounts and commissions and estimated offering expenses, by approximately $28.8 million, assuming the number of shares offered by us, as set forth on the cover page of this prospectus, remains the same.

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DIVIDEND POLICY

We have not declared or paid any cash dividends on our capital stock since our inception, and we currently intend to retain all of our future earnings, if any, generated by our operations for the construction, operation and expansion of our business. Any declaration and payment of future dividends to holders of our common stock will be at the discretion of our board of directors and will depend on many factors, including our financial condition, earnings, cash flows, capital requirements, level of indebtedness, statutory and contractual restrictions applicable to the payment of dividends and other considerations that our board of directors deems relevant, including any contractual prohibitions with respect to payment of distributions. See “Risk Factors—Risks Related to Our Organization and Structure— We do not anticipate paying any dividends on our common stock in the foreseeable future.”

Because we are a holding company and have no direct operations, we will only be able to pay dividends from our available cash on hand and any funds we receive from our subsidiaries. Certain of our debt agreements limit, and our debt agreements in the future may limit, the ability of certain of our subsidiaries to pay dividends or make loans or other distributions to us. For example, the Senior Loan Agreement and the Collateral Agency, Intercreditor and Accounts Agreement by and among Brightline Trains, Deutsche Bank National Trust Company and the other secured parties thereto, dated December 1, 2017 (the “Collateral Agency Agreement”) contain restrictions on, among other things, our subsidiaries ability to pay dividends and other distributions to Virgin Trains USA Inc. See “Management Discussion and Analysis of Financial Condition and Results of Operations—Liquidity and Capital Resources” and “Risk Factors—Risks Related to the Organization and Structure—We are a holding company with no operations and will rely on our operating subsidiaries to provide us with funds necessary to meet our financial obligations and to pay dividends.”

Under Delaware law, dividends may be payable only out of surplus, which is calculated as our net assets less our liabilities and our capital, or, if we have no surplus, out of our net profits for the fiscal year in which the dividend is declared and/or the preceding fiscal year.

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CAPITALIZATION

The following table sets forth our capitalization as of September 30, 2018:

on an actual basis; and
on an as adjusted basis to give effect to our conversion into a corporation, the sale by us of 28,334,000 shares of common stock in this offering at an assumed initial public offering price of $18.00 per share (the midpoint of the price range set forth on the cover of this prospectus) and the sale by us of our common stock in the concurrent private placements and the borrowings under the Promissory Note (as defined below) and the application of the net proceeds from this offering as set forth under “Use of Proceeds”.

The following table is derived from and should be read together with the sections of this prospectus entitled “Use of Proceeds,” “Selected Combined Financial Data” and “Management’s Discussion and Analysis of Financial Condition and Results of Operations” and our combined financial statements and related notes included elsewhere in this prospectus.

(Dollars in thousands)
As of September 30, 2018
 
Actual
As Adjusted(1)
Cash and cash equivalents
$
273
 
$
586,763
 
Restricted cash
$
48,675
 
$
48,675
 
Long-term debt
 
 
 
 
 
 
Senior Loan Agreement (Series 2017 Bonds)(2)
$
581,640
 
$
581,640
 
Siemens Credit Agreement(3)
 
24,747
 
 
24,747
 
Promissory Note(4)
 
 
 
80,283
 
Less: current maturities
 
(938
)
 
(938
)
Total long-term debt(5)
 
605,449
 
 
685,732
 
 
 
 
 
 
 
 
Equity
 
 
 
 
 
 
Invested equity
 
1,061,734
 
 
 
Common stock, par value $0.01 per share; — common stock authorized, actual; 2,000,000,000 common stock authorized, as adjusted; — common stock issued and outstanding, actual; 165,813,000 common stock issued and outstanding, as adjusted
 
 
 
1,658
 
Additional paid-in capital
 
 
 
1,566,283
 
Total equity
 
1,061,734
 
 
1,567,941
 
Total capitalization
$
1,667,183
 
$
2,253,673
 
(1) A $1.00 increase (decrease) in the assumed initial public offering price of $18.00 per share, which is the midpoint of the estimated initial public offering price range we show on the cover of this prospectus, would increase (decrease) the as adjusted amount of each of cash and cash equivalents, additional paid-in capital, total equity and total capitalization by approximately $28.8 million, assuming that the number of shares offered by us, which we show on the cover of this prospectus, remains the same and after deducting estimated underwriting discounts and commissions and estimated offering expenses payable by us. We may also increase or decrease the number of common stock we are offering. Each increase (decrease) of 100,000 common stock at the assumed initial public offering price of $18.00 per share, which is the midpoint of the estimated initial public offering price range we show on the cover of this prospectus, would increase (decrease) the as adjusted amount of each of cash and cash equivalents, additional paid-in capital, total stockholders’ equity and total capitalization by approximately $1.7 million, after deducting estimated underwriting discounts and commissions and estimated offering expenses payable by us.
(2)Represents the aggregate principal amount of the Senior Loan Agreement, net of unamortized deferred financing costs. In December 2017, Brightline Trains entered into a loan agreement with the Florida Development Finance Corporation (the “FDFC”), pursuant to which the FDFC loaned the proceeds from the issuance of $600.0 million aggregate principal amount of its Surface Transportation Facility Revenue Bonds (Brightline Passenger Rail Project – South Segment), Series 2017 (the “Series 2017 Bonds”) to Brightline Trains. See “Description of Certain Indebtedness” for additional information.
(3) On July 10, 2018, Brightline Trains entered into a two-year $25.0 million delayed draw term loan credit facility to be used for working capital purposes and the acquisition of rolling stock. See “Description of Certain Indebtedness” for additional information.
(4) In December 2018, we borrowed funds from certain affiliates of the Virgin Trains Stockholder to advance North Segment construction, to fund costs related to the XpressWest Acquisition and the related land acquisition, and for working capital purposes. As of January 29, 2019, approximately $80.3 million was outstanding under the promissory note evidencing these loans (the “Promissory Note”). See “Certain Relationships and Related Party Transactions—Transactions with Certain Affiliates of the Virgin Trains Stockholder.”
(5) We have had discussions with potential lenders or other financing sources regarding a portion of the debt financing of up to $2.3 billion (net of any additional borrowings necessary to fund any applicable interest rate reserve) to fund the completion of construction of the North Segment and for the other uses set forth under “Use of Proceeds.” See the sections entitled “Use of Proceeds” and “Description of Certain Indebtedness—Anticipated Debt Financing” for more information.

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DILUTION

If you invest in our common stock in this offering, you will experience immediate and substantial dilution in the net tangible book value per share of our common stock upon completion of this offering.

Our as adjusted net tangible book value as of September 30, 2018, was approximately $805 million, or approximately $5.95 per share. Our as adjusted net tangible book value per share is determined by dividing our tangible net worth (tangible assets less total liabilities) by the total number of our outstanding common stock that will be outstanding immediately prior to the closing of this offering and the concurrent private placements, assuming the completion of our reorganization.

After giving effect to the completion of our reorganization and the sale of common stock in this offering at an assumed initial public offering price of $18.00 per share (the midpoint of the price range set forth on the cover page of this prospectus), the sale of shares of our common stock in the concurrent private placements, and after deducting estimated underwriting discounts and commissions and offering expenses, our adjusted pro forma net tangible book value as of September 30, 2018 would have been approximately $1,312 million, or approximately $7.91 per share. This represents an immediate increase in net tangible book value of $1.96 per share. This represents an immediate increase in the net tangible book value of $1.96 per share to our existing stockholders and an immediate dilution (i.e., the difference between the offering price and the adjusted pro forma net tangible book value after this offering) to new investors participating in this offering of $10.09 per share.

The following table illustrates the per share dilution to new investors participating in this offering:

Assumed initial public offering price per share
 
 
 
$
18.00
 
As adjusted net tangible book value per share as of September 30, 2018
$
5.95
 
 
 
 
Increase per share attributable to new investors in this offering and the concurrent private placements
 
1.96
 
 
 
 
Less: Adjusted pro forma net tangible book value per share
 
 
 
 
7.91
 
Dilution in adjusted net tangible book value per share to new investors in this offering and the concurrent private placements(1)
 
 
 
$
10.09
 
(1) Dilution is determined by subtracting net tangible book value per share after giving effect to the offering and the concurrent private placements from the initial public offering price paid by a new investor.

The following table summarizes on an adjusted pro forma basis as of September 30, 2018, the total number of shares of common stock owned by existing stockholders and to be owned by Corvina and the new investors in this offering, the total consideration paid, and the average price per share paid by our existing stockholders and to be paid by the new investors in this offering at $18.00, the midpoint of the price range set forth on the cover page of this prospectus, calculated before deducting of estimated discounts and commissions and offering expenses:

 
Common Stock Purchased
Total Consideration
Average
Price Per
Share
 
Number
Percentage
Amount
Percentage
Existing stockholders
 
135,257,000
 
 
81.6
%
$
1,061,734,000
 
 
65.9
%
$
7.85
 
New investors in this offering and the concurrent private placements(1)
 
30,556,000
 
 
18.4
%
 
550,008,000
 
 
34.1
%
$
18.00
 
Total
 
165,813,000
 
 
100.0
%
$
1,611,742,000
 
 
100.0
%
$
9.72
 
(1) Does not include any shares of our common stock in which certain individuals and/or entities affiliated with Fortress (including our Chairman Nominee) have indicated an interest in purchasing.

A $1.00 increase (decrease) in the assumed initial public offering price of $18.00 per share, which is the midpoint of the price range set forth on the cover page of this prospectus, would increase (decrease) our adjusted pro forma net tangible book value by approximately $28.8 million, the adjusted pro forma net tangible book value per share after this offering and the concurrent private placements by $0.17 per share and the dilution in adjusted pro forma net tangible book value per share to new investors in this offering by $0.83 per share assuming the number of shares offered by us, as set forth on the cover page of this prospectus, remains the same and after deducting the estimated underwriting discounts and commissions and offering expenses.

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SELECTED COMBINED FINANCIAL DATA

The following table presents the selected combined financial data for the periods and as of the dates indicated.

The statement of operations data for the nine months ended September 30, 2018 and 2017 and the balance sheet data as of September 30, 2018 have been derived from our unaudited condensed combined financial statements included elsewhere in this prospectus. The statement of operations data for the years ended December 31, 2017 and 2016 and the balance sheet data as of December 31, 2017 and 2016 have been derived from our audited combined financial statements included elsewhere in this prospectus. The unaudited condensed combined financial statements were prepared on the same basis as our audited combined financial statements. In our opinion, such financial statements include all adjustments, consisting of normal recurring adjustments that we consider necessary for a fair presentation of the financial information for those periods.

Our historical combined financial statements have been prepared on a stand-alone basis in accordance with GAAP and are derived from the Virgin Trains Stockholder’s and our Parent’s accounting records using the historical results of operations and assets and liabilities attributed to our operations, and include allocations of expenses from the Virgin Trains Stockholder and our Parent. Our historical results for any prior period are not necessarily indicative of results to be expected in any future period. You should read the selected combined financial data presented below in conjunction with the information included under the headings “Capitalization” and “Management’s Discussion and Analysis of Financial Condition and Results of Operations” and the combined financial statements and the related notes included elsewhere in this prospectus.

(Dollars in thousands)
Nine Months Ended September 30,
Year Ended December 31,
 
2018
2017
2017
2016
Statements of Operations Data:
 
 
 
 
 
 
 
 
 
 
 
 
Revenues
 
 
 
 
 
 
 
 
 
 
 
 
Passenger and customer related
$
4,754
 
$
 
$
 
$
 
Other
 
479
 
 
 
 
 
 
 
Total operating revenues
 
5,233
 
 
 
 
 
 
 
Operating expenses
 
 
 
 
 
 
 
 
 
 
 
 
Salaries, wages and benefits
 
21,941
 
 
17,757
 
 
16,487
 
 
13,889
 
Equipment maintenance
 
6,970
 
 
1,535
 
 
2,337
 
 
1
 
Maintenance of way
 
5,592
 
 
2,332
 
 
3,520
 
 
1,065
 
Fuel
 
1,395
 
 
59
 
 
23
 
 
 
Rent
 
3,292
 
 
567
 
 
839
 
 
405
 
Other operating expenses
 
6,741
 
 
2,803
 
 
4,482
 
 
2,325
 
General and administrative
 
22,910
 
 
10,327
 
 
15,833
 
 
6,947
 
Depreciation and amortization
 
18,392
 
 
618
 
 
880
 
 
359
 
Total operating expenses
 
87,233
 
 
35,998
 
 
44,401
 
 
24,991
 
Operating loss
 
(82,000
)
 
(35,998
)
 
(44,401
)
 
(24,991
)
Other income (expense)
 
 
 
 
 
 
 
 
 
 
 
 
Loss on extinguishment of debt
 
 
 
 
 
(327
)
 
 
Interest income (expense), net
 
(5,265
)
 
15
 
 
 
 
 
Other income
 
137
 
 
26
 
 
78
 
 
 
Total other income (expense)
 
(5,128
)
 
41
 
 
(249
)
 
 
Net loss and comprehensive loss
$
(87,128
)
$
(35,957
)
$
(44,650
)
$
(24,991
)
 
As of September 30,
As of December 31,
 
2018
2017
2016
Balance Sheet Data:
 
 
 
 
 
 
 
 
 
Properties, equipment and investment in rail, net
$
1,501,383
 
$
1,332,572
 
$
985,657
 
Total assets
 
1,836,925
 
 
1,774,354
 
 
1,258,870
 
Long-term debt
 
605,449
 
 
581,252
 
 
32,223
 
Invested equity – Parent’s net investment
 
1,061,734
 
 
1,084,210
 
 
1,129,646
 

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Management’s Discussion and Analysis of Financial Condition and Results of Operations

This discussion and analysis contains forward-looking statements that involve risks and uncertainties. See “Special Note Regarding Forward-Looking Statements and Industry Data” for a discussion of the uncertainties, risks and assumptions associated with those statements. Actual results may differ materially from those discussed in or implied in the forward-looking statements as a result of various factors, including, without limitation, those discussed below and elsewhere in this prospectus, particularly in the section entitled “Risk Factors.

The following discussion of our financial condition and results of operations should be read in conjunction with our combined financial statements and the notes thereto included elsewhere in this prospectus, as well as the information presented under “Selected Combined Financial Data.

Overview

We own and operate an express passenger rail system connecting major population centers in Florida, with plans to expand operations further in Florida, Las Vegas and elsewhere in North America. We are the first new major private passenger intercity railroad in the United States in over a century, and we believe our business represents a scalable model for twenty-first century passenger travel in North America.

We currently operate between Miami and West Palm Beach, one of the most heavily traveled and congested regions in the United States. Upon completion of this offering, we will continue construction of the expansion of our Florida passenger rail system to Orlando, Florida, and we intend to further expand our rail service to Tampa, Florida. Louis Berger estimates the total potential addressable market of travelers across our Miami to Tampa corridor to be approximately 413 million trips annually. We can operate up to 32 trains daily that are capable of speeds of up to 125 miles per hour, and we own stations located in the heart of downtown cities and major transit hubs in Florida. We believe our passenger rail system offers travel that is faster, safer, more eco-friendly, more reliable, less expensive, more productive and more enjoyable than travel by car or air.

Pursuant to the XpressWest Acquisition, we have agreed to acquire the rights to develop a high-speed rail project within a corridor between Victorville, California and Las Vegas, Nevada that is expected to be federally approved. The XpressWest Acquisition provides us with the opportunity to develop, operate and connect Las Vegas with Southern California by means of a new passenger rail system. The Vegas Expansion will link one of the most traveled routes in the United States, connecting approximately 13.4 million people living in the Los Angeles metro area with the approximately 2.2 million people living in the Las Vegas metro area, which is one of the most visited cities in the United States. The XpressWest Acquisition is anticipated to close in the first quarter of 2019, subject to customary closing conditions. The closing of the XpressWest Acquisition is not a condition to the closing of this offering or the concurrent private placements and we cannot assure you that the XpressWest Acquisition will be consummated on our expected timeline or at all.

We estimate a fully operational annual stabilized ridership of 11.3 million passengers for the Vegas Expansion. We expect the ramp up of ridership for the Vegas Expansion will proceed at a faster rate than our Florida passenger rail system due in part to the more concentrated travel pattern in the corridor between Las Vegas and Southern California. We also expect to stabilize by fourth quarter of 2023 or the first quarter of 2024. We expect to generate approximately $863.0 million in total revenue from the Vegas Expansion in its first year of stabilized operations, which include approximately $674.0 million in ticket revenue and approximately $189.0 million in ancillary revenue (which reflects an expected $5 in additional ancillary revenue per passenger as compared to our Florida passenger rail system, based on management’s expectation that the average trip length and nature of the market served by the Vegas Expansion will result in increased demand for food and beverage and potential sponsorship opportunities). Similar to our Florida passenger rail system, we believe that the Vegas Expansion will generate compelling returns, and our goal is to generate a stabilized operation income margin, before depreciation, amortization and interest of approximately 70% of total revenue. See “Special Note Regarding Forward-Looking Statements and Industry Data” and “Risk Factors.”

We intend for our Florida passenger rail service and the Vegas Expansion to generate meaningful profits and serve as a scalable model to expand our operations to a number of other large and congested intercity travel corridors in North America.

On November 15, 2018, we entered into the Virgin License Agreement with VEL. Pursuant to the terms of the Virgin License Agreement, VEL has granted to us, during the term, the right to use the Virgin brand, name, logo and

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certain other intellectual property as part of our corporate name and in connection with the operation of an intercity private high-speed passenger rail service along certain permitted passenger rail routes in the United States (including our Florida passenger rail system and the Vegas Expansion). As a result, we intend to rebrand from “Brightline” to “Virgin Trains USA.” We expect that our intended rebranding will require us to devote substantial resources to advertising and marketing and will cause us to incur significant costs. For more information about the Virgin License Agreement, see “Business—Intellectual Property.”

Outlook

When our Florida passenger rail system is fully built-out and operational between Miami and Orlando, we expect to carry approximately 6.6 million passengers annually, as estimated by Louis Berger. Louis Berger estimates that a fully built-out and operational service between Orlando and Tampa would carry an additional 2.9 million passengers annually, which would result in fully operational annual stabilized ridership of approximately 9.5 million passengers for our Florida passenger rail system by the fourth quarter of 2023 or the first quarter of 2024. The determination of the year of stabilization is based on information the Company provided to Louis Berger, which information has not been validated by Louis Berger. We expect, based upon certain estimates and assumptions prepared for us by Louis Berger, to generate approximately $810 million of total revenue in our first stabilized year (including the South Segment from Miami to West Palm Beach, the North Segment from West Palm Beach to Orlando and the Tampa Expansion from Orlando to Tampa) after an initial ramp up period of our operations. To arrive at this estimate, our management applied a combined annual fare growth and inflation rate of approximately 2.8% to Louis Berger’s estimates, thereby projecting annualized ticket revenue of approximately $697 million upon stabilization. Louis Berger has not verified our management’s estimates. In addition, our management projects additional revenue of approximately $113 million based on the Florida Operations and Maintenance and Ancillary Revenue Report, which (based on management estimates that Louis Berger determined were reasonable) expects revenue from food and beverage, parking, naming rights, sponsorships and partnerships, merchandise, advertisement and other fees to equal approximately 14% of total revenue (or approximately $12 per passenger). We believe our services will generate a compelling return on investment given our efficient cost structure and predictable operating expenses, and target a stabilized operating income margin, before depreciation and amortization, of approximately 70% of total revenue. This estimate is based on the Florida Operations and Maintenance and Ancillary Revenue Report, which estimated operating and maintenance expense by 2023 to be approximately 30% for the South Segment and the North Segment. We expect that this margin will remain static or improve as a result of the Tampa Expansion, as a significant portion of our projected administrative and other costs are calculable or fixed and can support increased revenue without a corresponding increase in cost. In addition, we expect to generate income from real estate developments that we are pursuing or may pursue at or near our current and future stations, which is excluded from this operating income margin target. There can be no assurance that we will achieve these goals and targets, and such differences could be material.

The United States dramatically lags behind both Europe and Asia in express passenger rail service despite having one of the most developed rail and highway systems in the world. We believe we can capitalize on this extensive infrastructure to expand our services into new markets. Our expansion plans are initially focused on markets with characteristics and demographics similar to those of our Florida passenger rail system and the Vegas Expansion – connecting highly populated cities with substantial intercity travel and separated by distances of 200 to 300 miles that are “too long to drive, too short to fly.” As we have done in Florida and Las Vegas, we intend to expand into markets, including Las Vegas and Southern California, where we believe we can utilize existing transportation corridors – either rail, highway or a combination of both – to cost effectively build our systems, as opposed to developing entirely new corridors at potentially significantly higher costs.

Expected Sources of Revenue and Income

We expect to generate the majority of our total revenues and income by selling tickets to passengers traveling on our passenger rail system. We also expect to generate ancillary revenue from Passenger and customer related revenue including food and beverage sales, merchandise sales, parking fees and other services. In addition, we expect to generate ancillary revenue from Other revenues including advertising, sponsorships and marketing (including naming rights), commissions from our travel partners and ground transportation service providers and other services.

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Passenger and Customer Related Revenue

Ticket Sales– We expect to generate the majority of our total revenue by selling tickets to passengers traveling on our passenger rail system. Ticketing revenue for any period is calculated as a function of the number of passengers riding our trains for such period and the price of tickets paid by such passengers.

Food and Beverage Sales– Food and beverages will be available for purchase on our trains, as well as in our stations from “Good to Go” kiosks that we own and operate. Each of our passenger cars on each train will have food and beverage carts. Upon commencement of Orlando operations, our trains are expected to include a café car.

Merchandise Sales– Merchandise sales will include model trains and accessories, as well as hats, t-shirts and other apparel.

Parking Garages– We have entered into leases for parking garages in Miami, Fort Lauderdale and West Palm Beach with a total of approximately 1,700 parking spaces for which we will charge a fee to park. We expect the parking spaces to generate demand mostly from passengers on our rail system, with additional demand for street and event parking.

Other Services– We expect to generate revenues from, in addition to the above, other services including but not limited to baggage fees, pet fees and business center services.

Other Revenue

Advertising– We have contracted with OutFront Media for advertising inside our stations, such as video displays and column wraps, and outside our stations, such as external billboards. Under this contract, OutFront Media has the right and responsibility to market, sell, install, display and remove third-party advertising and we will receive 60% of revenues, net of initial capital costs and commissions.

Sponsorships– We have identified many partnership and sponsorship opportunities, including vendors for beverages, WiFi and snacks, arrangements involving passenger lounges, health facilities (e.g., nursing mothers’ room), rideshare with “Lyft” and marketing affiliations with “Train Presented by” and time clocks. We have secured several sponsorship contracts and are working to arrange additional sponsorships. Some sponsorships are expected to be long-term, based on facility infrastructure commitments, while others such as product placements can be modified over time. We have begun discussing naming rights for our Miami station, which we expect to cover a period of 10 years or more.

Costs of Our Business

We expect the major cost components of our business to include salary, wages and benefits, equipment maintenance, maintenance of way, fuel, rent, other operating costs (such as food and beverage costs) and general and administrative:

Salaries, wages and benefits includes the cost of salaries, employee benefits and other compensation of employees providing management, security and safety, operating, maintenance, legal, accounting, finance, information technology, human resources, revenue management and sales and marketing services.

Equipment maintenance includes the cost of regular ongoing and preventative maintenance pursuant to a 30-year maintenance agreement with Siemens, as well as capital maintenance over the life of the contract. Maintenance will be performed at a set price with an established cost escalator pursuant to the maintenance agreement with Siemens.

Maintenance of way includes the cost of maintaining the portion of our rail corridor from Cocoa to Orlando. For the remainder of our rail corridor, from Miami to Cocoa, maintenance of way is performed by FECR under the Joint Use Agreement. Pursuant to the terms of the Joint Use Agreement, FECR is responsible for maintenance of shared track and signals as well as track security and bridge tenders along the shared corridor. We reimburse FECR for our share of the costs of such services. Maintenance of way also includes costs for dispatch services. Pursuant to the Dispatching Services Agreement, DispatchCo performs dispatch functions for our trains, with the costs allocated evenly between us and FECR. See “Certain Relationships and Related Party Transactions—Transactions with FECR—Joint Use Agreement” and “Certain Relationships and Related Party Transactions—Transactions with FECR—DispatchCo” for more information.

Fuel is a function both of usage and cost. Each locomotive has a fuel capacity of 2,200 usable gallons. While we do not currently hedge against fuel price fluctuations, in the future we may enter into various derivative instruments to mitigate the effect of fluctuations in fuel prices on our operations.

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Rent includes leases of parking garages and easements with related parties. Upon lease commencement with GOAA for the Orlando station and with FDOT for the right of way along State Road 528 between Cocoa and Orlando, rent is expected to be a significant component of our future operating costs.

Other operating expenses include food and beverage costs, facilities costs, real estate tax, IT costs, royalty payments, marketing and advertising expenses and other miscellaneous costs of operating our passenger rail system.

General and administrative includes bank fees, information technology costs, legal fees, accounting fees, professional services, insurance and IT costs.

Basis of Presentation

Our historical combined financial statements are comprised of the combined net assets and operations of Virgin Trains USA LLC (f/k/a AAF Holdings B LLC, a limited liability company in Delaware that effected a name change to Brightline Holdings LLC in March 2018 and to Virgin Trains USA LLC in November 2018) and its wholly-owned subsidiaries and certain other wholly-owned subsidiaries of the Virgin Trains Stockholder, including AAF Jacksonville Segment LLC, Brightline Management LLC (f/k/a All Aboard Florida Operations Management LLC, a limited liability company in Delaware that effected a name change in May 2018), Brevard County Property Holdings LLC and Space Coast Land Holdings LLC. The Virgin Trains Stockholder is a subsidiary of our Parent.

The combined financial statements have been prepared on a stand-alone basis in accordance with GAAP and are derived from the Virgin Trains Stockholder and our Parent’s accounting records and reflect our financial position, results of operations and cash flows. The combined results are not necessarily indicative of future performance and do not reflect what the financial performance of Virgin Trains USA would have been had it been a stand-alone company during the periods presented.

Financial Operations Overview

Comparison of Operating Results for the Nine Months Ended September 30, 2018 and 2017

The following table presents, for the periods indicated, selected information from our condensed combined financial results.

 
Nine Months Ended September 30,
 
(Dollars in thousands)
2018
2017
Change
Revenues
$
5,233
 
$
 
$
5,233
 
 
 
 
 
 
 
 
 
 
 
Operating expenses
 
 
 
 
 
 
 
 
 
Salaries, wages and benefits
 
21,941
 
 
17,757
 
 
4,184
 
Equipment maintenance
 
6,970
 
 
1,535
 
 
5,435
 
Maintenance of way
 
5,592
 
 
2,332
 
 
3,260
 
Fuel
 
1,395
 
 
59
 
 
1,336
 
Rent
 
3,292
 
 
567
 
 
2,725
 
Other operating expenses
 
6,741
 
 
2,803
 
 
3,938
 
General and administrative
 
22,910
 
 
10,327
 
 
12,583
 
Depreciation and amortization
 
18,392
 
 
618
 
 
17,774
 
Total operating expenses
 
87,233
 
 
35,998
 
 
51,235
 
Operating loss
 
(82,000
)
 
(35,998
)
 
(46,002
)
 
 
 
 
 
 
 
 
 
 
Other income (expense)
 
 
 
 
 
 
 
 
 
Interest income (expense), net
 
(5,265
)
 
15
 
 
(5,280
)
Other income
 
137
 
 
26
 
 
111
 
Total other income (expense)
 
(5,128
)
 
41
 
 
(5,169
)
Net loss and comprehensive loss
$
(87,128
)
$
(35,957
)
$
(51,171
)

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Revenues

Revenue increased $5.2 million, which was driven by the commencement of rail operations between Fort Lauderdale and West Palm Beach in January 2018 and between Miami and Fort Lauderdale in May 2018 as well as sponsorship revenues commencing in January 2018.

Operating Expenses

Operating expenses increased $51.2 million, or 142%, to $87.2 million for the nine months ended September 30, 2018, as compared to $36.0 million for the nine months ended September 30, 2017. The increase in operating expenses was generally driven by increased activities to support the ramp up of our operations and to prepare for revenue generating activity, which commenced in January 2018. Salaries, wages and benefits increased $4.2 million due to an increase in headcount. Equipment maintenance increased $5.4 million due to the Company’s monthly service payment obligation with Siemens commencing in January 2018. Maintenance of way increased $3.3 million due to dispatch services associated with train operations commencing in January 2018. Fuel costs increased by $1.3 million in response to the commencement of rail operations. Rent increased $2.7 million due to the commencement of various parking garage leases. Other operating expenses increased $3.9 million due to increased cost of marketing and advertising efforts as well as food and beverage costs, and information technology associated with the commencement of rail services. General and administrative expenses increased $12.6 million primarily due to professional services, information technology, operating and occupancy costs, as well as insurance. Depreciation and amortization increased $17.8 million due to property, equipment and investment and rail placed into service in conjunction with the commencement of rail operations.

Other Income (Expense)

Total other income (expense) changed by $5.2 million for the nine months ended September 30, 2018 as compared to the nine months ended September 30, 2017 primarily due to interest on our Senior Loan Agreement, which commenced in December 2017, and lower amount of interest costs capitalized in 2018.

Comparison of Operating Results for the Years Ended December 31, 2017 and 2016

The following table presents, for the periods indicated, selected information from our combined financial results.

 
Year Ended December 31,
 
(Dollars in thousands)
2017
2016
Change
Revenues
$
 
$
 
$
 
 
 
 
 
 
 
 
 
 
 
Operating expenses
 
 
 
 
 
 
 
 
 
Salaries, wages and benefits
 
16,487
 
 
13,889
 
 
2,598
 
Equipment maintenance
 
2,337
 
 
1
 
 
2,336
 
Maintenance of way
 
3,520
 
 
1,065
 
 
2,455
 
Fuel
 
23
 
 
 
 
23
 
Rent
 
839
 
 
405
 
 
434
 
Other operating expenses
 
4,482
 
 
2,325
 
 
2,157
 
General and administrative
 
15,833
 
 
6,947
 
 
8,886
 
Depreciation and amortization
 
880
 
 
359
 
 
521
 
Total operating expenses
 
44,401
 
 
24,991
 
 
19,410
 
Operating loss
 
(44,401
)
 
(24,991
)
 
(19,410
)
 
 
 
 
 
 
 
 
 
 
Other income (expense)
 
 
 
 
 
 
 
 
 
Loss on extinguishment of debt
 
(327
)
 
 
 
(327
)
Other income
 
78
 
 
 
 
78
 
Total other income (expense)
 
(249
)
 
 
 
(249
)
Net loss and comprehensive loss
$
(44,650
)
$
(24,991
)
$
(19,659
)

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Revenues

During 2016 and 2017, we had not yet commenced rail operations.

Operating Expenses

Operating expenses increased $19.4 million, or 78%, to $44.4 million for the year ended December 31, 2017, as compared to $25.0 million for the year ended December 31, 2016. The increase in operating expenses was generally driven by increased activities during 2017 to support the ramp up of our operations to prepare for revenue generating activity, which commenced in January 2018. Salaries, wages and benefits increased $2.6 million due to an increase in headcount. Equipment maintenance increased $2.3 million due to activities necessary for the preparation of commencing passenger rail operations. Maintenance of way increased $2.5 million due to an increase in dispatch service expenses in preparation of commencing revenue operating activity. Other operating expenses increased $2.2 million primarily due to increased marketing and advertising in preparation of commencing revenue operating activity. General and administrative increased $8.9 million primarily due to increases in costs related to legal, finance, accounting and other professional services, information technology and insurance.

Other Income (Expense)

Total other income (expense) changed by $0.2 million for the year ended December 31, 2017, primarily due to the repayment of our equipment financing credit facility which resulted in a loss of $0.3 million on extinguishment of debt.

Liquidity and Capital Resources

General

We have invested approximately $2.0 billion to date to develop and construct our Florida passenger rail system. This amount includes $667.7 million in rail infrastructure, $314.8 million in stations, $291.4 million in new rolling stock assets, and corridor and station land with an appraised value of approximately $696.0 million. Approximately $404.2 million of such investment is related to development and construction of the North Segment, primarily related to rail infrastructure.

Historically, we have relied on a combination of debt and equity contributions from the Virgin Trains Stockholder and our Parent to fund the construction of our Florida passenger rail system as well as to satisfy our liquidity needs and our contractual and other obligations. After this offering, the Virgin Trains Stockholder and our Parent will not be required, and do not intend, to provide us with additional funds to finance our operations or construction activities.

Following this offering, we intend to finance our operations and construction from the following sources:

our operations;
additional financing from lenders;
public offerings or private placements of debt and/or equity securities;
municipal bonds or other sources of governmental or semi-governmental financing;
strategic relationships and other arrangements; and
net cash proceeds from this offering.

We have commenced construction of the North Segment extending from West Palm Beach to Orlando and are pursuing our other expansion goals. We anticipate funding the remaining costs to construct the North Segment with the net proceeds from this offering, the concurrent private placements and/or other debt or equity financings (including the 2019 Debt Financing). We estimate the total remaining capital expenditures relating to North Segment construction will be approximately $1.9 billion excluding the $158 million contingency fund (approximately $1.8 billion of new rail infrastructure, up to approximately $258.9 million for the purchase of additional rolling stock and approximately $7.1 million for construction of our station facilities). To date, we have invested approximately $404.2 million to develop and construct the North Segment, primarily related to rail infrastructure. We expect that additional funding of approximately $1.9 billion will be required to complete the North Segment. Though we believe we have access to sufficient funds in both the public and private capital markets and elsewhere, there can be no

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assurance that sufficient capital will be available on favorable terms, on a timely basis or at all for us to complete future development activities, including construction of the North Segment. For example, covenants contained in the Senior Loan Agreement limit our ability to incur additional senior debt financing (other than a revolving credit facility). However, we intend to refinance and/or remarket the Series 2017 Bonds in connection with the incurrence of additional debt financing.

In December 2018, we borrowed funds from certain affiliates of the Virgin Trains Stockholder to advance North Segment construction, to fund costs related to the XpressWest Acquisition and the related land acquisition, and for working capital purposes. As of January 29, 2019, approximately $80.3 million was outstanding under the Promissory Note. Under the terms of the Promissory Note, interest accrues at a rate of 3.0% per annum and is payable annually in arrears on the last day of each calendar year, provided that we may elect to capitalize some or all of such accrued interest. The Promissory Note matures on May 31, 2020, subject to extension to not later than May 31, 2021.

We expect that development costs we will incur in connection with the Tampa Expansion and the Vegas Expansion will be funded by the net proceeds from this offering and/or other debt or equity financings. See “Risk Factors—Risks Related to our Indebtedness—Although we believe that we will be able to raise sufficient funds to complete our Florida passenger rail system and the Vegas Expansion, there are no assurances that future sources of capital, including the 2019 Debt Financing or the bridge loan facility, will be available on favorable terms, on a timely basis or at all, to accomplish this” and “Description of Certain Indebtedness—Anticipated Debt Financing” for more information.

Liquidity

As of September 30, 2018, we had $58.3 million in current assets primarily consisting of $48.7 million of restricted cash. Restricted cash is available primarily to fund obligations resulting from our construction, development and operating activities associated with the South Segment and interest expense related to the Senior Loan Agreement, which will mature on January 1, 2047.

In July 2018, in connection with the acquisition of certain rail infrastructure equipment, we entered into a credit agreement (the “Siemens Credit Agreement”) with a lender for a maximum principal amount of $25.0 million (the “Maximum Commitment”) to be used for working capital purposes (including the acquisition of rolling stock). The credit agreement is for a term of two years at a rate of LIBOR plus 3.75% per annum, which increased to LIBOR plus 5.75% in 2019. In addition, the credit agreement calls for us to pay the lender a structuring fee of 1.00% of the Maximum Commitment. We may be subject to mandatory prepayment if certain events occur, such as a change in majority ownership of our Company.

As of January 29, 2019, we currently expect to meet our obligations over the next 12 months through a combination of (i) available funds on hand from historical equity contributions and additional future contributions until the consummation of this offering or minimum one year from this filing by the Virgin Trains Stockholder and our Parent and (ii) funds reserved pursuant to the terms of the Series 2017 Bonds for remaining construction, development and operation activities associated with the South Segment, operations of the South Segment and interest payments pursuant to the Series 2017 Bonds. We will continue to assess our liquidity position and supplemental sources of liquidity in light of our construction, operating performance and other circumstances.

Existing Indebtedness

In addition to the Siemens Credit Agreement, in December 2017, Florida Development Finance Corporation (“FDFC”), with Deutsche Bank National Trust Company (the “Trustee”), issued $600.0 million in Series 2017 Bonds, due on January 1, 2047. FDFC is a statewide financing authority that is tasked with assisting for-profit and not-for-profit businesses with access to capital for project financing. In their role as a conduit issuer, FDFC provides qualifying projects with access to capital to support, enhance, and promote economic development in the state of Florida. Concurrently with the issuance of the Series 2017 Bonds, FDFC and Brightline Trains LLC (f/k/a All Aboard Florida — Operations LLC, a limited liability company in Delaware that effected a name change in May 2018) (“Brightline Trains”), a wholly-owned subsidiary of Virgin Trains USA LLC entered into the Senior Loan Agreement whereby the $600.0 million in proceeds from the Series 2017 Bonds were loaned to Brightline Trains.

We used the proceeds from the issuance of the Series 2017 Bonds, along with cash contributions from the Virgin Trains Stockholder, for the repayment of a certain equipment financing credit facility; the financing of the design, construction, development, and equipping of the South Segment; and repayment of advances from the Virgin Trains

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Stockholder to fund our construction activities. The remaining proceeds will only be expended to pay or reimburse the costs related to the South Segment. The development of the North Segment is dependent upon our ability to raise funds through various sources, including debt financings. We expect to raise additional debt and equity capital in order to fund future development activities, including the Tampa Expansion and the Vegas Expansion.

Pursuant to the Senior Loan Agreement, Brightline Trains is required to comply with various covenants for the benefit of the Trustee and the holders of the Series 2017 Bonds, such as a limitation on the ability to incur additional indebtedness subject to certain limitations set forth in the Senior Loan Agreement. Brightline Trains may not declare or pay dividends or make any distributions unless, in addition to certain additional covenants, it maintains a Total Debt Service Coverage Ratio (as defined in the Senior Loan Agreement) of 1.75 to 1.00 on the date of such distributions, and such dividends or distributions may not exceed $25.0 million in each calendar year. Brightline Trains has agreed to pay or cause to be paid all amounts necessary to pay the principal and purchase price of, and interest on, the Series 2017 Bonds. Brightline Trains’ payment obligations with respect to the Series 2017 Bonds and under the Senior Loan Agreement are secured by mortgage liens encumbering substantially all of the real property interests for the South Segment (including the stations), substantially all personal property of Brightline Trains, and a pledge by AAF Operations Holdings LLC, a wholly-owned subsidiary of the Company, of the membership interests in Brightline Trains. The Company was in compliance with applicable debt covenants as of September 30, 2018.

Historical Cash Flow

Nine Months Ended September 30, 2018 Compared to Nine Months Ended September 30, 2017

The following table summarizes our cash flows from operating, investing and financing activities:

 
Nine Months Ended September 30,
 
(Dollars in thousands)
2018
2017
Change
Net cash (used in) provided by:
 
 
 
 
 
 
 
 
 
Operating activities
$
(60,924
)
$
(30,547
)
$
(30,377
)
Investing activities
$
(4,820
)
$
(228,047
)
$
223,227
 
Financing activities
$
66,017
 
$
258,594
 
$
(192,577
)

Operating activities

Net cash used in operating activities increased $30.4 million to $60.9 million for the nine months ended September 30, 2018, compared to $30.5 million for the nine months ended September 30, 2017. The change was primarily a result of cash used to ramp up our operations and the commencement of passenger rail operations in January 2018, including increased headcount and related compensation costs, and increased operating costs, including maintenance costs, occupancy costs and other operating costs necessary to support operation and development activities.

Investing activities

Net cash used in investing activities decreased $223.2 million to $4.8 million for the nine months ended September 30, 2018 compared to $228.0 million for the nine months ended September 30, 2017. The change was driven by a decrease in capital expenditures of $106.0 million and a decrease in restricted cash of $121.4 million held in escrow accounts to meet certain obligations related to construction, development and operation of the South Segment. This change was offset by an increase in deposits from Transit Authority of $4.2 million.

Financing activities

Net cash provided by financing activities decreased $192.6 million to $66.0 million for the nine months ended September 30, 2018, compared to $258.6 million for the nine months ended September 30, 2017. The decrease was driven by a $198.4 million decrease in Parent’s net investment, an increase in payments on our insurance note payable of $0.7 million, an increase in deferred financing costs of $1.2 million and a reimbursement from Transit Authority of $0.4 million. This change was offset by proceeds of $8.1 million pursuant to the Siemens Credit Agreement during the nine months ended September 30, 2018.

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Year Ended December 31, 2017 Compared to Year Ended December 31, 2016

The following table summarizes our cash flows from operating, investing, and financing activities:

 
Year Ended December 31,
 
(Dollars in thousands)
2017
2016
Change
Net cash (used in) provided by:
 
 
 
 
 
 
 
 
 
Operating activities
$
(40,308
)
$
(25,920
)
$
(14,388
)
Investing activities
$
(412,634
)
$
(316,881
)
$
(95,753
)
Financing activities
$
452,942
 
$
342,801
 
$
110,141
 

Operating activities

Cash used in operating activities increased $14.4 million to $40.3 million for the year ended December 31, 2017 compared to $25.9 million of cash used for the year ended December 31, 2016. The increase is primarily driven by increases in cash used to ramp up our operations to prepare for revenue generating activity, which commenced in January 2018.

Investing activities

Cash used in investing activities increased $95.8 million to $412.6 million for the year ended December 31, 2017, compared to $316.9 million of cash used for the year ended December 31, 2016. The increase in cash used in investing activities is primarily related to an increase in restricted cash of $157.2 million resulting from amounts held in escrow accounts to meet certain obligations related to construction, development and operation of the South Segment and to make interest payments pursuant to our Series 2017 Bonds. This was offset by a decrease in cash used for capital expenditures for the year ended December 31, 2017 compared to December 31, 2016.

Financing activities

Net cash provided by financing activities increased $110.1 million to $452.9 million for the year ended December 31, 2017, compared to $342.8 million for the year ended December 31, 2016. The change in cash provided by financing activities comprised of (i) $600.0 million of proceeds from our Series 2017 Bonds offset by $20.6 million in deferred financing cost payments, (ii) $91.8 million in payments to repay borrowings on our equipment financing credit facility and (iii) a change in our Parent’s net investment.

Contractual Obligations

In the normal course of business, we enter into contracts and commitments that obligate us to make payments in the future. The table below summarizes our obligations for indebtedness, purchase, lease, and other contractual obligations as of December 31, 2017.

(Dollars in thousands)
2018
2019
2020
2021
2022
Thereafter
Total
Long-term debt
$
 
$
 
$
 
$
 
$
 
$
600,000
 
$
600,000
 
Interest on long-term debt(1)
 
18,000
 
 
33,750
 
 
33,750
 
 
33,750
 
 
33,750
 
 
545,097
 
 
698,097
 
Operating leases(2)
 
6,128
 
 
5,323
 
 
5,317
 
 
5,294
 
 
5,315
 
 
69,231
 
 
96,608
 
Service agreements(3)
 
7,780
 
 
6,904
 
 
17,194
 
 
14,644
 
 
14,798
 
 
151,536
 
 
212,856
 
Total
$
31,908
 
$
45,997
 
$
56,261
 
$
53,688
 
$
53,863
 
$
1,365,864
 
$
1,607,561
 
(1) Reflects interest on our Senior Loan Agreement that is payable semi-annually commencing on July 1, 2018, and the related Series 2017 Bonds which mature on January 1, 2047 and bear interest of 5.625%. Also reflects interest on the Siemens Credit Agreement at a rate of LIBOR plus 3.75%, which increased to LIBOR plus 5.75% in 2019.
(2) Represents future minimum lease payments under non-cancelable operating leases for office space, parking garage, and equipment including those commencing after December 31, 2017. The table above includes payments of approximately $1.7 million pursuant to an escrow extension agreement through September 30, 2018 but excludes the executed lease agreement with GOAA related to the North Segment which is pending satisfaction of a certain escrow condition in order to be effective. Upon lease effectiveness, the future minimum non-cancelable lease payments under the lease agreement with GOAA are approximately $4.1 million annually for 50 years.
(3)In June 2018, we amended our 30-year equipment maintenance service agreement with Siemens to attribute services between our North and South Segment, as well as enable us to terminate the contract at any time throughout the term of the agreement, subject to a 90-day written notice and payment of penalties of $5.0 million in 2018 and declining to $1.0 million in 2042 and $0.0 million in 2048.

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The amended equipment service agreement calls for payments commencing upon the start of revenue generating activities for our North Segment. The projected payments, assuming the termination option is exercised in year 14, is $6.1 million in 2018, $6.0 million in 2019, $6.9 million in 2020, $16.7 million in 2021, $14.0 million in 2022 and $152.1 million thereafter. If the termination options are not exercised, the total commitment after year 2022 would increase from $152.1 million to $428.5 million. The projected payments assume the North Segment service, and associated payment obligations, commences in 2021.

Off-Balance Sheet Arrangements

We had outstanding undrawn irrevocable letters of credit commitments, fully collateralized by restricted cash, with an aggregate face amount of $10.0 million as of September 30, 2018 and December 31, 2017.

Critical Accounting Policies and Estimates

The process of preparing our financial statements in conformity with generally accepted accounting principles requires the use of estimates and judgments that affect the reported amounts of assets, liabilities, revenue, and expenses. These estimates and judgments are based on historical experience, future expectations, and other factors and assumptions we believe to be reasonable under the circumstances. The most significant estimates and judgments are reviewed on an ongoing basis and are revised when necessary. Actual amounts may differ from these estimates and judgments. A summary of our significant accounting policies is contained in Note 2 of our audited combined financial statements and as updated in Note 2 of our unaudited condensed combined financial statements included elsewhere in this prospectus.

Properties, Equipment, Investment in Rail and Definite-lived Intangible Assets

Key estimates related to properties, equipment, investment in rail and definite-lived intangible assets include useful lives and recoverability of carrying values. We evaluate long-lived assets for potential impairment indicators whenever events or changes in circumstances, or indicators, indicate that the carrying amount of an asset may not be recoverable.

Considerable management judgment is necessary to evaluate the impact of operating changes and to estimate asset useful lives and future cash flows. If actual results are not consistent with our estimates and assumptions used to calculate estimated future cash flows, we may be exposed to impairment losses that could be material. We had no impairment loss for our assets for the periods presented in our combined financial statements.

Indefinite-lived Intangible Assets

Our indefinite-lived intangible assets include the Company’s right-of-way easements for passenger rail purposes which are evaluated for impairment annually as of April 1 each year and more frequently if circumstances indicate that the carrying value may be impaired. Indefinite-lived intangible assets are assessed for impairment by initially performing a qualitative assessment before performing quantitative impairment testing to determine whether we believe it is more likely than not that an asset has been impaired. We recognize an impairment loss generally if and when the carrying value of the net asset exceeds the estimated fair value. The asset’s fair value is determined by using a discounted present value model based on expected future cash flows.

Operating Leases

We evaluate each lease at inception to determine whether the lease will be accounted for as an operating or capital lease. The term of the lease used for this evaluation includes renewal option periods only in instances in which the exercise of the renewal option can be reasonably assured and failure to exercise such option would result in an economic penalty.

Our operating lease agreements contain rent holidays, rent escalation clauses and/or contingent rent provisions. We recognize rent expense on a straight-line basis over the expected lease term, including cancelable option periods where failure to exercise such options would result in an economic penalty. In addition, the commencement date of the lease term is the earlier of the date when we become legally obligated for the rent payments or the date when we take possession of the premises.

Cost Capitalization

The Company capitalizes costs related to the construction of buildings and other infrastructure for its stations, as well as investment in rail and rolling stock. Capitalization of costs ceases when an asset is substantially complete and ready for its intended use. In addition, interest costs associated with our construction projects and rolling stock are capitalized and included in the cost of the asset. When no debt is incurred specifically for a project, interest is capitalized on amounts expended on the asset using the weighted-average cost of our outstanding borrowings.

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Loss Contingencies

The outcome of loss contingencies and legal proceedings and claims brought against us is subject to uncertainty. An estimated loss contingency is accrued if it is probable that an asset has been impaired or a liability has been incurred and the amount can be reasonably estimated. Determination of whether to accrue a loss requires evaluation of the probability of an unfavorable outcome and the ability to make a reasonable estimate. Changes in these estimates could affect the timing and amount of accrual of loss contingencies.

JOBS Act

In April 2012, the Jumpstart Our Business Startups Act of 2012, or the JOBS Act, was enacted. Section 107 of the JOBS Act provides that an “emerging growth company,” or EGC, can take advantage of the extended transition period provided in Section 7(a)(2)(B) of the Securities Act of 1933, as amended, or the Securities Act, for complying with new or revised accounting standards. Thus, an EGC can delay the adoption of certain accounting standards until those standards would otherwise apply to private companies. We intend to take advantage of the exemptions discussed above. Accordingly, the information contained herein may be different than the information you receive from other public companies.

We are in the process of evaluating the benefits of relying on other exemptions and reduced reporting requirements under the JOBS Act. Subject to certain conditions, as an EGC, we intend to rely on certain of these exemptions, including without limitation, (1) providing an auditor’s attestation report on our system of internal controls over financial reporting pursuant to Section 404(b) of the Sarbanes-Oxley Act and (2) complying with any requirement that may be adopted by the Public Company Accounting Oversight Board, or PCAOB, regarding mandatory audit firm rotation or a supplement to the auditor’s report providing additional information about the audit and the financial statements, known as the auditor discussion and analysis. We will remain an EGC until the earlier of (i) the last day of the fiscal year in which we have total annual gross revenues of $1.07 billion or more; (ii) the last day of the fiscal year following the fifth anniversary of the date of the completion of this offering; (iii) the date on which we have issued more than $1.07 billion in nonconvertible debt during the previous three years; or (iv) the date on which we are deemed to be a large accelerated filer under the rules of the Securities and Exchange Commission or SEC.

Recent Accounting Pronouncements

A summary of recent accounting pronouncements and our assessment of any expected impact of these pronouncements if known is included in Note 2 of our audited combined financial statements and as updated in Note 2 of our unaudited condensed combined financial statements included elsewhere in this prospectus.

Quantitative and Qualitative Disclosures about Market Risk

Market risk represents the risk of changes in value of a financial instrument, caused by fluctuations in market factors such as interest rates. Changes in these factors could cause fluctuations in our results of operations and cash flows. We are exposed to the market risks described below.

Interest Rate Risk

We may borrow under fixed rate and variable rate debt instruments that give rise to interest rate risk. In 2017, we secured debt financing at a fixed rate of 5.625% for 30 years. In 2018, we secured credit for a term of two years at a rate of LIBOR plus 3.75% per annum, which increased to LIBOR plus 5.75% in 2019. Our objective in borrowing under fixed or variable rate debt is to satisfy capital requirements while minimizing our costs of capital.

Other Market Risks

Going forward our market risk exposure will include those risks that arise in the normal course of business, as we do not engage in speculative, non-operating transactions, nor do we utilize financial instruments or derivative instruments for trading purposes. Our exposure to market risk for changes in prices for certain commodities, such as fuel and construction materials, may adversely impact our business. To mitigate the effect of fluctuations in fuel prices on our operations, in the future we may enter into various derivative instruments. We limit our exposure to other market risks related to construction materials by entering into construction contracts with maximum price guarantees.

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INTERCITY PASSENGER RAIL – INDUSTRY OVERVIEW

Overview

Rail travel in the U.S. and throughout the world has reached an all-time high and has continued to grow at a rate faster than any other major mode of travel. According to a recent Brookings Institute report, total U.S. intercity rail passengers grew at a rate of almost double the rate of U.S. gross domestic product and approximately triple the rate of travel by air and car over the same period of time. Several factors have contributed to this growth including (i) increasing mobility and frequency of travel, (ii) growing roadway congestion, (iii) emerging new options for local “first/last mile” transportation (such as Uber, Lyft, and other rideshare options), (iv) travelers’ increasing dependence on mobile devices, staying connected and productive and (v) growing attention to the environmental footprint of transportation.

In response to the significant and increasing traveler demand for lower cost, faster and more productive travel solutions, express intercity passenger rail systems have been developed throughout a number of the world’s largest population centers, including population centers in the U.K., Europe and Asia. We believe the success of these express intercity passenger rail systems has established a proven model for profitable intercity passenger rail services that command substantial shares of their relevant travel markets. The United States is one of the most urbanized nations in the world, with 82% of the population living in urban environments, yet dramatically lags behind both Europe and Asia in express intercity rail service despite having one of the most developed rail and highway systems in the world. The significant and growing demand for express intercity rail service combined with the lack of existing service in the United States creates what we believe is a compelling opportunity to address the tremendously large and growing North American intercity travel market with a profitable and highly scalable model for twenty-first century passenger travel.

Intercity Passenger Rail

Intercity passenger rail transportation is characterized as rail service operating within medium-distance travel corridors, generally between 200 to 300 miles, that connect large population centers and experience high volumes of travelers. Intercity systems typically offer faster travel times with greater convenience, reliability and comfort than other available modes of travel in their markets, such as car and air. Intercity railroads generally operate as for-profit enterprises and are highly differentiated from commuter and local rail services that are managed to provide a public service rather than to generate profits. The table below illustrates management's view of the typical characteristics of the markets for intercity railroads and commuter and local railroads.

 
Intercity Railroads
Commuter and Local Railroads
Distance (Total System):
Typically 200 to 300 miles
Typically less than 100 miles
 
 
 
Service Characteristics:
Moderate train frequency
(typically every 30 to 60
minutes) and station stops only in large
population centers
High frequency of service
(typically every 10 minutes
during peak times) and high number of station
stops
 
 
 
Train Speeds:
Typically 110 mph or more
Typically 30 to 60 mph
 
 
 
Operating Model:
Operated as a for-profit enterprise with
market-based fares, multiple classes of service
and customer-centric experience
Operated as a public service, typically
subsidized to maintain low fares and high
frequency of service
 
 
 
Ownership:
Private companies
Public agencies and governments

Intercity Passenger Rail - Market Capture Rates

Due to their ability to offer travel that is faster, more productive, more convenient and more comfortable along densely traveled corridors, intercity railroads commonly capture a significant share of their relevant travel market, even at fare levels that are often higher than the cost of driving or flying. These markets represent travel destinations

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that are “too long to drive, too short to fly” for many travelers, making travel by rail the most effective, efficient, and viable mode of transportation. The table below illustrates some of the most traveled corridors served by intercity railroads, nationally and internationally, and their respective market shares.

Examples of Intercity Rail Corridors and Market Shares

Intercity Rail Corridor
Distance (Miles)
Region
Operator
Market Share
Boston – New York
215
Eastern U.S.
Amtrak
15%
London – Paris
290
U.K./France
Eurostar
80%
Madrid – Seville
330
Spain
Renfe
51%
New York – Philadelphia
100
Eastern U.S.
Amtrak
29%
New York – Washington D.C.
240
Eastern U.S.
Amtrak
27%
Paris – Lyon
290
France
SNCF
72%
Rome – Milan
360
Italy
Italo
23%
Tokyo – Osaka
340
Japan
Japan Central Tokaido
Shinkansen
72%

Comparable Intercity Passenger Rail Services

In the past 20 years, a number of rail services have been developed in response to consumer demand for a more efficient and faster mode of travel. Examples of these intercity rail services comparable to our business include Amtrak’s Acela service in the northeastern United States and privately owned European services Eurostar, Italo and Virgin Trains (U.K.). The table and summaries below contain publicly available information for these services including regions served, annual passengers, market share, financial information, and business descriptions.

Examples of Intercity Passenger Rail Systems

 
Amtrak
 
 
 
 
Northeast Corridor
(Including Acela)
Acela
Eurostar
Italo
Virgin Trains
(U.K.)
Major Cities Served:
Boston - New York -
Philadelphia - D.C.
London - Paris
Rome - Milan
London - Manchester
 
 
 
 
Distance (Miles)*:
215 (Boston - NY)
100 (NY - Phila.)
240 (NY - D.C.)
290
360
160
 
 
 
 
Annual Passengers (Total System):
12.0mm
3.4mm
10.3mm
12.8mm
38.3mm
 
 
 
 
Market Share**:
15% (Boston - NY)
29% (NY - Phila.)
27% (NY - D.C)
80%
23%
N/A
 
 
 
 
Annual Revenue:
$1.3bn
$615mm
$1.2bn
$0.5bn
$1.5bn
 
 
 
 
EBITDA margin***:
37%
47%
61%
57%
55%

*Represents approximate distances between selected major city pairs only; does not include distance of entire network.
**Sources: Company and industry reports, press releases and news articles.
***Amtrak: Amtrak Monthly Performance Report September 2017 - $471.7mm EBITDA / $1.3bn revenue (Northeast Corridor) and $290.7mm EBITDA / $614.7mm revenue (Acela); Eurostar: Eurostar Strategic Report, Directors’ Report and Financial Statements 2017 - $185.7mm EBITDA + $519.0mm access payments + $14.8mm equipment lease payments / $1.2bn revenue; Italo: Italo 2017 Annual Report - $175.9mm EBITDA + $107.8mm access payments + $8.9mm equipment lease payments / $513.9mm revenue. Virgin: Virgin FY2018 financials based on FY2018 Annual Report - $81.8mm EBIT + $173.6mm rolling stock / lease installments + $241.0mm track access, station and depot access + $322.3mm franchise fees / $1.5bn revenue.

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Amtrak Acela and NEC

The National Railroad Passenger Corporation (“Amtrak”) introduced the Acela express rail service in 2000, representing the first high-speed intercity rail system in the U.S. capable of transporting passengers at speeds up to 150 mph between major cities in one of the most populated regions of the U.S. The Acela, which together with Amtrak’s regional train service in the Northeastern U.S., comprises Amtrak’s Northeast Corridor (“NEC”), running between Washington, D.C., New York, NY and Boston, MA with station stops in major population centers along the way including Baltimore, MD, Wilmington, DE, Philadelphia, PA, New Haven, CT and Providence, RI among others. The NEC operates an average of 70 one way trains each weekday, comprised of 32 Acela trains with hourly departures and 38 regional trains with various departures, along a corridor primarily owned by Amtrak.

The NEC is a highly profitable business segment for Amtrak. For the fiscal year ended September 30, 2017, the NEC carried 12.0 million passengers generating total revenue of $1.3 billion and adjusted operating earnings of $471.7 million (defined by Amtrak as net income before depreciation, income tax expense, non-cash portion of pension and other post retirement employment obligations and other items).

Eurostar

Eurostar International Limited (“Eurostar”) operates a high-speed passenger service between Britain, France and Belgium through the Channel Tunnel. For the fiscal year ended December 31, 2017, Eurostar carried 10.3 million passengers generating total revenue of £915.7 million and EBITDA (before infrastructure costs and equipment lease expense) of £558.4 million. Eurostar operates up to 19 trains per day between London and Paris, its two largest destinations. Unlike Virgin Trains, Eurostar does not own its rail corridor or track infrastructure and instead pays track access fees to government entities and private parties that own and lease the infrastructure to both passenger and freight rail operators. In addition, unlike Virgin Trains, Eurostar does not own a portion of its rolling stock and instead operates the equipment under lease arrangements. For fiscal 2017, total infrastructure cost were £402.8 million, and equipment lease expense was £11.5 million.

Eurostar commenced operations in 1994 and experienced a significant ramp up in ridership and revenue, typical of newly introduced passenger rail systems.

Italo

Italo – Nuovo Trasporto Viaggiatori SpA (“Italo”) operates a high-speed passenger rail service between major cities in Italy including Milan, Reggio Emilia, Florence, Rome, Naples and Venice among other locations. Italo operates on Italy’s national rail network, which is owned and maintained by Italian governmental entities and allows for competitive track access by both private and government-owned rail operators. As such, Italo competes directly with Italy’s national Trenitalia service which itself offers multiple rail services ranging from local and commuter services to high-speed, premium services. Italo operates an average of 88 weekday trains, running at speeds of up to approximately 200 miles per hour.

Italo commenced operations in 2012 with a strategy to offer high-speed, premium-only service with fares levels substantially higher than the competing Trenitalia service. After experiencing an initial ramp up in passengers and revenue, during 2015 Italo adopted a new strategy to reduce pricing and offer standard service in addition to premium class. The strategy resulted in substantial additional passengers and revenue. For the fiscal year ended December 31, 2017, Italo carried 12.8 million passengers generating total revenue of €454.9 million and EBITDA (before track access and rental and lease installments) of €259.0 million.

Virgin Trains (U.K.)

Virgin Trains (U.K.) operates a high-speed passenger rail service between major cities in the United Kingdom including London, Manchester and Birmingham among other locations. Virgin Trains (U.K.) has operated the InterCity West Coast route since the privatization of British Rail in 1997, under various franchise agreements with the UK’s Department for Transport. Over the past 20 years, Virgin Trains (U.K.) has transformed the InterCity West Coast franchise, introducing the UK’s first high-speed tilting trains and a new high-frequency timetable. Virgin Trains (U.K.) currently operates over 300 train services per day across its network, running at speeds of up to 125 miles per hour.

For the fiscal year ended March 31, 2018, passengers took a total of 38 million trips with Virgin Trains (U.K.) generating total revenue of £1.2 billion and EBITDA (before track access and rental and lease payments) of £635 million.

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Demonstrated Ramp Up of New Intercity Rail Systems

Upon introduction of service, new intercity rail systems typically experience an initial high growth “ramp up” in ridership and revenue during the first three years of operation and prior to reaching mature ridership levels. This ramp up is a result of market adoption of a new mode of travel. According to Louis Berger, in many markets, introducing a new mode of travel, particularly rail service that is more convenient and faster than alternative modes of travel, induces travelers to travel more frequently. This results in levels of induced travel ranging from 5% to 30%, and with the highest levels of induced travel observed on express or high-speed rail services serving multiple markets over distances of 200 to 300 miles, the exact type of market we serve and target.

A summary of the historical ramp up of Amtrak Acela, Eurostar and Italo is set forth below.

Comparable System Ramp Up Periods


Amtrak’s Acela system, Eurostar and Italo all demonstrated significant ramp up periods going into their stabilized years, averaging 29%, 81%, and 86% of stabilized ridership in the first, second and third years, respectively, after each system’s launch.

Progression of Ridership from Launch

 
Year as % of Year 4 Ridership
 
Year 1
Year 2
Year 3
Year 4
Amtrak Acela
 
18
%
 
96
%
 
92
%
 
100
%
Eurostar
 
46
%
 
78
%
 
95
%
 
100
%
Italo
 
23
%
 
68
%
 
72
%
 
100
%
Average
 
29
%
 
81
%
 
86
%
 
100
%

U.S. Intercity Passenger Travel Trends

Intercity travel in the United States has reached all-time highs and we expect several powerful trends to continue to drive ridership and demand for high-speed rail service.

Growing Roadway Congestion

Growing travel demand, aging infrastructure, and significant restrictions on the ability to expand roadways all contribute to increased roadway congestion in many areas of the United States. Of the top 25 cities with the worst traffic congestion in the world, 10 are in the United States. The average speed of I-95 local lanes directly north of Miami has decreased from 46 mph in 2012 to 33 mph in 2018. Maintaining current roadway capacity on America’s increasingly aged roadways is tremendously expensive (governments spent more than $7 billion on I-95 in 2017 alone), and the federal government’s primary funding source to pay for road and transit repair is projected to become insolvent by 2021 according to Congressional Budget Office. As a result, U.S. roadway congestion will likely continue to deteriorate.

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This congestion is harmful to commuters, the economy and the environment. The 2017 INRIX Global Traffic Scorecard states that congestion costs drivers in the U.S. more than $305 billion in direct and indirect costs in 2017 alone, up $10 billion from 2016. Direct costs include value of fuel and time wasted in congestion while indirect costs include the increase in prices to households from freight trucks sitting in traffic.

Dependence on Mobile Devices and Productivity

Americans are spending an increasing portion of their days using mobile devices both for work and personal activities. Given the clear hazards associated with using mobile devices while driving, we believe travelers are attracted to modes of travel that enable them to use their mobile devices while in transit.

New First/Last-Mile Travel Solutions

The recent emergence of rideshare services, such as Uber and Lyft, facilitate the use of passenger rail service by providing transport to and from rail stations, which we refer to as “first and last mile connectivity.”

Travel Preferences Are Changing

Many Americans, particularly younger Americans, seek a new means of travel in lieu of driving their own cars. For example, millennials represent approximately 70% of Uber users in the United States; millennials are three times more likely than certain other age groups to use public transit, and far fewer millennials obtain driver’s licenses, with only 45% of 17 year olds holding driver’s licenses in 2014, compared to 75% in 1978. Lyft’s 2018 Economic Impact Report notes that 25% of Lyft users nationwide reported that owning a vehicle had become less important to them. These trends are expected to continue given the increasing roadway congestion, safety and environmental impact concerns as well as the cost-savings that riders often experience using rideshare services compared to driving a personal car. For example, according to a 2018 Kleiner Perkins report, UberX and Uber Pool services for weekly commuting were significantly cheaper than driving a personal car in four out of the five largest U.S. cities.

Growing Focus on Safety and the Environment

In addition to becoming more congested, we believe that many U.S. roadways are becoming increasingly dangerous. According to the Wall Street Journal, U.S. motor-vehicle deaths in recent years have hit record numbers and are increasing at an alarming rate. Road safety issues are especially acute in the Floridian markets we currently serve. A recent extensive analysis conducted by the Wall Street Journal reported that the I-95 corridor in Miami-Dade is the deadliest interstate road in America, as measured by fatalities per roadway mile.

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Compared to other modes of travel, rail is substantially more fuel efficient per trip from Miami to Orlando than driving or flying. Our locomotives are powered by diesel-electric engines consuming biodiesel fuel, meeting the highly-demanding U.S. Environmental Protection Agency’s Tier IV locomotive emissions standards. As illustrated in the chart below, we estimated that our rail service is approximately three times more fuel efficient than flying and two times more fuel efficient than driving assuming a 235 mile trip from Miami to Orlando.

Passenger Miles per Gallon by Travel Mode – Miami to Orlando


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THE FLORIDA MARKET

Florida is the third most populous state in the United States, with 20 million residents and one of the highest population and economic growth rates in the nation. Approximately 70% of the State’s population resides in cities and communities adjacent to our rail corridor. Forecasting agencies generally agree that Florida’s population growth will continue to outpace overall national trends driven by multiple factors including Florida’s high level of economic activity and available jobs, favorable tax policy (including no state personal income tax), strong incentive programs that promote new businesses to locate within the state as well as Florida’s warm climate and numerous tourist destinations. According to the Bureau of Economic and Business Research, Florida’s population is expected to grow from its current level of just over 20 million to more than 25 million by 2030, representing an average growth rate of 1.8% per year, almost 1.5 times that of the national average over the same period.

In addition to large and growing population centers, Florida attracts millions of domestic and international travelers each year. South Florida is the second largest tourist destination in the United States. Miami International Airport is the busiest airport in Florida with more than 40 million passengers annually. Known as the gateway to Latin America, Miami is the second largest international tourist destination in the United States and home to the largest passenger cruise port in the world (followed by Port Canaveral, Florida and Port Everglades, Florida). A total of 18.7% of overseas non-resident travelers enter the United States through one of the main South Florida and Central Florida airports: Miami International Airport (12.4%), Orlando International Airport (4.1%) and Fort Lauderdale International Airport (2.2%).

The Florida Travel Market and Our Ridership

We engaged Louis Berger to assist us in the evaluation of the Florida market and the preparation of passenger ridership estimates and financial projections. Louis Berger’s analysis included the observations about the Florida market summarized below.

Substantial “Addressable Market” – Florida has high intercity travel volume, with individuals making over 413 million trips annually between Miami, West Palm Beach, Fort Lauderdale, Orlando and Tampa.
Challenging Intercity Trip – The trip between Orlando and Miami is “too long to drive, too short to fly.” Total travel time by airplane is disproportionately long for the distance, given airport security and delays. Roadway congestion can make the trip unpleasant and unpredictably long. Travel time by car can range from 3.5 to five hours, depending on traffic. South Florida’s road system already ranks as the fifth most congested in the U.S., with average local lane travel speeds of only 33 miles per hour. Travel volumes on key highways connecting Central and Southeast Florida are expected to exceed capacity by 2030, resulting in further delays and more unpredictability. We can provide travel time savings of 25% to 50% when compared to existing surface modes (auto, bus and rail). Using Virgin Trains, travel time from Orlando to Miami will be approximately 3 hours 15 minutes, which is competitive with air travel on door-to-door travel times.
Large and Growing Population – Florida is the third-largest state in the U.S., with a population of over 20 million residents, and it has one of the highest population and economic growth rates in the United States. Florida also hosts a major tourism industry. The State is expected to continue to grow at a pace exceeding the national average. Miami is the largest metropolitan area in Florida. In addition to its large and growing population, Florida receives over 110 million visitors every year. Miami is the second largest international tourist destination in the United States. Miami International Airport is the busiest airport in Florida, with more than 40 million passengers annually. Over 12% of overseas non-resident travelers enter the United States through Miami International Airport. In addition, Miami is home to the largest passenger cruise port in the world (followed by Port Canaveral, Florida and Port Everglades, Florida). Meanwhile, Orlando is one of the most visited cities in the United States.
Market Growth – In the past 30 years, population in the areas around our existing and proposed stations has grown by an annual average of 2.5%, and employment in these areas has grown by an annual average of 3%. The one-mile radius around our stations has experienced robust annual population growth from 2% to 5% since 1990. This growth continues to place pressure on the State’s transportation network. Due to the diminishing ability to expand highway corridors throughout the State, south Florida ranks as one of the nation’s top five States in terms of time spent in traffic and lowest average travel speeds.

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No Comparable Service – There is no comparable service to Virgin Trains for intercity travel along the Miami to Orlando corridor. Automobile travel currently represents the dominant mode of intercity travel in this region. According to Louis Berger, 98% of trips from Southeast Florida to Orlando occur by automobile. Roadway congestion and safety risks are significant disadvantages of automobile travel. We believe we offer a more convenient and safe alternative to driving.
Long-Standing Interest – Given the profile of the travel market and the central location of the rail line, there has been interest among stakeholders and the public in developing passenger service on the Florida East Coast corridor for decades.

We intend for our Florida passenger rail service to generate meaningful profits. Our profitability depends, in part, on our revenue, which is composed of ticket revenue (equal to the product of ridership and ticket fares) and ancillary revenue. Our estimates of ridership and ticket revenue for service between Orlando and Miami have been validated by Louis Berger. Our estimates of ridership and ticket revenue for service between Orlando and Tampa are based on management’s estimates.

Ridership. We expect stabilized operations between Miami and Orlando to carry approximately 6.6 million passengers annually, as estimated by Louis Berger. After expanding to Tampa, Louis Berger expects stabilized operations to carry approximately 9.5 million passengers annually.
Revenue. We expect to generate approximately $810 million of total revenue in our first stabilized year for service between Miami and Tampa. To arrive at this estimate, our management applied a combined annual fare growth and inflation rate of approximately 2.8% to Louis Berger’s estimates, thereby projecting annualized ticket revenue of approximately $697 million by the fourth quarter of 2023 or the first quarter of 2024. Louis Berger has not verified our management's adjustments. The determination of the year of stabilization is based on information the Company provided to Louis Berger, which information has not been validated by Louis Berger. In addition, our management projects additional revenue of approximately $113 million based on the Florida Operations and Maintenance and Ancillary Revenue Report, which (based on management estimates that Louis Berger determined were reasonable) expects revenue from food and beverage, parking, naming rights, sponsorships and partnerships, merchandise, advertisement and other fees to equal approximately 14% of total revenue (or approximately $12 per passenger).
Margin. We will target a stabilized operating income margin of approximately 70% of total revenue. Accordingly, we calculate illustrative earnings before interest, taxes, depreciation and amortization (“EBITDA”) as 70% of total revenue.

The table below summarizes our estimates for ridership, fares and ticket revenue.

Estimates – First Stabilized Year
Miami to Orlando
per Louis Berger*
Orlando to Tampa
per Louis Berger**
Total
Ridership (total passengers)
6.6 million
2.9 million
9.5 million
Average Fare
$73
$73
$73
Ticket Revenue
$485 million
$212 million
$697 million
*Includes various routes along the Miami to Orlando corridor.
**Includes various routes along the Miami to Tampa corridor.

We believe our ridership and fare estimates are based on modest assumptions for market penetration rates and ticket pricing:

Based on a total addressable market of approximately 413 million trips per year, our total ridership estimate of 9.5 million passengers reflects approximately 2% market penetration.
Our estimated average fare of $73, 57% less than Acela’s average fare of $174.

We may be unable to achieve our anticipated ridership, revenue or margin in our first stabilized year. Our estimates are subject to change and may differ materially from those presented above. For a description of certain risks that may impact our ridership, revenue or margin estimates, see “Risk Factors—Risks Related to Our Business,” including “Risk Factors—Risks Related to Our Business—The estimates of future ridership and revenue of our proposed Florida passenger rail service contained herein are based on certain assumptions and may prove to be inaccurate or incorrect. Actual results could differ from the estimates contained in this prospectus.”

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BUSINESS

The information in this section and elsewhere in this prospectus is based on certain assumptions and projections regarding our Florida passenger rail system. These assumptions and projections are inherently imprecise and subject to a degree of uncertainty and actual results could differ materially from these projections. See “Risk Factors—Risks related to Our Business—The estimates of future ridership and revenue of our proposed Florida passenger rail service and the Vegas Expansion contained herein are based on certain assumptions and management’s estimates and adjustments that may prove to be inaccurate or incorrect. Actual results could differ from the estimates contained in this prospectus.”

Overview

We own and operate an express passenger rail system connecting major population centers in Florida, with plans to expand operations further in Florida, Las Vegas and elsewhere in North America. We are the first new major private passenger intercity railroad in the United States in over a century, and we believe our business represents a scalable model for twenty-first century passenger travel in North America.

We currently operate between Miami and West Palm Beach, one of the most heavily traveled and congested regions in the U.S. We have commenced construction of the expansion of our Florida passenger rail system to Orlando, Florida, and we intend to further expand our rail service to Tampa, Florida. Louis Berger estimates the total potential addressable market of travelers across our Miami to Tampa corridor to be approximately 413 million trips annually. We can operate up to 32 trains daily that are capable of speeds of up to 125 miles per hour, and we own stations located in the heart of downtown cities and major transit hubs in Florida. We believe our passenger rail system offers travel that is faster, safer, more eco-friendly, more reliable, less expensive, more productive and more enjoyable than travel by car or air.

Pursuant to the XpressWest Acquisition, we have agreed to acquire the rights to develop a high-speed rail project within a corridor between Victorville, California and Las Vegas, Nevada that is expected to be federally approved. The XpressWest Acquisition provides us with the opportunity to develop, operate and connect Las Vegas with Southern California by means of a new passenger rail system. The Vegas Expansion will link one of the most traveled routes in the United States, connecting approximately 13.4 million people living in the Los Angeles metro area with the approximately 2.2 million people living in the Las Vegas metro area, one of the most visited cities in the United States. We estimate a fully operational annual stabilized ridership of 11.3 million passengers for the Vegas Expansion. We expect the ramp up of ridership for the Vegas Expansion will proceed at a faster rate than our Florida passenger rail system due in part to the more concentrated travel pattern in the corridor between Las Vegas and Southern California. We also expect to stabilize by the fourth quarter of 2023 or the first quarter of 2024. We expect to generate approximately $863 million in total revenue from the Vegas Expansion in its first year of stabilized operations, which includes approximately $674 million in ticket revenue and approximately $189 million in ancillary revenue (which reflects an expected $5 in additional ancillary revenue per passenger as compared to our Florida passenger rail system, based on management’s expectation that the average trip length and nature of the market served by the Vegas Expansion will result in increased demand for food and beverage and potential sponsorship opportunities). Similar to our Florida passenger rail system, we believe that the Vegas Expansion could generate compelling returns, and our goal is to generate a stabilized operating income margin, before depreciation, amortization and interest of approximately 70% of total revenue.

On November 16, 2018, we announced our partnership with VEL and our intention to rebrand from “Brightline” to “Virgin Trains USA.” Through its affiliated businesses, VEL is a global leader in the passenger transportation sector with involvement in the airline, passenger rail, tour operations, hotel and cruise sectors, serving approximately 53 million customers annually across all of its platforms. Its brand, Virgin, is well recognized globally and is associated with high quality service and industry-leading customer experience. Through its Virgin Trains (UK) affiliate, VEL has over 20 years of experience operating high-speed passenger trains throughout the United Kingdom and passengers took more than 38 million trips during the fiscal year ended March 31, 2018. We believe our partnership with VEL will help enable us to accelerate our market penetration, leveraging a brand that fits the diversified population and international traveler base of our Florida market as well as the California and Las Vegas markets we intend to serve. We also expect to benefit from cross-marketing, distribution and customer loyalty programs with other VEL passenger travel businesses, many of which conduct operations within our markets. Under the terms of the agreement with respect to the concurrent private placement to Corvina, Corvina has agreed to purchase from us, at a price per share equal to the initial public offering price, shares of newly issued common stock in an amount equal to less than 2% of the number of shares outstanding immediately following the offering.

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We intend for our Florida passenger rail service and the Vegas Expansion to generate meaningful profits and serve as a scalable model to expand our operations to a number of other large and congested intercity travel corridors in North America where large and growing travel populations seek a similar solution for medium-distance, “too long to drive, too short to fly” travel.

We aim to execute on our growth strategy by offering three compelling benefits to intercity travelers: speed of travel, customer experience and cost savings:

Speed of Travel – Our express transit service is significantly faster than car travel. For example, our Miami to Orlando service will take approximately 3 hours 15 minutes compared to an estimate of approximately 4 hours 15 minutes by car along I-95 or 3 hours 50 minutes along the Florida Turnpike, which is a toll road. We believe the Vegas Expansion will result in trips between Victorville and Las Vegas taking approximately 1 hour 30 minutes compared to an estimate of approximately 2 hours 50 minutes by car.

Customer Experience Whether traveling for business or leisure, passengers can maximize productivity, using mobile devices freely, and enjoy a variety of amenities, while traveling from one downtown location to another on a reliable schedule and in an environmentally friendly way. Our trains depart and arrive at our bright, new state-of-the-art stations, and all of our trains are equipped with free high-speed WiFi connections. Additionally, passengers are able to avoid travel time to the airport, airport security and sitting in commuter traffic.

Cost Savings – We expect to offer service between Miami and Orlando for fares that are lower than the cost of driving or flying for individual travelers. Based on our expected fares for an individual traveler, we expect that a trip on our trains between Miami and Orlando will be approximately 25% less expensive than driving and approximately 30% less expensive than flying. We expect the fares between Victorville and Las Vegas will average approximately $60, which is less expensive than the cost of driving (when including parking costs) and the typical cost of flying. For example, the cost of a next day, Friday flight from Los Angeles to Las Vegas can often exceed $150.

These benefits are consistent with factors that have made other express passenger rail systems successful throughout the world.

The Intercity Passenger Rail Market

We provide “intercity” passenger rail transportation, which is characterized as service operating within medium-distance travel corridors, generally between 200 to 300 miles, that connect large population centers and experience high and increasing volumes of travelers. Intercity passenger rail services in the U.S. and globally are typically highly profitable. Such services have the ability to offer faster travel times with greater convenience at a lower cost when compared to other available modes of travel in their markets (such as car and air). Our business is differentiated from a “commuter” railroad, which is commonly government-owned and subsidized to maintain artificially low fares and provide high frequency service between large numbers of local stations within a single metro area resulting in high operating costs. Examples of intercity rail services comparable to our business include Amtrak’s Acela service in the northeastern U.S. and several privately owned European services, such as the Eurostar service operating between London and Paris, and Italo, which operates between several major cities in Italy.

Our Initial Market and Operations

Miami to West Palm Beach (South Segment)

We commenced rail operations between Fort Lauderdale and West Palm Beach in January 2018 and between Miami and Fort Lauderdale in May 2018. We can operate up to 32 daily departures with a total travel time of approximately one hour. Each of our express trains has a capacity for 240 total passengers in three classes of service: Smart (which is comparable to business class), Smart+ (which includes one complimentary snack and beverage and is envisioned as an option for business and leisure travelers alike) and Select, (our premium or first-class experience). We currently own three stations, located in the downtown centers of Miami, Fort Lauderdale and West Palm Beach, all of which are near major travel destinations and have multiple connections to local transit and public ground transportation.

We also partner with rideshare companies and other providers of local transportation to facilitate our passengers’ connections to their final destinations.

We have invested approximately $1.6 billion to date to develop and construct the South Segment of our Florida passenger rail system. This amount includes $461.8 million in rail infrastructure, $303.3 million in stations,

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$258.6 million in new rolling stock assets, and corridor and station land with an appraised value of approximately $542.0 million. Funding for the investment came from a combination of cash and assets contributed by our Parent and third party debt and vendor financing.

West Palm Beach to Orlando (North Segment)

We have commenced construction of the expansion of our rail system to Orlando and expect to complete construction and begin service to Orlando in approximately three years. We expect to fund the development costs with the net proceeds from this offering, the concurrent private placements and/or other debt or equity financings (including the 2019 Debt Financing). There can be no assurances that the 2019 Debt Financing will be successful. See “Risk Factors—Risks Relating to Our Indebtedness—Although we believe that we will be able to raise sufficient funds to complete our Florida passenger rail system and the Vegas Expansion, there are no assurances that future sources of capital, including the 2019 Debt Financing or the bridge loan facility, will be available on favorable terms, on a timely basis, or at all to accomplish this.”

Design and engineering for the North Segment are substantially complete, and we have completed the environmental process required under the National Environmental Policy Act and received a Record of Decision from the FRA approving the commencement of construction. We have obtained substantially all material permits and governmental authorizations for the North Segment. The extension to Orlando entails improving existing infrastructure on 129 miles of existing rail corridor and building new rail along 40 miles of existing highway corridor. We expect that construction will be executed under three primary contracts – each expected to have a fixed-price and time certain terms – for the construction of rail infrastructure and related signal systems, as well as the manufacture of additional trains.

We have invested approximately $404.2 million to date to develop and construct the North Segment. Funding for the investment came from a combination of cash and assets contributed by our Parent and third party debt and vendor financing.

Our Anticipated Expansions

Orlando to Tampa (Tampa Expansion)

We intend to construct a passenger rail system between Orlando and Tampa, Florida, a station in downtown Tampa and adjacent real estate for commercial development. We have engaged in discussions with regulatory authorities with respect to the construction of the Tampa Expansion. Based on our experience with actual South Segment costs and adjusted for track location specifics, we expect that the Tampa Expansion will require approximately $1.7 billion to complete. We anticipate financing the Tampa Expansion through the net proceeds from this offering, the concurrent private placements and/or other debt or equity financings. When and if completed, the Tampa Expansion, together with the South Segment and the North Segment, will comprise our Florida passenger rail system as discussed in this prospectus.

On November 28, 2018 we received approval from the State of Florida for a right of way required to construct the Tampa Expansion. The state undertook a standard process to offer an opportunity for other parties to make an alternative bid for the right of way, and there were no other bidders. We will advance planning for the Tampa Expansion, and we have initiated the process of selecting potential sites for the Tampa station.

In addition, we intend to enter into contracts with respect to the Tampa Expansion and to design, engineer and construct the related infrastructure and station, and we have initiated the process of receiving bids from engineering and environmental services providers. We also intend to obtain any necessary regulatory approvals, additional rights of way, permits, consents, licenses, entitlements and other authorizations for the construction and operation of the Tampa Expansion. Additionally, we expect to contract with municipal and private parties to purchase, lease or otherwise obtain the right to use land for the construction and operation of the Tampa Expansion.

Las Vegas to Southern California

We plan to introduce passenger rail service to Las Vegas, Nevada and Southern California. Pursuant to the XpressWest Acquisition, we have agreed to acquire the rights to develop a high-speed rail project within a corridor between Victorville, California and Las Vegas, Nevada that is expected to be federally approved. The XpressWest Acquisition provides us with the opportunity to develop, operate and connect Las Vegas with Southern California by

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means of a new passenger rail system. The Vegas Expansion will link one of the most traveled routes in the United States, connecting approximately 13.4 million people living in the Los Angeles metro area with the approximately 2.2 million people living in the Las Vegas metro area, which is one of the most visited cities in the United States.

We intend for the Las Vegas station to be located adjacent to the Las Vegas strip and to serve as a major intermodal hub with access to taxis, buses, ride shares, shuttles and limousines. We expect the initial Southern California station to be located in Victorville, within an hour drive of the Los Angeles metro area, and we also intend to add additional stations and provide connections to California Metrolink.

In connection with the XpressWest Acquisition, we have also entered into an agreement to acquire, subject to customary closing conditions, approximately 38 acres of land adjacent to the Las Vegas strip for construction of the Las Vegas station and mixed-use development for a purchase price of approximately $150 million, of which approximately $140 million will be paid in cash and the balance in shares of our common stock.

The first phase of the Vegas Expansion is expected to be built on a right of way within and adjacent to Interstate 15, traversing 185 miles with no at-grade or pedestrian crossings. We expect to award construction contracts in 2019. Construction is expected to begin in 2019 and initial service is expected to begin after anticipated completion of construction by the fourth quarter of 2022 or the first quarter of 2023. We expect to fund the development costs with the net proceeds from this offering, the concurrent private placements and/or other debt or equity financings.

The aggregate purchase price for the XpressWest Acquisition is approximately $120 million, of which approximately $60 million will be paid in cash (which we intend to fund with the net proceeds of this offering, the concurrent private placements, and/or other debt or equity financings (including the 2019 Debt Financing)) and the balance in shares of our common stock. The closing of the XpressWest Acquisition is subject to customary closing conditions. There can be no assurance if or when we will be able to complete the XpressWest Acquisition, the acquisition of land adjacent to the Las Vegas strip or the acquisition of additional land required for a station in Victorville, California. Based on our experience with actual South Segment costs and adjusted for track location specifics, we expect the Vegas Expansion will require approximately $3.6 billion to complete. We are currently in discussions with potential lenders for a portion of the debt financing for the XpressWest Acquisition, but have not received any commitments.

Markets Beyond Florida and Las Vegas

The United States dramatically lags behind both Europe and Asia in express passenger rail service despite having one of the most developed rail and highway systems in the world. We believe we can capitalize on this extensive infrastructure to expand our services into new markets, including Las Vegas and Southern California. Our expansion plans are initially focused on markets with characteristics and demographics similar to those of our Florida passenger rail system and the Vegas Expansion – connecting highly populated cities with substantial intercity travel and separated by distances of 200 to 300 miles that are “too long to drive, too short to fly.” As we have done in Florida and Las Vegas, we intend to target markets where we believe we can utilize existing transportation corridors – either rail, highway or a combination of both – to cost effectively build our systems, as opposed to developing entirely new corridors at potentially significantly higher costs.

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The map below identifies several major U.S. cities that possess what we believe are key attributes for a successful intercity rail network using existing infrastructure:


By using existing infrastructure, we believe we can plan, permit and build new rail service significantly faster and cheaper than alternative express passenger rail projects in these areas. As the only successful private developer of express passenger rail currently operating in the United States, we believe we are uniquely positioned to leverage our expertise, brand and scalable platform to implement similar intercity passenger rail systems in a number of these markets.

Our Operations

Brand and Market Positioning

Branding and marketing for our Florida passenger rail system is being led by our management team, which has direct experience in leading large consumer centric businesses and launching new transportation products and companies. Our introductory brand positioning is both awareness and feature-based, and highlights the benefits of train travel, including convenience, reliability, safety and affordability, especially when compared to the challenges of traveling to the cities covered by our service along our corridor by car or air. Our marketing approach is designed to increase revenues in three ways: through direct-to-consumer channels, business-to-business channel and through relationships with wholesalers and travel partners within the overall travel trade industry. As part of our branding and marketing strategy, we utilize a customer relationship management technology solution to understand passengers’ usage and preferences so we can adjust our marketing and services accordingly. We will also be launching a customer-centric loyalty marketing program, with reward options carefully curated to our regional audience.

Ticket Sales and Distribution

Tickets are available through multiple distribution channels, including direct sales to travelers over the internet and through mobile devices or at ticket machines at our stations (which we refer to as our “retail” channel), and indirect sales through wholesalers and travel partners (which we refer to as our “wholesale” channel). For our retail channel, we have designed our website and ticket kiosks to have a user-friendly interface and to offer travelers a quick and efficient way to take advantage of our diverse array of service offerings and departure times. We also employ search engine optimization technology to direct customers to our website for ticket purchases. Through our wholesale channel, we expect to develop partnerships and affiliations with a variety of travel partners and wholesalers to integrate our tickets into travel packages that are presold to the leisure market. During 2017, management made substantial investment in marketing, pre-launch ticket sales and corporate block sales. We also offer an array of products tailored to the business-to-business and corporate segments, such as annual passes and flexible ticket packs in various denominations. These are sold through our direct sales team, who also sell corporate groups and event based charters.

Tickets are available for purchase prior to the date of travel, and as late as minutes before departure. Travelers are able to select specific seating and coach preferences, such as a solo seat or adjacent seating for groups. Any

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refunds, exchanges or ticket modifications will be quick and easy, either online or in person. Ticket prices are demand-driven and based on the day and time of departure. We are utilizing yield management strategies (in conjunction with our customer relationship management system discussed above) that allows us to determine, on a daily basis, pricing, allocations and coach configuration needs. We intend to evaluate and determine ticket sales progress and adjust our ticket allocations, inventory and pricing rapidly to match then-current sales and demand patterns and to optimize load factors and fares.

Ancillary Revenue Opportunities

In addition to ticket sales, we intend to capitalize on passenger volume to generate revenue through a number of high margin ancillary revenue opportunities, including food and beverage sales, merchandise sales, parking fees, advertising, sponsorships and marketing affiliations (including naming rights), commissions from our travel partners and ground transportation extensions and other services. Our projections and forecasts are subject to risks and uncertainties and could change based on various factors. See “Special Note Regarding Forward-Looking Statements and Industry Data” and “Risk Factors.” Our trains and stations provide multiple opportunities for advertisers to reach a large and captive audience. We sell advertising space on video screens, monitors, kiosks and displays at each station and on board our fleet of trains and ground transportation facilities. We also actively pursue long-term partnerships and sponsorships with a variety of organizations, including financial institutions and technology companies. In addition, we expect to generate income through travel packaging relationships with third parties such as car rental companies, hotels and theme parks. Through these relationships, we would act as an agent, seeking to include the travel partner’s or destination’s product or service in a packaged vacation for our rail passengers. For each product or service we are able to sell, we would earn a commission. Furthermore, we expect to generate additional revenues for our passenger rail service through à la carte offerings of high-quality food and beverage options, retail merchandise and business services. Private reserved trains for conventions and groups outside normal scheduled services will also be available for charter. Finally, we intend to develop retail, residential and commercial transit-oriented real estate development opportunities at or near our station sites.

Construction Overview

We have commenced construction of the North Segment. The North Segment will extend from West Palm Beach to Orlando. We anticipate funding the remaining costs to construct the North Segment with the net proceeds from this offering, the concurrent private placements and/or other debt or equity financings (including the 2019 Debt Financing). We expect that the North Segment construction will be governed by four main components: rail infrastructure (the successful bidders in our ongoing bidding process, as described in more detail below), system communications (Alstom Signaling Operation, LLC (formerly GE Transportation System Global Signaling LLC) (“Alstom”)), rolling stock (Siemens) and track materials that we purchase directly.

Construction Contracts

We have construction contracts in place to complete the remaining portions of the South Segment. North Segment construction is expected to be substantially complete and operational in approximately three years. The North Segment construction contracts are expected to contain fixed-price, time-certain terms with payment and performance bonds and guarantees. Our contracting strategy includes multiple safeguards to mitigate cost and timing overruns. We expect to have the exclusive right to, among other things, approve plans for and direct the construction of the North Segment.

Rail Infrastructure

Rail infrastructure for the North Segment is being managed directly by a Virgin Trains project management team comprised of longtime construction industry professionals with experience on significant construction projects, including both rail and Florida construction experience. We are currently in a competitive bidding process for the construction contractors for the North Segment. In our contract selection process, we consider a number of factors, including a proposed contractor’s relevant experience, financial strength, personnel and safety track record.

Rail infrastructure for the North Segment is comprised of several components, including, among others:

The North South Rail Alignment contract, which consists of the construction of 129 miles of upgraded rail infrastructure in an existing freight corridor between Cocoa and West Palm Beach, Florida. Following a competitive bidding process, we issued a letter of interest to HSR Constructors, a joint venture of Herzog, Stacy and Witbeck and Railworks.

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The East West Rail Alignment contract, which consists of the construction of 35 miles of new rail infrastructure between the Orlando Airport and Cocoa, Florida. After a competitive bidding process, we issued a letter of interest to Granite Construction Company.
The VMF Building contract, which consists of the final design of a 200,000 square foot heavy maintenance building, including final trackwork. Although bids have been received, we have not yet selected a contractor.
The Loxahatchee and St. Lucie River Movable Bridges contract, which consists of the structural and mechanical upgrade of two existing rail bridges. Bidding for this contract is expected to commence in 2019.

The total amount of these bid packages is expected to be approximately $1.7 billion of the approximately $1.9 billion required to complete construction of the North Segment (excluding a $158 million contingency fund).

The principal terms of the construction contracts are similar across most bid packages. Typical terms include customary provisions for the extension of time to complete work, including for delays caused by us, customary entitlements to contract price increases, including for work beyond the scope of the contract, and dispute resolution procedures.

Systems Communication – Alstom

Alstom holds a direct contract with Virgin Trains for signal system engineering and supply, and for Positive Train Control overlay. The selected general contractor will be responsible for wayside system installation, testing, and completion, using equipment provided under the Alstom contract. The terms of the construction contracts require the general contractor to deliver a fully functional and tested signal system, allowing operation in Automatic Train Control mode. This will allow continued operation of freight traffic on the existing rail corridor, and keep the construction schedule under the control of the contractor. Alstom will follow the general contractor with installation, testing, and commissioning of the Positive Train Control overlay that will be required for passenger service initiation.

Rolling Stock – Siemens

The rolling stock for our Florida passenger rail system is being built by Siemens pursuant to a contract executed on August 15, 2014. Siemens, an industry leader, designs and manufactures across the entire spectrum of rolling stock, including commuter and regional passenger trains, light rail and streetcars, metros, locomotives, passenger coaches and high-speed trainsets. In the United States, Siemens is providing rail vehicles, locomotives, components and systems to more than 25 agencies in cities such as Washington, D.C., New York, Boston, Philadelphia, Denver, Salt Lake City, Minneapolis, Houston, Portland, Sacramento, San Diego, St. Louis, Atlanta and Charlotte.

Siemens produced five state-of-the-art trainsets (10 locomotives and 20 coaches) for the South Segment. The purchase price related to these five trainsets was approximately $260 million. The rolling stock contract includes an option to purchase additional coaches and locomotives and spare parts and special tools, as our needs in relation to our Florida passenger rail system require. The contract with Siemens provides an option to purchase trains for the North Segment which consist of 11 locomotives, 10 café cars and 40 coaches (five additional trainsets and additional coaches for the existing five trainsets). For a further description of our rolling stock, see “—Rolling Stock.”

Under the rolling stock contract, the warranties given by Siemens with respect to the rolling stock remain in effect for two years following rolling stock conditional acceptance. For each of the South Segment and the North Segment, the contract provides for liquidated damages in connection with untimely delivery, capped at 15% of the contract price for each phase. In the event that Siemens opts to assign this contract to one of its subsidiaries, either that subsidiary must have a net asset value equal to three times the then remaining contract value, or, alternatively, Siemens’ parent company, Siemens Corporation, must guarantee performance of the contract, which guarantee shall have a value equal to the then remaining contract value.

Siemens is required to obtain various insurance coverages, including workers’ compensation, commercial general liability, automobile liability, and railroad protective liability insurance. The commercial liability coverage has an excess liability limit of $100 million per occurrence and $100 million in the aggregate.

Under the rolling stock contract, Siemens is also required to provide training to us and our employees and contractors such that we and our employees and contractors can operate the trains and equipment safely and in accordance with regulatory requirements.

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North Segment Rail Infrastructure Construction

Rail infrastructure for the North Segment primarily includes new track and rail crossings, bridges, civil work and right-of-way improvements, communications and signalization including positive train control, maintenance facilities and all professional fees and contingencies associated with the various categories of the work.

In addition to the rail segments, a new vehicle maintenance facility will be constructed on property of GOAA adjacent to our Orlando station.

North Segment rail infrastructure construction is divided into two distinct components:

West Palm Beach to Cocoa (129 miles). Generally, the work on the West Palm Beach to Cocoa corridor will consist of re-constructing a second track that existed when passenger rail previously ran in this corridor.
Track: We will perform rehabilitation of portions of the existing infrastructure up to Class VI standards to raise the maximum allowable speed up to 110 mph. In addition, a new second track will be added.
Signaling System Upgrade: We will upgrade all highway-rail grade crossings along the shared mainline corridor within the high-speed segment (110 mph) from West Palm Beach northward to Cocoa.
Grade Crossings: We conducted required safety crossing diagnostics with the FRA, FDOT and local municipalities. Based on these assessments the safety treatments at each of these crossings have been carefully analyzed and scrutinized to arrive at the final configurations. Vehicle Presence Detection will be provided at all crossings where passenger train speeds are anticipated to exceed 80 mph. In totality, we will build a second track and modify approaches at 155 grade crossings.
Bridges: Multiple bridge structures will be rehabilitated or added in the West Palm Beach to Cocoa segment in order to support the addition of the second track for the passenger rail service. In addition, two aging movable bridge structures will be rehabilitated.
Fiber Optic Relocation: Over the past decades, the existing FECR right-of-way segment where the second track will be restored was used as a revenue generating source from telecommunications companies by allowing them to place fiber optic conduits. In order to allow for the construction of the second track, these conduits must be relocated into a new, dedicated duct bank that will carry all of the existing lessees’ fiber lines.
Positive Train Control: We are installing PTC on the Florida east coast corridor in compliance with 49 CFR Part 236. We have selected the Enhanced Automatic Train Control (E-ATC) system, which is type-approved and for which we and FECR have an FRA-approved PTC Implementation Plan (PTCIP).
Cocoa to Orlando International Airport (40 miles). The second component includes the east-west corridor running along the SR528. This corridor is divided into three geographic segments based on land ownership: approximately 14 miles adjacent to SR528 in land leased from the FDOT; approximately 21 miles in an easement adjacent to SR528 from the Central Florida Expressway Authority; and approximately 5 miles leased from the GOAA on property of the Orlando International Airport. We anticipate constructing 14 miles of single track and 26 miles of double track construction that would be an entirely new, dedicated and grade-separated rail infrastructure capable of achieving speeds of up to 125 mph and terminating at Orlando International Airport. There are no anticipated grade crossings between Cocoa and Orlando International Airport.

Operations and Maintenance

We commenced rail operations between Fort Lauderdale and West Palm Beach in January 2018 and between Miami and Fort Lauderdale in May 2018. We expect to commence passenger rail operations for the North Segment after approximately three years of construction and achieve full ramp up ridership for the entire Florida passenger rail system by the fourth quarter of 2023 or the first quarter of 2024 (assuming we accomplish our goal of commencing passenger rail operations for the Tampa Expansion in 2021).

As described in more detail under “Certain Relationships and Related Party Transaction—Transactions with FECR—Joint Use Agreement” and “Certain Relationships and Related Party Transaction—Transactions with FECR—DispatchCo,” we have also contracted with certain entities, including Florida DispatchCo LLC

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(“DispatchCo”), a 50-50 joint venture between FECR and us, for dispatch services, and FECR, for other rail service operations and certain other aspects of our business operations.

In addition, we have executed a 30-year maintenance agreement with Siemens, the rolling stock provider, for all warranty repairs and maintenance on the rolling stock, thereby making these large costs more easily predictable. See “—Siemens Maintenance Agreement” below.

Siemens Maintenance Agreement

On December 31, 2014, we executed a contract with Siemens for all warranty repairs and maintenance on the rolling stock. This 30-year contract was terminable by us with an early termination penalty. This contract duration ensures regular preventive maintenance, as well as capital maintenance over the life of the contract at a set price with an established cost escalator, thereby making these large costs more easily predictable.

Under the agreement, Siemens provides maintenance and general technical support on the rolling stock. However, Siemens is not liable for failure to carry out its services if the cause for such services is a result of defective rail infrastructure, the fault of us, station closure, or total destruction of the rolling stock. We can also service the rolling stock itself or contract with a third party for such service, in certain circumstances.

Our monthly service payment obligations began on January 13, 2018 with the commencement of passenger revenue service on the South Segment and continue throughout the term of the agreement. The service payments are subject to adjustment based on, among other things, the Consumer Price Index (CPI). The agreement is terminable by (i) either party upon, among other things, the insolvency of the other party, (ii) us if Siemens fails to maintain requisite insurance policies or effects a change of control with a competitor of Siemens or (iii) Siemens (plus a termination fee) if a certain amount of aggregate service payments remain unpaid for sixty days from Siemens’ written notice.

In June 2018, we amended our agreement with Siemens to adjust maintenance fees to more accurately identify the allocation of such fees between the first and second phases of maintenance and to amend the termination provisions to permit more frequent termination options with specified graduated penalties.

The maintenance for the rolling stock is currently being performed at our running repair facility in West Palm Beach. Following the completion of the North Segment, the maintenance for the rolling stock will be performed at a vehicle maintenance facility to be constructed south of the Orlando International Airport. Our running repair facility in West Palm Beach will continue to be used for lighter maintenance and emergency repairs, as well as cleaning, refueling and nightly layover.

Rolling Stock

We currently own five state-of-the-art trainsets built by industry-leading provider Siemens. The purchase price related to these five trainsets was approximately $260 million. All five trainsets are operational in the South Segment. Our rolling stock vendor contracts with Siemens give us the option, through August 2021, to purchase additional passenger cars and locomotives to accommodate increased ridership. See “—Construction Overview—Construction Contracts—Rolling Stock—Siemens.”

Each trainset currently consists of two diesel-electric locomotives (4,400 horsepower Cummins diesel engines) and four stainless steel passenger cars and has a total capacity of 240 passengers per train. This dual locomotive arrangement allows trains to achieve a top speed of up to 125 mph, while realizing fuel efficiency. The redundancy of this two-locomotive configuration will enable us to keep trains moving in case of an unexpected locomotive mechanical issue.

Our trainsets are best-in-class and the most modern of any offering in the U.S. They feature leather seats, large touchless bathrooms, food and beverage service on board, free high-speed WiFi, charging and docking stations and are fully ADA compliant. Onboard, integrated passenger cars offer comfortable seating in a number of different configurations, with an air-suspension system providing a smooth ride at high speeds. Passenger seats have workspaces that are similar in size to a first-class airline seat (with premium seats being slightly larger). These trainsets and their onboard amenities are scalable to accommodate additional passenger demand for seats and technology. As ridership ramps up to stabilization, additional coaches will be added to the trains, such that each train will be comprised of two locomotives, two premium cars, three standard cars, one standard car with baggage and a café car, for a total capacity of about 356 passengers per train. Additional coaches can be added to expand each trainset to 10-coach trainsets for incremental passenger capacity.

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For the South Segment service, we have three active trainsets, leaving one spare trainset for private charter service and one to be utilized in rotation to allow rolling stock to be monitored, inspected, serviced and maintained without adversely impacting regularly scheduled service. For service to Orlando, we expect to procure an additional five train sets. To accommodate the increased demand anticipated in Miami-Fort Lauderdale-West Palm Beach-Orlando service, we expect all trains in the entire fleet will be expanded to seven coaches (six passenger cars and a café car). After commencement of North Segment service, we anticipate having eight active trainsets for our Florida passenger rail system, leaving one spare trainset available for private charter service and one to be utilized in rotation to allow rolling stock to be monitored, inspected, serviced and maintained without adversely impacting regularly scheduled service.

Stations

We currently own our three stations in Miami, Fort Lauderdale and West Palm Beach and expect to add stations in Orlando and Tampa as well as in Las Vegas and Southern California. In Orlando, our station will be integrated into the Orlando International Airport’s new South Terminal and is owned by the airport and leased to us. All of our stations in South Florida and Las Vegas are or are expected to be located in cities with dense populations, near government/business locations and major travel destinations and with multiple connections to public and private ground transportation, as well as local transit services. We believe our station locations are irreplaceable and will result in a high level of passengers given the centralized locations and ease of connectivity.

Our Florida Passenger Rail Network


Miami

Our downtown Miami station is located within a five-block radius of numerous destinations, including PortMiami, American Airlines Arena, the Miami-Dade County government center complex and the Adrienne Arsht Center for the Performing Arts. The location is also served by both Metrorail (a 25-mile metropolitan rail service with approximately 20 million annual riders) and Metromover (a free, elevated automated people mover service for easy access to downtown Miami sites with approximately 9.5 million annual riders), and we expect it to become a stop for Tri-Rail (a commuter rail line with approximately 4.3 million annual riders) in the near future. We have entered into development and operating agreements to link the Miami station with Tri-Rail.

The Miami station includes a large train platform on an elevated viaduct so as not to interrupt traffic on local streets servicing the downtown district and a new and enhanced street front public realm which is expected to be an attractive platform for new retail and residential real-estate uses. The 250,000 square foot platform and track area consists of five tracks and four platforms, each measuring 1,150 feet long. The station includes a combination of both high-level platforms designed to accommodate level boarding of our intercity trains and lower level platforms designed for train service access and for commuter trains in the future. The station has three levels – a lower ticketing

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level, an upper boarding level and a mezzanine level with a 21,000-square foot passenger waiting area and security functions. The station’s mezzanine level serves as the primary concourse for passengers to directly connect to other modes of transportation such as Metrorail and the Metromover.

Fort Lauderdale and West Palm Beach

In Fort Lauderdale, our station is located on our wholly-owned site in the city’s central business district, surrounded by City Hall and county and state government office facilities. Our station site is only a few blocks from Fort Lauderdale’s Las Olas Boulevard waterfront historical district and the Broward Center for the Performing Arts and adjacent to the city’s primary municipal bus terminal.

In West Palm Beach, our station is located on our wholly-owned site along Quadrille Boulevard, the city’s primary north-south road system and centrally situated between the Clematis Street commercial district and the City Place outdoor promenade and mixed-use development. The station site has close proximity to the Kravis Center for the Performing Arts and is approximately four blocks from the West Palm Beach downtown waterfront.

The Fort Lauderdale and West Palm Beach stations have similar designs and contain center-island platforms adjacent to the newly configured tracks at near ground level. These platforms are approximately 850 feet long and, with a height of approximately 48 inches above the top of the rail, will allow level boarding by our passengers into our coaches. These stations were designed to accommodate the addition of future, low-level platforms designed to connect with commuter rail trains and station locations for inter-modal connectivity.

Orlando

The Orlando station is located within the new multi-modal facility being constructed at Orlando International Airport, which will be operated by GOAA, with dedicated facilities leased to and operated by us within the future South Terminal. The new multi-modal complex is designed to accommodate four modes of rail transit, including our passenger rail service, SunRail commuter rail service (currently in operation and planned for extension to the airport), an automated people mover connecting to the airport’s existing north terminal and, in the future, to Orlando’s new adjacent Medical City complex, as well as a future light-rail system designed to serve nearby metro-Orlando destinations. This multi-modal hub will also provide direct connectivity to ground transportation operations, parking and, in the future, direct pedestrian linkage to 120 airside gates in the airport’s new south terminal. We have executed a lease with GOAA for our occupancy within this station.

The Orlando station has elevated platforms and will be able to accommodate up to four tracks utilizing two shared, 800 foot long high level island platforms that allow level boarding by our passengers into our trains. Passengers will access platforms from a waiting and ticketing area located directly above the platforms and will be able to cross connect to other airport functions and forms of transportation from this level. There will be logistics and operational space below the platforms at ground level. There will also be dedicated passenger drop-off and parking on the third level nearby the waiting and ticketing lounge.

Our Vegas Expansion Rail Network


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Las Vegas and Southern California

With respect to the Vegas Expansion, we intend for the Las Vegas station to be located adjacent to the Las Vegas strip and to serve as a major inter-modal hub with access to taxis, buses, ride shares, shuttles and limousines. We expect the initial Southern California station to be located in Victorville, within an hour drive of the Los Angeles metro area, and we also intend to add additional stations and provide connections to California Metrolink.

Transit Oriented Development (TOD)

Because of the high number of passengers expected to pass through our downtown stations, there are several attractive retail, residential and commercial transit-oriented real estate development opportunities at or near our station sites. Currently, our Parent and its subsidiaries are developing approximately 1.5 million square feet of mixed-use office, residential, retail and parking facilities at and around our stations in Miami, Fort Lauderdale and West Palm Beach, and key tenants, including top-tier food and beverage, fashion, fitness and life-style brands, have leased and are in negotiations to lease space. We intend to pursue new real estate development opportunities at or around existing or future stations using land in Miami and Fort Lauderdale that we own as well as other land we may acquire in Florida. We expect to work with or hire some or all of the same real estate development team that has successfully developed commercial real estate in Southern Florida to develop new office, commercial, retail, entertainment, hotel and/or multi-family residential facilities, which we believe will enhance the appeal of our Florida passenger rail system.

In connection with the Vegas Expansion, we also expect to develop commercial real estate to pursue new office, commercial, retail, entertainment, hotel and/or multi-family residential facilities in Las Vegas, which we believe will enhance the appeal of the Vegas Expansion. We have entered into an agreement to acquire approximately 38 acres of land adjacent to the Las Vegas Strip for potential station location and real estate development.

These expectations are subject to market conditions and other factors that could cause the net proceeds to be materially lower than our estimates. We expect the costs involved in pursuing real estate developments to include real estate acquisition costs, construction and permitting costs, as well as financing and leasing costs. We do not intend to use the funds from this offering to pursue such real estate development opportunities. Developing real estate entails a number of significant risks such as construction or permitting delays, construction defects or the inability to obtain financing on attractive terms. The occurrence of any of these risks may prevent us from fully realizing some or all of the benefits of developing real estate.

Regulations

Railroad Regulations

Based on the current decision of the Surface Transportation Board, a federal economic regulatory agency that is charged with resolving railroad rate and service disputes and reviewing proposed railroad mergers, our existing and proposed rail system in Florida is not subject to its regulatory jurisdiction under Title 49 of the United States Code. However, if the Surface Transportation Board were to assert jurisdiction over us in the future, then advance approval or exemption might be required for our passenger railroad operations. The Surface Transportation Board would also have the power to regulate fares and service while we are operating.

Our operations are also subject to rules and regulations promulgated by the Federal Railroad Administration (the “FRA”), as well as various agencies and bodies of the state and local governments which have jurisdiction over such matters as employment, environment, safety, traffic and health. The rules and regulations to which we are currently subject may change, and we may become subject to additional rules and regulations. See “Risk Factors—Risks Relating to the Business—Railroad regulations and legislative amendments may impose costs and restrictions that could adversely affect our operations.”

Environmental Regulations

As a landowner, railroad operator and developer of related infrastructure, we are subject to various federal and state laws relating to protection of the environment. These include requirements governing such matters as the management of waste, the discharge of pollutants into the air and into surface and underground waters, the manufacture and disposal of regulated substances, remediation of soil and groundwater, and the protection of wetlands, endangered species and other natural resources. Failure to comply with applicable requirements can result in fines and penalties and may subject us to third-party claims alleging personal injury and/or property damage,

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among others, and may result in actions that seek to restrict our operations. Some environmental laws impose strict, and, under some circumstances, joint and several, liability for costs of investigation and remediation of contaminated sites on current and prior owners or operators of the sites and also impose liability for related damages to natural resources.

We intend to operate in material compliance with applicable environmental laws and regulations and estimate that any expenses incurred in maintaining such compliance will not have a material effect on our earnings or capital expenditures. However, there can be no assurance that new, or more stringent, enforcement of existing requirements or discovery of currently unknown conditions will not result in significant expenditures in the future.

Governmental Permits

As a landowner, railroad operator and developer of related infrastructure, we are subject to various federal and state laws that require us to obtain certain permits and other approvals, including the permit requirements related to the system that are imposed by the Federal Aviation Administration, Federal Highway Administration, Florida Department of Environmental Protection, South Florida Water Management District, St. Johns Water Management District, U.S. Army Corps of Engineers, U.S. Coast Guard, the Bureau of Land Management, the U.S. Fish and Wildlife Service and the Surface Transportation Board. We have retained various consultants to provide services needed to support this effort, including AMEC Environment & Infrastructure, Inc., which is coordinating the work of a team of consultants working to obtain the environmental permits potentially required. We have also developed a strategy to identify and comply with regulatory requirements imposed by regulatory agencies with jurisdiction over the development of our stations, such as requirements mandated by fire, health, environmental and zoning departments. We have designed our Florida passenger rail system in a manner consistent with applicable zoning and land development codes and have or currently expect to obtain the necessary approvals to proceed with North Segment construction.

As part of our original application under the FRA’s Railroad Rehabilitation & Improvement Financing program, we participated in evaluations of the environmental consequences of the South Segment and the North Segment in accordance with National Environmental Policy Act (“NEPA”). The FRA studied an environmental assessment released for public comment from October 31, 2012 through December 3, 2012 for the proposed rail system between West Palm Beach and Miami, and issued a “finding of no significant impact” (“FONSI”) on January 30, 2013. The FONSI was amended in January 2015 to extend the project limits and include the West Palm Beach running repair facility.

The FRA subsequently published a notice of intent in the Federal Register on April 15, 2013 to prepare an Environmental Impact Statement (“EIS”) for the remaining areas of our Florida passenger rail system from West Palm Beach to Orlando. The Final EIS was released on August 4, 2015. Thereafter, on December 15, 2017, the FRA issued its Record of Decision with respect to the North Segment which documents its decision to approve the North Segment construction.

During the FRA’s four-year environmental review of our proposed passenger rail system comprising the South Segment and the North Segment, the FRA, as lead agency, coordinated the efforts of all other cooperating agencies responsible for issuing the final environmental permits for the North Segment. This process allowed each agency to appropriately assess the various options and permittability of our Florida passenger rail system as presented under our plan submitted in connection with such environmental review. Such agencies were given the opportunity to, and did, provide input to the FRA in connection with this environmental review.

We have covenanted to U.S. Department of Transportation to complete and implement the measures specifically set forth in the Final EIS and Record of Decision to avoid, minimize, or mitigate any adverse effects of our Florida passenger rail system on the environment.

We have obtained substantially all material permits and governmental authorizations required for the construction of the North Segment. We will be required to obtain similar permits and authorizations, which will require, among other things, the performance of additional environmental impact studies, for the Tampa Expansion. Additionally, any passenger rail systems we seek to construct outside of Florida will be subject to various federal, state and local laws and regulations that require us to obtain permits and other approvals applicable in those new jurisdictions.

In connection with the Vegas Expansion, we will be required to obtain approvals from the FRA, the Federal Highway Administration, the Army Corps of Engineers, the Bureau of Land Management, the U.S. Fish and Wildlife

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Service, the Surface Transportation Board and other federal, state and local governmental agencies. In connection with these approvals, further evaluation of the environmental impacts of the Vegas Expansion under NEPA will be required, and FRA may determine that it is necessary to prepare a supplement to the Final EIS that was issued in 2011, given the passage of time and proposed changes to the design of the Vegas Expansion. Such further evaluation of the environmental impacts of the Vegas Expansion could result in substantial delay and expense, and could require us to implement costly mitigation measures (in addition to those prescribed in the Final EIS).

Rolling Stock Regulations

Our trains and stations are designed to be compliant with regulations issued pursuant to the Americans with Disabilities Act (“ADA”), with seating, bathrooms, level board platforms and walkways designed to accommodate wheelchair and other special physical needs of the disabled. Our locomotives comply with both the U.S. Environmental Protection Agency’s Tier Four emissions standards as well as the various regulations and guidelines set forth in the Passenger Rail Investment and Improvement Act of 2008 (PRIIA) mandate. They are fully Buy American compliant, with components coming from 20 U.S. states. Our rolling stock complies with FRA regulations, including Crash Energy Management (CEM), which provides a standard of structural integrity designed to better protect passengers and employees in the event of a collision, and the new PTC standards, which require a centrally monitored and controlled monitoring system to bring trains safely to a stop if certain operating safety parameters are exceeded. We are upgrading our signal system and expect to be fully-compliant with PTC. Installing PTC systems will allow our trains to operate within a dynamic safety environment that constantly monitors speed restrictions, track maintenance and similar items and can intervene to stop a train before it reaches an unsafe condition. The PTC system was procured and supplied by us and delivered to Siemens for installation into the locomotives. Similarly, the in-cab signaling system and the voice radio system were procured by us and delivered to Siemens for installation.

Insurance

Our comprehensive insurance program includes the following coverages:

Professional Liability: Protective errors and omissions insurance will be maintained. This protects against defenses and damages caused by errors in rendering of professional services by the design and construction teams.
Builders Risk: Builders risk insurance will be maintained throughout the construction to protect against damage perils, including, but not limited to, fire, flood, windstorm and earthquake during the course of construction. In addition, delay in start-up protection will be in place to insure against income loss or specified additional expenses that result from a delay in the completion of a construction project beyond the expected completion date as a result of covered property damage.
Pollution Legal Liability: Insurance to protect against claims for loss, environmental damages or emergency response expense arising out of a pollution incident at an insured location arising from a pre-existing pollution condition will be maintained.
Contractors Pollution Liability: Insurance to pay those sums that the insured or any contractor (or subcontractor) becomes legally obligated to pay as damages because of bodily injury, property damage, environmental damage (including mold), emergency response expense and associated defense costs, arising out of a pollution incident caused by our work will also be maintained.
General and Rail Excess Liability: Liability insurance coverage will be maintained, including defense costs that we may be legally obligated to pay as damages resulting from bodily injury (including death), property damage, personal injury or advertising injury resulting from our railroad operations. This would include employee injury, passenger injury and accidents involving train stations, crossings, trespassers, maintenance activities, derailments and terrorism. This rail insurance will have a minimum $295 million combined single limit for bodily injury, personal injury and property damage per occurrence, which limit may be provided by a combination of primary and excess/umbrella coverage.
Property and Casualty: Property insurance will also be maintained for physical damage to assets owned, leased or used by it, including buildings, contents, rolling stock equipment and certain infrastructure assets, which include track and bridges or tunnel structures. Due to the location of our assets, windstorm and earthquake coverage will be maintained. Coverage will include the loss of business income following an insured event. Insured events would be on an “all risks” basis, including collision, upset and overturn, flood, earthquake and terrorism.

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Corporate: Various other policies are expected to be in place, including workers compensation, pollution liability, cyber security, food borne illness, crime and fiduciary liability, auto liability and director and officer protection.

We believe the insurance coverages are sufficient.

Acquisitions

Our acquisition of DesertXpress Enterprises, LLC is subject to prior Surface Transportation Board approval (or exemption). On September 25, 2018, we and Fortress filed with the Surface Transportation Board a Notice of Exemption, which would allow for the acquisition of control of DesertXpress Enterprises, LLC. The exemption that is the subject of the notice became effective on October 26, 2018.

Employees

As of January 29, 2019, we had 316 employees. At stabilized operations for our Florida passenger rail system (including the South Segment from Miami to West Palm Beach, the North Segment from West Palm Beach to Orlando and the Tampa Expansion from Orlando to Tampa), we expect to have approximately 500 full-time equivalent employees for our Florida passenger rail system, of which we expect the majority to be allocated to rail operations (including onboard staff and maintenance support staff) and stations and hospitality operations (including station managers, station engineers, safety and security staff, ticket counter/guest services agents, public area attendants and baggage agents, in-station cafe attendants and commissary employees). Our Florida passenger rail system operations will be based in Miami. None of our Florida passenger rail system operations employees are covered by any collective bargaining agreements.

Legal Proceedings

In the ordinary course of conducting our business, we may become involved in various legal actions and other claims. Litigation is subject to many uncertainties, the outcome of individual litigated matters is not predictable with assurance, and it is reasonably possible that some of these matters may be decided unfavorably to the Company. It is the opinion of management that the ultimate liability, if any, with respect to our current litigation outstanding will not have a material adverse effect on our financial position, results of operations or cash flows.

Our operations are subject to environmental regulation. There are no material environmental claims currently pending or, to our knowledge, threatened against us or any of our railroads.

Properties

We own in fee simple title: (i) land in Fort Lauderdale for the Fort Lauderdale station, (ii) land in Fort Lauderdale for surface parking and (iii) land in West Palm Beach for the West Palm Beach station. We also have obtained the rights to cross certain roadways pursuant to an ordinance abandoning a portion of Northwest 2nd Avenue in the City of Fort Lauderdale. Our Miami station is being built within our owned property, air rights, certain aerial easements from the City of Miami and rights to cross certain roadways. We have executed a lease with GOAA for our occupancy within GOAA’s Orlando station and our Orlando vehicle maintenance facility which is presently being held in escrow pending satisfaction of the remaining release condition. See the section entitled “—Stations” for more information.

We also hold leasehold interests in all or a portion of three parking garages used in connection with the South Segment stations and our West Palm Beach running repair facility.

FECR owns the fee simple title in the existing rail right-of-way along Florida’s east coast from Miami to Jacksonville and owns the existing railroad infrastructure within our corridor (other than a portion of the railroad infrastructure in the South Segment owned by us). We own the permanent, perpetual and exclusive rights, privileges and easement for passenger rail purposes over and across the real property within FECR’s main line right-of-way located between Miami and Jacksonville. See “Certain Relationships and Related Party Transactions—Transactions with FECR—Joint Use Agreement” and “Certain Relationships and Related Party Transactions—Transactions with FECR—Dispatching Services Agreement” for more information.

We have executed lease and easement agreements with FDOT, GOAA and CFX related to the Cocoa to Orlando corridor. We hold a lease agreement with FDOT for approximately 14 miles adjacent to SR528 and easement

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agreements with CFX for approximately 21 miles. We also have executed a rail easement agreement with GOAA for approximately 5 miles on property of the Orlando International Airport; however, the GOAA easement agreement is subject to the satisfaction of certain conditions in order to be released from escrow or be consummated. We have met all requisite conditions for release, except for the condition that we must have the financial wherewithal to complete our Florida passenger rail system. These escrowed agreements are set to expire on June 30, 2019. We plan to request an extension should the condition to release not be timely met; however, there are no assurances that such extensions will be granted. In addition, we own fee title to certain parcels of land required for the Cocoa to Orlando corridor and have obtained easement rights over certain rights of way or property from the City of Orlando, Board of Trustees of the Internal Improvement Trust Fund, Orlando Utility Commission and Brevard County.

Our principal executive offices and headquarters are located in leased space at 161 NW 6th Street, Suite 900, Miami, Florida 33136. This lease expires on December 31, 2022, unless the term is extended pursuant to the two 60-month renewal options.

Intellectual Property

On November 15, 2018, we entered into the Virgin License Agreement with VEL. Pursuant to the terms of the Virgin License Agreement, VEL has granted to us, during the term, the right to use the Virgin brand, name, logo and certain other intellectual property as part of our corporate name and in connection with the operation of an intercity private high-speed passenger rail service along certain permitted passenger rail routes in the United States (including our Florida passenger rail system and the Vegas Expansion). The right to use such intellectual property is generally on an exclusive basis for each permitted route under the agreement. However, such exclusivity is conditioned on us commencing operations on such route by a specified time period for each permitted route. In addition, if VEL wishes to grant a license to a third party to use the Virgin brand, name or other trademarks licensed under the agreement in connection with any other U.S. intercity high-speed passenger rail routes, VEL has granted us a right of first refusal to match any such offer, subject to certain conditions and exceptions contained in the agreement. If we decline to match the third-party offer, or if our counteroffer does not meet certain criteria, VEL may grant the license to the Virgin brand to the applicable third-party for use in connection with the applicable U.S. intercity high-speed passenger rail route. Our exclusive right to use the licensed intellectual property is also subject to certain reserved rights and pre-existing licenses granted by VEL to third parties, including to high-speed passenger rail companies outside of the United States. We are generally restricted from using the licensed intellectual property outside of the United States.

Subject to certain exceptions and adjustments contained in the agreement, we have agreed to pay VEL a quarterly fee for such license that is based upon: (i) until December 31, 2022, the greater of a fixed fee and a percentage of our actual gross sales and (ii) from and after January 1, 2023, the greater of a percentage of our actual gross sales and (a) for our routes between Orlando and Tampa and Las Vegas and Southern California a fixed fee and (b) for any other route, a percentage of our projected gross sales. In addition, for the term of the agreement, we have agreed, pursuant to the Virgin License Agreement, to provide VEL with the right to appoint one director to our board of directors.

Under the Virgin License Agreement, we are required to complete our rebranding to the Virgin brand by December 2019 and to use all reasonable efforts to promote and expand our U.S. intercity high-speed passenger rail route business under the Virgin brand. We are generally restricted from entering into any significant sponsorship arrangements with third parties, or any sponsorship arrangements with certain competitors of VEL, without VEL's prior written consent. The Virgin License Agreement also contains, among other things, customary mutual indemnity provisions, representations and warranties, information rights of VEL and restrictions on our and our affiliates' ability to apply for or obtain registration for any confusingly similar intellectual property to that licensed to us pursuant to the agreement. Furthermore, VEL is generally responsible for the protection, maintanence, enforcement and protection of the licensed intellectual property, including the Virgin brand, subject to our step-in rights in certain circumstances.

The Virgin License Agreement has an initial term of 20 years, subject to renewal for up to two additional ten year periods (provided that we have not at such time committed an uncured material breach, in which case VEL can elect not to renew the Virgin License Agreement) or earlier termination as set forth in the agreement. The Virgin License Agreement grants VEL customary termination rights, including for our improper use of the Virgin brand, our insolvency, our uncured material breach, and if we challenge VEL's ownership of the licensed trademarks. VEL may also terminate the Virgin License Agreement, in whole or with respect to specific passenger rail routes, under certain

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additional circumstances, including if we undergo a change of control to an entity whose business VEL reasonably believes would materially damage the Virgin brand or to an entity that operates a telecoms, airline, cruises or gym business. VEL may also terminate the Virgin License Agreement if we fail to meet certain gross sales targets with respect to the permitted passenger rail routes or fail to complete our rebranding to the Virgin brand. Upon any expiration or termination of the Virgin License Agreement, our rights to use VEL's trademarks will cease, and we will have ninety days to exhaust, return or destroy any products or other materials bearing VEL's trademarks, to remove VEL's trademarks from any of our trains or facilities, and to change our corporate name to a name that does not include any of VEL's trademarks, including the Virgin brand.

All Virgin trademarks are owned by VEL and our use of such trademarks is subject to the terms of the Virgin License Agreement, including our adherence to VEL's quality control guidelines and granting VEL customary audit rights over our use of the licensed intellectual property.

Competition in Our Current Market

We compete with various other methods of transportation, including car, bus, rail and air travel. Auto vehicles are the dominant mode of intercity travel between Orlando and the Southeast Florida cities that we will serve. In addition, there are a few private bus companies that operate several buses daily between Orlando and Southeast Florida along the Florida Turnpike and available rideshare options. The two main routes between the cities are I-95 and the Florida Turnpike. Free-flow driving times between Miami and Orlando are estimated at approximately 4 hours 15 minutes along I-95 and at 3 hours 50 minutes along the Florida Turnpike, which is a toll road. Travel times during congested peak periods can be substantially greater. Driving time between Miami and Orlando can take as long as five hours compared to our travel time of approximately 3 hours 15 minutes.

Air, rail and bus account for a small proportion of trips between the Orlando and Miami. Most passengers traveling by air on the more than thirty daily flights between Miami and Orlando are connecting to another destination. Two Amtrak trains, the Silver Meteor and the Silver Star, each run once daily between Orlando and Southeast Florida. The Silver Meteor, which is the fastest because it does not make a detour to Tampa, takes about 3 hours 45 minutes from Orlando to West Palm Beach and 5 hours 35 minutes from Orlando to Miami. We expect our travel time to be superior to the Silver Meteor, with an estimated travel time of two hours from Orlando to West Palm Beach and about three hours from Orlando to Miami. Additionally, we can operate up to 32 daily departures, providing more flexibility to potential customers than Amtrak’s services.

Travel within Southeast Florida is primarily by car. Between Miami and West Palm Beach, the Florida Turnpike runs parallel with I-95. Driving from Miami to West Palm Beach typically takes about 1 hour 20 minutes on I-95 and 1 hour 30 minutes on the Florida Turnpike. Driving time between Miami and Fort Lauderdale is about 35 minutes while the drive from Fort Lauderdale to West Palm Beach takes about 50 minutes. During congested peak periods it is not uncommon for these travel times to increase by 30 to 50 percent due to incidents or weather making journey and arrival times during these key periods unreliable. Driving time between Miami and West Palm Beach at peak times can take two or more hours, compared to Virgin Trains’ travel time of approximately one hour.

The other main alternative mode of transportation between Miami and West Palm Beach is through Tri-Rail, a commuter rail line run by SFRTA that links Miami, Fort Lauderdale and West Palm Beach. The 72-mile line has 18 stops and an annual ridership of 4.3 million. Our service linking Miami, Fort Lauderdale and West Palm Beach will only make stops at these three stations, providing a faster alternative for passengers looking to travel to these destinations.

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Comparison of Travel Times
(All Times Are Approximate)

 
Virgin
Trains
Car
Amtrak
Tri-Rail
 
 
 
 
Miami to Orlando
3 hours 15 minutes
3 hours 50 minutes
(without traffic)
   
5 hours
(with traffic)
5 hours 35 minutes
N/A
 
 
 
 
 
Miami to West
Palm Beach
1 hour
1 hour 20 mins
(without traffic)
   
2 hours
(with traffic)
N/A
1 hour 45 minutes
 
 
 
 
 
Orlando to Tampa
1 hour
1 hour 30 minutes
2 hours 5 minutes
(Silver Star)
N/A

In addition, we believe we can achieve profitability by charging ticket prices that are lower than those of established express passenger rail systems and thereby capturing a higher percentage of the travelers in our markets. We currently charge fares that are substantially lower than those charged by established express rail systems over comparable distances. For example, standard passenger service fares on Amtrak’s Acela service, the most comparable intercity service in the United States to our service, average approximately $180 for short distance trips, such as New York to Philadelphia, while we expect to charge an average of approximately $50 for our Miami to West Palm Beach service; Acela service for long distance trips such as New York to Washington, average approximately $300, compared to our expected average fare of approximately $100 for our Miami to Orlando service. We do not believe we compete directly with Amtrak’s non-Acela service, as that service has significantly less frequent departures and significantly longer travel times compared to our Florida passenger rail service. Moreover, we believe our fares are highly competitive relative to the cost of travel for the same routes via other modes such as driving, rideshare services and flying. The average cost of a next day flight between Miami and Orlando is approximately $160, and the average cost of rideshare service between Miami and Orlando is approximately $300, both higher than our expected fares. An individual traveling on an airline ticket purchased on this timeline or traveling on their own via rideshare may thus experience significant savings by using our passenger rail service. We expect to achieve our revenue projections by capturing approximately 2.0% of the estimated addressable travel market between Miami and Tampa, which is significantly lower than the approximately 10-30% market share captured by established rail systems such as Acela and Italo. We believe that our relatively lower fares will drive ridership in the early stages of our business and that there is a compelling opportunity to increase both fares and ridership in line with industry levels as our business matures.

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Comparison of Travel Cost
(All Costs Are Estimates of Average Fares)

 
Virgin Trains
Amtrak
Air
(Next Day Flight)
Rideshare Service
(Single Passenger)
 
 
 
 
 
Miami to Orlando
$100 per passenger
$100 per passenger
$160
$300
 
 
 
 
 
Miami to West
Palm Beach
$50 per passenger
N/A
N/A
$100
 
 
 
 
 
Orlando to Tampa
$35 per passenger
$30 per passenger
N/A
$100

We will face similar competition with respect to our operations between Orlando and Tampa, Florida, upon the completion of the Tampa Expansion. We will also face competition in any markets outside of Florida where we seek to expand our operations, including Las Vegas and Southern California.

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INDEPENDENT ADVISOR REPORTS

Louis Berger was engaged to prepare the Florida Ridership and Revenue Study in its capacity as an independent ridership and revenue advisor and also engaged to prepare the Florida Operations and Maintenance and Ancillary Revenue Report in its capacity as an independent operations and maintenance and ancillary revenue advisor. The Florida Ridership and Revenue Study addresses the corridor from Miami to Orlando and Orlando to Tampa. The Florida Operations and Maintenance and Ancillary Revenue Report addresses the corridor from Miami to Orlando. We refer to the Florida Ridership and Revenue Study and the Florida Operations and Maintenance and Ancillary Revenue Report collectively as the “Independent Advisor Reports.”

Matters addressed in the Independent Advisor Reports are based on various assumptions and methodologies and are subject to certain qualifications. Reference is hereby made to the entire Independent Advisor Reports for such important methodologies, qualifications and assumptions. You should read carefully the Independent Advisor Reports, copies of which have been filed as an exhibit to the registration statement of which this prospectus is a part and are publicly available at www.sec.gov. See “Additional Information.”

Florida Ridership and Revenue Study

The Florida Ridership and Revenue Study was commissioned by us and conducted by Louis Berger. We utilize estimates of ridership, average fares and other conclusions and analyses from the Florida Ridership and Revenue Study, but in light of our updated business and management’s estimates, we have made additional adjustments to certain items to account for changing market conditions. Louis Berger has not verified our management's adjustments.

Subject to the information and qualifications contained and assumptions made in the Florida Ridership and Revenue Study and as of the date of such report, we summarize the findings to be:

Substantial “Addressable Market” — Hundreds of millions of trips are taken annually between the four cities that will be served by our passenger rail service. Louis Berger’s study included a determination of the portion of these total trips that both originate and terminate within a defined distance of our passenger rail stations (a station “catchment area”). Our addressable market is assumed to include only those trips beginning and ending within station catchment areas, as further defined in the Florida Ridership and Revenue Study. Based upon detailed analysis, Louis Berger estimates the total potential addressable market of travelers across our Miami to Tampa corridor to be approximately 413 million trips annually.
Challenging Intercity Trip — At a distance of approximately 235 miles, the journey from Orlando to Miami is relatively short for air travel (with total travel time disproportionately long for the distance given airport security and delays) and relatively long for an auto trip, where traffic congestion can make the four to five hour trip unpleasant and unreliable. Travel volumes on key highways connecting Central and Southeast Florida are expected to exceed capacity by 2030, resulting in further delays and reduction in reliability.
Demonstrated Market Travel Growth — Intercity travel on the Florida Turnpike between Orlando and Miami grew by an average of 3.2% per year from 2001 to 2016. Average annual growth on I-95 from 2001 to 2015 was approximately 2.1%.
Demonstrated Market Demographic Growth — In the past 30 years, population in the market area has grown by an annual average of 2.5%, and employment has grown by an annual average of 3%. Furthermore, there has been strong growth in the urban areas within one mile of our passenger rail stations, with annual population growth ranging from 2% to 5% since 1990.
No Comparable Service — Our passenger rail service can provide travel time savings of 25% to 50% when compared to existing surface modes (auto, bus and rail) and, with a journey time of around three hours from Orlando to Miami, is competitive with air on door-to-door travel times. There is also no privately owned passenger rail system in the United States that offers a comparable level of services and amenities as on our state-of-the-art trainsets.
Willingness to Pay — The fares used in the Ridership and Revenue Study are supported by two primary research efforts — a stated preference survey and a pricing research study — which confirmed customer

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willingness to pay for our service at the price points utilized. The fares are highly competitive compared to existing modes of travel when time, tolls, and travel costs are considered, and the fares are comparable to those charged by other successful rail services in the United States.

Long-Standing Interest — Given the profile of the travel market and the central location of the rail line, there has been interest among stakeholders and the public in developing passenger rail service on the Florida east coast corridor for decades.

Florida Operations and Maintenance and Ancillary Revenue Report

The Florida Operations and Maintenance and Ancillary Revenue Report was commissioned by us and conducted by Louis Berger. We utilize estimates, conclusions and analyses from the Florida Operations and Maintenance and Ancillary Revenue Report, but in light of our updated business and management’s estimates, we have made additional adjustments to items, such as ancillary revenue, to account for changing market conditions. Louis Berger has not verified our management's adjustments.

Subject to the information and qualifications contained and assumptions made in the Florida Operations and Maintenance and Ancillary Revenue Report and as of the date of such report, we summarize the findings to be:

Our operation and maintenance cost estimates are an accurate reflection of our business plan and our consummated contractual agreements.
Our ancillary revenue estimates are reasonable in the context of our business model.

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MANAGEMENT

Director Nominees, Executive Officers and Officers

Set forth below are the names, ages and positions of our directors, executive officers and officers as of January 29, 2019.

Name
Age
Position
Wesley R. Edens
57
Chairman Nominee
Evan M. Lovell
49
Director Nominee
Anthony A. Marnell II
69
Director Nominee
W. Porter Payne, Jr.
44
Director Nominee
Patrick Goddard
42
President (Executive Officer)
Jeff Swiatek
50
Chief Financial Officer (Executive Officer)
Michael Cegelis
62
Executive Vice President of Infrastructure Development (Executive Officer)
Chris Sariego
51
Chief Operating Officer
Ravneet Bhandari
48
Chief Commercial Officer
Gary L. Smith
53
Chief Accounting Officer
Mike Salzman
38
Chief Development Officer
Myles Tobin
64
General Counsel
Scott Sanders
57
Executive Vice President of Development and Construction
Adrian Share
57
Executive Vice President of Rail Infrastructure
Olivier Picq
50
Chief Transportation Officer
Tom Rutkowski
44
Chief Mechanical Officer

Wesley R. Edens

Chairman Nominee

Mr. Edens will be appointed Chairman. He is the Co-Chief Executive Officer of Fortress and has been a member of the board of directors of Fortress since November 2006. Mr. Edens has been a member of the Management Committee of Fortress since co-founding Fortress in May 1998. Investment funds managed by affiliates of Fortress indirectly owned substantially all of the voting interests in the Company as of September 30, 2018. Mr. Edens is responsible for oversight of Fortress’ private equity and publicly traded alternative investment businesses. He is the Chairman of the board of directors of each of New Media Investment Group Inc. (a publisher of print and online media), and Drive Shack Inc. (an owner and operator of golf-related leisure and entertainment business). He is a director of Mapeley Limited (a large full service real estate outsourcing and investment company in the United Kingdom).

Mr. Edens previously served on the board of the following publicly traded companies and registered investment companies: New Senior Investment Group Inc. (a real estate investment trust with a diversified portfolio of senior housing properties located across the United States) from October 2014 to January 2019; OneMain Holdings, Inc. (a leading consumer finance company) from November 2010 to June 2018; Fortress Transportation and Infrastructure Investors LLC (which owns and acquires high quality infrastructure and equipment essential for the transportation of goods and people globally) from May 2015 to May 2016; Intrawest Resorts Holdings Inc. (a resort and adventure company) from January 2014 to July 2017; Gaming and Leisure Properties, Inc. (an owner and operator in the gaming and racing industry) from October 2013 to October 2016; Nationstar Mortgage Holdings Inc. (a residential mortgage loan originator and servicer) from 2012 to July 2016; New Residential (a real estate investment trust primarily focused on investing in residential real estate related assets) from April 2013 to May 2016; Brookdale Senior Living Inc. from September 2005 to June 2014; GAGFAH S.A. from September 2006 to June 2014; PENN National Gaming Inc. from October 2008 to November 2013; GateHouse Media Inc. from June 2005 to November 2013; Aircastle Limited from August 2006 to August 2012; RailAmerica Inc. from November 2006 to October 2012; Eurocastle Investment Limited from August 2003 to November 2011; Whistler Blackcomb Holdings Inc. from October 2010 to November 2012; Fortress Registered Investment Trust from December 1999 until deregistered with the SEC in September 2011; and FRIT PINN LLC from November 2001 until deregistered with the SEC in September 2011.

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Prior to co-founding Fortress, Mr. Edens was a partner and managing director of BlackRock Financial Management Inc. (an investment management firm), where he headed BlackRock Asset Investors, a private equity fund. In addition, Mr. Edens was formerly a partner and managing director of Lehman Brothers.

Mr. Edens’ extensive credit, private equity finance and management expertise, extensive experience as an officer and director of public companies and his deep familiarity with our Company led the Board to conclude that Mr. Edens should serve as a director.

Evan M. Lovell

Director Nominee

Evan M. Lovell will be appointed to of our board of directors by VEL pursuant to the Virgin License Agreement. He is the Chief Investment Officer of the Virgin Group. He is responsible for managing the investment strategy and execution for the Virgin Group’s investments and portfolio globally and serves on the board of directors of a number of Virgin companies. From 2008 to 2012, Mr. Lovell was the founding partner of Virgin Green Fund, a private equity fund investing in the energy and resource sector. From 1998 to 2008, Mr. Lovell served as an investment professional at TPG Capital, where he also served on the board of directors of a number of TPG portfolio companies. Prior to joining TPG, Mr. Lovell served as Director of International Development for Culligan International Inc., a water filtration company, when it was owned by Apollo Global Management, and was Assistant to the Chairman for International Development at Astrum International, the holding company for Samsonite and American Tourister Luggage, Botany 500 Menswear, Culligan, Anvil Knitwear and Pet Specialties. Mr. Lovell holds a Bachelor of Arts from the University of Vermont in Political Science and International Affairs.

Anthony A. Marnell II

Director Nominee

Anthony A Marnell II will become a member of our board of directors. He has been the Founder and Chief Executive Officer of Marnell Companies, a premier resort developer and master builder, since 1982. He has guided Marnell Corrao Associates and Marnell Architecture to become one of the world’s leading design and build teams in the hotel and casino sector. He has designed buildings for, among others, Kirk Kerkorian, Steve Wynn, Benny Binion, The Boyd’s, Barron Hilton, Henry Gluck, Cliff Perlman, Jim Murren, Terry Lanni, Disney and many others. He is renowned in the design-build industry and has received a number of awards. In Las Vegas, his experience has included design and construction roles in properties such as Caesars Palace, Excalibur, Mirage, The Park, Treasure Island, Bellagio, New York New York, Wynn, Rio Hotel and The M Resort. He currently serves as a Manager to Marnell Gaming. From 2000 to 2012, he was a co-founding member and Director of TRIRIGA Facility Management Software, now IBM TRIRIGA. From 1989 to 1999, he was the developer, designer, builder, Chairman and Chief Executive Officer of the Rio Hotel and Casino public company. He is Trustee Emeritus of the University of Nevada Las Vegas Foundation Board, a member of the USC Board of Councilors School of Architecture, the National Italian American Foundation and an advisor to Ducks Unlimited. He earned a Bachelor of Science degree in architecture from the University of Southern California.

W. Porter Payne, Jr.

Director Nominee

W. Porter Payne, Jr.will become a member of our board of directors. He is a founding member, owner and Chief Executive Officer of Centennial Holding Company, LLC (“Centennial”), a provider of real estate investment services, since 2004. He is responsible for strategic direction and overall leadership of Centennial. As Chief Executive Officer of Centennial, he oversees all investments, investor relations, capital raising, operational and business functions. Prior to Centennial, Mr. Payne held numerous senior executive positions with WebMD Corporation (“WebMD”) from 1997 to 2004. He played a key role in the growth of WebMD and in its private equity and acquisitions activity. Mr. Payne holds a Bachelor of Arts from the University of Georgia in International Business.

Patrick Goddard

President (Executive Officer)

Patrick Goddard has served as President since December 2017, and prior to that served as Chief Operating Officer since March 2017, and prior to that served as Executive Vice President of Operations from October 2016 to March 2017. Mr. Goddard is responsible for all aspects of Virgin Trains, including safety, development, commercial,

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operations and the guest experience. Prior to joining the Company, Mr. Goddard was the Chief Operating Officer for Trust Hospitality LLC from January 2011 to September 2016, in charge of the business for a portfolio of more than 35 properties and has extensive experience with opening new hotels, many of which have been entrepreneurial and start-up ventures launched in South Florida. Prior to that, Mr. Goddard was the President and Managing Director of Ocean Blue Hospitality, LLC, a consultancy firm that specialized in hotel openings and sales, marketing and revenue management for independent hotels. While there, Mr. Goddard repositioned the Clevelander Hotel and also worked on the Grand Beach Hotel, Savoy Hotel and the Raleigh, among others. Mr. Goddard also held management positions with Rosewood Hotels & Resorts, L.L.C. and Loews’ Hotels & Co, as well as Hilton Hotels & Resorts, Jurys Inns Hotel Group and other independent hotels and restaurants in Europe. Mr. Goddard has over 18 years of experience in hospitality and consulting. Mr. Goddard holds a Higher Diploma Hospitality Management from Dublin Institute of Technology and also holds a Bachelor of Science Strategic Management from Trinity College Dublin.

Jeff Swiatek

Chief Financial Officer (Executive Officer)

Jeff Swiatek has served as Chief Financial Officer since June 2018. Mr. Swiatek oversees the financial aspects of the development and operations of the Company. Prior to joining the Company, Jeff served in various senior roles at American International Group, Inc. (“AIG”), a multinational finance and insurance corporation, from 2002 to 2018. Prior to AIG, he worked in the investment banking department of Goldman Sachs Group, Inc., a multinational investment bank and financial services company, from 1998 to 2001. Mr. Swiatek has over 25 years of experience in international corporate finance and strategy. Mr. Swiatek holds a Bachelor of Arts in Economics and Asian Studies from Dartmouth College and also holds a Master of Business Administration degree from the University of Chicago Booth School of Business.

Michael Cegelis

Executive Vice President of Infrastructure Development (Executive Officer)

Michael Cegelis has served as Executive Vice President of Infrastructure Development since September 2017. Mr. Cegelis is responsible for overseeing the infrastructure development of the Company’s future expansions, including the North Segment. He previously served as senior vice president at American Bridge Company, Inc., an engineering firm that specializes in building and renovating bridges and other large civil engineering projects, from May 1995 to September 2017. Mr. Cegelis holds a Bachelor of Science from Indiana University of Pennsylvania and completed an executive education program at the Massachusetts Institute of Technology. Mr. Cegelis is a Certified General Contractor, unrestricted, in the State of Florida.

Chris Sariego

Chief Operating Officer

Chris Sariego has served as Chief Operating Officer since September 2018. Mr. Sariego is responsible for all aspects of the Company’s day-to-day management and operations. Prior to joining the Company, he was the Vice-President and General Manager for SBE Entertainment Group, a lifestyle hospitality company that develops, manages and operates award-winning luxury hotels, residences, restaurants and entertainment brands such as Delano, SLS, Mondrian and more. Prior to that, Mr. Sariego was Senior Vice-President and General Manager for Atlantis in the Bahamas from January 2013 to March 2017, where he served as the President for the Condominium Association and as President for The Blue Project Foundation, which is committed to sustaining, protecting and supporting the health of the oceans. In addition, Mr. Sariego held several positions as Managing Director and General Manager with the Ritz-Carlton from 2007 to January 2013, Marriott International from 2004 to 2007 and Intercontinental Hotels and Resorts from 1999 to 2004.

Mr. Sariego was a member of the Board of Directors for the Greater Miami and The Beaches Hotel Association from March 2017 to August 2018. He holds a Master of Business Administration from Universidad del Desarrollo in Santiago Chile, a Bachelor’s Degree in Hospitality Management from Florida International University in Miami, an International Business degree from Florida International University in Miami and he completed a Hotel General Manager Program at Cornell University in Ithaca, New York.

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Ravneet Bhandari

Chief Commercial Officer

Ravneet Bhandari has served as Chief Commercial Officer since June 2018. Mr. Bhandari is responsible for the Company’s revenue generation and consumer-facing endeavors, including the marketing, revenue management, sales, business development and strategic partnership departments. Prior to joining the Company, he served as Chief Executive Officer and co-founder of LodgIQ, LLC, a technology startup that develops revenue management software, from September 2015 to June 2018 and the Chief Commercial Officer at Nor1, Inc., which provides machine learning based merchandizing software, from October 2012 to August 2015. Mr. Bhandari holds a Bachelor of Arts in Economics from the University of Delhi, India and also holds a dual Master of Business Administration in Marketing and Finance from ESSEC Business School in France.

Gary Smith

Chief Accounting Officer

Gary Smith has served as Chief Accounting Officer since September 2018. Mr. Smith oversees the financial accounting aspects of the Company, including all corporate financial reporting, maintenance of internal controls and overseeing of compliance policies and procedures.

Prior to joining the Company, he served as the Corporate Controller for Loews Hotels & Co. from September 2016 to August 2018. He also held senior technical accounting and operational controllership roles with the Commercial Real Estate Division of GE Capital from 2010 to September 2016, served as the Deputy Controller for SiriusXM Radio from 2009 to 2010 and served as Vice President and Technical Accounting Advisor at American Express from 2006 to 2009. He also served at Ernst & Young in various roles from 1994 to 2006, including in the firm’s National Accounting Standards Practice from 2000 to 2006. He began his professional career in public accounting in 1989 with Bond Beebe, a certified public accounting and advisory services firm based in Washington DC.

Mr. Smith holds a Bachelor in Business Administration in Accounting from the University of Texas at Arlington. He is a certified public accountant and member of the American Institute of Certified Public Accountants.

Mike Salzman

Chief Development Officer

Mike Salzman has served as Chief Development Officer since September 2018. He is responsible for all development for the Company. He will lead Phase II expansion from West Palm Beach to Orlando and expansion into other markets, including all surrounding transit-oriented development opportunities. Prior to joining the Company, he served as Senior Vice President and Head of Americas Development for Caesars Entertainment Corporation, a gaming and entertainment company, from 2009 to September 2018. Mr. Salzman holds a Master of Business Administration with a concentration in Real Estate Management and Finance from the Kellogg School of Management at Northwestern University and holds a Bachelor of Arts degree in Economics from Dartmouth College.

Myles Tobin

General Counsel

Myles Tobin has served as General Counsel since June 2014. He is responsible for directing the Company’s legal affairs and providing counsel on all significant legal issues. Prior to joining the Company, Mr. Tobin served as partner in Fletcher and Sippel LLC, a Chicago law firm, from 2002 to June 2014. He also previously served as Vice President of U.S. Legal Affairs for the Canadian National Railway Company (“CN”), a Canadian freight railway company, from 1998 to 2002. Prior to its merger with CN, Mr. Tobin served as General Counsel of Illinois Central Railroad, a railroad in the central United States. Mr. Tobin also served as counsel for the Chicago and North Western Transportation Company, a railroad in the Midwestern United States. Mr. Tobin holds a Juris Doctorate degree from Northwestern University School of Law and also holds a Bachelor of Arts in Political Science from Northwestern University. He is admitted to practice law in the Supreme Court of the United States, the courts of the State of Illinois, the Seventh Circuit Court of Appeals and numerous other state and federal courts.

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Scott Sanders

Executive Vice President of Development and Construction

Scott Sanders has served as Executive Vice President of Development and Construction since March 2014. Mr. Sanders is responsible for the overall design and construction of station infrastructure for the Miami, Fort Lauderdale and West Palm Beach stations, as well as the Company’s transit-oriented development program throughout South Florida. Prior to joining the Company, he was Senior Vice President of Design and Construction for MGM Hospitality, LLC (“MGM Hospitality”), an operator of hotels, resorts and residences around the globe, from 2008 to March 2014. Prior to MGM Hospitality, he served as Vice President of Strategic Programming & Design for The St. Joe Company, a land development company, from 2001 to 2008. Mr. Sanders holds a Bachelor of Science in Architecture from Texas Tech University and is a member of the American Institute of Architects.

Adrian Share

Executive Vice President of Rail Infrastructure

Adrian Share has served as Executive Vice President of Rail Infrastructure since January 2015. Mr. Share is responsible for overseeing the design, engineering and construction of the rail system and station platforms, and managing the team of engineers and contractors who will complete the system improvements for the Florida passenger rail system. He previously served as Florida District Leader and Program Manager at HNTB Corporation, an architecture, civil engineering consulting and construction management firm, from 2010 to January 2015. Mr. Share also served as the Florida High-Speed Rail Project Manager from 2008 to 2011. Mr. Share holds a Bachelor of Science in Civil Engineering from Tulane University and also holds a Master of Business Administration from Northeastern University. He is a Professional Engineer in Florida and previously served as the Chair of the Transportation Committee of the Florida Institute of Consulting Engineers.

Olivier Picq

Chief Transportation Officer

Olivier Picq has served as Chief Transportation Officer since July 2015. Mr. Picq is responsible for planning and implementing the train operating strategy to meet the performance goals of the Company, including compliance with all applicable federal regulations to support safe and efficient train service. Mr. Picq previously worked as project director for the French railroads in various capacities over the past 20 years, including at KEOLIS North America, a subsidiary of the Société nationale des chemins de fer français (“SNCF”), the French national railroad company, from August 2013 to July 2015 and SNCF from September 1992 to August 2013. Mr. Picq holds a postgraduate diploma in Mathematics and Econometrics from the School of Economics (France) and also holds a postgraduate diploma in Engineering and Economics (France).

Tom Rutkowski

Chief Mechanical Officer

Tom Rutkowski has served as Chief Mechanical Officer since November 2014. Mr. Rutkowski is responsible for the design and delivery of our rolling stock fleet for the Florida passenger rail system, as well as the design and delivery of the West Palm Beach and Orlando vehicle maintenance facilities. Prior to joining the Company, Mr. Rutkowski served for 17 years at the New Jersey Transit Corporation, the state-owned public transportation system that serves New Jersey along with portions of New York and Pennsylvania, most recently in the position of General Superintendent – Equipment from August 2007 to November 2014.

Board of Directors

In connection with this offering, we will adopt a certificate of incorporation and bylaws. Our certificate of incorporation will provide that our board shall consist of not less than three and not more than fifteen directors as the board of directors may from time to time determine. Our board of directors will be divided into three classes that are, as nearly as possible, of equal size. Each class of directors will be elected for a three-year term of office, but the terms are staggered so that the term of only one class of directors expires at each annual general meeting. The initial terms of the Class I, Class II and Class III directors will expire in 2020, 2021 and 2022, respectively. We have agreed, pursuant to the Virgin License Agreement, to provide VEL with the right to appoint one director to our board of directors. Mr. Lovell will serve as a Class I director, Messrs. Marnell and Payne will each serve as a Class II director and Mr. Edens will serve as a Class III director. All officers serve at the discretion of the board of directors.

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Under the Stockholders’ Agreement, we will be required to take all reasonable actions within our control (including nominating as directors the individuals designated by the Virgin Trains Stockholder that otherwise meet our reasonable standards for board nominations), subject to applicable regulatory and listing requirements (including the director independence requirements of the Nasdaq), so that up to a majority (and, in some circumstances, a majority plus one, depending upon the size of the board and the level of ownership of the Virgin Trains Stockholder and certain affiliates of Fortress and its permitted transferees) of the members of our board of directors are individuals designated by the Virgin Trains Stockholder. Upon completion of this offering, our board of directors will consist of four directors, three of whom will be “independent” as defined under the rules of the Nasdaq. Our board of directors has determined that Messrs. Lovell, Marnell and Payne will be independent directors.

Our certificate of incorporation will not provide for cumulative voting in the election of directors, which means that the holders of a majority of the outstanding shares of common stock can elect all of the directors standing for election, and the holders of the remaining shares will not be able to elect any directors, subject to our obligations under our Stockholders’ Agreement discussed in the previous paragraph.

Committees of the Board of Directors

Audit Committee

We are required to have an audit committee of at least three members, and all of its members are required to meet the independence and experience standards established by the Nasdaq and the Securities Exchange Act of 1934, as amended (the “Exchange Act”), subject to certain transitional relief during the one-year period following consummation of this offering. We will establish an audit committee compliant with Nasdaq and SEC rules prior to the completion of this offering and expect Mr. Payne will serve as a member of such committee. SEC rules also require that a public company disclose whether or not its audit committee has an “audit committee financial expert” as a member. We are continuing our search to hire a qualified financial expert to serve on our board of directors and audit committee.

The audit committee will assist the board of directors in its oversight of the integrity of our financial statements and our compliance with legal and regulatory requirements and company policies and controls. The audit committee will have the sole authority to (1) retain and terminate our independent registered public accounting firm, (2) approve all auditing services and related fees and the terms thereof performed by our independent registered public accounting firm, and (3) pre-approve any non-audit services and tax services to be rendered by our independent registered public accounting firm. The audit committee will also be responsible for confirming the independence and objectivity of our independent registered public accounting firm. Our independent registered public accounting firm will be given unrestricted access to the audit committee and our management.

Nominating and Corporate Governance Committee

Because we intend to list our common stock on the Nasdaq, we will not be required to have a nominating and corporate governance committee as of the closing of this offering. However, we intend to establish a nominating and corporate governance committee. This committee will identify, evaluate and recommend qualified nominees to serve on our board of directors, develop and oversee our internal corporate governance processes and maintain a management succession plan. In connection with the formation of this committee, we expect to adopt a nominating and corporate governance committee charter defining the committee’s primary duties in a manner consistent with the rules of the SEC and the Nasdaq or market standards.

Compensation Committee

Because we will be a “controlled company” as of the closing of this offering within the meaning of the Nasdaq corporate governance standards, we will not be required to have a compensation committee. However, we intend to establish a compensation committee to ease the administrative burden on the full board. Our compensation committee will establish and direct our compensation program for our officers and certain other employees, including administration of our incentive compensation and benefit plans, to the full extent permitted pursuant to those plans and arrangements. So long as we continue to be a controlled company, our compensation committee is not required to be comprised solely of independent directors. As a result, the board will retain authority to grant and amend awards under our omnibus incentive plan that are comprised of, or settled in, our common stock to our officers who are subject to the reporting obligations of Section 16 of the Exchange Act and members of the Board. In connection with the formation of this committee, we expect to adopt a compensation committee charter defining the committee’s primary duties and authority.

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Code of Ethics

We will adopt a Code of Business Conduct and Ethics, which will be posted on “About Us—Policies” of our website at www.virgintrainsusa.com, that applies to all employees and each of our directors and officers, including our principal executive officer and principal financial officer. The purpose of the Code of Business Conduct and Ethics will be to promote, among other things, honest and ethical conduct, full, fair, accurate, timely and understandable disclosure in public communications and reports and documents that we file with, or submit to, the SEC, compliance with applicable governmental laws, rules and regulations, accountability for adherence to the code and the reporting of violations thereof.

We will also adopt a Code of Ethics for Principal Executive and Senior Financial Officers that is applicable to our Chief Executive Officer, Chief Financial Officer, and Chief Accounting Officer and Controller. The Code of Ethics for Principal Executive and Senior Financial Officers will be posted on “About Us—Policies” of our website at www.virgintrainsusa.com. We intend to post any amendments to the Code of Ethics for Principal Executive and Senior Financial Officers and any waivers that are required to be disclosed on our website.

Executive Compensation

This section sets forth the compensation of our named executive officers (“NEOs”) for the fiscal year ended December 31, 2018 and December 31, 2017 where applicable. Our NEOs for the fiscal year ended December 31, 2018, which consist of our principal executive officer and our two other most highly compensated executive officers who were serving as executive officers as of December 31, 2018, are as follows:

Patrick Goddard, President;
Michael Cegelis, Executive Vice President of Infrastructure Development; and
Jeff Swiatek, Chief Financial Officer.

Summary Compensation Table for 2018

The following table summarizes the total compensation earned by each of our NEOs in fiscal year 2018 and fiscal year 2017, where applicable.

Name and Principal Position
Year
($)
Salary
($)
Bonus
($)(4)
Stock
Awards
($)(5)
All Other
Compensation
($)(6)
Total
($)
Patrick Goddard,
 
2018
 
 
401,099
 
 
 
 
 
 
 
6,348
 
 
407,447
 
President(1)
 
2017
 
 
289,902
 
 
500,000
 
 
 
 
4,821
 
 
794,723
 
Michael Cegelis,
 
2018
 
 
350,987
 
 
 
 
 
 
 
10,598
 
 
361,585
 
Executive Vice President of Infrastructure Development(2)
 
2017
 
 
116,667
 
 
400,000
 
 
500,000
 
 
1,287
 
 
1,017,954
 
Jeff Swiatek,
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Chief Financial Officer(3)
 
2018
 
 
204,231
 
 
 
 
 
2,000,000
 
 
52,668
 
 
2,256,899
 
(1) Mr. Goddard began serving as our principal executive officer through his role as our President effective as of January 1, 2018.
(2) Mr. Cegelis commenced employment with the Company on September 5, 2017.
(3) Mr. Swiatek commenced employment with the Company on June 1, 2018.
(4) The total amounts of the annual cash bonuses payable to our NEOs for 2018 are not calculable as of the date of this prospectus. We expect to determine the total amounts such annual cash bonuses on or before March 15, 2019, and we will file a Current Report on Form 8-K with this information when those amounts are determined.
(5) The amount reported in this column represents the aggregate grant date fair value of restricted stock units granted to Mr. Swiatek during 2018 and to Mr. Cegelis during 2017, in each case calculated in accordance with FASB ASC Topic 718. The assumptions used in calculating the grant date fair value of the restricted stock units reported in this column are set forth in Note 10 to our Condensed Combined Financial Statements, September 30, 2018 (unaudited).
(6) The amounts in this column for each NEO with respect to 2018 include employer matching contributions under our 401(k) plan, company-paid group term life insurance premiums and $50,000 of relocation benefits payable to Mr. Swiatek.

Employment Arrangements

Patrick Goddard. On September 21, 2016, we entered into an employment letter with Mr. Goddard in connection with his commencement of employment on October 3, 2016. The employment letter provides that Mr. Goddard will receive an annual base salary of $275,000 (which was increased to $300,000 effective as of

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March 1, 2017), and a target annual bonus equal to 75% of his base salary. Mr. Goddard was eligible to receive a minimum guaranteed bonus of $25,000 for 2016 and a minimum guaranteed bonus of $137,500 for 2017. The employment letter also provided for a grant of restricted stock units with a grant date value equal to $250,000 vesting in three equal installments on October 3, 2017, October 3, 2018 and October 3, 2019.

Mr. Goddard’s employment letter also provides that if his employment is terminated by us without “cause” (as defined in the employment letter), then subject to his execution of a general release of claims in a form acceptable to us, which may include non-compete and non-solicitation covenants, he will receive (i) six months of base salary if such termination occurs during his first twelve months of employment and (ii) three months of base salary if such termination occurs after during months thirteen through eighteen of his employment.

Michael Cegelis. On August 1, 2017, we entered into an employment letter with Mr. Cegelis in connection with his commencement of employment on September 5, 2017. The employment letter provides that Mr. Cegelis will receive an annual base salary of $350,000, and a target annual bonus equal to 125% of his base salary. Mr. Cegelis was eligible to receive a minimum guaranteed bonus of $400,000 for 2017. The employment letter also provided for a grant of restricted stock units with a grant date value equal to $500,000 vesting in three equal installments on each of the first three anniversaries of the grant date.

The employment letter with Mr. Cegelis also provides that if his employment is terminated by us without “cause” (as defined in the employment letter) or by Mr. Cegelis for “good reason” (as defined in the employment letter), then subject to his execution of a general release of claims, he will receive continued payment of his base salary for 12 months following the date of termination.

Jeff Swiatek. On June 1, 2018, we entered into an employment letter with Jeff Swiatek to serve as our Chief Financial Officer. The employment letter provides that Mr. Swiatek will receive an annual base salary of $350,000, a target annual cash bonus equal to $400,000 and a target annual restricted stock unit grant with a grant date value equal to $400,000.

The employment letter provides for an initial grant of 817 restricted stock units, which are subject to vesting in two equal installments on June 1, 2020 and June 1, 2021, subject to accelerated vesting of the portion of the restricted stock units that would have vested in the next eighteen months upon a termination by us without “cause” (as defined in the employment letter) or a termination by Mr. Swiatek for “good reason”(as defined in the employment letter and summarized below). The employment letter also provides for a grant of options to acquire 4,085 common shares to be made upon the completion of this offering with an exercise price equal to the offering price and subject to the same vesting terms as the initial grant of restricted stock units.

The employment letter provides that if Mr. Swiatek’s employment is terminated by us without cause or by Mr. Swiatek for good reason, he will be eligible to receive continued base salary payments for 12 months following termination and a pro-rated annual cash bonus for the year of termination, so long as he executes a release of claims in favor of us and does not solicit our employees or independent contractors.

Bonus Arrangements for 2018

We have not yet determined the total amount of annual cash bonuses payable to our NEOs for 2018 as of the date of this prospectus. We intend to disclose the total amount of those bonuses as required in our filings with the SEC in 2019. We expect to pay the annual cash bonuses relating to 2018 to our NEOs on or before March 15, 2019.

Retirement Benefits

Each of our named executive officers was eligible to participate in our 401(k) defined contribution retirement plan in 2018. The 401(k) plan provides for employer matching contributions to eligible employees in the following amounts: a dollar for dollar match on the first $1,200 contributed by the participant, after which we match twenty-five cents per dollar of contribution up to 10% of the participant’s total compensation or the applicable Internal Revenue Code limits, whichever is less. Participants hired prior to January 1, 2017 are immediately vested in the full amount of the employer match. Participants hired after December 31, 2016, are subject to a three-year vesting schedule in the following increments: 35%, 70% and 100%.

The employer matching contributions made to each of our NEOs in 2018 are included above in the “All Other Compensation” column of the Summary Compensation Table for 2018.

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Outstanding Equity Awards at Fiscal Year End for 2018

The following table summarizes the number of outstanding equity awards held by our NEO as of December 31, 2018.

 
Stock Awards
 
Number of
Shares or Units
of Stock That
Have Not Vested
(#)
Market
Value of
Shares or
Units of
Stock That
Have Not
Vested
($)(1)
Patrick Goddard
 
133
(2)
 
2,394
 
Michael Cegelis
 
426
(3)
 
7,668
 
Jeff Swiatek
 
817
(4)
 
14,706
 
(1) The fair market value of a share of our common stock as of December 31, 2018, is based on the assumed initial public offering price of $18.00 per share, which is the midpoint of the range set forth on the cover page of this prospectus.
(2) Represents 133 restricted stock units that are subject to vesting on October 3, 2019.
(3) Represents 426 restricted stock units, of which 213 are subject to vesting on September 5 of each of 2019 and 2020.
(4) Represents 817 restricted stock units, of which 408 are subject to vesting on June 1, 2020 and 409 of which are subject to vesting on June 1, 2021.

Potential Payments and Benefits on Termination

Michael Cegelis. The employment letter with Mr. Cegelis also provides that if his employment is terminated by us without “cause or by Mr. Cegelis for good reason, then subject to his execution of a general release of claims, he will receive continued payment of his base salary for 12 months following the date of termination.

Jeff Swiatek. The employment letter with Mr. Swiatek provides that if Mr. Swiatek’s employment is terminated by us without cause or by Mr. Swiatek for good reason, he will be eligible to receive continued base salary payments for 12 months following termination and a pro-rated annual cash bonus for the year of termination, so long as he executes a release of claims in favor of us and does not solicit our employees or independent contractors.

In addition, the employment letter with Mr. Swiatek provides that if his employment is terminated by us without cause or by Mr. Swiatek for good reason prior to the final vesting date of the initial grant of 817 restricted stock units referenced in the employment letter, then the portion of those restricted stock units subject to vesting that would have vested in the next eighteen months will immediately become vested upon the termination of employment. Once granted, similar termination protections will apply to the initial grant of options referenced in the employment letter.

Virgin Trains 2019 Omnibus Incentive Plan

Introduction

Prior to the completion of this offering, we will adopt the Virgin Trains 2019 Omnibus Incentive Plan. The purposes of the Plan will be to provide additional incentives to selected employees, directors, independent contractors and consultants of Virgin Trains or its affiliates, to strengthen their commitment, motivate them to faithfully and diligently perform their responsibilities and to attract and retain competent and dedicated persons who are essential to the success of our business and whose efforts will impact our long-term growth and profitability. To accomplish these purposes, the Plan will provide for the issuance of options, stock appreciation rights (SARs), restricted stock, restricted stock units, stock bonuses, other stock-based awards and cash awards.

While we intend to issue stock-based awards in the future to employees as a recruiting and retention tool, we have not established specific parameters regarding future grants to our employees. Our board of directors (or the compensation committee of the board of directors, after it has been appointed) will determine the specific criteria surrounding other equity issuances under the Plan. The following description summarizes the expected features of the Plan.

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Summary of Expected Plan Terms

A total number of shares of our common stock equal to 10% of our outstanding shares as of the completion of this offering will be reserved and available for issuance under the Plan, as increased on the first day of each fiscal year beginning in calendar year 2019 by a number of shares of our common stock equal to the excess of 10% of the number of outstanding shares on the last day of the immediately preceding fiscal year, over the number of shares reserved and available for issuance under the Plan as of the last day of the immediately preceding fiscal year.

Shares of our common stock subject to an award under the Plan that remain unissued upon the cancellation, termination or expiration of the award will again become available for grant under the Plan. However, shares of our common stock that are exchanged by a participant or withheld by Virgin Trains as full or partial payment in connection with any award under the Plan, as well as any shares of our common stock exchanged by a participant or withheld by Virgin Trains to satisfy the tax withholding obligations related to any award, will not be available for subsequent awards under the Plan. To the extent an award is paid or settled in cash, the number of shares of our common stock previously subject to the award will again be available for grants pursuant to the Plan. To the extent that an award can only be settled in cash, such award will not be counted against the total number of shares of our common stock available for grant under the Plan.

The Plan will initially be administered by our board of directors, although it may be administered by either our board of directors or any committee of our board of directors, including a committee that complies with the applicable requirements of Section 16 of the Exchange Act and any other applicable legal or stock exchange listing requirements (the board or committee referred to above being sometimes referred to as the plan administrator). The plan administrator may interpret the Plan and may prescribe, amend and rescind rules and make all other determinations necessary or desirable for the administration of the Plan.

The Plan permits the plan administrator to select the officers, employees, non-employee directors, independent contractors and consultants who will receive awards, to determine the terms and conditions of those awards, including but not limited to the exercise price or other purchase price of an award, the number of shares of our common stock or cash or other property subject to an award, the term of an award and the vesting schedule applicable to an award, and to amend the terms and conditions of outstanding awards.

Restricted Stock Units (“RSUs”) and restricted stock may be granted under the Plan. The plan administrator will determine the purchase price, vesting schedule and performance objectives, if any, applicable to the grant of RSUs and restricted stock. If the restrictions, performance objectives or other conditions determined by the plan administrator are not satisfied, the RSUs and restricted stock will be forfeited. Subject to the provisions of the Plan and the applicable individual award agreement, the plan administrator may provide for the lapse of restrictions in installments or the acceleration or waiver of restrictions (in whole or part) under certain circumstances as set forth in the applicable individual award agreement, including the attainment of certain performance goals, a participant’s termination of employment or service or a participant’s death or disability. The rights of RSU and restricted stock holders upon a termination of employment or service will be set forth in individual award agreements.

Unless the applicable award agreement provides otherwise, participants with restricted stock will generally have all of the rights of a stockholder during the restricted period, including the right to vote and receive dividends declared with respect to such restricted stock, provided that any dividends declared during the restricted period with respect to such restricted stock will generally only become payable if the underlying restricted stock vest. During the restricted period, participants with RSUs will generally not have any rights of a stockholder, but, if the applicable individual award agreement so provides, may be credited with dividend equivalent rights that will be paid at the time that shares of our common stock in respect of the related RSUs are delivered to the participant.

We may issue stock options under the Plan. Options granted under the Plan may be in the form of non-qualified options or “incentive stock options” within the meaning of Section 422 of the Internal Revenue Code, as set forth in the applicable individual option award agreement. The exercise price of all options granted under the Plan will be determined by the plan administrator, but in no event may the exercise price be less than 100% of the fair market value of the related shares of our common stock on the date of grant. The maximum term of all stock options granted under the Plan will be determined by the plan administrator, but may not exceed ten years. Each stock option will vest and become exercisable (including in the event of the optionee’s termination of employment or service) at such time and subject to such terms and conditions as determined by the plan administrator in the applicable individual option agreement.

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SARs may be granted under the Plan either alone or in conjunction with all or part of any option granted under the Plan. A free-standing SAR granted under the Plan entitles its holder to receive, at the time of exercise, an amount per share equal to the excess of the fair market value (at the date of exercise) of a share of our common stock over the base price of the free-standing SAR. A SAR granted in conjunction with all or part of an option under the Plan entitles its holder to receive, at the time of exercise of the SAR and surrender of the related option, an amount per share equal to the excess of the fair market value (at the date of exercise) of a share of our common stock over the exercise price of the related option. Each SAR will be granted with a base price that is not less than 100% of the fair market value of the related shares of our common stock on the date of grant. The maximum term of all SARs granted under the Plan will be determined by the plan administrator, but may not exceed ten years. The plan administrator may determine to settle the exercise of a SAR in shares of our common stock, cash, or any combination thereof.

Each free-standing SAR will vest and become exercisable (including in the event of the SAR holder’s termination of employment or service) at such time and subject to such terms and conditions as determined by the plan administrator in the applicable individual free-standing SAR agreement. SARs granted in conjunction with all or part of an option will be exercisable at such times and subject to all of the terms and conditions applicable to the related option.

Other stock-based awards, valued in whole or in part by reference to, or otherwise based on, shares of our common stock (including dividend equivalents) may be granted under the Plan. Any dividend or dividend equivalent awarded under the Plan will be subject to the same restrictions, conditions and risks of forfeiture as the underlying awards and will only become payable if the underlying awards vest. The plan administrator will determine the terms and conditions of such other stock-based awards, including the number of shares of our common stock to be granted pursuant to such other stock-based awards, the manner in which such other stock-based awards will be settled (e.g., in shares of our common stock, cash or other property), and the conditions to the vesting and payment of such other stock-based awards (including the achievement of performance objectives).

Bonuses payable in fully vested shares of our common stock and awards that are payable solely in cash may also be granted under the Plan.

The plan administrator may grant equity-based awards and incentives under the Plan that are subject to the achievement of performance objectives selected by the plan administrator in its sole discretion, including, without limitation, one or more of the following business criteria: (i) earnings, including one or more of operating income, net operating income, earnings before or after taxes, earnings before or after interest, depreciation, amortization, adjusted EBITDA, economic earnings, or extraordinary or special items or book value per share (which may exclude nonrecurring items); (ii) pre-tax income or after-tax income; (iii) earnings per share (basic or diluted); (iv) operating profit; (v) revenue, revenue growth or rate of revenue growth; (vi) return on assets (gross or net), return on investment, return on capital, or return on equity; (vii) returns on sales or revenues; (viii) operating expenses; (ix) stock price appreciation; (x) cash flow, free cash flow, cash flow return on investment (discounted or otherwise), net cash provided by operations, or cash flow in excess of cost of capital; (xi) implementation or completion of critical projects or processes; (xii) cumulative earnings per share growth; (xiii) operating margin or profit margin; (xiv) stock price or total stockholder return; (xv) cost targets, reductions and savings, productivity and efficiencies; (xvi) strategic business criteria, consisting of one or more objectives based on meeting specified market penetration, geographic business expansion, customer satisfaction, employee satisfaction, human resources management, supervision of litigation, and information technology goals, and goals relating to acquisitions, divestitures, joint ventures and similar transactions, and budget comparisons; (xvii) personal professional objectives, including any of the foregoing performance goals, the implementation of policies and plans, the negotiation of transactions, the development of long term business goals, formation of joint ventures, research or development collaborations, and the completion of other corporate transactions; and (xviii) any combination of, or a specified increase in, any of the foregoing.

The business criteria may be expressed in terms of attaining a specified level of the particular criteria or the attainment of a percentage increase or decrease in the particular criteria, and may be applied to us or any of our affiliates, or one of our divisions or strategic business units or a division or strategic business unit of any of our affiliate, or may be applied to our performance relative to a market index, a group of other companies or a combination thereof, all as determined by the plan administrator. The business criteria may also be subject to a threshold level of performance below which no payment will be made, levels of performance at which specified

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payments will be made, and a maximum level of performance above which no additional payment will be made. The plan administrator will have the authority to make equitable adjustments to the business criteria, as may be determined by the plan administrator in its sole discretion.

In the event of a merger, consolidation, reclassification, recapitalization, spin-off, spin-out, repurchase, reorganization, corporate transaction or event, special or extraordinary dividend or other extraordinary distribution (whether in the form of shares of our common stock, cash or other property), stock split, reverse stock split, subdivision or consolidation, combination, exchange of shares, or other change in corporate structure affecting the shares of our common stock, an equitable substitution or proportionate adjustment shall be made, at the sole discretion of the plan administrator, in (i) the aggregate number of shares of our common stock reserved for issuance under the Plan, (ii) the kind and number of securities subject to, and the exercise price or base price of, any outstanding options and SARs granted under the Plan, (iii) the kind, number and purchase price of shares of our common stock, or the amount of cash or amount or type of property, subject to outstanding restricted stock, RSUs, stock bonuses and other stock-based awards granted under the Plan or (v) the performance goals and periods applicable to award granted under the Plan. Equitable substitutions or adjustments other than those listed above may also be made as determined by the plan administrator. In addition, the plan administrator may terminate all outstanding awards for the payment of cash or in-kind consideration having an aggregate fair market value equal to the excess of the fair market value of the shares of our common stock, cash or other property covered by such awards over the aggregate exercise price or base price, if any, of such awards, but if the exercise price or base price of any outstanding award is equal to or greater than the fair market value of the shares of our common stock, cash or other property covered by such award, the Board of Directors may cancel the award without the payment of any consideration to the participant.

Unless otherwise determined by the plan administrator and evidenced in an award agreement, in the event that (i) a “change in control”(as defined below) occurs and (ii) a participant’s employment or service is terminated without cause within 12 months following the change in control, then (a) any unvested or unexercisable portion of any award carrying a right to exercise shall become fully vested and exercisable, and (b) the restrictions, deferral limitations, payment conditions and forfeiture conditions applicable to an award granted under the Plan will lapse and such unvested awards will be deemed fully vested and any performance conditions imposed with respect to such awards will be deemed to be fully achieved. The completion of this offering will not be a change of control under the Plan.

For purposes of the Plan, a “change in control” will mean, in summary, an event or series of events after which Fortress and its affiliated funds own less than 40% of the voting stock of Virgin Trains, other than (i) an acquisition, merger, sale of assets or similar transaction involving Virgin Trains following which Fortress or its affiliated funds directly or indirectly own at least 30% of the voting stock of, and continue to be the largest stockholder of, Virgin Trains or the surviving entity, (ii) an initial public offering of the stock of Virgin Trains or any of its direct or indirect parents, without regard to the percentage of Virgin Trains stock held by Fortress or its affiliated funds following such offering, or (iii) if at any time following such initial public offering, Fortress and its affiliated funds continue to hold at least 30% of the voting stock of, and continue to be the largest stockholder of, Virgin Trains or such direct or indirect parent.

Each participant will be required to make arrangements satisfactory to the plan administrator regarding payment of an amount up to the maximum statutory rates in the participant’s applicable jurisdictions with respect to any award granted under the Plan, as determined by us. We have the right, to the extent permitted by law, to deduct any such taxes from any payment of any kind otherwise due to the participant. With the approval of the plan administrator, the participant may satisfy the foregoing requirement by either electing to have us withhold from delivery of shares of our common stock, cash or other property, as applicable, or by delivering already owned unrestricted shares of our common stock, in each case, having a value not exceeding the applicable taxes to be withheld and applied to the tax obligations. We may also use any other method of obtaining the necessary payment or proceeds, as permitted by law, to satisfy our withholding obligation with respect to any award.

The Plan provides the Board of Directors with authority to amend, alter or terminate the Plan, but no such action may impair the rights of any participant with respect to outstanding awards without the participant’s consent. The plan administrator may amend an award, prospectively or retroactively, but no such amendment may impair the rights of any participant without the participant’s consent. Stockholder approval of any such action will be obtained if required to comply with applicable law.

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The Plan will terminate on the tenth anniversary of the effective date of the Plan (although awards granted before that time will remain outstanding in accordance with their terms).

We intend to file with the SEC a registration statement on Form S-8 covering the shares of our common stock issuable under the Plan.

Director Compensation

None of the members of our board of directors received any compensation for their services on the board of directors in fiscal year 2018.

We intend to provide each individual who becomes an independent director in connection with or after the completion of this offering an initial, one-time equity award grant relating to our common stock with a grant date value of $300,000, which will be subject to vesting in equal installments on each of the first three annual meetings of our stockholders following the grant date. In addition, following completion of this offering, each of our independent directors will receive an annual fee of $150,000 and the chairperson of the audit committee will receive an additional annual fee of $10,000. Payment of the annual fees to our independent directors may, at the election of the director, be made by issuance of our common stock, based on the value of common stock at the date of grant, rather than in cash, provided that any such issuance does not prevent a director from being independent and the shares are granted pursuant to a stockholder approved plan.

Our affiliated directors (including our Chairman Nominee, Mr. Edens) will not receive compensation from us for their service on the board of directors. All members of the board of directors will be reimbursed for reasonable costs and expenses incurred in attending board of directors or committee meetings.

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CERTAIN RELATIONSHIPS AND RELATED PARTY TRANSACTIONS

The terms of the transactions and agreements disclosed in this section were determined by and among affiliated entities and, consequently, are not the result of arm’s length negotiations. These terms are not necessarily at least as favorable to the parties to these transactions and agreements as the terms that could have been obtained from unaffiliated third parties.

Transition Services Agreement

In connection with this offering, we and our Parent and/or certain of its affiliates intend to enter into a Transition Services Agreement, which we expect to be effective as of the closing of this offering (the “Transition Services Agreement”). In order to facilitate the transition of our operations and provide us with sufficient time to develop services in-house or to hire other third-party service providers for such services, under the Transition Services Agreement, our Parent and/or certain of its affiliates will continue to provide to us, and we will provide to our Parent and/or certain of its affiliates, certain services, such as risk management, communications, corporate administration, finance, accounting, audit, legal, information technology, human resources, compliance, employee benefits and stock compensation administration and certain development related services with regard to the completion of certain transit oriented real estate development opportunities (collectively, the “Services”). With respect to the Services, the party receiving such transition service will pay mutually agreed-upon fees, which will be based on the costs of providing the transition service. The Transition Services Agreement will terminate on the earliest to occur of (i) the latest date on which any Service is to be provided as set forth in the Transition Services Agreement or (ii) the date on which the provision of all Services has been cancelled in accordance with the terms of the Transition Services Agreement.

For more information, see the section entitled “Risk Factors—Risks Related To Our Business—Following the closing of this offering, our Parent and/or certain of its affiliates will provide a number of services to us pursuant to the Transition Services Agreement (as defined below). When such agreement terminates, we will be required to replace the services, and the economic terms of the new arrangements may be less favorable to us.”

Stockholders’ Agreement

General

Prior to the completion of this offering, we will enter into the Stockholders’ Agreement with our direct parent, the Virgin Trains Stockholder.

As discussed further below, the Stockholders’ Agreement will provide certain rights to the Virgin Trains Stockholder and its affiliates.

Our Stockholders’ Agreement will provide that the parties thereto will use their respective reasonable efforts (including voting or causing to be voted all of our voting shares beneficially owned by each) so that no amendment is made to our certificate of incorporation or bylaws in effect as of the date of the Stockholders’ Agreement that would add restrictions to the transferability of our shares by the Virgin Trains Stockholder or its permitted transferees which are beyond those provided for in our certificate of incorporation, bylaws, the Stockholders’ Agreement or applicable securities laws, or that nullify the rights set out in the Stockholders’ Agreement of the Virgin Trains Stockholder or its permitted transferees unless such amendment is approved by the Virgin Trains Stockholder.

Designation and Election of Directors

Our Stockholders’ Agreement will provide that, for so long as the Stockholders’ Agreement is in effect, we and the Virgin Trains Stockholder shall take all reasonable actions within our respective control (including voting or causing to be voted all of the securities entitled to vote generally in the election of our directors held of record or beneficially owned by the Virgin Trains Stockholder or by Fortress or its affiliates, and, with respect to us, including in the slate of nominees recommended by the board those individuals designated by the Virgin Trains Stockholder) so as to elect to the board, and to cause to continue in office, not more than 15 directors (or such other number as the Virgin Trains Stockholder may agree in writing), of whom, at any given time:

a number of directors equal to a majority of the board of directors, plus one director, shall be individuals designated by the Virgin Trains Stockholder, for so long as the Virgin Trains Stockholder directly or indirectly beneficially owns, together with Fortress and its affiliates and permitted transferees, at least 30% of our voting power;

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a number equal to a majority of the board of directors, minus one director, shall be individuals designated by the Virgin Trains Stockholder, for so long as the Virgin Trains Stockholder directly or indirectly beneficially owns, together with Fortress and its affiliates and permitted transferees, less than 30% but at least 20% of our voting power, provided that if the board of directors consists of six or fewer directors, then the Virgin Trains Stockholder shall have the right to designate a number of directors equal to three directors;
a number of directors (rounded up to the nearest whole number) that would be required to maintain the Virgin Trains Stockholder’s proportional representation on the board of directors shall be individuals designated by the Virgin Trains Stockholder for so long as the Virgin Trains Stockholder directly or indirectly beneficially owns, together with Fortress and its affiliates and permitted transferees, less than 20% but at least 10% of our voting power, provided that if the board of directors consists of six or fewer directors, then the Virgin Trains Stockholder shall have the right to designate two directors; and
a number of directors (rounded up to the nearest whole number) that would be required to maintain the Virgin Trains Stockholder’s proportional representation on the board of directors shall be an individual designated by the Virgin Trains Stockholder for so long as the Virgin Trains Stockholder directly or indirectly beneficially owns, together with Fortress and its affiliates and permitted transferees, less than 10% but at least 5% of our voting power, provided that if the board of directors consists of six or fewer directors, then the Virgin Trains Stockholder shall have the right to designate one director.

In accordance with the Stockholders’ Agreement, the Virgin Trains Stockholder has designated Mr. Edens, Mr. Marnell and Mr. Payne for election to our board of directors.

Indemnification

The agreement will provide that we will indemnify the Virgin Trains Stockholder and its officers, directors, employees, agents and affiliates against losses arising out of third-party claims (including litigation matters and other claims) based on, arising out of or resulting from:

the ownership or the operation of our assets or properties, and the operation or conduct of our business, prior to or following this offering; and
any other activities we engage in.

In addition, we will agree to indemnify the Virgin Trains Stockholder and its officers, directors, employees, agents and affiliates against losses, including liabilities under the Securities Act and the Exchange Act, relating to misstatements in or omissions from the registration statement of which this prospectus is a part and any other registration statement or report that we file, other than misstatements or omissions made in reliance on information relating to and furnished by the Virgin Trains Stockholder for use in the preparation of that registration statement or report, against which the Virgin Trains Stockholder will agree to indemnify us.

Registration Rights

Demand Rights.   Under our Stockholders’ Agreement, the Virgin Trains Stockholder will have, for so long as the Virgin Trains Stockholder directly or indirectly beneficially owns, together with Fortress and its affiliates, an amount of our common stock (whether owned at the time of this offering or subsequently acquired) equal to or greater than 1% of our shares of common stock issued and outstanding immediately after the consummation of this offering (a “Registrable Amount”), “demand” registration rights that allow the Virgin Trains Stockholder, for itself and for Fortress and its affiliates and permitted transferees, at any time after 180 days following the consummation of this offering, to request that we register under the Securities Act an amount equal to or greater than a Registrable Amount. The Virgin Trains Stockholder, for itself and for Fortress and its affiliates and permitted transferees, will be entitled to unlimited demand registrations so long as such persons, together, beneficially own a Registrable Amount. We will also not be required to effect any demand registration within one month of a “firm commitment” underwritten offering to which the requestor held “piggyback” rights, described below, and which included at least 50% of the shares of common stock requested by the requestor to be included. We will not be obligated to grant a request for a demand registration within three months of any other demand registration.

Piggyback Rights.   For so long as the Virgin Trains Stockholder beneficially owns, together with Fortress and its affiliates and permitted transferees, an amount of our common stock equal to or greater than 1% of our common stock issued and outstanding immediately after the consummation of this offering, the Virgin Trains Stockholder (and

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Fortress and its affiliates and permitted transferees) will also have “piggyback” registration rights that allow them to include the common stock that they own in any public offering of equity securities initiated by us (other than those public offerings pursuant to registration statements on Forms S-4 or S-8 or pursuant to an employee benefit plan arrangement) or by any of our other stockholders that have registration rights. These “piggyback” registration rights will be subject to proportional cutbacks based on the manner of the offering and the identity of the party initiating such offering.

Shelf Registration.   Under our Stockholders’ Agreement, we will grant to the Virgin Trains Stockholder or any of its respective permitted transferees, for so long as the Virgin Trains Stockholder, together with Fortress and its affiliates and permitted transferees, beneficially owns a Registrable Amount, the right to request a shelf registration on Form S-3 providing for offerings of our common stock to be made on a continuous basis until all shares covered by such registration have been sold, subject to our right to suspend the use of the shelf registration prospectuses for a reasonable period of time (not exceeding 60 days in succession or 90 days in the aggregate in any 12 month period) if we determine that certain disclosures required by the shelf registration statements would be detrimental to us or our stockholders. In addition, the Virgin Trains Stockholder, for itself and for Fortress and its affiliates and permitted transferees, may elect to participate in such shelf registrations within ten days after notice of the registration is given.

Indemnification; Expenses; Lock-ups.   Under our Stockholders’ Agreement, we will agree to indemnify the applicable selling stockholder and its officers, directors, employees, managers, members partners, agents and controlling persons against any losses or damages resulting from any untrue statement or omission of material fact in any registration statement or prospectus pursuant to which it sells shares of our common stock, unless such liability arose from the applicable selling stockholder’s misstatement or omission, and the applicable selling stockholder will agree to indemnify us against all losses caused by its misstatements or omissions. We will pay all registration and offering-related expenses incidental to our performance under the Stockholders’ Agreement, and the applicable selling stockholder will pay its portion of all underwriting discounts, commissions and transfer taxes, if any, relating to the sale of its shares of common stock under the Stockholders’ Agreement. We have agreed to enter into, and to cause our officers and directors to enter into, lock-up agreements in connection with exercise of registration rights by the Virgin Trains Stockholder, for itself and for Fortress and its affiliates and permitted transferees.

Merger Right

Under our Stockholders’ Agreement, Fortress will have the right (but not the obligation), at any time following the closing of this offering, to cause certain subsidiaries of the Fortress Funds through which our common stock is held (such subsidiaries, the “Fortress Subsidiaries”) to merge with and into us or one or more of our wholly-owned subsidiaries (each, a “Merger,” and collectively, the “Mergers”). At the effective time of a Merger, the separate corporate existence of the applicable Fortress Subsidiary will cease, and we or our wholly-owned subsidiary, as applicable, will continue as the surviving company. The consummation of any Merger will be subject to certain conditions, including that the only assets of the applicable Fortress Subsidiary at the effective time of the Merger will consist of shares of our common stock. As a result of each Merger, the shares of our common stock held by the applicable Fortress Subsidiary at the effective time of the Merger will be cancelled, and the owner(s) of the applicable Fortress Subsidiary will receive a number of shares of our common stock equal to the number of shares so cancelled. The Fortress Subsidiaries that participate in the Mergers may not be the same Fortress-affiliated entities that will initially own shares of our common stock immediately following this offering, in which case it is expected that, prior to the Mergers, the Fortress Funds and their subsidiaries will undergo certain restructuring transactions to cause each Fortress Subsidiary to become the direct owner of shares of our common stock.

Information Rights

Under our Stockholders’ Agreement, the Virgin Trains Stockholder will have the right to request information from us.

Assistance in the Sale of the Virgin Trains Stockholder’s Shares

Under our Stockholders’ Agreement, if the Virgin Trains Stockholder seeks to sell its shares of the Company’s common stock other than pursuant to a registration statement, the Company shall use its reasonable best efforts to assist the Virgin Trains Stockholder in the sale process, including by providing information to potential purchasers as requested by the Virgin Trains Stockholder.

In addition, if the Board of the Directors starts and then abandons a sale process and the Virgin Trains Stockholder indicates that it wants to sell its shares of the Company’s common stock, the Company shall permit the

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Virgin Trains Stockholder to engage in discussions with potential purchasers who participated in the abandoned sales process. The Company shall be obligated to assist the Virgin Trains Stockholder in any such sale process to the extent required by the paragraph above.

Transactions with the Virgin Trains Stockholder

We have entered into certain lease agreements with our direct parent, the Virgin Trains Stockholder, including for our office in Miami, Florida and garages in Miami, Fort Lauderdale and West Palm Beach.

Miami Office Lease

In December 2017, we commenced a lease agreement with the Virgin Trains Stockholder, as lessor, for certain of the Virgin Trains Stockholder’s properties in Miami, Florida (the “Miami Office Lease”). The Miami Office Lease has an original term of 60 months with a monthly base rent payable to the Virgin Trains Stockholder of approximately $54,000, subject to escalation of 3.0% per year, and a monthly tenant parking space rent payable of approximately $7,000, subject to escalation of not more than 10% per year. The Miami Office Lease provides an option to renew the lease for two additional terms of 60 months each, subject to the then fair market rental rate (as defined in the Miami Office Lease). Lease payments commenced at the inception of the lease at the end of December 2017. We paid $0.7 million for the nine months ended September 30, 2018.

Miami Garage Lease

In September 2016, we entered into a lease agreement, which was amended in December 2017 and May 2018, with the Virgin Trains Stockholder, as lessor, for certain of the Virgin Trains Stockholder’s properties in Miami, Florida (the “Miami Garage Lease”). The Miami Garage Lease has an original term of 240 months with a monthly base rent payable to the Virgin Trains Stockholder of approximately $125,000 for the initial 180 months of the original term and approximately $138,000 for the remaining 60 months of the original term. The Miami Garage Lease provides for an option to renew the lease for three additional terms of 60 months each, subject to a 10% increase in base rent upon each renewal term. The lease agreement contained a provision for a 6-month rent holiday after the lease commencement in March 2018. For the nine months ended September 30, 2018, no lease payments were made.

Fort Lauderdale Garage Lease

In August 2016, we entered into a lease agreement, which was amended in December 2017 and March 2018, with the Virgin Trains Stockholder, as lessor, for certain of the Virgin Trains Stockholder’s properties in Fort Lauderdale, Florida (the “FLL Garage Lease”). The FLL Garage Lease has an original term of 246 months with a monthly base rent payable to the Virgin Trains Stockholder of approximately $112,000. The FLL Garage Lease provides an option to renew the lease for three additional renewal terms of 60 months each, subject to a 10% increase in base rent for each renewal term. The lease agreement contained a provision for a 6-month rent holiday after the lease commencement in August 2017. Lease payments commenced in February 2018. We paid approximately $0.8 million for the nine months ended September 30, 2018.

West Palm Beach Garage Lease

In August 2016, we entered into a lease agreement, which was amended in December 2017 and May 2018, with the Virgin Trains Stockholder, as lessor, for certain of the Virgin Trains Stockholder’s properties in West Palm Beach, Florida (the “WPB Garage Lease”). The WPB Garage Lease has an original term of 245 months with an average monthly base rent payable to the Virgin Trains Stockholder of approximately $98,000 over the term of the lease. The WPB Garage Lease provides an option to renew the lease for three additional renewal terms of 60 months each, subject to a 10% increase in base rent for each renewal term. The lease agreement contains a provision for a 4-month rent holiday after the lease commencement in January 2018. Lease payments commenced in May 2018. We paid $0.3 million for the nine months ended September 30, 2018.

Miami Station – Shared Structure

In November 2014, we entered into a construction contract with Suffolk Construction Company, Inc. (the “Construction Contract”) and, the same day, entered into an agreement (the “Sharing Agreement”) with certain other subsidiaries of the Virgin Trains Stockholder to agree upon their obligations and rights with respect to the work to be performed under the Construction Contract. The Sharing Agreement, as amended in May 2016, September 2016,

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March 2017 and June 2017, allocated rights and obligations with respect to the Station Element, Retail Element, North Office Element, Residential North Element and Residential South Element (each as defined in that certain Declaration of Covenants, Restrictions and Easements for MiamiCentral Station, dated as of April 29, 2016) to Brightline Trains, DTS Retail LLC, DTS 2MC Office LLC, DTN Residential North, LLC and DTS Residential South, LLC, respectively.

The Virgin Trains Stockholder has paid, on behalf of the Company, $2.1 million, $0.4 million and $0.5 million for the nine months ended September 30, 2018, and for the years ended December 31, 2017 and 2016, respectively.

Transactions with Certain Affiliates of the Virgin Trains Stockholder

Promissory Note

In December 2018, we borrowed funds from certain affiliates of the Virgin Trains Stockholder to advance North Segment construction, to fund costs related to the XpressWest Acquisition and the related land acquisition, and for working capital purposes. As of January 29, 2019, approximately $80.3 million was outstanding under the Promissory Note. Under the terms of the Promissory Note, interest accrues at a rate of 3.0% per annum and is payable annually in arrears on the last day of each calendar year, provided that we may elect to capitalize some or all of such accrued interest. The Promissory Note matures on May 31, 2020, subject to extension to not later than May 31, 2021. Prior to maturity, we may prepay the Promissory Note in whole at any time, or in part from time to time, without penalty.

Transactions with Parent

Our Parent is a parent company of our direct parent, the Virgin Trains Stockholder.

West Palm Beach Property Lease

In June 2015, we entered into a lease agreement with FECR, a former affiliate and a subsidiary of funds managed by an affiliate of Fortress, as lessor for certain FECR’s properties in West Palm Beach, Florida (the “WPB Property Lease”). The WPB Property Lease had an original lease term of 4 months with an automatic monthly renewal, unless terminated by either party. In October 2015, the parties entered into an amendment to the WPB Property Lease, extending the lease term to March 2017 with a monthly lease payment payable to FECR of approximately $23,000. In March 2017, the parties entered into another amendment of the lease, extending the lease term to July 2017. On June 30, 2017, our Parent acquired the underlying property that was the subject of WPB Property Lease from FECR. Commencing on July 1, 2017, we lease the premises from a subsidiary of our Parent. In December 2017, we entered into an amendment to the lease, extending the lease term to December 31, 2033, with three 60-month renewal options. Monthly lease payments payable to such subsidiary of our Parent are approximately $23,000.

Between June 1, 2015 and June 30, 2017, the Virgin Trains Stockholder, on behalf of the Company, paid to FECR an aggregate amount of $0.6 million and, between July 1, 2017 and December 31, 2017, the Virgin Trains Stockholder, on behalf of the Company, paid to a subsidiary of our Parent an aggregate amount of $0.1 million. As of December 31, 2017, the Virgin Trains Stockholder, on behalf of the Company, paid to related parties an aggregate amount of $0.7 million in periodic lease payments under the WPB Property Lease. The Virgin Trains Stockholder, on behalf of the Company, has paid to a subsidiary of our Parent $0.2 million for the nine months ended September 30, 2018.

Transactions with FECR

FECR was a related party of ours prior to June 30, 2017. On June 30, 2017, FECR, formerly our affiliate and a subsidiary of funds managed by an affiliate of Fortress, was acquired by GMexico Transportes, S.A. de C.V. As a result, FECR is now a subsidiary of Grupo Mexico, a large Mexico-based conglomerate, and is not an affiliate of Fortress, FECI or the Company.

In connection with the FECR sale, we entered into certain amendments and/or new agreements with FECR involving the maintenance, use and operation of the shared rail corridor on which our Florida passenger rail system’s trains will operate. We believe these amendments and agreements will provide certainty and clarity of operational and cost items for our Florida passenger rail system’s operations. Below is a description of the material terms of these agreements. For arrangements that were not assigned, the terms and conditions specified within the arrangements with FECR described below remained in effect.

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Shared Services and Other Arrangements

In 2015, we entered into various shared services, joint use, operating, infrastructure, maintenance and other related arrangements with FECR, certain of which have been periodically amended, extended or terminated (collectively, the “Shared Services Arrangements”), whereby each party provides support to the other for certain activities at cost plus a markup to support the construction, development and operation of passenger rail service and for other purposes. The Shared Services Arrangements also provide for the rehabilitation and improvement of existing track infrastructure and the construction and installation of rail related capital improvements, necessary for the passenger rail service. Pursuant to these arrangements, certain equipment and other assets installed on existing rail will be funded by us and jointly used by the parties.

Joint Use Agreement

The Second Amended and Restated Joint Use Agreement, dated December 27, 2016, by and between FECR and one of our wholly-owned subsidiaries, provides that we have the exclusive right to operate passenger trains, and that FECR has the exclusive right to operate freight trains, in each case along the entirety of FECR’s existing Miami to Cocoa rail corridor (the “Shared Corridor”). We and FECR are authorized for the operation of up to 36 passenger trains and 24 freight trains per day, respectively.

On June 30, 2017, when FECR ceased to be a related party, we and FECR amended the Second Amended and Restated Joint Use Agreement to continue the joint use agreement as unrelated third parties.

Under the Joint Use Agreement, an eight-person Service Standards Committee (four appointees each) is responsible for overseeing construction and improvements on the Shared Corridor, monitoring passenger and freight rail operations and considering possible future expansion of the Shared Corridor (construction of a track for Tri-Rail service to Miami has already been contemplated under the agreement).

The Joint Use Agreement provides that we will be responsible for the first 15% of ordinary operating and maintenance expenses along the Shared Corridor for each calendar month, with the remaining 85% of such expenses apportioned between us and FECR on the basis of percentage of total gross ton miles operated on, along and over the Shared Corridor. Costs related to signals and communications will be apportioned between us and FECR on the basis of the percentage of the total number of train miles operated over the Shared Corridor. However, if FECR fails to perform maintenance to achieve our on-time performance standards, we have the right to perform maintenance at our own cost. Dispatching services of the passenger and freight trains will be the responsibility of FECR and our 50-50 joint venture as described below. The cost and expense of any capital improvements required by law or governmental regulation are borne entirely by us if useful solely in connection with passenger services, borne entirely by FECR if useful solely in connection with freight services and shared 50-50 if useful in connection with both.

We will reimburse FECR for our allocable share of costs and expenses, calculated on a per-ton-mile formula for ordinary operations and maintenance, and on a per-train-mile formula for signal maintenance. We will also pay FECR an annual management fee of $500,000, with a 2% annual escalator. Before June 30, 2017, when FECR ceased to be a related party, the Virgin Trains Stockholder, on behalf of the Company, had paid to FECR an aggregate amount of $1.7 million under the Joint Use Agreement.

The Joint Use Agreement also provides for the allocation of liability between FECR and us in the case of accidents. We are solely responsible for any liability to rail passengers in connection with passenger services. Otherwise, any liability solely on the account of our equipment or solely on account of FECR’s equipment is assumed solely by us or FECR, respectively. Both carriers are required to maintain appropriate insurance coverage, of which failure to obtain or maintain results in a default.

Dispatching Services Agreement

In December 2016, we and FECR formed a 50-50 joint venture, Florida DispatchCo., LLC (“DispatchCo”). DispatchCo is responsible for providing dispatch services to FECR and us under a Dispatching Services Agreement, dated as of December 27, 2016, among FECR, DispatchCo and us, as amended in June 2017 and August 2017. Dispatching protocols provide that DispatchCo must make reasonable best efforts to dispatch in a manner maximizing the number of the FECR and our trains achieving on-time performance standards; however, passenger trains have priority over freight trains. Both we and FECR will bear 50% of DispatchCo’s dispatching and its general and administrative expenses, as well as 50% of a monthly service fee. The Virgin Trains Stockholder has paid, on behalf of the Company, $1.5 million and $0.1 million for the nine months ended September 30, 2018 and year ended December 31, 2017, respectively.

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Agreements with FECR and South Florida Regional Transportation Authority

We have entered into various construction, operating and other related agreements with SFRTA that obligate the public agency to reimburse the incremental infrastructure costs to construct a downtown Miami commuter rail station over a fixed period of time. Tri-Rail, which is operated by SFRTA, currently operates 50 weekday trains along 72 miles of track connecting Miami, Fort Lauderdale and West Palm Beach. Its commuter rail operations offer a travel time from Miami to West Palm Beach of 2 hours, with stops at 18 stations along the way. In 2017, Tri-Rail had approximately 4.3 million passengers.

We are working with SFRTA towards the termination of 26 Tri-Rail trains at our Miami station. SFRTA has agreed to reimburse the incremental infrastructure costs, approximately $65 million, over a fixed period of time. Our ability to receive the full reimbursement is contingent on SFRTA receiving funds from several other local and state public agencies. SFRTA has negotiated with these relevant local and state agencies, but each agency will have to issue bonds or appropriate the funds according to the funding schedule, to the extent they have not done so already. We have executed an operating agreement with SFRTA and have finalized associated ancillary agreements to allow SFRTA to expand Tri-Rail commuter rail service and establish a new commuter rail service on our rail corridor; however, certain conditions remain that must be satisfied before we can move forward with the proposed transaction. See “Risk Factors – Risks Related to our Business – Shared use of our corridor with Tri-Rail could have an adverse effect on our ability to utilize our railway efficiently, which could impact our operations and financial condition.” In Florida Statutes Chapter 343.545 (Public Law 2017-138), SFRTA was specifically authorized by Florida to enter into contractual indemnification agreements with FECR and us with respect to rail corridors where all three entities provide rail service.

West Palm Beach Railway Lease

In May 2016, we, as lessee, entered into a lease agreement with FECR, a former affiliate, as lessor, for certain of FECR’s railway property in West Palm Beach, Florida (the “WPB Railway Lease”), as amended in March 2018. The WPB Railway Lease had an original lease term of 12 months with an automatic monthly renewal, unless terminated by either party. The WPB Railway Lease has a monthly lease payment payable to FECR of approximately $11,000. As of December 31, 2017, the Virgin Trains Stockholder, on behalf of the Company, has paid to FECR an aggregate amount of $0.2 million in periodic lease payments under the WPB Railway Lease.

Fort Lauderdale Railway Lease

In May 2016, we, as lessee, entered into a lease agreement with FECR, as lessor, for certain of FECR’s railway property in Fort Lauderdale, Florida (the “FTL Railway Lease”). The FTL Railway Lease had an original lease term of 12 months with an automatic monthly renewal, unless terminated by either party. The FTL Railway Lease has a monthly lease payment payable to FECR of approximately $9,000. In January 2017, there was an amendment to the FTL Railway Lease, reducing the square footage of the leased property and decreasing the monthly lease payment payable to FECR to approximately $8,000. This lease expired on September 17, 2017 and was not renewed. The Virgin Trains Stockholder, on behalf of the Company, has paid to FECR an aggregate amount of $0.1 million in period lease payments under the FTL Railway Lease.

Transactions with Brightline Management

Brightline Management LLC (f/k/a All Aboard Florida Operations Management LLC, a limited liability company in Delaware that effected a name change in May 2018) (“Brightline Management”) is a subsidiary of the Virgin Trains Stockholder.

Management Agreement

On December 19, 2017, we entered into a general operations, management and administrative services agreement (the “Management Agreement”) with Brightline Management in which Brightline Management agreed to provide day-to-day management and operation for us. The Management Agreement requires Brightline Management to manage our business affairs in conformity with the policies and the strategy that are approved and monitored by us.

Brightline Management’s duties will include: (i) performing all of our day-to-day functions, including the design, acquisition, development, construction, installation, equipping, ownership and operation of our Florida

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passenger rail system and (ii) providing financial and accounting management services. Brightline Management is responsible for our day-to-day management and operations and perform (or cause to be performed) such services and activities relating to our assets, operations and our Florida passenger rail system as may be necessary or desirable in connection with our Florida passenger rail system.

The initial term of the Management Agreement expires on the tenth anniversary of the Management Agreement, and the Management Agreement will be renewed automatically thereafter for successive five-year periods unless we or Brightline Management elects to terminate the Management Agreement upon 90 days’ prior written notice.

We pay Brightline Management an arm’s length charge equal to the costs incurred with respect to the services provided plus an annual premium equal to $500,000 and also reimburse Brightline Management for certain expenses. The Company paid $0.2 million and $0 under the Management Agreement for the nine months ended September 30, 2018 and year ended December 31, 2017, respectively.

Transactions with Certain Affiliates of Fortress

Certain individuals and/or entities affiliated with Fortress (including our Chairman Nominee) have indicated an interest in purchasing shares of our common stock a price per share equal to the initial public offering price. Because indications of interest are not binding agreements or commitments to purchase, any of the individuals and/or entities affiliated with Fortress described above may determine to purchase more, fewer or no shares of our common stock. Such individuals will pay a fee on any shares purchased equal to the underwriting discount on the shares sold to the public in this offering.

Procedures for Review, Approval and Ratification of Transactions with Related Persons

SEC rules define “transactions with related persons” to include any transaction in which the Company is a participant, the amount involved exceeds $120,000, and in which any “related person,” including any officer, director, nominee for director or beneficial holder of more than 5% of any class of our voting securities or an immediate family member of any of the foregoing, has a direct or indirect material interest. We expect that our board of directors will adopt a written policy that outlines procedures for approving transactions with related persons, and that any such transactions will be reviewed and approved or ratified by a majority of our disinterested and independent directors pursuant to the procedures outlined in any such policy. In determining whether to approve or ratify a transaction with a related person, we expect that the independent and disinterested directors will consider a variety of factors they deem relevant.

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PRINCIPAL STOCKHOLDER

The following table sets forth information with respect to the beneficial ownership of our common stock, as of January 29, 2019 by:

each person known by us to beneficially own more than 5% of our common stock;
each of our directors;
each of our named executive officers; and
all of our executive officers and directors as a group.

The column entitled “Percentage of Shares Beneficially Owned—Before Offering and the Concurrent Private Placements” is based on a total of 135,257,000 shares of our common stock outstanding as of January 29, 2019. The column entitled “Percentage of Shares Beneficially Owned—After Offering and the Concurrent Private Placements” is based on shares of our common stock to be outstanding after this offering and the concurrent private placements, including the 30,556,000 shares of our common stock that we are selling in this offering and the concurrent private placements, but not including any additional shares issuable pursuant to the underwriters’ over-allotment option or any additional shares issuable in connection with the vesting and settlement of outstanding restricted stock units.

The number of shares beneficially owned by each stockholder is determined under rules issued by the SEC and includes voting or investment power with respect to securities. Under these rules, beneficial ownership includes any shares as to which the individual or entity has sole or shared voting power or investment power. In computing the number of shares beneficially owned by an individual or entity and the percentage ownership of that person, shares of common stock held by such person that are currently exercisable or will become exercisable within 60 days after January 29, 2019 are considered outstanding, although these shares are not considered outstanding for purposes of computing the percentage ownership of any other person. Unless otherwise indicated, the address of all listed stockholders is 2855 LeJeune Road, 4th Floor, Coral Gables, Florida 33134. Each of the stockholders listed has sole voting and investment power with respect to the shares beneficially owned by the stockholder unless noted otherwise, subject to community property laws where applicable.

 
 
Percentage of
Shares Beneficially
Owned
Name of Beneficial Owner
Shares
Beneficially
Owned
Before
Offering and
the Concurrent
Private
Placements
After
Offering and
the Concurrent
Private
Placements
5% Stockholders
 
 
 
 
 
 
 
 
 
Virgin Trains Stockholder
 
135,256,521
 
 
100
%
 
81.6
%
 
 
 
 
 
 
 
 
 
 
Named Executive Officers and Director Nominees
 
 
 
 
 
 
 
 
 
Patrick Goddard
 
266
 
 
%
 
%
Michael Cegelis
 
213
 
 
%
 
%
Paul M. Reininger
 
 
 
%
 
%
David C. Howard
 
 
 
%
 
%
Wesley R. Edens(1)
 
 
 
%
 
%
Evan M. Lovell
 
 
 
%
 
%
Anthony A. Marnell II
 
 
 
%
 
%
W. Porter Payne, Jr.
 
 
 
%
 
%
All Executive Officers and Directors as a Group (8 persons)
 
479
 
 
%
 
%
(1) Does not include any shares of our common stock in which Mr. Edens has indicated an interest in potentially purchasing.

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DESCRIPTION OF CAPITAL STOCK

Prior to the closing of this offering, we intend to reorganize our existing holding company structure so that the issuer of our common stock is a Delaware corporation named Virgin Trains USA Inc. Unless otherwise indicated, all information in this section assumes that our reorganization will be completed prior to the closing of this offering. The following is a description of the material terms of our certificate of incorporation and bylaws as they will be in effect upon our reorganization and completion of this offering. The following description may not contain all of the information that is important to you. To understand them fully, you should read our certificate of incorporation and bylaws, copies of which are or will be filed with the SEC as exhibits to the registration statement, of which this prospectus is a part.

Please note that, with respect to any of our shares held in book-entry form through The Depository Trust Company or any other share depositary, the depositary or its nominee will be the sole registered and legal owner of those shares, and references in this prospectus to any “stockholder” or “holder” of those shares means only the depositary or its nominee. Persons who hold beneficial interests in our shares through a depositary will not be registered or legal owners of those shares and will not be recognized as such for any purpose. For example, only the depositary or its nominee will be entitled to vote the shares held through it, and any dividends or other distributions to be paid, and any notices to be given, in respect of those shares will be paid or given only to the depositary or its nominee. Owners of beneficial interests in those shares will have to look solely to the depositary with respect to any benefits of share ownership, and any rights they may have with respect to those shares will be governed by the rules of the depositary, which are subject to change from time to time. We have no responsibility for those rules or their application to any interests held through the depositary.

Authorized Capitalization

Under our certificate of incorporation, our authorized capital stock consists of:

2,000,000,000 shares of common stock, par value $0.01 per share; and
preferred shares, par value $0.01 per share.

Upon completion of this offering and the concurrent private placements, there will be 165,813,000 outstanding shares of common stock assuming no exercise of the underwriters’ over-allotment option, and no outstanding shares of preferred stock.

The following is a description of the material terms of our certificate of incorporation and bylaws. We refer you to our certificate of incorporation and, copies of which have been filed with the SEC as exhibits to our registration statement of which this prospectus forms a part.

Common Stock

Each holder of common stock is entitled to one vote for each share of common stock held on all matters submitted to a vote of stockholders. Except as provided with respect to any other class or series of stock, the holders of our common stock will possess the exclusive right to vote for the election of directors and for all other purposes. Our certificate of incorporation does not provide for cumulative voting in the election of directors, which means that the holders of a majority of the outstanding shares of common stock can elect all of the directors standing for election, and the holders of the remaining shares are not able to elect any directors.

Subject to any preference rights of holders of any preferred stock that we may issue in the future, holders of our common stock are entitled to receive dividends, if any, declared from time to time by our board of directors out of legally available funds. In the event of our liquidation, dissolution or winding up, the holders of our common stock are entitled to share ratably in all assets remaining after the payment of liabilities, subject to any rights of holders of our preferred stock prior to distribution.

Holders of our common stock have no preemptive, subscription, redemption or conversion rights. Any shares of common stock sold under this prospectus will be validly issued, fully paid and nonassessable upon issuance against full payment of the purchase price for such shares.

Preferred Stock

Our board of directors has the authority, without action by our stockholders, to issue preferred stock and to fix voting powers for each class or series of preferred stock, and to provide that any class or series may be subject to redemption, entitled to receive dividends, entitled to rights upon dissolution, or convertible or exchangeable for

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shares of any other class or classes of capital stock. The rights with respect to a series or class of preferred stock may be greater than the rights attached to our common stock. It is not possible to state the actual effect of the issuance of any shares of our preferred stock on the rights of holders of our common stock until our board of directors determines the specific rights attached to that preferred stock. The effect of issuing preferred stock could include, among other things, one or more of the following:

restricting dividends in respect of our common stock;
diluting the voting power of our common stock or providing that holders of preferred stock have the right to vote on matters as a class;
impairing the liquidation rights of our common stock; or
delaying or preventing a change of control of us.

Stockholders’ Agreement

For a description of the Stockholders’ Agreement that we have entered into with the Virgin Trains Stockholder, see “Certain Relationships and Related Party Transactions—Stockholders’ Agreement.”

Anti-Takeover Effects of Delaware Law, Our Certificate of Incorporation and Bylaws

The following is a summary of certain provisions of our certificate of incorporation and bylaws that may be deemed to have an anti-takeover effect and may delay, deter or prevent a tender offer or takeover attempt that a stockholder might consider to be in its best interest, including those attempts that might result in a premium over the market price for the shares held by stockholders.

Authorized but Unissued Shares

The authorized but unissued shares of our common stock and our preferred stock will be available for future issuance without obtaining stockholder approval. These additional shares may be utilized for a variety of corporate purposes, including future public offerings to raise additional capital, corporate acquisitions and employee benefit plans. The existence of authorized but unissued shares of our common stock and preferred stock could render more difficult or discourage an attempt to obtain control over us by means of a proxy contest, tender offer, merger or otherwise.

Delaware Business Combination Statute

We are organized under Delaware law. Some provisions of Delaware law may delay or prevent a transaction that would cause a change in our control.

Our certificate of incorporation provides that Section 203 of the Delaware General Corporation Law, as amended (the “DGCL”), an anti-takeover law, will not apply to us; however, our certificate of incorporation contains similar provisions providing that we may not engage in certain “business combinations” with any “interested stockholder” for a three-year period following the time that the stockholder became an interested stockholder, unless:

prior to such time, our board of directors approved either the business combination or the transaction which resulted in the stockholder becoming an interested stockholder;
upon consummation of the transaction which resulted in the stockholder becoming an interested stockholder, the interested stockholder owned at least 85% of our voting stock outstanding at the time the transaction commenced, excluding certain shares; or
at or subsequent to that time, the business combination is approved by our board of directors and authorized at an annual or special meeting of stockholders and not by written consent by the affirmative vote of holders of at least 66 2/3% of the outstanding voting stock that is not owned by the interested stockholder.

Generally, a “business combination” includes a merger, asset or stock sale or other transaction resulting in a financial benefit to the interested stockholder. Subject to certain exceptions, an “interested stockholder” is a person who, together with that person’s affiliates and associates, owns, or within the previous three years owned, 15% or more of our voting stock.

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Under certain circumstances, this provision will make it more difficult for a person who would be an “interested stockholder” to effect various business combinations with a corporation for a three-year period. This provision may encourage companies interested in acquiring our company to negotiate in advance with our board of directors because the stockholder approval requirement would be avoided if our board of directors approves either the business combination or the transaction which results in the stockholder becoming an interested stockholder. These provisions also may have the effect of preventing changes in our board of directors and may make it more difficult to accomplish transactions which stockholders may otherwise deem to be in their best interests.

Our certificate of incorporation provides that Fortress and certain of its affiliates, and any group as to which such persons are a party or any transferee of any such person or group of persons, will not constitute “interested stockholders” for purposes of this provision.

Other Provisions of Our Certificate of Incorporation and Bylaws

Our certificate of incorporation provides for a staggered board of directors consisting of three classes of directors. Directors of each class are chosen for three-year terms upon the expiration of their current terms and each year one class of our directors will be elected by our stockholders. The terms of the first, second and third classes will expire in 2020, 2021 and 2022, respectively. We believe that classification of our board of directors will help to assure the continuity and stability of our business strategies and policies as determined by our board of directors. Additionally, there is no cumulative voting in the election of directors. This classified board provision could have the effect of making the replacement of incumbent directors more time consuming and difficult. At least two annual meetings of stockholders, instead of one, will generally be required to effect a change in a majority of our board of directors. Thus, the classified board provision could increase the likelihood that incumbent directors will retain their positions. The staggered terms of directors may delay, defer, or prevent a tender offer or an attempt to change control of us, even though a tender offer or change in control might be believed by our stockholders to be in their best interest. In addition, our certificate of incorporation and bylaws provide that directors may be removed only for cause and only with the affirmative vote of at least a majority of the voting interest of stockholders entitled to vote; provided, however, that for so long as the Virgin Trains Stockholder, together with Fortress and its affiliates and permitted transferees beneficially own, directly or indirectly, at least 50% of our issued and outstanding common stock, directors may be removed with or without cause with the affirmative vote of a majority of the voting interest of stockholders entitled to vote. Pursuant to our certificate of incorporation, shares of our preferred stock may be issued from time to time, and the board of directors is authorized to determine and alter all rights, preferences, privileges, qualifications, limitations and restrictions without limitation. See “—Preferred Stock.”

Ability of our Stockholders to Act

Our certificate of incorporation and bylaws do not permit our stockholders to call special stockholders meetings; provided, however, that for so long as the Virgin Trains Stockholder, together with Fortress and its affiliates and permitted transferees, beneficially own at least 20% of our issued and outstanding common stock, any stockholders that collectively beneficially own at least 20% of our issued and outstanding common stock may call special meetings of our stockholders. Written notice of any special meeting so called shall be given to each stockholder of record entitled to vote at such meeting not less than 10 or more than 60 days before the date of such meeting, unless otherwise required by law.

Under our certificate of incorporation and bylaws, any action required or permitted to be taken at a meeting of our stockholders may be taken without a meeting by written consent of a majority of our stockholders for so long as the Virgin Trains Stockholder, together with Fortress and its affiliates and permitted transferees, beneficially own, directly or indirectly, at least 20% of our issued and outstanding common stock. After the Virgin Trains Stockholder, together with Fortress and its affiliates and permitted transferees, beneficially own, directly or indirectly, less than 20% of our issued and outstanding stock, only action by unanimous written consent of our stockholders can be taken without a meeting.

Our bylaws provide that nominations of persons for election to our board of directors may be made at any annual meeting of our stockholders, or at any special meeting of our stockholders called for the purpose of electing directors, (a) by or at the direction of our board of directors or (b) by any of our stockholders. In addition to any other applicable requirements, for a nomination to be properly brought by a stockholder, such stockholder must have given timely notice thereof in proper written form to our Secretary of the Company. To be timely, a stockholder’s notice must be delivered to or mailed and received at our principal executive offices (a) in the case of an annual meeting of

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stockholders, not less than 90 days nor more than 120 days prior to the anniversary date of the immediately preceding annual meeting of stockholders; provided, however, that in the event that the annual meeting is called for a date that is not within 30 days before or after such anniversary date, notice by a stockholder in order to be timely must be so received not later than the close of business on the tenth day following the day on which such notice of the date of the annual meeting was mailed or such public disclosure of the date of the annual meeting was made, whichever first occurs; and (b) in the case of a special meeting of our stockholders called for the purpose of electing directors, not later than the close of business on the tenth day following the day on which notice of the date of the special meeting was mailed or public disclosure of the date of the special meeting was made, whichever first occurs.

Our bylaws provide that no business may be transacted at any annual meeting of our stockholders, other than business that is either (a) specified in the notice of meeting given by or at the direction of our board of directors, (b) otherwise properly brought before the annual meeting by or at the direction of our board of directors, or (c) otherwise properly brought by any of our stockholders. In addition to any other applicable requirements, for business to be properly brought before an annual meeting by a stockholder, such stockholder must have given timely notice thereof in proper written form to our Secretary. To be timely, a stockholder’s notice must be delivered to or mailed and received at our principal executive offices not less than 90 days nor more than 120 days prior to the anniversary date of the immediately preceding annual meeting of stockholders; provided, however, that in the event that the annual meeting is called for a date that is not within 30 days before or after such anniversary date, notice by a stockholder in order to be timely must be so received not later than the close of business on the tenth day following the day on which such notice of the date of the annual meeting was mailed or such public disclosure of the date of the annual meeting was made, whichever first occurs.

Forum Selection Clause

Unless we consent in writing to the selection of an alternative forum, the Court of Chancery of the State of Delaware will be the sole and exclusive forum for (i) any derivative action or proceeding brought on our behalf, (ii) any action asserting a claim of breach of a fiduciary duty owed by any of our directors, officers, employees or agents or our stockholders, (iii) any action asserting a claim arising pursuant to any provision of the DGCL or (iv) any action asserting a claim governed by the internal affairs doctrine, in each such case subject to said Court of Chancery having personal jurisdiction over the indispensable parties named as defendants therein.

In the event that the Court of Chancery lacks jurisdiction over any such action or proceeding, our certificate of incorporation provides that the sole and exclusive forum for such action or proceeding will be another state or federal court located within the State of Delaware.

Our certificate of incorporation further provides that any person or entity purchasing or otherwise acquiring any interest in shares of our capital stock will be deemed to have notice of and consented to the forum selection clause. It is possible that a court of law could rule that the choice of forum provisions contained in our certificate of incorporation and bylaws are inapplicable or unenforceable if they are challenged in a proceeding or otherwise. The enforceability of similar choice of forum provisions in other companies’ certificates of incorporation and bylaws has been challenged in legal proceedings.

Limitations on Liability and Indemnification of Directors and Officers

Our certificate of incorporation provides that our directors will not be personally liable to us or our stockholders for monetary damages for breach of a fiduciary duty as a director, except for the following (to the extent such exemption is not permitted under the DGCL, as amended from time to time):

any breach of the director’s duty of loyalty to us or our stockholders;
intentional misconduct or a knowing violation of law;
liability under Delaware corporate law for an unlawful payment of dividends or an unlawful stock purchase or redemption of stock; or
any transaction from which the director derives an improper personal benefit.

Our certificate of incorporation and bylaws provide that we must indemnify our directors and officers to the fullest extent permitted by law. We are also expressly authorized to advance certain expenses (including attorneys’ fees and disbursements and court costs) to our directors and officers and carry directors’ and officers’ insurance providing indemnification for our directors and officers for some liabilities. We believe that these indemnification provisions and insurance are useful to attract and retain qualified directors and executive officers.

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Prior to the completion of this offering, we intend to enter into separate indemnification agreements with each of our directors and executive officers. Each indemnification agreement will provide, among other things, for indemnification to the fullest extent permitted by law and our certificate of incorporation against (i) any and all expenses and liabilities, including judgments, fines, penalties and amounts paid in settlement of any claim with our approval and counsel fees and disbursements, (ii) any liability pursuant to a loan guarantee, or otherwise, for any of our indebtedness, and (iii) any liabilities incurred as a result of acting on our behalf (as a fiduciary or otherwise) in connection with an employee benefit plan. The indemnification agreements will provide for the advancement or payment of all expenses to the indemnitee and for reimbursement to us if it is found that such indemnitee is not entitled to such indemnification under applicable law and our certificate of incorporation. These provisions and agreements may have the practical effect in some cases of eliminating our stockholders’ ability to collect monetary damages from our directors and executive officers.

Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers or persons controlling the registrant pursuant to the foregoing provisions, we have been informed that in the opinion of the SEC such indemnification is against public policy as expressed in the Securities Act and is therefore unenforceable.

Corporate Opportunity

Under our certificate of incorporation, to the extent permitted by law:

Fortress, the Virgin Trains Stockholder and their respective affiliates have the right to and have no duty to abstain from, exercising such right to, engage or invest in the same or similar business as us, do business with any of our clients, customers or vendors or employ or otherwise engage any of our officers, directors or employees;
if Fortress, the Virgin Trains Stockholder, their respective affiliates or any of their officers, directors or employees acquire knowledge of a potential transaction that could be a corporate opportunity, they have no duty to offer such corporate opportunity to us, our stockholders or affiliates;
we have renounced any interest or expectancy in, or in being offered an opportunity to participate in, such corporate opportunities; and
in the event that any of our directors and officers who is also a director, officer, or employee of any of Fortress, the Virgin Trains Stockholder, or their respective affiliates acquires knowledge of a corporate opportunity or is offered a corporate opportunity, provided that this knowledge was not acquired solely in such person’s capacity as our director or officer and such person acted in good faith, then such person is deemed to have fully satisfied such person’s fiduciary duty and is not liable to us if any of Fortress, the Virgin Trains Stockholder or their respective affiliates pursues or acquires such corporate opportunity or if such person did not present the corporate opportunity to us.

Transfer Agent

The registrar and transfer agent for our common stock is American Stock Transfer & Trust Company.

Listing

We have applied to list our shares of common stock on the Nasdaq under the symbol “VTUS.”

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SHARES ELIGIBLE FOR FUTURE SALE

Prior to this offering and the concurrent private placements, there has been no public market for our common stock, and we cannot predict the effect, if any, that sales of shares or availability of any shares for sale will have on the market price of our common stock prevailing from time to time. Sales of substantial amounts of common stock (including shares issued on the exercise of options, warrants or convertible securities, if any) or the perception that such sales could occur, could adversely affect the market price of our common stock and our ability to raise additional capital through a future sale of securities.

Upon completion of this offering and the concurrent private placements, we will have 165,813,000 shares of common stock issued and outstanding (or a maximum of 170,063,100 shares if the underwriters exercise their over-allotment option in full). All of the shares of our common stock sold in this offering (or 167,841,100 shares if the underwriters exercise their over-allotment option in full) will be freely tradable without restriction or further registration under the Securities Act unless such shares are purchased by “affiliates” as that term is defined in Rule 144 under the Securities Act. Upon completion of this offering and the concurrent private placements, approximately 81.6% of our outstanding common stock will be held by the Virgin Trains Stockholder. These shares will be “restricted securities” as that phrase is defined in Rule 144. Subject to certain contractual restrictions, including the lock-up agreements described below, holders of restricted shares will be entitled to sell those shares in the public market if they qualify for an exemption from registration under Rule 144 or any other applicable exemption under the Securities Act. Subject to the lock-up agreements described below and the provisions of Rules 144 and 701, additional shares will be available for sale as set forth below.

Lock-Up Agreements

See “Underwriting” for a description of the lock-up agreements applicable to our shares.

Rule 144

In general, under Rule 144 under the Securities Act, a person (or persons whose shares are aggregated) who is not deemed to have been an affiliate of ours at any time during the three months preceding a sale, and who has beneficially owned restricted securities within the meaning of Rule 144 for at least six months (including any period of consecutive ownership of preceding non-affiliated holders) would be entitled to sell those shares, subject only to the availability of current public information about us. A non-affiliated person who has beneficially owned restricted securities within the meaning of Rule 144 for at least one year would be entitled to sell those shares without regard to the provisions of Rule 144.

A person (or persons whose shares are aggregated) who is deemed to be an affiliate of ours and who has beneficially owned restricted securities within the meaning of Rule 144 for at least six months would be entitled to sell within any three-month period a number of shares that does not exceed the greater of one percent of the then outstanding shares of our common stock or the average weekly trading volume of our common stock reported through the Nasdaq during the four calendar weeks preceding such sale. Such sales are also subject to certain manner of sale provisions, notice requirements and the availability of current public information about us.

Rule 701

In general, under Rule 701 of the Securities Act, most of our employees, consultants or advisors who purchased shares from us in connection with a qualified compensatory stock plan or other written agreement are eligible to resell those shares 90 days after the date of this prospectus in reliance on Rule 144, but without compliance with the holding period or certain other restrictions contained in Rule 144.

Registration Rights

Pursuant to the Stockholders’ Agreement, the Virgin Trains Stockholder and certain of its affiliates and permitted third party transferees will have the right, in certain circumstances, to require us to register their shares of our common stock under the Securities Act for sale into the public markets at any time following the expiration of the 180-day lock-up period described above. The Virgin Trains Stockholder and certain of its affiliates and permitted third party transferees will also be entitled to piggyback registration rights with respect to any future registration statement that we file for an underwritten public offering of our securities. Upon the effectiveness of such a registration statement, all shares covered by the registration statement will be freely transferable. If these rights are exercised and the Virgin Trains Stockholder sells a large number of shares of common stock, the market price of our common stock could decline. See “Certain Relationships and Related Party Transactions—Stockholders’ Agreement” for a more detailed description of these registration rights.

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DESCRIPTION OF CERTAIN INDEBTEDNESS

Senior Loan Agreement (Series 2017 Bonds)

In December 2017, the FDFC issued $600 million aggregate principal amount of its Surface Transportation Facility Revenue Bonds (Brightline Passenger Rail Project – South Segment), Series 2017, which we refer to herein as the “Series 2017 Bonds.” Pursuant to the Senior Loan Agreement, the FDFC loaned the proceeds from the issuance of the Series 2017 Bonds to Brightline Trains, and Brightline Trains has agreed to pay all principal and interest on the Series 2017 Bonds when due. Brightline Trains used the proceeds from the Series 2017 Bonds, together with equity contributions from our Parent and other funds, to repay certain of our then existing debt and to fund certain reserves and the completion of the South Segment. The proceeds from the Series 2017 Bonds may not be used to finance the North Segment. In addition, the Senior Loan Agreement contains negative covenants that limit, among other things, Brightline Trains from paying dividends and other distributions to us.

The Company’s obligations with respect to the Series 2017 Bonds and under the Senior Loan Agreement are secured by mortgage liens encumbering substantially all of the real property interests for the South Segment (including the stations) substantially all personal property of Brightline Trains, and a pledge of the membership interest in Brightline Trains. The Series 2017 Bonds have a maturity date of January 1, 2047 and bear interest of 5.625% during an initial term rate period that ends on December 31, 2027. Interest is payable semi-annually on January 1 and July 1 of each year, commencing on July 1, 2018.

During the initial term rate period, the Series 2017 Bonds are subject to redemption, in whole, at any time prior to January 1, 2019 at the option of the Borrower at a price equal to 105% of the principal amount of the Series 2017 Bonds plus accrued and unpaid interest and any remaining payments of interest to be paid through January 1, 2019. Additionally, the Series 2017 Bonds are subject to redemption, in whole, at the option of the Borrower at any time on or after January 1, 2019 to, but not including, January 1, 2024, at a redemption price equal to the principal outstanding plus a premium and accrued and unpaid interest. The redemption premium is 5% if redemption is done through December 31, 2019 and declines to par after December 31, 2023. On the day immediately following the conclusion of the initial Term Rate Period on December 31, 2027, the Series 2017 Bonds are subject to a mandatory tender for purchase at a price of par plus accrued interest.

The Series 2017 Bonds are subject to mandatory redemption prior to maturity, in part, at a redemption price equal to the principal amount redeemed, plus accrued and unpaid interest to the redemption date, beginning on January 1, 2026 and every year thereafter on January 1 through the final maturity on January 1, 2047. The principal amount to be redeemed on January 1, 2026 is approximately $14.5 million, increasing by approximately 5.63% every January 1 until the final maturity principal of approximately $45.6 million is paid on January 1, 2047.

Siemens Financial Services Credit Agreement

On July 10, 2018, Brightline Trains entered into the Siemens Credit Agreement with Siemens Financial Services, Inc., as lender and administrative agent, providing for a $25 million delayed draw term loan credit facility to be used for working capital purposes (including for the acquisition of rolling stock).

The obligations of Brightline Trains under the Siemens Credit Agreement are secured on a pari passu basis by the liens on the collateral granted to secure the Company’s obligations with respect to the Series 2017 Bonds and under the Senior Loan Agreement. Term loans outstanding under the delayed draw term loan credit facility bear interest at a rate of LIBOR plus 3.75% per annum, payable quarterly in arrears and at maturity. Pursuant to the terms of the Siemens Credit Agreement, the interest rate on outstanding term loan amounts increased by 2% for the period from and after January 1, 2019. If any amount payable by Brightline Trains under the Siemens Credit Agreement or any other loan document is not paid when due, then the applicable interest rate on such overdue amounts increases by 2%. The original principal amount of each term loan outstanding under the delayed draw term loan credit facility amortizes at a rate of 5% per annum beginning January 1, 2019, payable on the last day of each calendar quarter. The last day that a term loan may be borrowed under the delayed draw term loan credit facility is September 30, 2018, and the maturity date for the delayed draw term loan credit facility is July 10, 2020.

The Siemens Credit Agreement requires the term loans outstanding under the delayed draw term loan credit facility to be prepaid (i) in the event that our Parent ceases to own, directly or indirectly, at least 50.1% of the membership interest in Brightline Trains, (ii) if Brightline Trains ceases operations as a passenger railroad service of the size and scope contemplated by the transactions contemplated by the documents relating to the Series 2017 Bonds

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or (iii) on or prior to March 31, 2019. Brightline Trains may voluntarily prepay the term loans outstanding under the delayed draw term loan credit facility at par at any time subject to prior notice delivered at least 3 business days prior to the date of prepayment. The Siemens Credit Agreement is subject to the Collateral Agency Agreement, which contains restrictions on, among other things, Brightline Trains’ ability to pay dividends and other distributions to us.

Anticipated Debt Financing

We are in discussions with potential lenders, other potential financing sources and advisors regarding the 2019 Debt Financing. The 2019 Debt Financing will not be completed prior to the consummation of this offering. In the interim, we are currently in discussions for a commitment for a one-year bridge loan facility (subject to a one-year extension) to permit us to borrow up to $2.3 billion aggregate principal amount. We do not yet have a commitment for such bridge loan facility. To the extent that we do not timely obtain all or a portion of the 2019 Debt Financing, we may elect to enter into and borrow under the bridge loan facility (if obtained) or other then-available sources of financing. In addition, we intend to obtain in the future additional debt and/or equity financing primarily to fund all or a portion of the costs to complete construction of the Vegas Expansion and the Tampa Expansion. The principal amount, applicable interest rate, covenants, collateral and other terms of such new financing facilities are not expected to be definitively determined until after the closing of this offering and may be adversely affected by economic, market, geopolitical and other conditions, most of which are beyond our control. This offering is not contingent upon our entering into such new financing facilities, and there can be no assurance that we will obtain the debt financing commitment or the bridge loan facility on commercially reasonable terms, or at all, that we will complete the 2019 Debt Financing or the bridge loan facility or that we will have other sources of liquidity available, and we cannot offer any assurance as to the final terms or availability of any such financing. See “Risk Factors—Risks Relating to Our Indebtedness—Although we believe that we will be able to raise sufficient funds to complete our Florida passenger rail system and the Vegas Expansion, there are no assurances that future sources of capital, including the 2019 Debt Financing or the bridge loan facility, will be available on favorable terms, on a timely basis, or at all to accomplish this.”

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U.S. FEDERAL INCOME AND ESTATE TAX CONSIDERATIONS FOR NON-U.S. HOLDERS OF COMMON STOCK

The following is a summary of U.S. federal income and estate tax considerations generally applicable to non-U.S. holders (as defined below) of the ownership and disposition of our common stock.

The following summary is based on current provisions of the Internal Revenue Code of 1986, as amended, or the Code, Treasury regulations and judicial and administrative authority, all of which are subject to change or differing interpretation, possibly with retroactive effect. State, local, foreign, and, except to the extent expressly set forth below, estate tax consequences are not summarized, nor are tax consequences to special classes of investors or investors subject to special rules, including, but not limited to, certain former citizens and former long-term residents of the United States, a “controlled foreign corporation,” a “passive foreign investment company,” a corporation that accumulates earnings to avoid U.S. federal income tax, a partnership or other “pass through” entity or an investor in any such entity, a holder who is subject to special exemptions or other special rules under the Foreign Investment in Real Property Tax Act of 1980 (“FIRPTA”), persons who own (actually or constructively) more than 5% of our common stock, a tax-exempt organization, a bank or other financial institution, a broker, dealer or trader in securities, commodities or currencies, a person holding our common stock as part of a hedging, conversion, straddle, constructive sale or other risk reduction transaction or an insurance company. Tax consequences may vary depending upon the particular status of an investor. The summary is limited to non-U.S. holders who purchase our common stock for cash pursuant to this offering and who hold our common stock as a “capital asset” (generally, property held for investment). Each potential investor should consult its tax advisor as to the U.S. federal, state, local, foreign and any other tax consequences of the purchase, ownership and disposition of our common stock.

For purposes of this summary, the term “non-U.S. holder” means a beneficial owner of our common stock (other than a partnership or other pass-through entity) that is not: a citizen or individual resident of the United States; a corporation (or other entity treated as a corporation for U.S. federal income tax purposes) organized in or under the laws of the United States, any state thereof or the District of Columbia; an estate the income of which is subject to U.S. federal income taxation regardless of its source; or a trust if (i) a court within the United States is able to exercise primary supervision over the administration of the trust and one or more U.S. persons have the authority to control all substantial decisions of the trust, or (ii) the trust has a valid election in effect to be treated as a U.S. person.

If a partnership (including any entity or arrangement treated as a partnership for U.S. federal income tax purposes) holds our common stock, the tax treatment of a partner in the partnership will generally depend upon the status of the partner and the activities of the partnership. If you are a partnership or a partner in a partnership holding our common stock, you should consult your tax advisor as to the particular U.S. federal income tax consequences applicable to you.

Distributions

Distributions with respect to our common stock will be treated as dividends to the extent paid from our current or accumulated earnings and profits as determined for U.S. federal income tax purposes. If a distribution exceeds our current and accumulated earnings and profits, then subject to the next sentence, the excess will be treated first as a return of capital to the extent of a holder’s adjusted tax basis in our common stock and thereafter as capital gain from the sale or exchange of such common stock, subject to the tax treatment described below in “—Dispositions.” Assuming we are a U.S. real property holding corporation (as described below), we may be required to withhold 15% of any distribution that exceeds our current and accumulated earnings and profits if either our common stock is not then treated as regularly traded on an established securities market or a non-U.S. holder owns in excess of 5% of our common stock.

Generally, distributions treated as dividends paid to a non-U.S. holder with respect to our common stock will be subject to a 30% U.S. withholding tax, or such lower rate as may be specified by an applicable income tax treaty. Distributions treated as dividends that are effectively connected with such non-U.S. holder’s conduct of a trade or business within the United States (and, if required by an applicable tax treaty, are attributable to a U.S. permanent establishment of such non-U.S. holder) are generally subject to U.S. federal income tax on a net income basis in the same manner as if the non-U.S. holder were a U.S. person and are exempt from the 30% withholding tax (assuming compliance with certain certification requirements). Any such effectively connected distributions received by a non-U.S. holder that is a corporation may also, under certain circumstances, be subject to an additional “branch profits tax” at a rate of 30% (or lower applicable treaty rate).

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To claim the benefit of an applicable tax treaty or an exemption from withholding because the income is effectively connected with the non-U.S. holder’s conduct of a trade or business in the United States, a non-U.S. holder generally will be required to provide a properly executed Internal Revenue Service Form W-8BEN or W-8BEN-E (if the holder is claiming the benefits of an income tax treaty) or Form W-8ECI (for income effectively connected with a trade or business in the United States) or other suitable form. Non-U.S. holders should consult their tax advisors regarding their entitlement to benefits under a relevant tax treaty.

Dispositions

A non-U.S. holder generally will not be subject to U.S. federal income or withholding tax with respect to gain realized on the sale, exchange or other disposition of our common stock unless:

the gain is effectively connected with such non-U.S. holder’s conduct of a trade or business within the United States (and, if required by an applicable tax treaty, is attributable to a U.S. permanent establishment of such non-U.S. holder);
in the case of a non-U.S. holder that is a non-resident alien individual, such non-U.S. holder is present in the United States for 183 or more days in the taxable year of disposition and certain other requirements are met; or
we are or have been a “United States real property holding corporation” at any time within the shorter of the five-year period ending on the date of such sale, exchange, or other taxable disposition or the period that such non-U.S. holder held our common stock and either (a) our common stock was not treated as regularly traded on an established securities market at the time of the sale, or (b) such non-U.S. holder owns or owned (actually or constructively) more than 5% of our common stock at any time during the shorter of the two periods mentioned above.

If gain or loss on the disposition of our common stock is effectively connected with a non-U.S. holder’s conduct of a trade or business within the United States (and, if required by an applicable tax treaty, is attributable to a U.S. permanent establishment of such non-U.S. Holder), such gain or loss will be subject to U.S. federal income tax on a net income basis in the same manner as if the non-U.S. holder were a U.S. person, and in the case of a non-U.S. holder that is a foreign corporation, such gain may also be subject to an additional branch profits tax at a rate of 30% (or a lower applicable treaty rate). If a non-U.S. holder is an individual that is present in the United States for 183 or more days in the taxable year of disposition and certain other requirements are met, the non-U.S. holder generally will be subject to a flat income tax at a rate of 30% (or lower applicable treaty rate) on any capital gain recognized on the disposition of our common stock, which may be offset by certain U.S. source capital losses.

With respect to the third bullet above, we believe that we are a “U.S. real property holding corporation” for U.S. federal income tax purposes. Generally, a corporation is a U.S. real property holding corporation if the fair market value of its U.S. real property interests, as defined in the Code and applicable Treasury regulations, equals or exceeds 50% of the aggregate fair market value of its worldwide real property interests and its other assets used or held for use in a trade or business. In addition, although we anticipate that our common stock will be treated as “regularly traded on an established securities market” following this offering, no assurance can be given that our common stock will continue to be so treated in the future. If the third bullet above applies to a non-U.S. holder, gain recognized on the disposition of our common shares generally will be subject to U.S. federal income tax under FIRPTA on a net income basis in the same manner as if the non-U.S. holder were a U.S. person. In addition, if our stock ceased to be “regularly traded,” the transferee in any disposition would generally be required to withhold 15% of the amount realized on the disposition under FIRPTA. Non-U.S. holders should consult their tax advisors regarding the foregoing rules.

Information Reporting and Backup Withholding

Information returns are required to be filed with the Internal Revenue Service in connection with payments of dividends on our common stock. Unless you comply with certification procedures to establish that you are not a U.S. person, information returns may also be filed with the Internal Revenue Service in connection with the proceeds from a sale or other disposition of our common stock. You may be subject to backup withholding on payments on our common stock or on the proceeds from a sale or other disposition of our common stock unless you comply with certification procedures to establish that you are not a U.S. person or otherwise establish an exemption. Your provision of a properly executed applicable Internal Revenue Service Form W-8 certifying your non-U.S. status will

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generally permit you to avoid backup withholding. Amounts withheld under the backup withholding rules are not additional taxes and may be refunded or credited against your U.S. federal income tax liability, provided the required information is timely furnished to the Internal Revenue Service.

Foreign Account Tax Compliance Act

Legislation enacted in 2010 and existing guidance issued thereunder require withholding at a rate of 30% on dividends in respect of our common stock held by or through certain foreign financial institutions (including investment funds), unless such institution enters into an agreement with the United States Department of the Treasury to report, on an annual basis, information with respect to interests in, and accounts maintained by, the institution to the extent such interests or accounts are held by certain U.S. persons and by certain non-U.S. entities that are wholly or partially owned by U.S. persons and to withhold on certain payments. Accordingly, the entity through which our common stock is held will affect the determination of whether such withholding is required. Similarly, dividends in respect of our common stock held by an investor that is a non-financial non-U.S. entity that does not qualify under certain exemptions will be subject to withholding at a rate of 30%, unless such entity either (i) certifies that such entity does not have any “substantial United States owners” or (ii) provides certain information regarding the entity’s “substantial United States owners,” which we or the applicable withholding agent will in turn provide to the Internal Revenue Service. An intergovernmental agreement between the United States and an applicable foreign country, or future Treasury regulations or other guidance, may modify the foregoing requirements. We will not pay any additional amounts to stockholders in respect of any amounts withheld. Stockholders are encouraged to consult their tax advisors regarding the possible implications of the legislation on their investment in our common stock.

U.S. Federal Estate Tax

Shares of our common stock that are owned (or treated as owned) by an individual who is not a citizen or resident of the U.S. (as specially defined for U.S. federal estate tax purposes) at the time of death will generally be included in such individual’s gross estate for U.S. federal estate tax purposes unless an applicable estate or other tax treaty provides otherwise, and, therefore, may be subject to U.S. federal estate tax.

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UNDERWRITING

We are offering the shares of common stock described in this prospectus through a number of underwriters. Barclays Capital Inc., J.P. Morgan Securities LLC and Morgan Stanley & Co. LLC are acting as representatives of the underwriters. We have entered into an underwriting agreement with the representatives. Subject to the terms and conditions of the underwriting agreement, we have agreed to sell to the underwriters, and each underwriter has severally agreed to purchase, at the initial public offering price less the underwriting discounts and commissions set forth on the cover page of this prospectus, the number of shares of common stock listed next to its name in the following table:

Underwriter
Number of
Shares
Barclays Capital Inc.
 
 
 
J.P. Morgan Securities LLC
 
 
 
Morgan Stanley & Co. LLC
 
 
 
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
 
 
 
Allen & Company LLC
 
 
 
JMP Securities LLC
 
 
 
Raymond James & Associates, Inc.
 
 
 
Stephens Inc.
 
         
 
Total
 
28,334,000
 

The underwriters are committed to purchase all the common shares offered by us if they purchase any shares. The underwriting agreement also provides that if an underwriter defaults, the purchase commitments of non-defaulting underwriters may also be increased or the offering may be terminated. The underwriters propose to offer the common shares directly to the public at the initial public offering price set forth on the cover page of this prospectus and to certain dealers at that price less a concession not in excess of $       per share. After the initial offering of the shares to the public, if all of the common shares are not sold at the initial public offering price, the underwriters may change the offering price and the other selling terms. Sales of shares made outside of the United States may be made by affiliates of the underwriters. The offering of the shares by the underwriters is subject to receipt and acceptance and subject to the underwriters’ right to reject any order in whole or in part.

The underwriters have an option to buy up to 4,250,100 additional shares of common stock from us to cover sales of shares by the underwriters which exceed the number of shares specified in the table above. The underwriters have 30 days from the date of this prospectus to exercise this option to purchase additional shares. If any shares are purchased with this option to purchase additional shares, the underwriters will purchase shares in approximately the same proportion as shown in the table above. If any additional shares of common stock are purchased, the underwriters will offer the additional shares on the same terms as those on which the shares are being offered.

The underwriting fee is equal to the public offering price per share of common stock less the amount paid by the underwriters to us per share of common stock. The underwriting fee is $1.08 per share. The following table shows the per share and total underwriting discounts and commissions to be paid to the underwriters assuming both no exercise and full exercise of the underwriters’ option to purchase additional shares.

 
Without
option to
purchase
additional
shares
exercise
With full
option to
purchase
additional
shares
exercise
Per share
$
1.08
 
$
1.08
 
Total
$
30,600,720
 
$
35,190,828
 

We estimate that the total expenses of this offering, including registration, filing and listing fees, printing fees and legal and accounting expenses, but excluding the underwriting discounts and commissions, will be approximately $11.6 million. We have agreed to reimburse the underwriters for expenses of up to $50,000 related to clearance of this offering with the Financial Industry Regulatory Authority, Inc. or FINRA.

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A prospectus in electronic format may be made available on the websites maintained by one or more underwriters, or selling group members, if any, participating in this offering. The underwriters may agree to allocate a number of shares to underwriters and selling group members for sale to their online brokerage account holders. Internet distributions will be allocated by the representatives to underwriters and selling group members that may make Internet distributions on the same basis as other allocations.

We, all of our directors and executive officers, the Virgin Trains Stockholder and Corvina have agreed with the underwriters that, subject to certain exceptions, for 180 days after the date of this prospectus (the “restricted period”), without the prior written consent of Barclays Capital Inc., J.P. Morgan Securities LLC and Morgan Stanley & Co. LLC, we and they will not directly or indirectly, (1) offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase or otherwise transfer or dispose of any shares of our common stock or any securities convertible into or exercisable or exchangeable for shares of our common stock or file a registration statement with respect to the registration of any shares of our common stock or any securities convertible into or exercisable or exchangeable for shares of our common stock or (2) enter into any swap or any other agreement or any transaction that transfers, in whole or in part, directly or indirectly, the economic consequence of ownership of shares of our common stock or any securities convertible into or exercisable or exchangeable for shares of our common stock.

With respect to us, the restrictions described in the immediately preceding paragraph do not apply to (A) shares of our common stock to be sold pursuant to this offering, (B) any shares of our common stock issued upon the exercise of an option or warrant or the conversion of a security outstanding on the date hereof and referred to in this prospectus, (C) any grants of share options, restricted shares, notional units or other equity or equity-based securities to employees, directors, contractors or other individuals eligible to receive awards pursuant to the terms of any plan in effect as described in this prospectus, issuances of shares of our common stock pursuant to the exercise of such options or the exercise of any other employee share options or units outstanding pursuant to our equity incentive plans that are described in this prospectus, (D) any shares of our common stock issued pursuant to any non-employee director share plan or dividend reinvestment plan referred to in this prospectus, and (E) any registration statement on Form S-8 under the Securities Act with respect to (B), (C) and (D), provided that holders of shares issued pursuant to (B), (C) or (D) have agreed to execute a lock-up letter or such shares do not vest until after the expiry of the restricted period.

With respect to our directors and executive officers, the Virgin Trains Stockholder and Corvina, the restrictions described above do not apply, subject to certain exceptions and limitations, to any shares of our common stock transferred (A) as a bona fide gift or gifts, (B) to any trust for the direct or indirect benefit of the undersigned or the immediate family of the undersigned, (C) by will or intestate succession, (D) with respect to an entity, by distribution to any affiliate, wholly-owned subsidiary, limited partners, members or stockholders of the undersigned, (E) to funds managed by an affiliate of Fortress, (F) to affiliates or to any investment fund or other entity controlled or managed by the undersigned, (G) to a nominee or custodian of a person or entity to whom a disposition or transfer would be permissible under clauses (A) through (F) above and (H) in connection with a written plan meeting the requirements of Rule 10b5-1 under the Exchange Act.

We have agreed to indemnify the several underwriters against certain liabilities, including liabilities under the Securities Act. We have applied to list our common stock on the Nasdaq under the symbol “VTUS”.

In connection with this offering, the underwriters may engage in stabilizing transactions, which involves making bids for, purchasing and selling shares of common stock in the open market for the purpose of preventing or retarding a decline in the market price of the common stock while this offering is in progress. These stabilizing transactions may include making short sales of the common stock, which involves the sale by the underwriters of a greater number of shares of common stock than they are required to purchase in this offering, and purchasing shares of common stock on the open market to cover positions created by short sales. Short sales may be “covered” shorts, which are short positions in an amount not greater than the underwriters’ option to purchase additional shares referred to above, or may be “naked” shorts, which are short positions in excess of that amount. The underwriters may close out any covered short position either by exercising their option to purchase additional shares, in whole or in part, or by purchasing shares in the open market. In making this determination, the underwriters will consider, among other things, the price of shares available for purchase in the open market compared to the price at which the underwriters may purchase shares through the option to purchase additional shares. A naked short position is more likely to be created if the underwriters are concerned that there may be downward pressure on the price of the common stock in the open market that could adversely affect investors who purchase in this offering. To the extent that the underwriters

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create a naked short position, they will purchase shares in the open market to cover the position. The underwriters have advised us that, pursuant to Regulation M of the Securities Act of 1933, they may also engage in other activities that stabilize, maintain or otherwise affect the price of the common stock, including the imposition of penalty bids. This means that if the representatives of the underwriters purchase common stock in the open market in stabilizing transactions or to cover short sales, the representatives can require the underwriters that sold those shares as part of this offering to repay the underwriting discount received by them. These activities may have the effect of raising or maintaining the market price of the common stock or preventing or retarding a decline in the market price of the common stock, and, as a result, the price of the common stock may be higher than the price that otherwise might exist in the open market. If the underwriters commence these activities, they may discontinue them at any time. The underwriters may carry out these transactions on the Nasdaq, in the over-the-counter market or otherwise.

Prior to this offering, there has been no public market for our common stock. The initial public offering price will be determined by negotiations between us and the representatives of the underwriters. In determining the initial public offering price, we and the representatives of the underwriters expect to consider a number of factors, including:

the information set forth in this prospectus and otherwise available to the representatives;
our prospects and the history and prospects for the industry in which we compete;
an assessment of our management;
our prospects for future earnings;
the general condition of the securities markets at the time of this offering;
the recent market prices of, and demand for, publicly traded common stock of generally comparable companies; and
other factors deemed relevant by the underwriters and us.

Neither we nor the underwriters can assure investors that an active trading market will develop for our common shares, or that the shares will trade in the public market at or above the initial public offering price.

Other Relationships

The underwriters and their respective affiliates are full service financial institutions engaged in various activities, which may include sales and trading, commercial and investment banking, advisory, investment management, investment research, principal investment, hedging, market making, brokerage and other financial and non-financial activities and services. Certain of the underwriters and their affiliates have provided in the past to us and our affiliates, and may provide from time to time in the future, certain commercial banking, financial advisory or investment banking advice or other services in the ordinary course of their business, for which they have received and may continue to receive customary fees and commissions. In addition, from time to time, certain of the underwriters and their respective affiliates, officers, directors and employees may effect transactions for their own account or the account of customers, and hold on behalf of themselves or their customers, long or short positions in our debt or equity securities or loans, and may do so in the future. The underwriters and their respective affiliates may also communicate independent investment recommendations, market color or trading ideas and/or publish or express independent research views in respect of the company’s securities and may at any time hold, or recommend to clients that they should acquire, long and/or short positions in the company’s securities. In addition, Barclays Capital Inc. is acting as the placement agent in connection with the concurrent private placement to Corvina, and Barclays Capital Inc. and Morgan Stanley & Co. LLC are expected to act as initial purchasers in connection with the 2019 Debt Financing, for which both will receive customary fees and expenses and indemnification against certain liabilities.

Selling Restrictions

General

Other than in the United States, no action has been taken by us or the underwriters that would permit a public offering of the securities offered by this prospectus in any jurisdiction where action for that purpose is required. The securities offered by this prospectus may not be offered or sold, directly or indirectly, nor may this prospectus or any other offering material or advertisements in connection with the offer and sale of any such securities be distributed or published in any jurisdiction, except under circumstances that will result in compliance with the applicable rules and regulations of that jurisdiction. Persons into whose possession this prospectus comes are advised to inform themselves about and to observe any restrictions relating to the offering and the distribution of this prospectus. This prospectus does not constitute an offer to sell or a solicitation of an offer to buy any securities offered by this prospectus in any jurisdiction in which such an offer or a solicitation is unlawful.

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Canada

The shares may be sold only to purchasers purchasing, or deemed to be purchasing, as principal that are accredited investors, as defined in National Instrument 45-106 Prospectus Exemptions or subsection 73.3(1) of the Securities Act (Ontario), and are permitted clients, as defined in National Instrument 31-103 Registration Requirements, Exemptions and Ongoing Registrant Obligations. Any resale of the shares must be made in accordance with an exemption from, or in a transaction not subject to, the prospectus requirements of applicable securities laws.

Securities legislation in certain provinces or territories of Canada may provide a purchaser with remedies for rescission or damages if this prospectus (including any amendment thereto) contains a misrepresentation, provided that the remedies for rescission or damages are exercised by the purchaser within the time limit prescribed by the securities legislation of the purchaser’s province or territory. The purchaser should refer to any applicable provisions of the securities legislation of the purchaser’s province or territory for particulars of these rights or consult with a legal advisor.

Pursuant to section 3A.3 of National Instrument 33-105 Underwriting Conflicts (“NI 33-105”), the representatives are not required to comply with the disclosure requirements of NI 33-105 regarding underwriter conflicts of interest in connection with this offering.

Dubai International Finance Centre

This prospectus relates to an Exempt Offer in accordance with the Offered Securities Rules of the Dubai Financial Services Authority, or the DFSA. This prospectus is intended for distribution only to persons of a type specified in the Offered Securities Rules of the DFSA. It must not be delivered to, or relied on by, any other person. The DFSA has no responsibility for reviewing or verifying any documents in connection with Exempt Offers. The DFSA has not approved this prospectus nor taken steps to verify the information set forth herein and has no responsibility for the prospectus. The shares to which this prospectus relates may be illiquid and/or subject to restrictions on their resale. Prospective purchasers of the shares offered should conduct their own due diligence on the shares. If you do not understand the contents of this prospectus you should consult an authorized financial advisor.

European Economic Area

In relation to each Member State of the European Economic Area that has implemented the Prospectus Directive (each, a “Relevant Member State”), an offer to the public of our common shares may not be made in that Relevant Member State, except that an offer to the public in that Relevant Member State of our common shares may be made at any time under the following exemptions under the Prospectus Directive:

(a)to any legal entity that is a qualified investor as defined in the Prospectus Directive;
(b)to fewer than 150 natural or legal persons (other than qualified investors as defined in the Prospectus Directive), subject to obtaining the prior consent of the Representatives for any such offer; or
(c)in any other circumstances falling within Article 3(2) of the Prospectus Directive,

provided that no such offer of shares of our common stock shall result in a requirement for the publication by us or any underwriter of a prospectus pursuant to Article 3 of the Prospectus Directive.

For the purposes of this provision, the expression an “offer to the public” in relation to our common shares in any Relevant Member State means the communication in any form and by any means of sufficient information on the terms of the offer and our common shares to be offered so as to enable an investor to decide to purchase our common shares, as the same may be varied in that Member State by any measure implementing the Prospectus Directive in that Member State; and the expression “Prospectus Directive” means Directive 2003/71/EC (as amended), including by Directive 2010/73/EU, and includes any relevant implementing measure in the Relevant Member State.

Hong Kong

The shares may not be offered or sold by means of any document other than (i) in circumstances that do not constitute an offer to the public within the meaning of the Companies Ordinance (Cap.32, Laws of Hong Kong), or (ii) to “professional investors” within the meaning of the Securities and Futures Ordinance (Cap.571, Laws of Hong Kong) and any rules made thereunder, or (iii) in other circumstances that do not result in the document being a “prospectus” within the meaning of the Companies Ordinance (Cap.32, Laws of Hong Kong), and no advertisement, invitation or document relating to the shares may be issued or may be in the possession of any person for the purpose of issue (in each case whether in Hong Kong or elsewhere), which is directed at, or the contents of

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which are likely to be accessed or read by, the public in Hong Kong (except if permitted to do so under the laws of Hong Kong) other than with respect to shares that are or are intended to be disposed of only to persons outside Hong Kong or only to “professional investors” within the meaning of the Securities and Futures Ordinance (Cap. 571, Laws of Hong Kong) and any rules made thereunder.

Japan

The securities have not been and will not be registered under the Financial Instruments and Exchange Law of Japan, or the Financial Instruments and Exchange Law, and each underwriter has agreed that it will not offer or sell any securities, directly or indirectly, in Japan or to, or for the benefit of, any resident of Japan (which term, as used in this prospectus means any person resident in Japan, including any corporation or other entity organized under the laws of Japan) or to others for re-offering or resale, directly or indirectly, in Japan or to a resident of Japan, except pursuant to an exemption from the registration requirements of, and otherwise in compliance with, the Financial Instruments and Exchange Law and any other applicable laws, regulations and ministerial guidelines of Japan.

Singapore

This prospectus has not been registered as a prospectus with the Monetary Authority of Singapore. Accordingly, this prospectus and any other document or material in connection with the offer or sale, or invitation for subscription or purchase, of the shares may not be circulated or distributed, nor may the shares be offered or sold, or be made the subject of an invitation for subscription or purchase, whether directly or indirectly, to persons in Singapore other than (i) to an institutional investor under Section 274 of the Securities and Futures Act, Chapter 289 of Singapore, or the SFA, (ii) to a relevant person, or any person pursuant to Section 275(1A), and in accordance with the conditions, specified in Section 275 of the SFA or (iii) otherwise pursuant to, and in accordance with the conditions of, any other applicable provision of the SFA. Where the shares are subscribed or purchased under Section 275 by a relevant person that is:

(a)a corporation (which is not an accredited investor) the sole business of which is to hold investments and the entire share capital of which is owned by one or more individuals, each of whom is an accredited investor; or
(b)a trust (where the trustee is not an accredited investor) whose sole purpose is to hold investments and each beneficiary is an accredited investor, shares, debentures and units of shares and debentures of that corporation or the beneficiaries’ rights and interest in that trust shall not be transferable for six months after that corporation or that trust has acquired the shares under Section 275 except:
(1)to an institutional investor under Section 274 of the SFA or to a relevant person, or any person pursuant to Section 275(1A), and in accordance with the conditions, specified in Section 275 of the SFA;
(2)where no consideration is given for the transfer; or
(3)by operation of law.

Singapore Securities and Futures Act Product Classification - Solely for the purposes of its obligations pursuant to Sections 309B(1)(a) and 309B(1)(c) of the SFA, the company has determined, and hereby notify all relevant persons (as defined in Section 309A of the SFA) that the shares are “prescribed capital markets products” (as defined in the Securities and Futures (Capital Markets Products) Regulations 2018) and Excluded Investment Products (as defined in MAS Notice SFA 04-N12: Notice on the Sale of Investment Products and MAS Notice FAA-N16: Notice on Recommendations on Investment Products).

Switzerland

The shares may not be publicly offered in Switzerland and will not be listed on the SIX Swiss Exchange, or SIX, or on any other stock exchange or regulated trading facility in Switzerland. This document has been prepared without regard to the disclosure standards for issuance prospectuses under art. 652a or art. 1156 of the Swiss Code of Obligations or the disclosure standards for listing prospectuses under art. 27 ff. of the SIX Listing Rules or the listing rules of any other stock exchange or regulated trading facility in Switzerland. Neither this document, nor any other offering or marketing material relating to the shares or this offering, may be publicly distributed or otherwise made publicly available in Switzerland. Neither this document nor any other offering or marketing material relating to this offering, the Company, the shares has been or will be filed with or approved by any Swiss regulatory authority. In particular, this document will not be filed with, and the offer of shares will not be supervised by, the Swiss Financial Market Supervisory Authority FINMA, or FINMA, and the offer of shares has not been and will not be authorized under the Swiss Federal Act on Collective Investment Schemes, or CISA. The investor protection afforded to acquirers of interests in collective investment schemes under the CISA does not extend to acquirers of shares.

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United Arab Emirates

This prospectus relates to an Exempt Offer in accordance with the Offered Securities Rules of the Dubai Financial Services Authority, or DFSA. This prospectus is intended for distribution only to persons of a type specified in the Offered Securities Rules of the DFSA. It must not be delivered to, or relied on by, any other person. The DFSA has no responsibility for reviewing or verifying any documents in connection with Exempt Offers. The DFSA has not approved this prospectus nor taken steps to verify the information set forth herein and has no responsibility for this prospectus. The shares to which this prospectus relates may be illiquid and/or subject to restrictions on their resale. Prospective purchasers of the shares offered should conduct their own due diligence on the shares. If you do not understand the contents of this prospectus, you should consult an authorized financial advisor.

United Kingdom

This document is only being distributed to and is only directed at (i) persons who are outside the United Kingdom or (ii) to investment professionals falling within Article 19(5) of the Financial Services and Markets Act 2000 (Financial Promotion) Order 2005, or the Order, or (iii) high net worth entities, and other persons to whom it may lawfully be communicated, falling with Article 49(2)(a) to (d) of the Order (all such persons together being referred to as “relevant persons”). The securities are only available to, and any invitation, offer or agreement to subscribe, purchase or otherwise acquire such securities will be engaged in only with, relevant persons. Any person who is not a relevant person should not act or rely on this document or any of its contents.

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LEGAL MATTERS

Certain legal matters relating to this offering will be passed upon for us by Skadden, Arps, Slate, Meagher & Flom LLP, New York, New York. Certain matters will be passed upon for the underwriters by Davis Polk & Wardwell LLP, New York, New York.

EXPERTS

The financial statements included in this prospectus and the related financial statement schedule included elsewhere in the registration statement have been audited by Ernst & Young LLP, independent registered public accounting firm, as set forth in their report thereon appearing elsewhere herein, and are included in reliance upon such report given on the authority of such firm as experts in accounting and auditing.

The Florida Ridership and Revenue Study and the Florida Operations and Maintenance and Ancillary Revenue Report conducted by Louis Berger and referenced in this prospectus and any information from the report included in this prospectus have been referenced in this prospectus and included in the registration statement of which this prospectus is a part in reliance on the authority of such firm as an expert in its field.

ADDITIONAL INFORMATION

We have filed with the SEC a registration statement on Form S-1 with respect to the common stock offered hereby. This prospectus, which constitutes a part of the registration statement, does not contain all of the information set forth in the registration statement or the exhibits and schedules which are part of the registration statement. For further information with respect us and the common stock, reference is made to the registration statement and the exhibits and schedules thereto. You may read and copy any document we file with the SEC at the SEC’s Public Reference Room at 100 F Street, N.E., Washington, D.C. 20549. Please call the SEC at 1-800-SEC-0330 for further information about the public reference rooms. Our SEC filings are also available to the public the from SEC’s website at www.sec.gov.

Upon completion of this offering, we will become subject to the information and periodic reporting requirements of the Exchange Act and, in accordance therewith, will file periodic reports, proxy statements and other information with the SEC. Such periodic reports, proxy statements and other information will be available for inspection and copying at the SEC’s public reference rooms and the website of the SEC referred to above. We intend to make this information available on the investor relations section of our website, www.virgintrainsusa.com. Information on or accessible through our website is not part of this prospectus.

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Virgin Trains USA

CONDENSED COMBINED STATEMENTS OF OPERATIONS AND COMPREHENSIVE LOSS
(Dollars in thousands, except share and per share data)

 
Nine Months Ended September 30,
 
2018
2017
 
(Unaudited)
Revenues
 
 
 
 
 
 
Passenger and customer related
$
4,754
 
$
 
Other
 
479
 
 
 
Total operating revenues
 
5,233
 
 
 
 
 
 
 
 
 
 
Operating expenses
 
 
 
 
 
 
Salaries, wages and benefits
 
21,941
 
 
17,757
 
Equipment maintenance
 
6,970
 
 
1,535
 
Maintenance of way
 
5,592
 
 
2,332
 
Fuel
 
1,395
 
 
59
 
Rent
 
3,292
 
 
567
 
Other operating expenses
 
6,741
 
 
2,803
 
General and administrative
 
22,910
 
 
10,327
 
Depreciation and amortization
 
18,392
 
 
618
 
Total operating expenses
 
87,233
 
 
35,998
 
Operating loss
 
(82,000
)
 
(35,998
)
 
 
 
 
 
 
 
Other income (expense)
 
 
 
 
 
 
Interest income (expense), net
 
(5,265
)
 
15
 
Other income
 
137
 
 
26
 
Total other income (expense)
 
(5,128
)
 
41
 
Net loss and comprehensive loss
$
(87,128
)
$
(35,957
)
 
 
 
 
 
 
 
Pro forma information
 
 
 
 
 
 
Net loss
$
(87,128
)
 
 
 
Pro forma income tax expense
 
(489
)
 
 
 
Pro forma net loss
$
(87,617
)
 
 
 
Pro forma net loss per share—basic and diluted
$
 
 
 
 
Weighted average shares of common stock outstanding post contribution—basic and diluted
 
 
 
 
 
 

The accompanying notes are an integral part of the condensed combined financial statements.

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Virgin Trains USA

CONDENSED COMBINED BALANCE SHEETS
(Dollars in thousands)

 
As of
September 30,
2018
As of
December 31,
2017
 
(Unaudited)
Assets
 
 
 
 
 
 
Current assets
 
 
 
 
 
 
Cash and cash equivalents
$
273
 
$
 
Restricted cash
 
48,675
 
 
169,086
 
Other current assets
 
9,313
 
 
5,960
 
Total current assets
 
58,261
 
 
175,046
 
 
 
 
 
 
 
 
Properties, equipment, and investment in rail, net
 
1,501,383
 
 
1,332,572
 
Intangible assets, net
 
256,416
 
 
256,658
 
Other assets
 
20,865
 
 
10,078
 
Total assets
$
1,836,925
 
$
1,774,354
 
 
 
 
 
 
 
 
Liabilities and invested equity
 
 
 
 
 
 
Liabilities
 
 
 
 
 
 
Current liabilities
 
 
 
 
 
 
Accounts payable and accrued expenses
$
95,568
 
$
59,560
 
Accrued interest
 
8,450
 
 
1,273
 
Deposits from Transit Authority
 
30,440
 
 
23,504
 
Other current liabilities
 
7,592
 
 
3,807
 
Total current liabilities
 
142,050
 
 
88,144
 
 
 
 
 
 
 
 
Long-term debt
 
605,449
 
 
581,252
 
Other liabilities
 
27,692
 
 
20,748
 
Total liabilities
 
775,191
 
 
690,144
 
 
 
 
 
 
 
 
Commitments and contingencies
 
 
 
 
 
 
 
 
 
 
 
 
 
Invested equity - Parent’s net investment
 
1,061,734
 
 
1,084,210
 
Total liabilities and invested equity
$
1,836,925
 
$
1,774,354
 

The accompanying notes are an integral part of the condensed combined financial statements.

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Virgin Trains USA

CONDENSED COMBINED STATEMENTS OF CASH FLOWS
(Dollars in thousands)

 
Nine Months Ended September 30,
 
2018
2017
 
(Unaudited)
Cash flows from operating activities
 
 
 
 
 
 
Net loss
$
(87,128
)
$
(35,957
)
Adjustments to reconcile net loss to net cash used in operating activities:
 
 
 
 
 
 
Depreciation and amortization expense
 
18,392
 
 
618
 
Amortization of deferred financing costs
 
513
 
 
 
Straight-line rent expense
 
2,400
 
 
 
Share-based compensation expense
 
607
 
 
76
 
Non-cash interest expense
 
2,840
 
 
 
Changes in assets and liabilities:
 
 
 
 
 
 
(Increase) decrease in other current assets and other assets
 
(4,019
)
 
970
 
Increase in accounts payable and accrued expenses
 
5,471
 
 
3,746
 
Net cash used in operating activities
 
(60,924
)
 
(30,547
)
 
 
 
 
 
 
 
Cash flows from investing activities
 
 
 
 
 
 
Purchases of property, equipment, investment in rail and intangible assets
 
(132,167
)
 
(238,204
)
Deposits received from Transit Authority
 
6,936
 
 
11,128
 
Decrease (increase) in restricted cash
 
120,411
 
 
(971
)
Net cash used in investing activities
 
(4,820
)
 
(228,047
)
 
 
 
 
 
 
 
Cash flows from financing activities
 
 
 
 
 
 
Change in Parent’s net investment
 
55,977
 
 
254,373
 
Proceeds from Siemens Credit Agreement
 
8,125
 
 
 
Payments of insurance notes payable
 
(2,861
)
 
(2,138
)
Reimbursement from Transit Authority for construction
 
5,958
 
 
6,359
 
Payments of deferred financing costs
 
(1,182
)
 
 
Net cash provided by financing activities
 
66,017
 
 
258,594
 
 
 
 
 
 
 
 
Net increase in cash and cash equivalents
 
273
 
 
 
Cash and cash equivalents at beginning of period
 
 
 
 
Cash and cash equivalents at end of period
$
273
 
$
 
 
 
 
 
 
 
 
Supplemental disclosure of cash flow information:
 
 
 
 
 
 
Cash paid for interest of $18,240 and $2,584, net of amounts capitalized for the periods ended September 30, 2018 and 2017, respectively.
$
 
$
 
 
 
 
 
 
 
 
Supplemental disclosures of non-cash investing and financing activities:
 
 
 
 
 
 
Financing for purchases of rolling stock equipment
$
16,875
 
$
37,764
 

The accompanying notes are an integral part of the condensed combined financial statements.

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Virgin Trains USA

CONDENSED COMBINED STATEMENTS OF INVESTED EQUITY
(Dollars in thousands)

 
Nine Months Ended September 30,
 
2018
2017
 
(Unaudited)
Invested equity - Parent’s net investment
 
 
 
 
 
 
Balance at beginning of period
$
1,084,210
 
$
1,129,646
 
Net loss
 
(87,128
)
 
(35,957
)
Share-based compensation expense
 
607
 
 
76
 
Change in Parent’s net investment
 
64,045
 
 
280,984
 
Balance at end of period
$
1,061,734
 
$
1,374,749
 

The accompanying notes are an integral part of the condensed combined financial statements.

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Virgin Trains USA
   
Notes to Condensed Combined Financial Statements
September 30, 2018
(Unaudited)

Note 1.Business and Basis of Presentation

Business

Virgin Trains USA comprises the combined net assets and operations of Virgin Trains USA LLC (f/k/a AAF Holdings B LLC, a limited liability company in Delaware that effected a name change to Brightline Holding LLC in March 2018 and to Virgin Trains USA LLC in November 2018) and its wholly-owned subsidiaries and certain other wholly-owned subsidiaries of AAF Holdings LLC (the “Virgin Trains Stockholder”), collectively referred to as the “Company.” The wholly-owned subsidiaries of the Virgin Trains Stockholder referenced above include AAF Jacksonville Segment LLC, Brightline Management LLC (f/k/a All Aboard Florida Operations Management LLC, a limited liability company in Delaware that effected a name change in May 2018), Brevard County Property Holdings LLC and Space Coast Land Holdings LLC. The Virgin Trains Stockholder is a subsidiary of Florida East Coast Industries, LLC (“FECI” or our “Parent”). The Virgin Trains Stockholder owns approximately 99.8% of Virgin Trains USA LLC and the remainder is owned by the employees of Virgin Trains USA.

The Company is in the business of owning and operating an express passenger rail system connecting major population centers in Florida, with plans to expand operations further in Florida and elsewhere in North America.

The Company currently operates between Miami and West Palm Beach, one of the most heavily traveled and congested corridors in the United States in January 2018, the Company commenced initial operations between Fort Lauderdale and West Palm Beach, and prior to then, the Company had no operating revenues. The Company commenced service to Miami in May 2018. The Company commenced early works construction of the expansion of our Florida passenger rail system to Orlando, and intends to further expand the rail service to Tampa. The Company owns stations located in the heart of downtown cities and major transit hubs in Miami, Fort Lauderdale and West Palm Beach. The portion of the passenger rail system running between Miami and West Palm Beach is referred to as the “South Segment.” The portion of the passenger rail system that will run between West Palm Beach and Orlando is referred to as the “North Segment.”

The Company manages its operations as a single operating segment for the purposes of assessing performance and making operating decisions. All of the Company’s assets are maintained in the United States.

Basis of Presentation

The unaudited condensed combined financial statements have been prepared on the same basis as the annual combined financial statements. In our opinion, we have made all necessary adjustments (which include normal recurring adjustments) in order to present fairly, in all material respects, our condensed combined financial position, results of operations, and cash flows as of the dates and for the periods presented. Certain information and footnote disclosures normally included in annual audited financial statements prepared in accordance with U.S. generally accepted accounting principles (“GAAP”) have been omitted. Our results of operations for the nine months ended September 30, 2018 and 2017 may not be indicative of our operating results for the full year.

In connection with the Company’s assessment of going concern consideration in accordance with Accounting Standard Update (“ASU”) 2014-15, Disclosures of Uncertainties about an Entity’s Ability to Continue as a Going Concern, for these condensed combined financial statements, the Company does not have sufficient liquidity to meet its obligations as they become due within one year after the date that the condensed combined financial statements are issued, inclusive of those related to certain early works construction activities of the North Segment of its Florida passenger rail system that the Company commenced in the second quarter 2018. However, management has determined the Company is able to access funds from the Virgin Trains Stockholder and our Parent that are sufficient to fund the current obligations of the Company until the earlier of the consummation of the anticipated public offering (the ”Proposed Offering”) or a minimum one year from the date these condensed combined financial statements are issued.

These condensed combined financial statements have been prepared on a stand-alone basis in accordance with GAAP and are derived from the Virgin Trains Stockholder’s and our Parent’s accounting records to reflect the

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Virgin Trains USA
   
Notes to Condensed Combined Financial Statements (continued)
September 30, 2018
(Unaudited)

Company’s financial position, results of operations and cash flows. The condensed combined financial results are not necessarily indicative of future performance and do not reflect what the Company’s financial performance would have been had it been a stand-alone company during the periods presented.

The Virgin Trains Stockholder and our Parent currently provide certain corporate services to the Company and costs associated with these functions have been allocated to the Company. These allocations are necessary to reflect all of the costs of doing business and include costs related to corporate development, finance and accounting, legal, information technology, human resources, treasury, and other services, as well as an allocation of share-based compensation attributable to employees of our Parent providing services to the Company. The costs of such services have been allocated to the Company on the basis of direct usage when identifiable, with the remainder allocated on the basis of headcount. The Company capitalized approximately $33.5 million and $26.2 million of the allocations that were directly related to capitalizable activities for the construction of its assets and recorded the amounts in Properties, equipment and investment in rail, net in the condensed combined balance sheets as of September 30, 2018 and December 31, 2017, respectively. The expense portion of these allocations was approximately $6.2 million and $9.4 million for the nine months ended September 30, 2018 and 2017, respectively and were included as a component of Salaries, wages and benefits, and General and administrative in the condensed combined statements of operations and comprehensive loss. Management believes the basis on which costs have been allocated to be a reasonable reflection of the utilization of services provided to, or the benefit received by, the Company during the periods presented.

The historical construction activities of Virgin Trains USA were funded by the Virgin Trains Stockholder, primarily through its borrowings. As such, the Virgin Trains Stockholder’s interest expense has been allocated to the Company based on the portion of the debt used to support the construction activities of the Company through 2017. Management believes the basis of allocation for the Virgin Trains Stockholder’s interest costs is reasonable. During the nine months ended September 30, 2017, the Company capitalized interest costs allocated by the Virgin Trains Stockholder of approximately $47.9 million to Properties, equipment and investment in rail, net in the condensed combined balance sheet.

The allocations may not reflect the expense the Company would have incurred as a stand-alone public company for the periods presented. Actual costs that may have been incurred if the Company had been a stand-alone public company would depend on a number of factors, including the chosen organization structure, what functions were outsourced or performed by employees, and other strategic decisions.

Invested equity represents the cumulative net investment by the Virgin Trains Stockholder in the Company, including any prior net loss or comprehensive loss of the Company and contributions received from the Virgin Trains Stockholder or repayment of the Virgin Trains Stockholder funding associated with the Company’s activities.

Cash is managed centrally through bank accounts controlled and maintained by the Virgin Trains Stockholder or our Parent on behalf of the Company. Transfers of cash both to and from the Virgin Trains Stockholder or our Parent are reflected in our Parent’s net investment in the condensed combined balance sheets.

Note 2.Interim Update to Summary of Significant Accounting Policies

Cash and Cash Equivalents

Cash and cash equivalents in the condensed combined balance sheets is comprised of cash held in bank accounts of Virgin Trains USA. The Company considers all highly liquid investments purchased with an original maturity of three months or less to be cash equivalents. In addition, the Company also uses a centralized approach for cash management and to finance its operations as discussed in Note 1.

Revenue Recognition

Passenger and customer related revenue in the condensed combined statements of operations and comprehensive loss includes revenue related to the sale of passenger tickets, food and beverage, merchandise, parking and other ancillary services. These revenues are recognized when the related services are performed or goods are sold. Amounts

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Virgin Trains USA
   
Notes to Condensed Combined Financial Statements (continued)
September 30, 2018
(Unaudited)

received in advance for passenger tickets are deferred in Other current liabilities in the condensed combined balance sheets until the ticket is used or expires. Customer incentives, which are primarily promotional pricing and customer discounts offered to passengers, are recorded as a reduction to passenger and customer related revenues.

Other revenue consists of revenue generated from advertising and sponsorship activities as well as third-party rentals of space at the stations. In general, other revenues are recognized when services are performed or contractual obligations are met. Rental revenues are recognized on a straight-line basis over the contractual term of the lease arrangement. Other revenues received in advance, which in general do not exceed 12 months, are deferred in Other current liabilities in the condensed combined balance sheets and are recognized ratably over the contract period or period of benefit of each respective agreement.

Consideration Received from Vendors

We receive funds from vendors in the normal course of business, principally as a result of purchase volumes, sales or promotions of vendors’ products. Generally, these vendor funds do not represent the reimbursement of specific, incremental and identifiable costs that we incurred to sell the vendor’s product. Therefore, we treat these funds as a reduction in the cost of inventory as the amounts are accrued, and recognize these funds as a reduction of cost of sales when the inventory is sold. Funds from vendors that are determined to be reimbursements of specific, incremental and identifiable costs incurred related to vendors’ products are recorded as an offset to the related expense.

Properties, Equipment and Investment in Rail, Net

Properties, equipment and investment in rail, net are stated at acquisition cost and include construction in progress, land and land improvement, buildings and building improvements, rail infrastructure, investment in rail, rolling stock and other assets. Investment in rail consists of rail assets and equipment for the rehabilitation and improvement of existing track infrastructure and the construction and installation of rail related capital improvements necessary to build the passenger rail system. Construction in progress is comprised of costs and interest related to projects that are not yet completed. Depreciation begins after the asset has been placed into service. The Company capitalizes the costs of major additions and improvements and expenses the costs for maintenance and repairs that do not extend the life of the asset by greater than one year. Depreciation is computed using the straight-line method over the estimated lives of the assets, as follows:

 
Useful Life
(Years)
Buildings and building improvements
15-39
Rail infrastructure
30-80
Investment in rail
45
Rolling stock
35
Furniture and fixtures and computer hardware and software
3-7
Machinery and Equipment
20

Intangible Assets

The Company has indefinite-lived intangible assets and definite-lived intangible assets.

Indefinite-lived Intangible Assets – Indefinite-lived intangible assets include the Company’s right-of-way easements for passenger rail purposes.

Definite-lived Intangible Assets – Definite-lived intangible assets include third party rail line property easements. Amortization is computed using the straight-line method over the estimated useful lives of the intangible assets. The Company evaluates the useful lives of its intangible assets with definite lives on an annual basis. Definite-lived intangible assets are stated at cost less accumulated amortization.

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Virgin Trains USA
   
Notes to Condensed Combined Financial Statements (continued)
September 30, 2018
(Unaudited)

Cost Capitalization

The Company capitalizes costs related to the construction of buildings and other infrastructure for its stations, as well as investment in rail and rolling stock. Capitalization of costs ceases when an asset is substantially complete or no longer undergoing activities to prepare it for its intended use.

The interest costs associated with qualified expenditures for assets under construction are capitalized and included in the cost of the asset. Interest capitalization ceases once an asset is substantially complete or no longer undergoing activities to prepare it for its intended use. When no debt is incurred specifically for a project, interest is capitalized on amounts expended on the project using the weighted-average cost of the Company's outstanding borrowings. The Company also capitalized interest costs allocated by the Virgin Trains Stockholder through 2017. Total capitalized interest costs were approximately $20.8 million and $50.8 million for the nine months ended September 30, 2018 and 2017, respectively.

Equity Method Investment

The Company accounts for its investment in Florida DispatchCo LLC (“DispatchCo”) pursuant to the equity method of accounting as it has the ability to exercise significant influence, but not control, over DispatchCo. This investment is recorded at its initial carrying value and is adjusted for capital contributions, dividends received and the Company’s proportionate share of the investee’s earnings or losses. This investment is reported as a component of Other assets in the condensed combined balance sheet.

Fair Value Disclosures of Financial Instruments

The Company accounts for financial instruments at fair value or the price that would be received to sell an asset or paid to transfer a liability in the principal or most advantageous market for the asset or liability in an orderly transaction between market participants at the measurement date. Assets and liabilities that are recorded at fair value are classified and disclosed in one of the following three categories:

Level 1 —Quoted prices for identical instruments in active markets.
Level 2 —Quoted prices for similar instruments in active markets, quoted prices for identical or similar instruments in markets that are not active, and model-derived valuations, in which all significant inputs are observable in active markets.
Level 3 —Unobservable inputs in which there is little or no market data, which require the reporting entity to develop its own assumptions.

The classification of assets and liabilities in the fair value hierarchy is based upon the lowest level input that is significant to the fair value measurement in its entirety.

The Company’s cash and cash equivalents and restricted cash are carried at historical cost which approximates fair value, determined in accordance with a Level 1 fair value measurement. Carrying value approximates fair value for accounts that are short- term in nature, including accounts payable and accrued expenses. The fair value of outstanding debt is estimated using a discounted cash flow analysis based on current market interest rates for debt issuances with similar remaining years to maturity and adjusted for credit risk, which represents a Level 3 measurement. As of September 30, 2018, the estimated fair value of long-term debt outstanding was approximately $608.5 million.

There were no transfers of the Company’s assets or liabilities between the fair value hierarchy levels during the nine months ended September 30, 2018 and 2017.

Operating Leases

The Company enters into leases and evaluates each lease at inception to determine whether the lease will be accounted for as an operating or capital lease. The term of the lease used for this evaluation includes renewal option periods only in instances in which the exercise of the renewal option can be reasonably assured, including

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Virgin Trains USA
   
Notes to Condensed Combined Financial Statements (continued)
September 30, 2018
(Unaudited)

consideration of the failure to exercise such option would result in an economic penalty. In addition, the commencement date of the lease term is the earlier of the date when the Company becomes legally obligated for the rent payments or the date when it takes possession of the premises.

If the lease is deemed to be operating, the Company recognizes rent expense, including lease incentives, premiums and minimum rent expenses, on a straight-line basis over the expected lease term, including cancelable option periods where failure to exercise such options would result in an economic penalty, in such amount that a renewal appears, at the inception of the lease, to be reasonably assured. Rent abatements and escalations are considered in the calculation of minimum lease payments in the Company’s capital lease tests and in determining straight-line rent expense for operating leases.

Advertising

The Company’s advertising costs are charged to expense as incurred. Advertising expenses of approximately $3.6 million and $2.1 million for the nine months ended September 30, 2018 and 2017, respectively, are included in Other operating expense in the condensed combined statements of operations and comprehensive loss.

Unaudited Pro Forma Income Taxes

The Company is comprised of legal entities that are not subject to federal, state, and local income taxes. The Company’s losses are passed through and allocated to the Company’s members. Accordingly, no provision or liability for income taxes has been made in the accompanying condensed combined financial statements. Upon consummation of the Proposed Offering, the Company will become subject to corporate U.S. federal and state income taxes under Subchapter C of the U.S. Internal Revenue Code (the “Code”).

The change in tax status is expected to result in the recognition of deferred taxes in the period in which the formation transaction is consummated. The Company is expected to record deferred tax assets related to net operating losses and excess tax basis over GAAP basis generated from additional costs capitalized during the construction period. The Company is expected to record a deferred tax liability related to accelerated tax depreciation.

The Company has assessed the realizability of its net deferred tax assets. The Company has not demonstrated that its deferred tax assets are realizable, and therefore, is expected to recognize a valuation allowance against its deferred tax assets net of 80% of its deferred tax liabilities as the net operating loss can only offset 80% of future taxable income generated by the deferred tax liability. For the nine months ended September 30, 2018, the Company expects the impact of recording the deferred tax asset net of valuation allowance would be a deferred tax expense of approximately $0.5 million on a pro forma basis.

On December 22, 2017, the U.S. government enacted comprehensive tax legislation commonly referred to as the Tax Cuts and Jobs Act (the “Tax Act”), which significantly changed the Code. The Tax Act makes broad and complex changes to the U.S. tax code that will impact many areas of taxation. Additionally, there are numerous interpretive issues and ambiguities that are not clearly addressed in current Tax Act guidance. Due to the complex nature of the Tax Act, including whether U.S. states will conform to the Tax Act in full or in part, the Company has not yet completed its accounting for the income tax effects of the Tax Act, and is not able to determine at this time the impact on the Company’s condensed combined financial statements.

Unaudited Pro Forma Net Loss Per Share

Pro forma basic and diluted net loss per share for the nine months ended September 30, 2018 has been computed to reflect the number of shares that will be outstanding after the contribution of certain subsidiaries of the Virgin Trains Stockholder to Virgin Trains USA LLC. The unaudited pro forma basic and diluted earnings per share for the

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Virgin Trains USA
   
Notes to Condensed Combined Financial Statements (continued)
September 30, 2018
(Unaudited)

nine months ended September 30, 2018 does not give effect to the initial public offering and the use of proceeds therefrom. The following table sets forth the computation of the Company’s unaudited pro forma basic and diluted net loss per share for the nine months ended September 30, 2018 (in thousands, except share and per share amounts):

 
Nine Months Ended
September 30,
2018
 
(Unaudited)
Pro forma net loss
$
(87,617
)
Weighted average shares of common stock outstanding post contribution—basic and diluted
 
 
 
Pro forma net loss per share—basic and diluted
$
 

Share-Based Compensation

Share-based compensation expense is recognized for all share-based compensation awards granted based on the grant date fair value. In general, compensation expense is recognized on a straight-line basis over the requisite service period of each award. The Company accounts for awards with graded vesting features as if each vesting tranche is valued as a separate award. Compensation expense is recognized only for those awards expected to vest. The Company includes share-based compensation expense in Salaries, wages and benefits in the condensed combined statements of operations and comprehensive loss.

In March 2016, the FASB issued ASU No. 2016-09, Compensation—Stock Compensation (Topic 718), which amended guidance related to employee share-based payment accounting. The new guidance simplifies several aspects of the accounting for share-based payment transactions, including the income tax consequences, classification of awards as either equity or liabilities, and classification on the statement of cash flows. This guidance requires all excess tax benefits and tax deficiencies to be recorded in the income statement when the awards vest or are settled, with prospective application required. There was no impact on the Company’s condensed combined financial statements upon adoption of the provisions of this guidance prospectively on January 1, 2018.

Recently Issued Accounting Standards

As an “emerging growth company,” the Jumpstart Our Business Startups Act (“JOBS Act”) allows the Company to delay adoption of new or revised accounting pronouncements applicable to public companies until such pronouncements are made applicable to private companies. The Company has elected to use this extended transition period under the JOBS Act. The adoption dates discussed below reflect this election.

In January 2017, the Financial Accounting Standards Board (“FASB”) issued ASU 2017-01, Business Combinations (Topic 805): Clarifying the Definition of a Business (“ASU 2017-01”), which provides a more robust framework to use in determining when a set of assets and activities is considered a business. The new standard is effective for fiscal years beginning after December 15, 2018 and interim periods within fiscal years beginning after December 15, 2019. Early adoption is permitted for certain transactions. There was no impact on the Company’s condensed combined financial statements upon early adoption of the provision of this guidance prospectively on January 1, 2018.

In December 2016, the FASB issued ASU 2016-20, Technical Corrections and Improvement to Topic 606, Revenue from Contracts with Customers to clarify the Accounting Standard Codification (“ASC”) or to correct unintended application of the guidance as part of an on-going project on its agenda about technical corrections and improvements and to increase awareness of the proposals and to expedite improvements to ASU 2014-09, Revenue from Contracts with Customers (Topic 606) (“ASU 2014-09”). ASU 2014-09 is generally not expected to have a significant effect on current accounting practice for most entities and the amendments in the update are a similar nature to the items typically addressed in the technical corrections and improvements project and are intended to expedite improvements of the update.

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Virgin Trains USA
   
Notes to Condensed Combined Financial Statements (continued)
September 30, 2018
(Unaudited)

The FASB issued additional updates clarifying items within ASU 2014-09, in periods subsequent to its initial issuance including the following:

In May 2016, the FASB issued ASU 2016-12, Revenue from Contracts with Customers (Topic 606): Narrow-Scope Improvements and Practical Expedients (“ASU 2016-12”) to improve the implementation guidance included in ASU 2014-09 and address certain issues in the guidance on assessing collectability, presentation of sales taxes, noncash consideration, completed contracts and contract modifications at transition. In May 2016, the FASB also issued ASU 2016-11, Revenue Recognition (Topic 605) and Derivatives and Hedging (Topic 815): Rescission of SEC Guidance Because of Accounting Standards Updates 2014-09 and 2014-16 Pursuant to Staff Announcements at the March 3, 2016 EITF Meeting to rescind certain Securities and Exchange Commission (“SEC”) Staff Observer comments that are codified in Topic 605, Revenue Recognition and Topic 932, Extractive Activities—Oil and Gas, effective upon adoption of Topic 606 and rescinds the SEC Staff Announcement, Determining the Nature of a Host Contract Related to a Hybrid Instrument Issued in the Form of a Share under Topic 815, effective concurrently with Update 2014-16—Derivatives and Hedging (Topic 815): Determining Whether the Host Contract in a Hybrid Financial Instrument Issued in the Form of a Share Is More Akin to Debt or to Equity (a consensus of the FASB Emerging Issues Task Force).
In April 2016, the FASB issued ASU 2016-10, Revenue from Contracts with Customers (Topic 606): Identifying Performance Obligations and Licensing (“ASU 2016-10”) to identify performance obligations to determine if it is necessary to assess whether promised goods or services are immaterial in the context of the contract, separately identifiable, and are a promised service in a contract or are activities to fulfill an entity’s other promises in the contract. The update also aims to determine the nature of an entity’s promise in granting a license to provide a right to access or use the entity’s intellectual property, the scope and applicability of when to recognize revenue for sales-based or usage-based royalties promised in exchange for a license of intellectual property.
In March 2016, the FASB issued ASU 2016-08, Revenue from Contracts with Customers (Topic 606): Principal versus Agent Considerations (Reporting Revenue Gross versus Net) (“ASU 2016-08”) to improve the operability and understandability of the implementation guidance on principal versus agent considerations by clarifying certain implementation guidance in ASU 2014-09. The update does not change the core principal of the guidance of Topic 606 which requires that an entity recognize revenue to depict the transfer of promised goods or services to customers in an amount that reflects the consideration to which the entity expects to be entitled in exchange for those goods or services. The update includes indicators to assist an entity in determining whether it controls a specified good or service before it is transferred to the customers.

The FASB issued updates ASU 2016-12, ASU 2016-10 and ASU 2016-08 to provide guidance to improve the operability and understandability of the implementation guidance included in ASU 2014-09. ASU 2016-20, ASU 2016-12, ASU 2016-10 and ASU 2016-08 have the same effective date and transition requirements of ASU 2015-14, which defers the effective date and transition of ASU 2014-09 annual reporting periods beginning after December 15, 2018, and interim periods within annual periods beginning after December 15, 2019, with early adoption permitted. The Company plans to adopt this standard and the other related revenue standard clarifications and technical guidance effective January 1, 2019. The Company’s evaluation of this standard is in process and includes identifying timing and/or method of revenue recognition for contracts and the expected impact on the Company’s business processes, systems, and controls. As part of this evaluation, the Company will review customer contracts and apply the five-step model of the new standard to each contract type associated to revenue streams and compare the results to current accounting practices. The Company is still assessing the impact of ASU 2014-09 will have on its condensed combined financial statements and disclosures; however, the Company believes its revenue recognition policies and practices will remain largely unchanged.

In November 2016, the FASB issued ASU 2016-18, Statement of Cash Flows (Topic 230): Restricted Cash (a consensus of the FASB Emerging Issues Task Force) to improve the presentation and clarify the classification of

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Virgin Trains USA
   
Notes to Condensed Combined Financial Statements (continued)
September 30, 2018
(Unaudited)

restricted cash and cash equivalents in the statement of cash flows. The update requires that a statement of cash flows explain the change during the period in the total of cash, cash equivalents, and amounts generally described as restricted cash or restricted cash equivalents. The amounts generally described as restricted cash and restricted cash equivalents should be included with cash and cash equivalents when reconciling the beginning-of-period and end-of- period total amounts shown on the statement of cash flows. The update is effective for annual reporting periods beginning after December 15, 2018, and interim periods within fiscal years beginning after December 15, 2019, with early adoption permitted. The Company is not able to determine at this time if the adoption of this guidance will have a material impact on the Company’s condensed combined financial statements.

In August 2016, the FASB issued ASU 2016-15, Statement of Cash Flows (Topic 230): Classification of Certain Cash Receipts and Cash Payments (a consensus of the Emerging Issues Task Force) to improve the diversity in practice in how certain cash receipts and cash payments are presented and classified in the statement of cash flows. The update provides guidance on specific cash flow issues including the following: debt prepayment or debt extinguishment costs; settlement of debt instruments with zero or insignificant coupon interest rates; contingent consideration payments after a business combination; proceeds from settlement of insurance claims, corporate-owned life insurance policies; distributions received from equity method investees; beneficial interests in securitization transactions; and separately identifiable cash flows and application of the predominance principle. The update is effective for annual reporting periods beginning after December 15, 2018, and interim periods within annual periods beginning after December 15, 2019, with early adoption permitted. The Company is not able to determine at this time if the adoption of this guidance will have a material impact on the Company’s condensed combined financial statements.

In February 2016, the FASB issued ASU 2016-02, Leases (Topic 842) to increase transparency and comparability among organizations by recognizing rights and obligations resulting from leases as lease assets and lease liabilities on the balance sheet and disclosing key information about leasing arrangements. The update requires lessees to recognize for all leases with a term of 12 months or more at the commencement date: (a) a lease liability or a lessee’s obligation to make lease payments arising from a lease, measured on a discounted basis; and (b) a right-of-use asset or a lessee’s right to use or control the use of a specified asset for the lease term. Under the update, lessor accounting remains largely unchanged. The update requires a modified retrospective transition approach for leases existing at, or entered into after the beginning of the earliest comparative period presented in the financial statements and do not require any transition accounting for leases that expire before the earliest comparative period presented. The update is effective retrospectively for annual reporting periods beginning after December 15, 2019, and interim periods beginning after December 15, 2020, with early adoption permitted. The Company is not able to determine at this time if the adoption of this guidance will have a material impact on the Company’s condensed combined financial statements.

In January 2018, the FASB issued ASU 2018-01, Land easement practical expedient for transition to Topic 842 (“ASU 2018-01”), which provides an optional transition practical expedient to not evaluate under Topic 842 existing or expired land easements that were not previously accounted for as leases under Topic 840, Leases. The standard will be effective for interim and annual periods beginning after December 15, 2019, with earlier adoption permitted. The Company is not able to determine at this time if the adoption of this guidance will have a material impact on the Company’s condensed combined financial statements.

In August 2018, the FASB issued ASU 2018-13, Fair Value Measurement (Topic 820), Disclosure Framework - Changes to the Disclosure Requirements for Fair Value Measurement, which eliminates, adds, and modifies certain disclosure requirements on fair value measurements in Topic 820. The standard will be effective for interim and annual periods beginning after December 15, 2019, with earlier adoption permitted. The Company is not able to determine at this time if the adoption of this guidance will have a material impact on the Company’s condensed combined financial statements.

In August 2018, the FASB issued ASU 2018-15, Intangibles-Goodwill and Other-Internal-Use Software (Subtopic 350-40): Customer’s Accounting for Implementation Costs Incurred in a Cloud Computing Arrangement That Is a Service Contract. The update provides guidance for determining if a cloud computing arrangement is within

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Virgin Trains USA
   
Notes to Condensed Combined Financial Statements (continued)
September 30, 2018
(Unaudited)

the scope of internal-use software guidance, and would require capitalization of certain implementation costs. The standard will be effective for annual reporting periods beginning after December 15, 2020, and interim periods within annual periods beginning after December 15, 2021, with earlier adoption permitted. The Company is not able to determine at this time if the adoption of this guidance will have a material impact on the Company’s condensed combined financial statements.

Note 3.Restricted Cash

As of September 30, 2018, restricted cash was approximately $48.7 million, of which approximately $21.8 million was held in escrow accounts to meet certain obligations directly related to construction, development and operation of the South Segment (including debt service reserves), approximately $16.9 million was held as escrow funds mainly for the payment of interest and $10.0 million was held as collateral for outstanding undrawn letters of credit with an equal aggregate face amount.

As of December 31, 2017, restricted cash was approximately $169.1 million, of which approximately $124.2 million was held in escrow accounts to meet certain obligations directly related to construction, development and operation of the South Segment, approximately $34.9 million was held as escrow funds mainly for the payment of interest and $10.0 million was held as collateral for outstanding undrawn letters of credit with an equal aggregate face amount.

Restricted cash potentially subjects the Company to significant concentrations of credit risk. Substantially all of the Company’s restricted cash is deposited in accounts with financial institutions the Company believes are of high credit quality. As such, the funds are considered to be subject to minimal credit risk. Such deposits have exceeded, and will continue to exceed, federally insured limits. The Company has not experienced any losses on its cash deposits historically.

Note 4. Related-Party Transactions

Transactions and Agreements with the Virgin Trains Stockholder or our Parent

Miami Office Lease

In December 2017, the Company, as lessee, entered into a lease agreement with the Virgin Trains Stockholder, as lessor, for certain of the Virgin Trains Stockholder’s properties in Miami, Florida (the “Miami Office Lease”). The Miami Office Lease has an original term of 60 months with a monthly base rent payable to the Virgin Trains Stockholder of approximately $54,000, subject to escalation of 3.0% per year, and a monthly tenant parking space rent payable of approximately $7,000, subject to escalation of not more than 10% per year. The Miami Office Lease provides an option to renew the lease for two additional terms of 60 months each, subject to the then fair market rental rate (as defined). Lease payments commenced at the inception of the lease at the end of December 2017. The Company recognized approximately $0.6 million and $0 of rent expense for the nine months ended September 30, 2018 and 2017, respectively, which is reported as a component of General and administrative in the condensed combined statements of operations and comprehensive loss.

Miami Garage Lease

In September 2016, the Company, as lessee, entered into a lease agreement, which was amended in December 2017 and May 2018, with the Virgin Trains Stockholder, as lessor, for certain of the Virgin Trains Stockholder’s properties in Miami, Florida (the “Miami Garage Lease”). The Miami Garage Lease has an original term of 240 months with a monthly base rent payable to the Virgin Trains Stockholder of approximately $125,000 for the initial 180 months of the original term and approximately $138,000 for the remaining 60 months of the original term. The Miami Garage Lease provides for an option to renew the lease for three additional terms of 60 months each, subject to a 10% increase in base rent upon each renewal term. The lease agreement contained a provision for a 6-month rent holiday after the lease commencement in March 2018. The Company recognized approximately $0.9 million and $0 in rent expense for the nine months ended September 30, 2018 and 2017, respectively, which is reported as a component of Rent expense in the condensed combined statements of operations and comprehensive loss.

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Virgin Trains USA
   
Notes to Condensed Combined Financial Statements (continued)
September 30, 2018
(Unaudited)

Fort Lauderdale Garage Lease

In August 2016, the Company, as lessee, entered into a lease agreement, which was amended in December 2017 and March 2018, with the Virgin Trains Stockholder, as lessor, for certain of the Virgin Trains Stockholder’s properties in Fort Lauderdale, Florida (the “FLL Garage Lease”). The FLL Garage Lease has an original term of 240 months with a monthly base rent payable to the Virgin Trains Stockholder of approximately $112,000. The FLL Garage Lease provides an option to renew the lease for three additional renewal terms of 60 months each, subject to a 10% increase in base rent for each renewal term. The lease agreement contains a provision for a 6-month rent holiday after the lease commencement in August 2017. Lease payments commenced in February 2018. The Company recognized approximately $1.0 million and $0 in rent expense for the nine months ended September 30, 2018 and 2017, respectively, which is reported as a component of Rent expense in the condensed combined statements of operations and comprehensive loss.

West Palm Beach Garage Lease

In August 2016, the Company, as lessee, entered into a lease agreement, which was amended in December 2017 and May 2018, with the Virgin Trains Stockholder, as lessor, for certain of the Virgin Trains Stockholder’s properties in West Palm Beach, Florida (the “WPB Garage Lease”). The WPB Garage Lease has an original term of 240 months with a monthly base rent payable to the Virgin Trains Stockholder of approximately $98,000. The WPB Garage Lease provides an option to renew the lease for three additional renewal terms of 60 months each, subject to a 10% increase in base rent for each renewal term. The lease agreement contains a provision for a 4-month rent holiday after the lease commencement in January 2018. Lease payments commenced in May 2018. The Company recognized approximately $0.9 million and $0 in rent expense for the nine months ended September 30, 2018 and 2017, respectively, which is reported as a component of Rent expense in the condensed combined statements of operations and comprehensive loss.

See the West Palm Beach Property Lease Agreement discussed below.

Other Agreements with Related Parties

Florida East Coast Railway, L.L.C. (“FECR”) was a related party of the Company prior to June 30, 2017. After a sale by its parent company on June 30, 2017, FECR was no longer an affiliate and related party. For arrangements that were not assigned, the terms and conditions specified within the arrangements with FECR described below remained in effect. Certain transactions between Virgin Trains USA and other entities within our Parent or the Virgin Trains Stockholder are also included in and reflected as a change in our Parent’s net investment in our condensed combined balance sheet.

West Palm Beach Property Lease Agreement

In June 2015, FECR, as lessor, and the Company, as lessee, entered into a lease agreement for certain FECR properties in West Palm Beach, Florida (the “WPB Property Lease Agreement”). The WPB Property Lease Agreement had an original lease term of four months with an automatic monthly renewal, unless terminated by either party. In October 2015, the parties entered into an amendment to the WPB Lease Agreement, extending the lease term to March 2017 with a monthly lease payment payable to FECR of approximately $23,000. In March 2017, the parties entered into another amendment of the lease, extending the lease term to July 2017. On June 30, 2017, our Parent acquired the underlying property that was the subject of WPB Property Lease Agreement from FECR. Commencing on July 1, 2017, the Company leases the premises from our Parent and the lease term was extended until December 31, 2033, with three 60-month renewal options. Monthly lease payments payable to FECI are approximately $23,000.

The Company recognized approximately $0.1 million in rent expense attributed to the WPB Property Lease Agreement as a related party as a component of Rent expense in the condensed combined statement of operations and comprehensive loss for the nine months ended September 30, 2017.

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Virgin Trains USA
   
Notes to Condensed Combined Financial Statements (continued)
September 30, 2018
(Unaudited)

Shared Services and Other Arrangements

In 2015, the Company and FECR entered into various shared services, joint use, operating, infrastructure, maintenance and other related arrangements, certain of which have been periodically amended, extended or terminated (collectively, the “Shared Services Arrangements”), whereby each party provides support to the other for certain activities at cost plus a markup to support the construction, development and operation of passenger rail service and for other purposes. The Shared Services Arrangements also provide for the rehabilitation and improvement of existing track infrastructure and the construction and installation of rail related capital improvements, necessary for the passenger rail service. Pursuant to these arrangements, certain equipment and other assets installed on existing rail will be funded by the Company and jointly used by the parties. On June 30, 2017, when FECR ceased to be a related party, the Company and FECR amended the Shared Services Arrangements to continue the joint use agreement as unrelated third parties.

The Company recognized approximately $1.2 million for services provided by FECR, as a related party, as a component of General and administrative in the condensed combined statements of operations and comprehensive loss for the nine months ended September 30, 2017.

Transit Improvement Agreement with FECR and Transit Authority

In August 2016, the Company and FECR entered into various construction, operating and other related agreements with a Florida public transit authority (the “Transit Authority”) to provide access from (collectively, the “Transit Improvement Agreement”) the Transit Authority’s existing commuter rail line and public transport service to the Miami Station (the “Transit Rail”). Pursuant to the Transit Improvement Agreement, the Transit Authority pays the Company to design and construct improvements at the Company’s Miami Station in common areas and for the right to use the improvements that will be shared by the Company and the Transit Authority (the “Shared Assets”), as well as to construct improvements to existing rail transportation corridors which will be used exclusively by the Transit Authority (the “Exclusive Assets”). The Transit Improvement Agreement obligates the Transit Authority to reimburse certain infrastructure costs.

The Company recognized approximately $30.4 million and $23.5 million as of September 30, 2018 and December 31, 2017, respectively, as Deposits from Transit Authority in the condensed combined balance sheets.

The Company recognized approximately $24.8 million and $20.3 million as of September 30, 2018 and December 31, 2017, respectively, as a component of Other liabilities for amounts reimbursable from the Transit Authority for the Shared Assets that are recorded in Properties, equipment and investment in rail, net in the condensed combined balance sheets.

Of these amounts, the Company recognized approximately $3.6 million and $4.8 million as of September 30, 2018 and December 31, 2017, respectively, as a component of Other current assets related to costs that were not yet reimbursed by the Transit Authority in the condensed combined balance sheets.

West Palm Beach Railway Lease Agreement

In May 2016, the Company, as lessee, entered into a lease agreement with FECR, as lessor, for certain of FECR’s railway property in West Palm Beach, Florida (the “WPB Railway Lease Agreement”). The WPB Railway Lease Agreement had an original lease term of 12 months with an automatic monthly renewal, unless terminated by either party. The WPB Railway Lease Agreement has a monthly lease payment of approximately $15,000.

The Company recognized approximately $0.1 million of rent expense for the WPB Railway Lease Agreement as a component of Rent expense in the condensed combined statements of operations and comprehensive loss for the nine months ended September 30, 2017.

Fort Lauderdale Railway Lease Agreement

In May 2016, the Company, as lessee, entered into a lease agreement with FECR, as lessor, for certain of FECR’s railway property in Fort Lauderdale, Florida (the “FTL Railway Lease Agreement”). The FTL Railway Lease Agreement had an original lease term of 12 months with an automatic monthly renewal, unless terminated by either

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Virgin Trains USA
   
Notes to Condensed Combined Financial Statements (continued)
September 30, 2018
(Unaudited)

party. The FTL Railway Lease Agreement has a monthly lease payment of approximately $9,000. In January 2017, there was an amendment to the FTL Railway Lease Agreement, reducing the square footage of the leased property and decreasing the monthly lease payment payable to FECR to approximately $8,000. The lease was terminated in September 2017.

The Company recognized approximately $0.1 million of rent expense for the FTL Railway Lease Agreement as a component of Rent expense in the condensed combined statements of operations and comprehensive loss for the nine months ended September 30, 2017.

Dispatching Services Agreement

In December 2016, FECR and the Company formed a 50-50 joint venture, DispatchCo, which is accounted for as an equity method investment. In October 2017, the Company and FECR each contributed $2.0 million to the joint venture. The Company’s equity method investment in DispatchCo is included as a component of Other assets in the condensed combined balance sheets as of September 30, 2018 and December 31, 2017. For the nine months ended September 30, 2018 and 2017, the Company’s proportionate share in earnings and losses of DispatchCo was less than $0.1 million, respectively.

DispatchCo is responsible for providing dispatch services to FECR and the Company pursuant to the Dispatching Services Agreement. DispatchCo charges for dispatching services based on cost plus pricing, charged equally to the Company and FECR.

Note 5.Properties, Equipment and Investment in Rail, Net

Properties, equipment and investment in rail, net consisted of the following (dollars in thousands):

 
September 30,
2018
December 31,
2017
Construction in progress
$
481,164
 
$
1,288,092
 
Land and land improvements
 
26,705
 
 
24,590
 
Buildings and building improvements
 
181,430
 
 
14,382
 
Rail infrastructure
 
476,803
 
 
2,083
 
Investment in rail
 
29,123
 
 
 
Rolling stock
 
289,147
 
 
 
Other
 
35,801
 
 
4,065
 
Total properties, equipment and investment in rail
 
1,520,173
 
 
1,333,212
 
Less accumulated depreciation
 
(18,790
)
 
(640
)
Total
$
1,501,383
 
$
1,332,572
 

The Company recognized depreciation expense of approximately $18.2 million and $0.4 million for the nine months ended September 30, 2018 and 2017, respectively.

Note 6.Other Current Assets

Other current assets consisted of the following (dollars in thousands):

 
September 30,
2018
December 31,
2017
Receivable from Transit Authority
$
3,558
 
$
4,841
 
Prepaid expenses
 
3,963
 
 
585
 
Inventory
 
209
 
 
120
 
Other current assets
 
1,583
 
 
414
 
Total
$
9,313
 
$
5,960
 

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Virgin Trains USA
   
Notes to Condensed Combined Financial Statements (continued)
September 30, 2018
(Unaudited)

Note 7.Intangible Assets

Intangible assets consisted of the following (dollars in thousands):

 
September 30,
2018
December 31,
2017
Indefinite life intangible assets:
 
 
 
 
 
 
Passenger rail services
$
225,300
 
$
225,300
 
 
 
 
 
 
 
 
Definite life intangible assets:
 
 
 
 
 
 
Rail line property easements
$
32,002
 
$
32,002
 
Less accumulated amortization
 
(886
)
 
(644
)
 
 
31,116
 
 
31,358
 
Total intangible assets, net
$
256,416
 
$
256,658
 

The remaining weighted-average amortization period for the rail line property easements is approximately 97 years as of September 30, 2018.

The Company recognized amortization expense of approximately $0.2 million for each of the nine months ended September 30, 2018 and 2017. Estimated amortization expense of approximately $0.3 million is expected to be recognized annually through 2022.

Note 8.Other Assets

Other assets consisted of the following (dollars in thousands):

 
September 30,
2018
December 31,
2017
Deposit for purchase of equipment
$
5,580
 
$
5,580
 
Equity method investment in DispatchCo
 
2,002
 
 
1,956
 
Materials and supplies
 
2,441
 
 
 
Deferred public offering costs(a)
 
3,698
 
 
 
Deferred financing and acquisition costs
 
3,864
 
 
1,749
 
Earnest money deposits
 
2,000
 
 
 
Other assets
 
1,280
 
 
793
 
Total
$
20,865
 
$
10,078
 
(a)Costs incurred in connection with an anticipated public offering primarily consist of direct incremental legal, printing and other professional services fees. These costs are capitalized as incurred and will be offset against proceeds upon consummation of an offering. In the event the offering is no longer probable, deferred costs will be written-off as a charge to earnings in the period in which such determination is made.
Note 9.Debt

Long-term debt consisted of the following (dollars in thousands):

 
September 30,
2018
December 31,
2017
Senior Loan Agreement for 5.625% Series 2017 Bonds due January 1, 2047
$
600,000
 
$
600,000
 
Siemens Credit Agreement
 
25,000
 
 
 
Deferred financing costs
 
(18,613
)
 
(18,748
)
 
 
606,387
 
 
581,252
 
Less current portion
 
(938
)
 
 
Total long-term debt, net of current portion
$
605,449
 
$
581,252
 

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Virgin Trains USA
   
Notes to Condensed Combined Financial Statements (continued)
September 30, 2018
(Unaudited)

Current portion of long-term debt of $0.9 million as of September 30, 2018 is included as a component of Other current liabilities in the condensed combined balance sheet. Interest costs incurred by the Company were approximately $26.0 million and $2.9 million, inclusive of amortization of deferred financing costs of approximately $0.5 million and $0.2 million, for the nine months ended September 30, 2018 and 2017, respectively. Interest costs of approximately $20.8 million and $2.9 million were capitalized and included within construction in progress as a component of Properties, equipment and investment in rail, net for the nine months ended September 30, 2018 and 2017, respectively.

Series 2017 Bonds

On December 19, 2017, the Florida Development Finance Corporation (the “FDFC”) issued $600.0 million aggregate principal amount of its Surface Transportation Facility Revenue Bonds (Brightline Passenger Rail Project – South Segment), Series 2017 (the “Series 2017 Bonds”), with Deutsche Bank National Trust Company serving as trustee (the “Trustee”). The Series 2017 Bonds were issued, pursuant to an indenture, to qualified institutional buyers in the U.S.

In its role as a conduit lender, the FDFC provides qualifying projects with access to capital to support, enhance, and promote economic development in the state of Florida. The FDFC and Brightline Trains LLC (f/k/a All Aboard Florida – Operations LLC, a limited liability company in Delaware that effected a name change in May 2018) (“Brightline Trains”), a wholly-owned subsidiary of Virgin Trains USA LLC, entered into a senior loan agreement (the “Senior Loan Agreement”) whereby FDFC loaned the proceeds from the Series 2017 Bonds to Brightline Trains and Brightline Trains agreed to pay all principal and interest on the Series 2017 Bonds. Brightline Trains used the proceeds from the Series 2017 Bonds along with cash contributions from the Virgin Trains Stockholder for (i) the repayment of a certain equipment financing credit facility; (ii) the financing of the design, construction, development, and equipping of the South Segment; and (iii) repayment of advances from the Virgin Trains Stockholder to fund our construction activities. The remaining proceeds will only be utilized to pay or reimburse costs of the South Segment.

Pursuant to the Senior Loan Agreement, Brightline Trains is required to comply with various covenants for the benefit of the Trustee and the holders of the Series 2017 Bonds, such as a limitation on the ability to incur additional indebtedness subject to certain limitations set forth in the Senior Loan Agreement. Brightline Trains may not declare or pay dividends or make any distributions unless, in addition to certain additional covenants, it maintains a Total Debt Service Coverage Ratio (as defined in the Senior Loan Agreement) of 1.75 to 1.00 on the date of such distributions, and such dividends or distributions may not exceed $25.0 million in each calendar year. Further, Brightline Trains may not issue additional indebtedness in excess of $50.0 million of aggregate outstanding principal balance. The restricted net assets of Brightline Trains were approximately $1,031.8 million as of September 30, 2018. Brightline Trains has agreed to pay or cause to be paid all amounts necessary to pay the principal and purchase price of, and interest on, the Series 2017 Bonds. Brightline Trains payment obligations with respect to the Series 2017 Bonds and under the Senior Loan Agreement are secured by mortgage liens encumbering substantially all of the real property interests for the South Segment (including the stations), substantially all personal property of Brightline Trains, and a pledge by AAF Operations Holdings LLC, a wholly-owned subsidiary of the Company, of the membership interests in Brightline Trains. The Company was in compliance with applicable debt covenants as of September 30, 2018.

The Series 2017 Bonds have a maturity date of January 1, 2047 and bear interest of 5.625% during an initial Term Rate Period that ends on December 31, 2027. There are no debt maturity amounts due the next five years from the date of the most recent condensed combined balance sheet. Interest is payable semi-annually on January 1 and July 1 of each year, commencing on July 1, 2018. Accrued interest was approximately $8.4 million and $1.1 million as of September 30, 2018 and December 31, 2017, respectively.

During the initial Term Rate Period, the Series 2017 Bonds are subject to redemption, in whole, at any time prior to January 1, 2019 at the option of Brightline Trains at a price equal to 105% of the principal amount of the Series 2017 Bonds plus accrued and unpaid interest and any remaining payments of interest to be paid through January 1, 2019. Additionally, the Series 2017 Bonds are subject to redemption, in whole, at the option of Brightline Trains at

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Virgin Trains USA
   
Notes to Condensed Combined Financial Statements (continued)
September 30, 2018
(Unaudited)

any time on or after January 1, 2019 to January 1, 2024, at a redemption price equal to the principal outstanding plus a premium and accrued and unpaid interest. The redemption premium is 5% if such redemption occurs on or after January 1, 2019, and on or prior to December 31, 2019; 4% if such redemption occurs after December 31, 2019, and on or prior to December 31, 2020; 3% if such redemption occurs after December 31, 2020, and on or prior to December 31, 2021; 2% if such redemption occurs after December 31, 2021, and on or prior to December 31, 2022; 1% if such redemption occurs after December 31, 2022, and on or prior to December 31, 2023; and 0% thereafter. On the day immediately following the conclusion of the initial Term Rate Period on December 31, 2027, the Series 2017 Bonds are subject to a mandatory tender for purchase at a price of par plus accrued interest.

The Series 2017 Bonds are subject to mandatory sinking fund redemption prior to maturity, in part, at a redemption price equal to the principal amount redeemed, plus accrued and unpaid interest to the redemption date, beginning on January 1, 2026 and every year thereafter on January 1 through the final maturity on January 1, 2047. The principal amount to be redeemed on January 1, 2026 is approximately $14.5 million, increasing by approximately 5.625% every January 1 until the final maturity principal of approximately $45.6 million is required to be paid on January 1, 2047.

Equipment Financing Credit Facility

In August 2014, the Company entered into an agreement with a third party vendor for the purchase of rolling stock and related assets (the “Equipment”) and an agreement to finance those purchases (the “Equipment Facility”). The Equipment Facility had a maximum principal amount of $100.0 million.

The Company financed the purchase of approximately $37.8 million of Equipment during the nine months ended September 30, 2017. In December 2017, the Company paid off the outstanding balance of the Equipment Facility with the proceeds from the Senior Loan Agreement.

Siemens Credit Agreement

In July 2018, the Company entered into the Siemens Credit Agreement with Siemens Financial Services, Inc., as lender and administrative agent, providing for a $25.0 million delayed draw term loan credit facility to be used for working capital purposes (including for the acquisition of rolling stock).

The obligations pursuant to this agreement are secured on a pari passu basis by the liens on the collateral granted to secure the Company’s obligations with respect to the Series 2017 Bonds and under the Senior Loan Agreement. Term loans outstanding under the delayed draw term loan credit facility bear interest at a rate of LIBOR plus 3.75% per annum, payable quarterly in arrears and at maturity. If the Company has not ordered additional rolling stock from Siemens Industry, Inc. by December 31, 2018, then the applicable interest rate on outstanding term loan amounts increases by 2% for the period from and after January 1, 2019, and if any amount payable by the Company pursuant to the Siemens Credit Agreement or any other loan document is not paid when due, the applicable interest rate on such overdue amounts increases by 2%. The original principal amount of each term loan outstanding pursuant to the delayed draw term loan credit facility amortizes at a rate of 5% per annum beginning January 1, 2019, payable on the last day of each calendar quarter. The last day that a term loan may be borrowed under the delayed draw term loan credit facility is September 30, 2018, and the maturity date for the delayed draw term loan credit facility is July 10, 2020.

The Siemens Credit Agreement requires the term loans outstanding pursuant to the delayed draw term loan credit facility to be prepaid: (i) in the event that our Parent ceases to own, directly or indirectly, at least 50.1% of the membership interest in Brightline Trains (as defined in Siemens Credit Agreement); (ii) if Brightline Trains ceases operations as a passenger railroad service of the size and scope contemplated by the transactions contemplated by the documents relating to the Series 2017 Bonds; or (iii) on or prior to March 31, 2019, if Brightline Trains has not ordered additional rolling stock from Siemens Industry, Inc. by December 31, 2018. Brightline Trains may voluntarily

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Virgin Trains USA
   
Notes to Condensed Combined Financial Statements (continued)
September 30, 2018
(Unaudited)

prepay the outstanding balance of the delayed draw term loan credit facility at par at any time subject to prior notice delivered at least 3 business days prior to the date of prepayment. The Siemens Credit Agreement is subject to the Collateral Agency Agreement, which contains restrictions on, among other things, Brightline Trains’ ability to pay dividends and other distributions to us.

As of September 30, 2018, the line of credit has been fully drawn and the proceeds were utilized for working capital purposes, including the purchase of rolling stock. In connection with the issuance of the delayed draw term loan credit facility, the Company incurred and capitalized $0.3 million of financing cost.

Note 10.Share-based Compensation

The Company grants share-based compensation awards with either time vesting or performance vesting features to certain employees considered key to its operations. In general, time vesting awards have a three year graded vesting schedule. Performance vesting awards are issued in tranches and will vest over a service period dependent upon achieving targets specified in each recipient’s agreement. Grants of share-based compensation awards are of restricted stock units of Virgin Trains USA LLC. Share-based compensation awards represent less than 0.2% equity units of Virgin Trains USA LLC in all periods presented.

The Company recognizes compensation expense for share-based compensation awards based on the fair value of the award at the grant date. Total share-based compensation expense for the nine months ended September 30, 2018 and 2017 was approximately $0.6 million and less than $0.1 million, respectively.

During the nine months ended September 30, 2018, the Company granted 4,283 Restricted Stock Units (“RSUs”) to employees with a weighted-average grant date fair value of $1,198 per unit. The Company’s management makes assumptions and estimates to determine the fair value of the share-based compensation awards at the date of grant. The grant date fair value of each award is determined by the Company’s management based on valuations of the Company, performed in good faith, as if it were a going concern and not discounted because such units are subject to restrictions or represent a minority interest in the Company.

Share-based compensation award activity during the nine months ended September 30, 2018 was as follows:

 
Number of
Awards
Weighted
Average
Grant Date
Fair Value
Per Unit
Awards outstanding at December 31, 2017
 
1,037
 
$
723.24
 
Granted
 
4,283
 
$
1,198.23
 
Awards outstanding at September 30, 2018
 
5,320
 
$
1,105.64
 
Awards exercisable at September 30, 2018
 
346
 
$
722.55
 

As of September 30, 2018, total unrecognized share-based compensation expense related to non-vested awards was approximately $5.1 million, which is expected to be recognized over a weighted-average period of approximately 2.5 years. The total fair value of shares that vested during the nine months ended September 30, 2018 was approximately $0.2 million. There were no awards that vested during the nine months ended September 30, 2017.

Note 11.Commitments and Contingencies and Other

Litigation, Legal Proceedings and Contingencies

The Company is a party to a dispute pertaining to construction services and supplied building materials. In connection with this matter, the Company has accrued approximately $3.8 million and $3.4 million as of September 30, 2018 and December 31, 2017, respectively, attributed to change orders related to construction services and supplied building materials which is capitalized as construction in progress as a component of Properties,

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Virgin Trains USA
   
Notes to Condensed Combined Financial Statements (continued)
September 30, 2018
(Unaudited)

equipment and investment in rail, net in the condensed combined balance sheets. The Company disputes the material allegations in the claim and intends to defend against the action. Due to the uncertainty surrounding the ultimate outcome and settlement of this claim, the Company is unable to estimate the potential future costs, if any, resulting from this matter, but believes it is without merit and does not expect that it will have a material effect on its condensed combined financial statements.

Siemens Maintenance Agreement

The Company is a party to a contract with Siemens for all warranty repairs and maintenance on its rolling stock. This 30-year contract entered into in December 2014, as amended in June 2018, ensures regular preventative maintenance, as well as capital maintenance over the life of the contract at a set price with an established cost escalator. The Company’s monthly service payment obligations began on January 13, 2018, with the commencement of passenger rail service, and will continue over the term of the contract. The Company recognized approximately $6.9 million and $1.5 million for the nine months ended September 30, 2018 and 2017, respectively, as a component of Equipment maintenance in the condensed combined statements of operations and comprehensive loss.

Off-Balance Sheet Arrangements

The Company also had outstanding undrawn irrevocable letters of credit commitments, fully collateralized by restricted cash, with an aggregate face amount of $10.0 million as of September 30, 2018 and December 31, 2017.

Note 12.Subsequent Events

The Company has evaluated subsequent events through November 16, 2018, the date on which the condensed combined financial statements were issued.

In September 2018, the Company announced its expansion to the west coast through a proposed acquisition of DesertXpress Enterprises, LLC and certain related assets (the “XpressWest Acquisition”) for a purchase price of approximately $120 million, of which approximately $60 million will be paid in cash and the balance in shares of our common stock. Pursuant to the XpressWest Acquisition, the Company has agreed to acquire the rights to develop a high-speed rail project within a corridor between Victorville, California and Las Vegas, Nevada. The anticipated XpressWest Acquisition is subject to federal approval and customary closing conditions.

In connection with the XpressWest Acquisition, we have also entered into an agreement to acquire, subject to customary closing conditions, land adjacent to the Las Vegas strip for construction of the Las Vegas station and mixed-use development for a purchase price of approximately $150 million, of which approximately $140 million will be paid in cash and the balance in shares of our common stock.

In November 2018, the Company entered into the Virgin License Agreement with Virgin Enterprises Limited (“VEL”). Pursuant to the terms of the Virgin License Agreement, VEL has granted to the Company, during the term, the right to use the Virgin brand, name, logo and certain other intellectual property as part of its corporate name and in connection with the operation of an express passenger rail system along certain permitted passenger rail routes in the United States (including our Florida passenger rail system and the Vegas Expansion). As a result, the Company intends to rebrand from “Brightline” to “Virgin Trains USA.”

In conjunction with the Virgin License Agreement, Corvina Holdings Limited (“Corvina”), an affiliate of VEL, has agreed to invest in the Company at a price per share equal to the initial public offering price. The shares to be sold in this private placement transaction will not be registered or sold in the Proposed Offering.

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Report of Independent Registered Public Accounting Firm

To the Board of Directors of Florida East Coast Industries, LLC

Opinion on the Financial Statements

We have audited the accompanying combined balance sheets of Virgin Trains USA, which comprises the combined net assets and operations of certain subsidiaries of Florida East Coast Industries, LLC, as described in Note 1, (the “Company”) as of December 31, 2017 and 2016, the related combined statements of operations and comprehensive loss, invested equity and cash flows for the years then ended, and the related notes and financial statement schedule listed in the index to the financial statements (collectively referred to as the “financial statements”). In our opinion, the financial statements present fairly, in all material respects, the financial position of the Company at December 31, 2017 and 2016, and the results of its operations and its cash flows for the years then ended in conformity with U.S. generally accepted accounting principles.

Basis for Opinion

These financial statements are the responsibility of the Company’s management. Our responsibility is to express an opinion on the Company’s financial statements based on our audits. We are a public accounting firm registered with the Public Company Accounting Oversight Board (United States) (“PCAOB”) and are required to be independent with respect to the Company in accordance with the U.S. federal securities laws and the applicable rules and regulations of the Securities and Exchange Commission and the PCAOB.

We conducted our audits in accordance with the standards of the PCAOB and in accordance with auditing standards generally accepted in the United States of America. Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the financial statements are free of material misstatement, whether due to error or fraud. Our audits included performing procedures to assess the risks of material misstatement of the financial statements, whether due to error or fraud, and performing procedures that respond to those risks. Such procedures included examining, on a test basis, evidence regarding the amounts and disclosures in the financial statements. Our audits also included evaluating the accounting principles used and significant estimates made by management, as well as evaluating the overall presentation of the financial statements. We believe that our audits provide a reasonable basis for our opinion.

/s/ Ernst & Young LLP
Certified Public Accountants

We have served as the Company’s auditor since 2018.

Miami, Florida

April 24, 2018, except for Note 1, as to which the date is November 16, 2018

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Virgin Trains USA
   
COMBINED STATEMENTS OF OPERATIONS AND COMPREHENSIVE LOSS
(Dollars in thousands, except share and per share data)

 
Year Ended December 31,
 
2017
2016
Operating revenues
 
 
 
 
 
 
Total revenues
$
 
$
 
 
 
 
 
 
 
 
Operating expenses
 
 
 
 
 
 
Salaries and benefits
 
16,487
 
 
13,889
 
General, administrative and other
 
27,034
 
 
10,743
 
Depreciation and amortization
 
880
 
 
359
 
Total operating expenses
 
44,401
 
 
24,991
 
Operating loss
 
(44,401
)
 
(24,991
)
 
 
 
 
 
 
 
Other income (expense)
 
 
 
 
 
 
Loss on extinguishment of debt
 
(327
)
 
 
Other
 
78
 
 
 
Total other income (expense)
 
(249
)
 
 
Net loss and comprehensive loss
$
(44,650
)
$
(24,991
)
 
 
 
 
 
 
 
Pro forma information (unaudited)
 
 
 
 
 
 
Net loss
$
(44,650
)
 
 
 
Pro forma income tax benefit (provision)
 
 
 
 
 
Pro forma net loss
$
(44,650
)
 
 
 
Pro forma net loss per share—basic and diluted
$
 
 
 
 
Weighted average shares of common stock outsatnding post contribution—basic and diluted
 
 
 
 
 
 

The accompanying notes are an integral part of the combined financial statements.

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Virgin Trains USA
   
COMBINED BALANCE SHEETS
(Dollars in thousands)

 
As of December 31,
 
2017
2016
Assets
 
 
 
 
 
 
Current assets
 
 
 
 
 
 
Restricted cash
$
169,086
 
$
10,950
 
Other current assets
 
5,960
 
 
2,869
 
Total current assets
 
175,046
 
 
13,819
 
 
 
 
 
 
 
 
Properties and equipment, net and investment in rail
 
1,332,572
 
 
985,657
 
Intangible assets, net
 
256,658
 
 
256,826
 
Other assets
 
10,078
 
 
2,568
 
Total assets
$
1,774,354
 
$
1,258,870
 
 
 
 
 
 
 
 
Liabilities and invested equity
 
 
 
 
 
 
Liabilities
 
 
 
 
 
 
Current liabilities
 
 
 
 
 
 
Accounts payable and accrued expenses
$
59,560
 
$
77,401
 
Deposits from Transit Authority
 
23,504
 
 
10,809
 
Other current liabilities
 
5,080
 
 
138
 
Total current liabilities
 
88,144
 
 
88,348
 
 
 
 
 
 
 
 
Long-term debt
 
581,252
 
 
32,223
 
Other liabilities
 
20,748
 
 
8,653
 
Total liabilities
 
690,144
 
 
129,224
 
 
 
 
 
 
 
 
Commitments and contingencies
 
 
 
 
 
 
 
 
 
 
 
 
 
Invested equity - Parent’s net investment
 
1,084,210
 
 
1,129,646
 
Total liabilities and invested equity
$
1,774,354
 
$
1,258,870
 

The accompanying notes are an integral part of the combined financial statements.

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Virgin Trains USA
   
COMBINED STATEMENTS OF CASH FLOWS
(Dollars in thousands)

 
Year Ended December 31,
 
2017
2016
Cash flows from operating activities
 
 
 
 
 
 
Net loss
$
(44,650
)
$
(24,991
)
Adjustments to reconcile net loss to net cash used in operating activites:
 
 
 
 
 
 
Depreciation expense
 
557
 
 
38
 
Amortization expense
 
323
 
 
321
 
Straight-line rent expense
 
495
 
 
 
Write-off of deferred costs
 
 
 
264
 
Loss on extinguishment of debt
 
327
 
 
 
Changes in assets and liabilities:
 
 
 
 
 
 
Decrease (increase) in:
 
 
 
 
 
 
Other current assets and Other assets
 
538
 
 
(305
)
Increase (decrease) in:
 
 
 
 
 
 
Accounts payable and accrued expenses
 
2,102
 
 
(1,247
)
Net cash used in operating activities
 
(40,308
)
 
(25,920
)
 
 
 
 
 
 
 
Cash flows from investing activities
 
 
 
 
 
 
Purchases of property and equipment, investment in rail and intangible assets
 
(265,237
)
 
(326,734
)
Deposits received from Transit Authority
 
12,695
 
 
10,803
 
Investment in DispatchCo
 
(1,956
)
 
 
Increase in restricted cash
 
(158,136
)
 
(950
)
Net cash used in investing activities
 
(412,634
)
 
(316,881
)
 
 
 
 
 
 
 
Cash flows from financing activities
 
 
 
 
 
 
Change in Parent’s net investment
 
(44,136
)
 
336,865
 
Proceeds from borrowings of long-term debt
 
600,000
 
 
 
Payments of long-term debt
 
(91,835
)
 
 
Reimbursement from Transit Authority for construction
 
9,466
 
 
5,946
 
Payments of deferred financing costs
 
(20,553
)
 
(10
)
Net cash provided by financing activities
 
452,942
 
 
342,801
 
 
 
 
 
 
 
 
Net increase (decrease) in cash and cash equivalents
 
 
 
 
Cash and cash equivalents at beginning of year
 
 
 
 
Cash and cash equivalents at end of year
$
 
$
 
 
 
 
 
 
 
 
Supplemental disclosure of cash flow information:
 
 
 
 
 
 
Cash paid for interest of $3,811 and $2,055, net of amounts capitalized for the years ended December 31, 2017 and 2016, respectively
$
 
$
 
 
 
 
 
 
 
 
Supplemental disclosures of non-cash investing and financing activities:
 
 
 
 
 
 
Financing for purchases of rolling stock equipment
$
57,096
 
$
32,789
 

The accompanying notes are an integral part of the combined financial statements.

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Virgin Trains USA
   
COMBINED STATEMENTS OF INVESTED EQUITY
(Dollars in thousands)

 
Invested equity -
Parent’s net
investment
Balance at January 1, 2016
$
777,157
 
Net loss
 
(24,991
)
Change in Parent’s net investment
 
377,480
 
Balance at December 31, 2016
 
1,129,646
 
Net loss
 
(44,650
)
Change in Parent’s net investment
 
(786
)
Balance at December 31, 2017
$
1,084,210
 

The accompanying notes are an integral part of the combined financial statements.

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Virgin Trains USA
   
Notes to Combined Financial Statements
December 31, 2017

Note 1.Business and Basis of Presentation

Business

Virgin Trains USA comprises the combined net assets and operations of Virgin Trains USA LLC (f/k/a AAF Holdings B LLC, a limited liability company in Delaware that effected a name change to Brightline Holdings LLC in March 2018 and to Virgin Trains USA LLC in November 2018) and its wholly-owned subsidiaries and certain other wholly-owned subsidiaries of AAF Holdings LLC (the “Virgin Trains Stockholder”), collectively referred to as the “Company.” The wholly-owned subsidiaries of the Virgin Trains Stockholder referenced above include AAF Jacksonville Segment LLC, Brightline Management LLC (f/k/a All Aboard Florida Operations Management LLC), Brevard County Property Holdings LLC and Space Coast Land Holdings LLC. The Virgin Trains Stockholder is a subsidiary of Florida East Coast Industries, LLC (“FECI” or our “Parent”). Virgin Trains USA LLC is a wholly-owned subsidiary of the Virgin Trains Stockholder. The financial statements and notes, including Schedule I, have been revised to reflect the name change noted above.

The Company is in the business of owning and operating an express passenger rail system connecting major population centers in Florida, with plans to expand operations further in Florida and elsewhere in North America.

The Company currently operates along one of the most heavily traveled and congested regions in the U.S. In January 2018, the Company commenced initial operations between Fort Lauderdale and West Palm Beach, and prior to then, the Company had no operating revenues. The Company expects to commence service to Miami in May 2018. The Company expects to commence construction of the expansion of our Florida passenger rail system to Orlando, Florida, and intends to further expand the rail service to Tampa, Florida. The Company owns stations located in the heart of downtown cities and major transit hubs in Florida. The portion of the passenger rail system running between Miami and West Palm Beach is known as the “South Segment.” In addition, the Company plans to construct a passenger rail system to Orlando and the portion of the passenger rail system that will run between West Palm Beach and Orlando is known as the “North Segment.”

The Company manages its operations as a single operating segment for the purposes of assessing performance and making operating decisions. All of the Company’s assets are maintained in the United States.

Basis of Presentation

The combined financial statements have been prepared on a stand-alone basis in accordance with U.S. generally accepted accounting principles (“GAAP”) and are derived from the Virgin Trains Stockholder’s and our Parent’s accounting records to reflect the Company’s financial position, results of operations and cash flows. The combined results are not necessarily indicative of future performance and do not reflect what the Company’s financial performance would have been had it been a stand-alone company during the periods presented.

The Virgin Trains Stockholder and our Parent currently provide certain corporate services to the Company and costs associated with these functions have been allocated to the Company. These allocations are necessary to reflect all of the costs of doing business and include costs related to corporate development, finance and accounting, legal, information technology, human resources, treasury, and other services, as well as an allocation of stock-based compensation attributable to employees of our Parent providing services to the Company. The costs of such services have been allocated to the Company on the basis of direct usage when identifiable, with the remainder allocated on the basis of headcount. The Company capitalized $26.2 million and $22.8 million of the allocations that were directly related to capitalizable activities for the construction of its assets and recorded the amounts in Properties and equipment, net and investment in rail in the combined balance sheets as of December 31, 2017 and 2016, respectively. The expense portion of these allocations was $2.2 million and $11.1 million and was recorded in Salaries and benefits and General, administrative and other expense in the combined statements of operations and comprehensive loss for the years ended December 31, 2017 and 2016, respectively. Management believes the basis on which costs have been allocated to be a reasonable reflection of the utilization of services provided to or the benefit received by the Company during the periods presented.

The historical construction activities of Virgin Trains USA were funded by the Virgin Trains Stockholder, primarily through its borrowings. As such, the Virgin Trains Stockholder’s interest expense has been allocated to the

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Virgin Trains USA
   
Notes to Combined Financial Statements (continued)
December 31, 2017

Company based on the portion of the debt used to support the construction activities of the Company. Management believes the basis of allocation for the Virgin Trains Stockholder’s interest costs is reasonable. The Company has capitalized the interest costs allocated by the Virgin Trains Stockholder of $64.4 million and $59.8 million to Properties and equipment, net and investment in rail in the combined balance sheets for the years ended December 31, 2017 and 2016, respectively.

The allocations may not reflect the expense the Company would have incurred as a stand-alone public company for the periods presented. Actual costs that may have been incurred if the Company had been a stand-alone public company would depend on a number of factors, including the chosen organization structure, what functions were outsourced or performed by employees, and other strategic decisions.

Invested equity represents the cumulative net investment by the Virgin Trains Stockholder in the Company, including any prior net loss or comprehensive loss of the Company and contributions received from the Virgin Trains Stockholder or repayment of the Virgin Trains Stockholder funding associated with the Company’s activities.

Unrestricted cash is managed centrally through bank accounts controlled and maintained by the Virgin Trains Stockholder or our Parent on behalf of the Company. Transfers of cash both to and from the Virgin Trains Stockholder or our Parent are reflected in our Parent’s net investment in the combined balance sheets.

Note 2.   Summary of Significant Accounting Policies

Principles of Combination

The combined financial statements include net assets and results of operations, as described above. All significant intercompany transactions and balances have been eliminated for the periods presented.

Use of Accounting Estimates

The preparation of the combined financial statements in conformity with GAAP requires management to make estimates and assumptions that affect the amounts reported in the combined financial statements and accompanying notes. These estimates are subjective in nature and involve judgements that affect the reported amounts of assets and liabilities, the disclosure of contingent assets and liabilities at the date of the financial statements, and the reported amounts of expenses during the reporting periods. The Company reviews and evaluates its assumptions and estimates on an on-going basis. Changes in estimates are recorded in the period in which they become known. Actual results may materially differ from the reported amounts under different assumptions and estimates.

Restricted Cash

The Company’s restricted cash consists primarily of deposits held at major financial institutions to meet certain obligations directly related to the construction, development and operation of the South Segment, collateral to undrawn letters of credit, and escrow funds mainly for the payment of interest.

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Virgin Trains USA
   
Notes to Combined Financial Statements (continued)
December 31, 2017

Properties and Equipment, Net and Investment in Rail

Properties and equipment and investment in rail are stated at acquisition cost and include construction in progress, land, buildings and building improvements, investment in rail, rail infrastructure and other assets. Investment in rail consists of rail assets and equipment for the rehabilitation and improvement of existing track infrastructure and the construction and installation of rail related capital improvements necessary to build the passenger rail service business, and is included in construction in progress. Construction in progress is comprised of costs and interest related to projects that are not yet completed. Depreciation begins after the asset has been placed into service. The Company capitalizes the costs of major additions and improvements and expenses the costs for maintenance and repairs that do not extend the life of the asset by greater than one year. Depreciation is computed using the straight-line method over estimated lives of the assets, as follows:

 
Estimated
Useful Life
(in years)
Furniture & fixtures and computer hardware & software
3-7
Buildings and building improvements
15-39
Rail infrastructure
35-50

Intangible Assets

The Company has indefinite-lived intangible assets and definite-lived intangible assets.

Indefinite-lived Intangible Assets – Indefinite-lived intangible assets include the Company’s right-of-way easements for passenger rail purposes.

Definite-lived Intangible Assets – Definite-lived intangible assets include third party rail line property easements. Amortization is computed using the straight-line method over the estimated useful lives of the intangible assets. The Company evaluates the useful lives of its intangible assets with definite lives on an annual basis. Definite-lived intangible assets are stated at cost less accumulated amortization.

Acquisition Costs

The Company accounts for the costs of acquiring real properties using the purchase method of accounting. The Company allocates the initial purchase price of net tangible and identifiable intangible assets acquired and liabilities assumed based on relative fair values at the acquisition date. The Company capitalizes the qualifying acquisition costs of asset purchases.

Impairment

The Company performs a review of its intangible assets with indefinite lives for impairment annually as of April 1, or more frequently if events or circumstances indicate that the carrying values may be impaired. Indefinite-lived intangible assets are assessed for impairment by initially performing a qualitative assessment before performing quantitative impairment testing to determine whether the Company believes it is more likely than not that an asset has been impaired. The Company recognizes an impairment loss generally if and when the carrying value of the net asset exceeds the estimated fair value. The asset’s fair value is determined by using a discounted present value model based on expected future cash flows.

The Company reviews the carrying value of its properties and equipment, investment in rail, and definite-lived intangible assets for impairment whenever events or changes in circumstances indicate the carrying value of an asset or asset grouping may not be recoverable. Recoverability is measured by comparing the carrying value of an asset, or group of assets, to the estimated future undiscounted cash flows expected to be generated by the asset or group of assets. If these comparisons indicate that the carrying value of the asset or group of assets is not recoverable, an impairment loss is recognized for the amount by which the carrying value of the asset exceeds its fair value.

The Company had no impairment loss for its assets during the years ended December 31, 2017 or 2016.

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Virgin Trains USA
   
Notes to Combined Financial Statements (continued)
December 31, 2017

Cost Capitalization

The Company capitalizes costs related to the construction of buildings and other infrastructure for its stations, as well as investment in rail and rolling stock. Capitalization of costs ceases when an asset is substantially complete.

The interest costs associated with qualified assets under construction is capitalized and included in the cost of the asset. Interest capitalization ceases once an asset is substantially complete or no longer undergoing activities to prepare it for its intended use. When no debt is incurred specifically for a project, interest is capitalized on amounts expended on the project using the weighted-average cost of the Company’s outstanding borrowings. The Company also capitalized interest costs allocated by the Virgin Trains Stockholder. Total capitalized interest costs were $69.6 million and $62.1 million for the years ended December 31, 2017 and 2016, respectively.

Equity Method Investment

The Company accounts for its investment in Florida DispatchCo LLC (“DispatchCo”) under the equity method as it has the ability to exercise significant influence over, but not control, the investee. Under the equity method of accounting, the investment is recorded at its initial carrying value in Other assets in the combined balance sheets, and is adjusted for capital contributions, dividends received and the Company’s share of the investee’s earnings or losses.

Fair Value Disclosures of Financial Instruments

The Company accounts for financial instruments at fair value or the price that would be received to sell an asset or paid to transfer a liability in the principal or most advantageous market for the asset or liability in an orderly transaction between market participants at the measurement date. Assets and liabilities that are recorded at fair value are classified and disclosed in one of the following three categories:

Level 1 —Quoted prices for identical instruments in active markets.
Level 2 —Quoted prices for similar instruments in active markets, quoted prices for identical or similar instruments in markets that are not active, and model-derived valuations, in which all significant inputs are observable in active markets.
Level 3 —Unobservable inputs in which there is little or no market data, which require the reporting entity to develop its own assumptions.

The classification of assets and liabilities in the fair value hierarchy is based upon the lowest level input that is significant to the fair value measurement in its entirety.

The Company’s restricted cash and deposits are carried at fair value, determined in accordance with the fair value hierarchy above. Carrying value approximates fair value for accounts that are short-term in nature, including accounts payable and accrued expenses. The fair value of outstanding debt is estimated using a discounted cash flow analysis based on current market interest rates for debt issuances with similar remaining years to maturity and adjusted for credit risk, which represents a Level 3 measurement. As the $600.0 million of long-term debt outstanding as of December 31, 2017 was issued in December 2017, the carrying value approximated its fair value.

There were no transfers of the Company’s assets or liabilities between the fair value hierarchy levels during the years ended December 31, 2017 and 2016.

Operating Leases

The Company enters into leases and evaluates each lease at inception to determine whether the lease will be accounted for as an operating or capital lease. The term of the lease used for this evaluation includes renewal option periods only in instances in which the exercise of the renewal option can be reasonably assured and failure to exercise such option would result in an economic penalty. In addition, the commencement date of the lease term is the earlier of the date when the Company becomes legally obligated for the rent payments or the date when it takes possession of the premises.

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Virgin Trains USA
   
Notes to Combined Financial Statements (continued)
December 31, 2017

If the lease is deemed to be operating, the Company recognizes rent expense, including lease incentives, premiums and minimum rent expenses, on a straight-line basis over the expected lease term, including cancelable option periods where failure to exercise such options would result in an economic penalty, in such amount that a renewal appears, at the inception of the lease, to be reasonably assured. Rent abatements and escalations are considered in the calculation of minimum lease payments in the Company’s capital lease tests and in determining straight-line rent expense for operating leases.

Deferred Financing Costs

The Company records the deferred financing costs directly attributable to issuing debt as a direct deduction from the carrying value of the associated debt liability in the combined balance sheets. The Company amortizes these debt issuance costs as interest expense over the term of the related debt using the effective interest method in the combined statements of operations and comprehensive loss.

The Company records the deferred financing costs incurred as an asset included in Other assets in the combined balance sheets until the debt liability is issued. If and at the time the Company determines it is reasonably likely that the associated debt instrument will not be issued, the Company records the deferred financing costs to General, administrative and other expense in the combined statements of operations and comprehensive loss.

The Company’s total unamortized deferred financing costs were $20.4 million and $0.6 million as of December 31, 2017 and 2016, respectively. The Company classified $18.7 million and $0.6 million, net of accumulated amortization, of the total balance as a direct deduction from the carrying value of the Senior Loan Agreement and Equipment Facility, defined herein, in the combined balance sheets as of December 31, 2017 and 2016, respectively. Deferred financing costs of $1.7 million and $0 related to debt that had not yet been issued is reported in Other assets in the combined balance sheets as of December 31, 2017 and 2016, respectively.

Advertising

The Company’s advertising costs are charged to expense as incurred. Advertising expenses of $4.0 million and $2.5 million for the years ended December 31, 2017 and 2016, respectively, are included in General, administrative and other expense in the combined statements of operations and comprehensive loss.

Unaudited Pro Forma Income Taxes

The Company is comprised of legal entities that are not subject to federal, state, and local income taxes. The Company’s losses are passed through and allocated to the Company’s members. Accordingly, no provision or liability for income taxes has been made in the accompanying combined financial statements. Upon consummation of the Proposed Offering, the Company will become subject to corporate U.S. federal and state income taxes under Subchapter C of the U.S. Internal Revenue Code (the “Code”).

The change in tax status is expected to result in the recognition of deferred taxes in the period in which the formation transaction is consummated. The Company is expected to record deferred tax assets related to net operating losses and excess tax basis over GAAP basis generated from additional costs capitalized during the construction period. The Company is expected to record a deferred tax liability related to accelerated tax depreciation.

The Company has assessed the realizability of its net deferred tax assets. The Company has not demonstrated that its deferred tax assets are realizable, and therefore, is expected to recognize a valuation allowance against its net deferred tax assets. For the year ended December 31, 2017, the Company expects that the impact of recording the deferred tax asset net of valuation allowance would result in deferred tax expense of $0.

The Company files income tax returns in the applicable U.S federal, state and local jurisdictions and generally is subject to examination by the respective jurisdictions for three years from the filing of a tax return. The Company’s operations would not have generated a significant current tax expense for the periods through December 31, 2017 if the transaction had been consummated.

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Virgin Trains USA
   
Notes to Combined Financial Statements (continued)
December 31, 2017

The Company recognizes the effect of income tax positions only if those positions are more likely than not to be sustained. Recognized income tax positions are measured at the largest amount that is greater than 50% likely of being realized. Changes in recognition or measurement are reflected in the period in which the change in judgment occurs.

On December 22, 2017, the U.S. government enacted comprehensive tax legislation commonly referred to as the Tax Cuts and Jobs Act (the “Tax Act”), which significantly changed the Code. The Tax Act makes broad and complex changes to the U.S. tax code that will impact many areas of taxation. Additionally, there are numerous interpretive issues and ambiguities that are not clearly addressed in current Tax Act guidance. Due to the complex nature of the Tax Act, including whether U.S. states will conform to the Tax Act in full or in part, the Company has not yet completed its accounting for the income tax effects of the Tax Act, and is not able to determine at this time the impact on the Company’s combined financial statements.

Unaudited Pro Forma Net Loss Per Share

Pro forma basic and diluted net loss per share for the year ended December 31, 2017 has been computed to reflect the number of shares that will be outstanding after the contribution of certain subsidiaries of the Virgin Trains Stockholder to Virgin Trains USA LLC. The unaudited pro forma basic and diluted earnings per share for the year ended December 31, 2017 does not give effect to the initial public offering and the use of proceeds therefrom. The following table sets forth the computation of the Company’s unaudited pro forma basic and diluted net loss per share for the year ended December 31, 2017 (in thousands, except share and per share amounts):

 
Year Ended
December 31,
2017
 
(Unaudited)
Pro forma net loss
$
(44,650
)
Weighted average shares of common stock outstanding post contribution—basic and diluted
 
 
 
Pro forma net loss per share—basic and diluted
$
 

Employee Benefit Plans

Eligible employees participate in our Parent’s 401(k) Savings Plan. The plan provides for salary reduction contributions on behalf of the participants and provide for employer matching pursuant to the terms of the plan. Our Parent’s matching contributions under the plan of $0.2 million and $0.1 million were recorded in Salaries and benefits in the combined statements of operations and comprehensive loss for the years ended December 31, 2017 and 2016, respectively.

Contingencies

The Company accrues for contingent obligations when a liability is probable and the amount is reasonably estimable.The Company’s contingency reserves are primarily the result of claims and lawsuits resulting from its operations. The Company reviews and evaluates the facts and circumstances to determine whether a liability is probable, and based on that assessment, records a reserve for the estimated liability in the Company’s combined financial statements. The Company’s management uses its own assumptions and estimates and, in certain circumstances, may consider the professional judgment obtained from independent third parties and outside counsel to assist in evaluating the facts and circumstances in establishing an appropriate reserve. The Company may make adjustments to the reserve in the financial statements, as facts concerning contingencies become known. Actual resolution results may differ from the reported amounts of these estimated contingencies.

Recently Issued Accounting Standards

As an “emerging growth company,” the Jumpstart Our Business Startups Act (“JOBS Act”) allows the Company to delay adoption of new or revised accounting pronouncements applicable to public companies until such

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Virgin Trains USA
   
Notes to Combined Financial Statements (continued)
December 31, 2017

pronouncements are made applicable to private companies. The Company has elected to use this extended transition period under the JOBS Act. The adoption dates discussed below reflect this election.

In January 2017, the Financial Accounting Standards Board (“FASB”) issued Accounting Standard Update (“ASU”) 2017-01, Business Combinations (Topic 805): Clarifying the Definition of a Business (“ASU 2017-01”), which provides a more robust framework to use in determining when a set of assets and activities is considered a business. The new standard is effective for fiscal years beginning after December 15, 2018 and interim periods within fiscal years beginning after December 15, 2019. Early adoption is permitted for certain transactions. The Company does not expect the adoption of ASU 2017-01 to have a material impact on the Company’s combined financial position or results of operations.

In December 2016, the FASB issued ASU 2016-20, Technical Corrections and Improvement to Topic 606, Revenue from Contracts with Customers to clarify the Accounting Standards Codification or to correct unintended application of the guidance as part of an on-going project on its agenda about technical corrections and improvements and to increase awareness of the proposals and to expedite improvements to ASU 2014-09, Revenue from Contracts with Customers (Topic 606) (“ASU 2014-09”). ASU 2014-09 is generally not expected to have a significant effect on current accounting practice for most entities and the amendments in the update are a similar nature to the items typically addressed in the technical corrections and improvements project and are intended to expedite improvements of the update.

The FASB issued additional updates clarifying items within ASU 2014-09, in periods subsequent to its initial issuance including the following:

In May 2016, the FASB issued ASU 2016-12, Revenue from Contracts with Customers (Topic 606): Narrow-Scope Improvements and Practical Expedients (“ASU 2016-12”) to improve the implementation guidance included in ASU 2014-09 and address certain issues in the guidance on assessing collectability, presentation of sales taxes, noncash consideration, completed contracts and contract modifications at transition. In May 2016, the FASB also issued ASU 2016-11, Revenue Recognition (Topic 605) and Derivatives and Hedging (Topic 815): Rescission of SEC Guidance Because of Accounting Standards Updates 2014-09 and 2014-16 Pursuant to Staff Announcements at the March 3, 2016 EITF Meeting to rescind certain Securities and Exchange Commission (“SEC”) Staff Observer comments that are codified in Topic 605, Revenue Recognition and Topic 932, Extractive Activities—Oil and Gas, effective upon adoption of Topic 606 and rescinds the SEC Staff Announcement, Determining the Nature of a Host Contract Related to a Hybrid Instrument Issued in the Form of a Share under Topic 815, effective concurrently with Update 2014-16—Derivatives and Hedging (Topic 815): Determining Whether the Host Contract in a Hybrid Financial Instrument Issued in the Form of a Share Is More Akin to Debt or to Equity (a consensus of the FASB Emerging Issues Task Force).
In April 2016, the FASB issued ASU 2016-10, Revenue from Contracts with Customers (Topic 606): Identifying Performance Obligations and Licensing (“ASU 2016-10”) to identify performance obligations to determine if it is necessary to assess whether promised goods or services are immaterial in the context of the contract, separately identifiable, and are a promised service in a contract or are activities to fulfill an entity’s other promises in the contract. The update also aims to determine the nature of an entity’s promise in granting a license to provide a right to access or use the entity’s intellectual property, the scope and applicability of when to recognize revenue for sales-based or usage-based royalties promised in exchange for a license of intellectual property.
In March 2016, the FASB issued ASU 2016-08, Revenue from Contracts with Customers (Topic 606): Principal versus Agent Considerations (Reporting Revenue Gross versus Net) (“ASU 2016-08”) to improve the operability and understandability of the implementation guidance on principal versus agent considerations by clarifying certain implementation guidance in ASU 2014-09. The update does not change the core principal of the guidance of Topic 606 which requires that an entity recognize revenue to depict

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Virgin Trains USA
   
Notes to Combined Financial Statements (continued)
December 31, 2017

the transfer of promised goods or services to customers in an amount that reflects the consideration to which the entity expects to be entitled in exchange for those goods or services. The update includes indicators to assist an entity in determining whether it controls a specified good or service before it is transferred to the customers.

The FASB issued updates ASU 2016-12, ASU 2016-10 and ASU 2016-08 to provide guidance to improve the operability and understandability of the implementation guidance included in ASU 2014-09. ASU 2016-20, ASU 2016-12, ASU 2016-10 and ASU 2016-08 have the same effective date and transition requirements of ASU 2015-14, which defers the effective date and transition of ASU 2014-09 annual reporting periods beginning after December 15, 2018, and interim periods within annual periods beginning after December 15, 2019, with early adoption permitted. The Company plans to adopt this standard and the other related revenue standard clarifications and technical guidance effective January 1, 2019. The Company’ evaluation of this standard is in process and includes identifying timing and/or method of revenue recognition for contracts and the expected impact on the Company’s business processes, systems, and controls. As part of this evaluation, the Company will review customer contracts and apply the five-step model of the new standard to each contract type associated to revenue streams and compare the results to current accounting practices. The Company is not able to determine at this time if the adoption of this guidance will have a material impact on the Company’s combined financial position or results of operations.

In November 2016, the FASB issued ASU 2016-18, Statement of Cash Flows (Topic 230): Restricted Cash (a consensus of the FASB Emerging Issues Task Force) to improve the presentation and clarify the classification of restricted cash and cash equivalents in the statement of cash flows. The update requires that a statement of cash flows explain the change during the period in the total of cash, cash equivalents, and amounts generally described as restricted cash or restricted cash equivalents. The amounts generally described as restricted cash and restricted cash equivalents should be included with cash and cash equivalents when reconciling the beginning-of-period and end-of-period total amounts shown on the statement of cash flows. The update is effective for annual reporting periods beginning after December 15, 2018, and interim periods within fiscal years beginning after December 15, 2019, with early adoption permitted. The Company is not able to determine at this time if the adoption of this guidance will have a material impact on the Company’s combined financial statements.

In August 2016, the FASB issued ASU 2016-15, Statement of Cash Flows (Topic 230): Classification of Certain Cash Receipts and Cash Payments (a consensus of the Emerging Issues Task Force) to improve the diversity in practice in how certain cash receipts and cash payments are presented and classified in the statement of cash flows. The update provides guidance on specific cash flow issues including the following: debt prepayment or debt extinguishment costs; settlement of debt instruments with zero or insignificant coupon interest rates; contingent consideration payments after a business combination; proceeds from settlement of insurance claims, corporate-owned life insurance policies; distributions received from equity method investees; beneficial interests in securitization transactions; and separately identifiable cash flows and application of the predominance principle. The update is effective for annual reporting periods beginning after December 15, 2018, and interim periods within annual periods beginning after December 15, 2019, with early adoption permitted. The Company is not able to determine at this time if the adoption of this guidance will have a material impact on the Company’s combined financial statements.

In February 2016, the FASB issued ASU 2016-02, Leases (Topic 842) to increase transparency and comparability among organizations by recognizing rights and obligations resulting from leases as lease assets and lease liabilities on the balance sheet and disclosing key information about leasing arrangements. The update requires lessees to recognize for all leases with a term of 12 months or more at the commencement date: (a) a lease liability or a lessee’s obligation to make lease payments arising from a lease, measured on a discounted basis; and (b) a right-of-use asset or a lessee’s right to use or control the use of a specified asset for the lease term. Under the update, lessor accounting remains largely unchanged. The update requires a modified retrospective transition approach for leases existing at, or entered into after the beginning of the earliest comparative period presented in the financial statements and do not require any transition accounting for leases that expire before the earliest comparative period

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Virgin Trains USA
   
Notes to Combined Financial Statements (continued)
December 31, 2017

presented. The update is effective retrospectively for annual reporting periods beginning after December 15, 2019, and interim periods beginning after December 15, 2020, with early adoption permitted. The Company is not able to determine at this time if the adoption of this guidance will have a material impact on the Company’s combined financial position or results of operations.

Note 3.   Restricted Cash

As of December 31, 2017, restricted cash was $169.1 million, of which $124.2 million was held in escrow accounts to meet certain obligations directly related to construction, development and operation of the South Segment, $34.9 million was held as escrow funds mainly for the payment of interest and $10.0 million was held as collateral for outstanding undrawn letters of credit with an aggregate face amount of $10.0 million.

As of December 31, 2016, restricted cash was $11.0 million, of which $1.0 million was held in escrow accounts to meet certain obligations directly related to the construction, development and operation of the South Segment and $10.0 million was held as collateral for outstanding undrawn letters of credit with an aggregate face amount of $10.0 million.

Restricted cash potentially subjects the Company to significant concentrations of credit risk. Substantially all of the Company’s restricted cash is deposited in accounts with financial institutions that the Company believes are of high credit quality. As such, the funds are considered to be subject to minimal credit risk. Such deposits have and will continue to exceed federally insured limits. The Company has not experienced any losses on its cash deposits historically.

Note 4.   Related-Party Transactions

Transactions and Agreements with the Virgin Trains Stockholder or our Parent

Fort Lauderdale Garage Lease

In August 2016, the Company, as lessee, entered into a lease agreement, which was amended in December 2017, with the Virgin Trains Stockholder, as lessor, for certain of the Virgin Trains Stockholder’s properties in Fort Lauderdale, Florida (the “FLL Garage Lease”). The FLL Garage Lease has an original term of 240 months with a monthly base rent payable to the Virgin Trains Stockholder of $0.1 million. The FLL Garage Lease provides an option to renew the lease for three additional renewal terms of 60 months each, subject to a 10% increase in base rent for each renewal term. As of December 31, 2017, no lease payments have been made as the lease agreement contained a provision for a 6-month rent holiday after the lease commencement in August 2017.

See the West Palm Beach Property Lease Agreement discussed below.

Other Agreements with Related Parties

Florida East Coast Railway, L.L.C. (“FECR”) was a related party of the Company prior to June 30, 2017. After a sale by its parent company on June 30, 2017, FECR was no longer an affiliate and related party. For arrangements that were not assigned, the terms and conditions specified within the arrangements with FECR described below remained in effect.

West Palm Beach Property Lease Agreement

In June 2015, FECR, as lessor, and the Company, as lessee, entered into a lease agreement for certain FECR properties in West Palm Beach, Florida (the “WPB Property Lease Agreement”). The WPB Property Lease Agreement had an original lease term of 4 months with an automatic monthly renewal, unless terminated by either party. In October 2015, the parties entered into an amendment to the WPB Lease Agreement, extending the lease term to March 2017 with a monthly lease payment payable to FECR of approximately $23,000. In March 2017, the parties entered into another amendment of the lease, extending the lease term to July 2017. On June 30, 2017, our Parent acquired the underlying property that was the subject of WPB Property Lease Agreement from FECR. Commencing on July 1, 2017, the Company leases the premises from our Parent and the lease term was extended until December 31, 2033, with three 60-month renewal options. Monthly lease payments payable to FECI are approximately $23,000.

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Virgin Trains USA
   
Notes to Combined Financial Statements (continued)
December 31, 2017

The Company recognized $0.3 million in rent expense under the WPB Property Lease Agreement in General, administrative and other expense in the combined statements of operations and comprehensive loss for each of the years ended December 31, 2017 and 2016.

Shared Services and Other Arrangements

In 2015, the Company and FECR entered into various shared services, joint use, operating, infrastructure, maintenance and other related arrangements, certain of which have been periodically amended, extended or terminated (collectively, the “Shared Services Arrangements”), whereby each party provides support to the other for certain activities at cost plus a markup to support the construction, development and operation of passenger rail service and for other purposes. The Shared Services Arrangements also provide for the rehabilitation and improvement of existing track infrastructure and the construction and installation of rail related capital improvements, necessary for the passenger rail service. Pursuant to these arrangements, certain equipment and other assets installed on existing rail will be funded by the Company and jointly used by the parties. On June 30, 2017, when FECR ceased to be a related party, the Company and FECR amended the Shared Services Arrangements to continue the joint use agreement as unrelated third parties.

The Company recognized $14.2 million related to capital improvements and investment in rail within construction in progress in Properties and equipment, net and investment in rail in the combined balance sheet as of December 31, 2016. As of December 31, 2017, FECR was not a related party.

The Company recognized $1.2 million and $1.1 million for services provided by FECR as a related party within General, administrative and other in the combined statements of operations and comprehensive loss for the years ended December 31, 2017 and 2016, respectively.

Transit Improvement Agreement with FECR and Transit Authority

In August 2016, the Company and FECR entered into various construction, operating and other related agreements with a Florida public transit authority (the “Transit Authority”) to provide access from (collectively, the “Transit Improvement Agreement”) the Transit Authority’s existing commuter rail line and public transport service to the Miami Station (the “Transit Rail”). Pursuant to the Transit Improvement Agreement, the Transit Authority will pay the Company to design and construct improvements at the Company’s Miami Station in common areas and for the right to use the improvements that will be shared by the Company and the Transit Authority (the “Shared Assets”), as well as to construct improvements to existing rail transportation corridors which will be used exclusively by the Transit Authority (the “Exclusive Assets”). The Transit Improvement Agreement will obligate the Transit Authority to reimburse certain infrastructure costs.

The Company recorded $23.5 million and $10.8 million as Deposits from Transit Authority for the Exclusive Assets in the combined balance sheets as of December 31, 2017 and 2016, respectively.

The Company recorded $20.3 million and $8.7 million for amounts reimbursable from the Transit Authority for the Shared Assets in Other liabilities in the combined balance sheets as of December 31, 2017 and 2016, respectively.

Of these amounts, the Company had a balance of $4.8 million and $2.7 million related to costs that were not yet reimbursed by the Transit Authority in Other current assets in the combined balance sheets as of December 31, 2017 and 2016, respectively.

West Palm Beach Railway Lease Agreement

In May 2016, the Company, as lessee, entered into a lease agreement with FECR, as lessor, for certain of FECR’s railway property in West Palm Beach, Florida (the “WPB Railway Lease Agreement”). The WPB Railway Lease Agreement had an original lease term of 12 months with an automatic monthly renewal, unless terminated by either party. The WPB Railway Lease Agreement has a monthly lease payment of $15,000.

The Company recognized $0.1 million in rent expense for the WPB Railway Lease Agreement in General, administrative and other expense in the combined statements of operations and comprehensive loss for each of the years ended December 31, 2017 and 2016.

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Virgin Trains USA
   
Notes to Combined Financial Statements (continued)
December 31, 2017

Fort Lauderdale Railway Lease Agreement

In May 2016, the Company, as lessee, entered into a lease agreement with FECR, as lessor, for certain of FECR’s railway property in Fort Lauderdale, Florida (the “FTL Railway Lease Agreement”). The FTL Railway Lease Agreement had an original lease term of 12 months with an automatic monthly renewal, unless terminated by either party. The FTL Railway Lease Agreement has a monthly lease payment of approximately $9,000. In January 2017, there was an amendment to the FTL Railway Lease Agreement, reducing the square footage of the leased property and decreasing the monthly lease payment payable to FECR to approximately $8,000. The lease was terminated in September 2017.

The Company recognized $0.1 million in rent expense incurred as a related party under the FTL Railway Lease Agreement in General, administrative and other expense in the combined statements of operations and comprehensive loss for each of the years ended December 31, 2017 and 2016.

Dispatching Services Agreement

In December 2016, FECR and the Company formed a 50-50 joint venture named DispatchCo, which is accounted for as an equity method investment by the Company. In October 2017, the Company and FECR each contributed $2.0 million to the joint venture. The Company’s equity method investment in DispatchCo of $2.0 million was included within Other assets in the combined balance sheet as of December 31, 2017. For the years ended December 31, 2017 and 2016, the Company’s share in earnings or losses of DispatchCo were immaterial.

DispatchCo is responsible for providing dispatch services to FECR and the Company under a Dispatching Services Agreement. DispatchCo charges for dispatching services based on cost plus pricing, charged equally to the Company and FECR.

The above mentioned related party transactions with FECR are reflected within Accounts payable and accrued expenses in the combined balance sheets. As of December 31, 2017 and 2016, amounts outstanding under the above mentioned arrangements were $0 and $1.3 million. Certain transactions between Virgin Trains USA and other entities within our Parent or the Virgin Trains Stockholder are also included in and reflected as a change in our Parent’s net investment in the combined balance sheets.

Note 5.   Properties and Equipment, Net and Investment in Rail

Properties and equipment, net and investment in rail consisted of the following (dollars in thousands):

 
As of December 31,
 
2017
2016
Construction in progress
$
1,288,092
 
$
961,366
 
Land and land improvements
 
24,590
 
 
24,007
 
Buildings and building improvements
 
14,382
 
 
 
Rail infrastructure
 
2,083
 
 
 
Other
 
4,065
 
 
367
 
Total properties and equipment and investment in rail
 
1,333,212
 
 
985,740
 
Less accumulated depreciation
 
(640
)
 
(83
)
Total
$
1,332,572
 
$
985,657
 

The Company recognized depreciation expense of approximately $0.6 million and $38,000 for the years ended December 31, 2017 and 2016, respectively.

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Virgin Trains USA
   
Notes to Combined Financial Statements (continued)
December 31, 2017

Note 6.   Other Current Assets

Other current assets consisted of the following (dollars in thousands):

 
As of December 31,
 
2017
2016
Receivable from Transit Authority
$
4,841
 
$
2,707
 
Prepaid expenses
 
585
 
 
125
 
Other current assets
 
534
 
 
37
 
Total
$
5,960
 
$
2,869
 

Note 7.   Intangible Assets

Intangible assets consisted of the following (dollars in thousands):

 
As of December 31,
 
2017
2016
 
Gross
carrying
amount
Accumulated
amortization
Net
carrying
amount
Gross
carrying
amount
Accumulated
amortization
Net
carrying
amount
Indefinite life intangible assets:
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Passenger rail services
$
225,300
 
$
N/A
 
$
225,300
 
$
225,300
 
$
N/A
 
$
225,300
 
Definite life intangible assets:
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Rail line property easements
 
32,002
 
 
(644
)
 
31,358
 
 
31,847
 
 
(321
)
 
31,526
 
Total
$
257,302
 
$
(644
)
$
256,658
 
$
257,147
 
$
(321
)
$
256,826
 

The remaining weighted average amortization period for the rail line property easements was 97 years as of December 31, 2017.

The Company recognized amortization expense of $0.3 million for each of the years ended December 31, 2017 and 2016. Estimated amortization expense is $0.3 million for each of the years from 2018 through 2022 and for each year thereafter.

Note 8.   Other Assets

Other assets consisted of the following (dollars in thousands):

 
As of December 31,
 
2017
2016
Deposit for purchase of equipment
$
5,580
 
$
 
Investment in DispatchCo
 
1,956
 
 
 
Other assets
 
2,542
 
 
2,568
 
Total
$
10,078
 
$
2,568
 

Note 9.   Debt

Long-term debt consisted of the following (dollars in thousands):

 
As of December 31,
 
2017
2016
Senior Loan Agreement for 5.625% Series 2017 Bonds due January 1, 2047
$
600,000
 
$
 
Equipment Credit Facility
 
 
 
32,790
 
Deferred financing costs
 
(18,748
)
 
(567
)
Total long-term debt, net
$
581,252
 
$
32,223
 

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Virgin Trains USA
   
Notes to Combined Financial Statements (continued)
December 31, 2017

Interest costs incurred were $5.2 million and $2.3 million, inclusive of amortization of deferred financing costs of $0.3 million and $0.2 million, for the years ended December 31, 2017 and 2016, respectively. Interest costs were capitalized and included within construction in progress in Property and equipment, net and investment in rail.

Series 2017 Bonds

On December 19, 2017, the Florida Development Finance Corporation (the “FDFC”) issued $600.0 million aggregate principal amount of its Surface Transportation Facility Revenue Bonds (Brightline Passenger Rail Project – South Segment), Series 2017 (the “Series 2017 Bonds”), with Deutsche Bank National Trust Company serving as trustee (the “Trustee”). The Series 2017 Bonds were issued, pursuant to an indenture, to qualified institutional buyers in the U.S.

In its role as a conduit lender, the FDFC provides qualifying projects with access to capital to support, enhance, and promote economic development in the state of Florida. The FDFC and Brightline Trains LLC (f/k/a All Aboard Florida – Operations LLC) (“Brightline Trains”), a wholly-owned subsidiary of Virgin Trains USA LLC, entered into a senior loan agreement (the “Senior Loan Agreement”) whereby FDFC loaned the proceeds from the Series 2017 Bonds to Brightline Trains and Brightline Trains agreed to pay all principal and interest on the Series 2017 Bonds. Brightline Trains used the proceeds from the Series 2017 Bonds along with cash contributions from the Virgin Trains Stockholder for (i) the repayment of a certain equipment financing credit facility; (ii) the financing of the design, construction, development, and equipping of the South Segment; and (iii) repayment of advances from the Virgin Trains Stockholder to fund our construction activities. The remaining proceeds will only be utilized to pay or reimburse costs of the South Segment.

Pursuant to the Senior Loan Agreement, Brightline Trains is required to comply with various covenants for the benefit of the Trustee and the holders of the Series 2017 Bonds, such as a limitation on the ability to incur additional indebtedness subject to certain limitations set forth in the Senior Loan Agreement. Brightline Trains may not declare or pay dividends or make any distributions unless, in addition to certain additional covenants, it maintains a Total Debt Service Coverage Ratio (as defined in the Senior Loan Agreement) of 1.75 to 1.00 on the date of such distributions, and such dividends or distributions may not exceed $25.0 million in each calendar year. The restricted net assets of Brightline Trains were approximately $1,054 million as of December 31, 2017. Brightline Trains has agreed to pay or cause to be paid all amounts necessary to pay the principal and purchase price of, and interest on, the Series 2017 Bonds. Brightline Trains payment obligations with respect to the Series 2017 Bonds and under the Senior Loan Agreement are secured by mortgage liens encumbering substantially all of the real property interests for the South Segment (including stations), substantially all personal property of Brightline Trains, and a pledge by AAF Operations Holdings LLC, a wholly-owned subsidiary of the Company, of the membership interests in Brightline Trains. The Company was in compliance with applicable debt covenants as of December 31, 2017.

The Series 2017 Bonds have a maturity date of January 1, 2047 and bear interest of 5.625% during an initial Term Rate Period that ends on December 31, 2027. There are no debt maturity amounts due the next five years from the date of the most recent combined balance sheet. Interest is payable semi-annually on January 1 and July 1 of each year, commencing on July 1, 2018.

During the initial Term Rate Period, the Series 2017 Bonds are subject to redemption, in whole, at any time prior to January 1, 2019 at the option of Brightline Trains at a price equal to 105% of the principal amount of the Series 2017 Bonds plus accrued and unpaid interest and any remaining payments of interest to be paid through January 1, 2019. Additionally, the Series 2017 Bonds are subject to redemption, in whole, at the option of Brightline Trains at any time on or after January 1, 2019 to January 1, 2024, at a redemption price equal to the principal outstanding plus a premium and accrued and unpaid interest. The redemption premium is 5% if such redemption occurs on or after January 1, 2019, and on or prior to December 31, 2019; 4% if such redemption occurs after December 31, 2019, and on or prior to December 31, 2020; 3% if such redemption occurs after December 31, 2020, and on or prior to December 31, 2021; 2% if such redemption occurs after December 31, 2021, and on or prior to December 31, 2022; 1% if such redemption occurs after December 31, 2022, and on or prior to December 31, 2023; and 0% thereafter. On the day immediately following the conclusion of the initial Term Rate Period on December 31, 2027, the Series 2017 Bonds are subject to a mandatory tender for purchase at a price of par plus accrued interest.

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Virgin Trains USA
   
Notes to Combined Financial Statements (continued)
December 31, 2017

The Series 2017 Bonds are subject to mandatory sinking fund redemption prior to maturity, in part, at a redemption price equal to the principal amount redeemed, plus accrued and unpaid interest to the redemption date, beginning on January 1, 2026 and every year thereafter on January 1 through the final maturity on January 1, 2047. The principal amount to be redeemed on January 1, 2026 is approximately $14.5 million, increasing by approximately 5.625% every January 1 until the final maturity principal of approximately $45.6 million is required to be paid on January 1, 2047.

Equipment Financing Credit Facility

In August 2014, the Company entered into an agreement with a third party vendor for the purchase of rolling stock and related assets (the “Equipment”) and an agreement to finance those purchases (the “Equipment Facility”). The Equipment Facility had a maximum principal amount of $100.0 million.

The Company financed the purchase of $32.8 million of Equipment during 2016 and $57.1 million during 2017. In December 2017, the Company paid off a total of $89.9 million in outstanding balance of the Equipment Facility with the proceeds from the Senior Loan Agreement. The Company wrote off the related unamortized deferred financing costs of $0.3 million as Loss on extinguishment of debt in the combined statements of operations and comprehensive loss for the year ended December 31, 2017.

Note 10.   Commitments and Contingencies and Other

Litigation, Legal Proceedings and Contingencies

The Company is a party to a dispute pertaining to construction services and supplied building materials. In connection with this matter, the Company has accrued $3.4 million for change orders related to construction services and supplied building materials which is capitalized as construction in progress within Properties and equipment, net and investment in rail in the combined balance sheet as of December 31, 2017. The Company disputes the material allegations in the claim and intends to defend against the action. Due to the uncertainty surrounding the ultimate outcome and settlement of this claim, the Company is unable to estimate the potential future costs, if any, resulting from this matter, but believes it is without merit and does not expect that it will have a material effect on its combined financial statements.

Leases

The Company has several non-cancelable operating leases with third parties for a parking garage and/or parking spaces, office space and equipment. The Company also entered into operating leasing arrangements with the Virgin Trains Stockholder.

Total rent expense related to these operating leases was $1.9 million and $0.7 million for the years ended December 31, 2017 and 2016, respectively.

Future minimum payments at December 31, 2017 under non-cancelable third party and related party operating leases are as follows (dollars in thousands):

For the years ending December 31,
 
2018
$
3,267
 
2019
 
1,682
 
2020
 
1,655
 
2021
 
1,655
 
2022
 
1,655
 
2023 and thereafter
 
24,403
 
Total
$
34,317
 

The Company has executed a lease agreement with the Greater Orlando Aviation Authority (“GOAA”) related to the North Segment which is subject to the satisfaction of certain conditions in order to be released from escrow

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Virgin Trains USA
   
Notes to Combined Financial Statements (continued)
December 31, 2017

to be deemed effective. All requisite conditions for release have not been met, including demonstrating the Company’s financial wherewithal to complete our Florida passenger rail system and obtaining all permits. Irrevocable letters of credit were issued to GOAA to extend the escrow agreement. Upon lease effectiveness, the annual minimum lease payments are approximately $4.1 million for 50 years.

Siemens Maintenance Agreement

The Company is a party to a contract with Siemens for all warranty repairs and maintenance on its rolling stock. This 30-year contract entered into in December 2014, can be terminated by the Company without penalty after 14 years, or with an early termination penalty between commencement of passenger services and 14 years. This contract duration ensures regular preventative maintenance, as well as capital maintenance over the life of the contract at a set price with an established cost escalator. The Company’s monthly service payment obligations began on January 13, 2018, with the commencement of passenger rail service.

Off-Balance Sheet Arrangements

The Company also had outstanding undrawn irrevocable letters of credit commitments, fully collateralized by restricted cash, with an aggregate face amount of $10.0 million as of December 31, 2017 and 2016.

Note 11.   Subsequent Events

The Company has determined that no subsequent events have occurred that would require recognition in the combined financial statements or disclosure in the accompanying notes.

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Schedule I
Virgin Trains USA LLC
Registrant Only Condensed Financial Information

CONDENSED STATEMENTS OF OPERATIONS AND COMPREHENSIVE LOSS
(Dollars in thousands)

 
Year Ended December 31,
 
2017
2016
Equity in net loss of subsidiaries
$
(44,650
)
$
(24,991
)
Net loss and comprehensive loss
$
(44,650
)
$
(24,991
)

See notes to condensed financial statements.

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Schedule I
Virgin Trains USA LLC
Registrant Only Condensed Financial Information

CONDENSED BALANCE SHEETS
(Dollars in thousands)

 
Year Ended December 31,
 
2017
2016
Assets
 
 
 
 
 
 
Investment in subsidiaries
$
1,054,282
 
$
1,099,717
 
Total assets
$
1,054,282
 
$
1,099,717
 
   
 
 
 
Liabilities and equity
 
 
 
 
 
 
Total liabilities
$
 
$
 
Member’s equity
 
 
 
 
 
 
Member’s contribution
 
1,135,883
 
 
1,136,669
 
Accumulated deficit
 
(81,601
)
 
(36,952
)
Total equity
 
1,054,282
 
 
1,099,717
 
Total liabilities and member’s equity
$
1,054,282
 
$
1,099,717
 

See notes to condensed financial statements.

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Schedule I
Virgin Trains USA LLC
Registrant Only Condensed Financial Information

CONDENSED STATEMENTS OF CASH FLOWS
(Dollars in thousands)

 
Year Ended December 31,
 
2017
2016
Cash flows from operating activities
 
 
 
 
 
 
Net loss
$
(44,650
)
$
(24,991
)
Adjustments to reconcile net loss to net cash used in operating activities:
 
 
 
 
 
 
Equity in net loss of subsidiaries
 
44,650
 
 
24,991
 
Net cash used in operating activities
 
 
 
 
Net increase (decrease) in cash and cash equivalents
 
 
 
 
Cash and cash equivalents at beginning of year
 
 
 
 
Cash and cash equivalents at end of year
$
 
$
 

See notes to condensed financial statements.

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Schedule I
Virgin Trains USA LLC
Registrant Only Condensed Financial Information

Notes to Condensed Financial Information

Note 1.   Description of Virgin Trains USA LLC

Virgin Trains USA LLC (the “Company” or the “Registrant”) was formed on August 27, 2013 as AAF Holdings B LLC and effected a name change to Brightline Holdings LLC in March 2018 and to Virgin Trains USA LLC in November 2018. The Company has no operations or assets other than its ownership of its subsidiaries.

On December 19, 2017, Brightline Trains LLC (f/k/a All Aboard Florida – Operations LLC), a wholly-owned subsidiary of the Company, entered into a $600.0 million senior loan agreement with the Florida Development Finance Corporation. Pursuant to the senior loan agreement, Brightline Trains has agreed to pay or caused to be paid all amounts necessary to pay the principal and purchase price of, and interest on, the Series 2017 Bonds. Brightline Trains payment obligations with respect to the Series 2017 Bonds and under the senior loan agreement are secured by liens on certain real property interests, substantially all personal property of Brightline Trains, and a pledge by AAF Operations Holdings LLC, a wholly-owned subsidiary of the Company, of the membership interests in Brightline Trains. There are covenants in the senior loan agreement that restrict the Company’s ability to pay dividends or borrow additional funds, and such restrictions have resulted in the restricted net assets (as defined in Rule 4-08(e)(3) of Regulation S-X) of the Company’s subsidiaries exceeding 25% of the consolidated net assets of the Company and its subsidiaries. There are no obligations to pay dividends to the Virgin Trains Stockholder, defined herein.

Note 2.   Basis of Presentation

The accompanying condensed Registrant only financial statements are required in accordance with Rule 4-08(e)(3) of Regulation S-X. The financial statements include the amounts of the Registrant’s investment in its subsidiaries under the equity method, and does not present the financial statements of the Registrant and its subsidiaries on a consolidated basis. Under the equity method, investment in its subsidiaries is stated at cost plus contributions and equity in undistributed income (loss) of subsidiary less distributions received since the date of acquisition.

These condensed Registrant only financial statements should be read in conjunction with Virgin Trains USA’s combined financial statements and the accompany notes. Virgin Trains USA’s combined financial statements comprises the combined net assets and operations of Virgin Trains USA LLC and its wholly-owned subsidiaries and certain other wholly-owned subsidiaries of AAF Holdings LLC (the “Virgin Trains Stockholder”), including AAF Jacksonville Segment LLC, Brightline Management LLC (f/k/a All Aboard Florida Operations Management LLC), Brevard County Property Holdings LLC and Space Coast Land Holdings LLC. The other wholly-owned subsidiaries of the Virgin Trains Stockholder are not included in the Registrant only condensed financial information presented herein.

Note 3.   Dividends and Distributions from Subsidiaries

The Company has not received any distributions from its subsidiaries for the years ended December 31, 2017 and 2016.

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28,334,000 Shares

Virgin Trains USA Inc.

Common Stock

   

PRELIMINARY PROSPECTUS

Barclays

J.P. Morgan

Morgan Stanley

BofA Merrill Lynch

Allen & Company LLC

JMP Securities

Raymond James

Stephens Inc.

, 2019

Through and including             , 2019 (the 25th day after the date of this prospectus), all dealers effecting transactions in these securities, whether or not participating in this offering, may be required to deliver a prospectus. This is in addition to a dealer’s obligation to deliver a prospectus when acting as an underwriter and with respect to an unsold allotment or subscription.

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PART II
  
INFORMATION NOT REQUIRED IN PROSPECTUS

Item 13.Other Expenses of Issuance and Distribution.

The following table sets forth all costs and expenses, other than the underwriting discounts and commissions payable by us, in connection with the offer and sale of the securities being registered. All amounts shown are estimates except for the SEC registration fee, the FINRA filing fee and the Nasdaq initial listing fee.

SEC registration fee
$
75,035
 
FINRA filing fee
 
93,365
 
Nasdaq initial listing fee
 
125,000
 
Printing expenses
 
350,000
 
Legal fees and expenses
 
5,000,000
 
Accounting fees and expenses
 
5,700,000
 
Transfer agent and registrar fees
 
20,000
 
Miscellaneous expenses
 
236,600
 
Total expenses
$
11,600,000
 
Item 14.Indemnification of Directors and Officers.

Prior to the closing of this offering, we intend to reorganize our existing corporate structure so that the issuer of our common stock is a Delaware corporation named Virgin Trains USA Inc. Upon completion of this reorganization, we will be subject to the Delaware General Corporate Law, or DGCL.

Section 102 of the DGCL allows a corporation to eliminate the personal liability of directors to a corporation or its stockholders for monetary damages for a breach of a fiduciary duty as a director, except where the director breached his duty of loyalty, failed to act in good faith, engaged in intentional misconduct, or knowingly violated a law, authorized the payment of a dividend or approved a stock repurchase or redemption in violation of Delaware corporate law or obtained an improper personal benefit.

Section 145 of the DGCL provides, among other things, that a corporation may indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding (other than an action by or in the right of the corporation) by reason of the fact that the person is or was a director, officer, employee, or agent of the corporation or is or was serving at the corporation’s request as a director, officer, employee, or agent of another corporation, partnership, joint venture, trust or other enterprise, against expenses, including attorneys’ fees, judgments, fines and amounts paid in settlement actually and reasonably incurred by the person in connection with the action, suit or proceeding. The power to indemnify applies if (i) such person is successful on the merits or otherwise in defense of any action, suit or proceeding or (ii) such person acted in good faith and in a manner he or she reasonably believed to be in or not opposed to the best interests of the corporation, and with respect to any criminal action or proceeding, had no reasonable cause to believe his conduct was unlawful. The power to indemnify applies to actions brought by or in the right of the corporation as well, but only to the extent of defense expenses (including attorneys’ fees but excluding amounts paid in settlement) actually and reasonably incurred and not to any satisfaction of judgment or settlement of the claim itself, and with the further limitation that in such actions no indemnification shall be made in the event of any adjudication of negligence or misconduct in the performance of his duties to the corporation, unless a court believes that in light of all the circumstances indemnification should apply.

Section 174 of the DGCL provides, among other things, that a director who willfully and negligently approves of an unlawful payment of dividends or an unlawful stock purchase or redemption may be held liable for such actions. A director who was either absent when the unlawful actions were approved or dissented at the time, may avoid liability by causing his or her dissent to such actions to be entered in the books containing the minutes of the meetings of the board of directors at the time the action occurred or immediately after the absent director receives notice of the unlawful acts.

Our certificate of incorporation states that no director shall be personally liable to us or any of our stockholders for monetary damages for breach of fiduciary duty as a director, except to the extent such exemption from liability

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or limitation thereof is not permitted under the DGCL as it exists or may be amended. A director is also not exempt from liability for any transaction from which he or she derived an improper personal benefit, or for violations of Section 174 of the DGCL. To the maximum extent permitted under Section 145 of the DGCL, our certificate of incorporation authorizes us to indemnify any and all persons whom we have the power to indemnify under the law.

Our bylaws provide that the Company will indemnify, to the fullest extent permitted by the DGCL, each person who was or is made a party or is threatened to be made a party in any legal proceeding by reason of the fact that he or she is or was a director or officer of the Company or is or was a director or officer of the Company serving at the request of the Company as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise. However, such indemnification is permitted only if such person acted in good faith and in a manner such person reasonably believed to be in or not opposed to the best interests of the Company, and, with respect to any criminal action or proceeding, had no reasonable cause to believe such person’s conduct was unlawful. Indemnification is authorized on a case-by-case basis by (1) our board of directors by a majority vote of disinterested directors, (2) a committee of the disinterested directors, (3) independent legal counsel in a written opinion if (1) and (2) are not available, or if disinterested directors so direct, or (4) the stockholders. Indemnification of former directors or officers shall be determined by any person authorized to act on the matter on our behalf. Expenses incurred by a director or officer in defending against such legal proceedings are payable before the final disposition of the action, provided that the director or officer undertakes to repay us if it is later determined that he or she is not entitled to indemnification.

Prior to completion of this offering, the Company intends to enter into separate indemnification agreements with its directors and officers. Each indemnification agreement will provide, among other things, for indemnification to the fullest extent permitted by law and our certificate of incorporation and bylaws against any and all expenses, judgments, fines, penalties and amounts paid in settlement of any claim. The indemnification agreements will provide for the advancement or payment of all expenses to the indemnitee and for reimbursement to us if it is found that such indemnitee is not entitled to such indemnification under applicable law and our certificate of incorporation and bylaws.

Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers or persons controlling the Company pursuant to the foregoing provisions, the Company has been informed that, in the opinion of the SEC such indemnification is against public policy as expressed in the Securities Act and is therefore unenforceable. We maintain directors’ and officers’ liability insurance for our officers and directors.

The Company maintains standard policies of insurance under which coverage is provided (a) to its directors and officers against loss rising from claims made by reason of breach of duty or other wrongful act, and (b) to the Company with respect to payments, which may be made by the Company to such officers and directors pursuant to the above indemnification provision or otherwise as a matter of law.

Item 15.Recent Sales of Unregistered Securities.

Prior to the effectiveness of this registration statement, we will complete transactions pursuant to which we will convert from a Delaware limited liability company into a Delaware corporation. In connection with such conversion, our limited liability company interests will be converted into shares of common stock.

Item 16.Exhibits and Financial Statement Schedules.
a.Exhibits

The exhibit index attached hereto is incorporated herein by reference.

Item 17.Undertakings.

The undersigned registrant hereby undertakes to provide to the underwriters at the closing specified in the underwriting agreement, certificates in such denominations and registered in such names as required by the underwriters to permit prompt delivery to each purchaser.

Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the registrant pursuant to the provisions referenced in Item 14 of this registration statement or otherwise, the registrant has been advised that in the opinion of the SEC such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification

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against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered hereunder, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.

The undersigned registrant hereby undertakes that:

1)For purposes of determining any liability under the Securities Act, the information omitted from the form of prospectus filed as part of this registration statement in reliance upon Rule 430A and contained in the form of prospectus filed by the registrant pursuant to Rule 424(b) (1) or (4) or 497(h) under the Securities Act shall be deemed to be part of this registration statement as of the time it was declared effective; and
2)For the purpose of determining any liability under the Securities Act, each post-effective amendment that contains a form of prospectus shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at the time shall be deemed to be the initial bona fide offering thereof.

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EXHIBIT INDEX

EXHIBIT
NO.
DESCRIPTION OF EXHIBIT
Form of Underwriting Agreement
Form of Certificate of Incorporation of Virgin Trains USA Inc.
Form of Bylaws of Virgin Trains USA Inc.
Form of Opinion of Skadden, Arps, Slate, Meagher & Flom LLP
Trade Mark Licence Agreement, between Virgin Enterprises Limited and Brightline Holdings LLC, dated as of November 15, 2018
Form of Virgin Trains USA Inc. Incentive Plan
Employment Letter with Patrick Goddard, dated as of September 21, 2016
Employment Letter with Jeff Swiatek, dated as of June 1, 2018
Employment Letter with Michael Cegelis, dated as of August 1, 2017
Form of Transition Services Agreement
Form of Indemnification Agreement between the Registrant and each of its Executive Officers and Directors
Form of Stockholders’ Agreement
Vehicle Maintenance Facility Ground Lease Agreement for Orlando International Airport, between Greater Orlando Aviation Authority and All Aboard Florida – Operations LLC, dated January 22, 2014
First Amendment to the Vehicle Maintenance Facility Ground Lease, between Greater Orlando Aviation Authority and All Aboard Florida – Operations LLC, dated October 28, 2015
Second Amendment to the Vehicle Maintenance Facility Ground Lease, between Greater Orlando Aviation Authority and All Aboard Florida – Operations LLC, dated December 23, 2015
Rail Line Easement Agreement, among City of Orlando, Greater Orlando Aviation Authority and All Aboard Florida – Operations LLC, dated January 22, 2014
First Amendment to the Rail Line Easement Agreement, among City of Orlando, Greater Orlando Aviation Authority and All Aboard Florida – Operations LLC, dated September 25, 2014
Second Amendment to the Rail Line Easement Agreement, among City of Orlando, Greater Orlando Aviation Authority and All Aboard Florida – Operations LLC, dated October 28, 2014
Third Amendment to the Rail Line Easement Agreement, among City of Orlando, Greater Orlando Aviation Authority and All Aboard Florida – Operations LLC, dated December 23, 2015
Fourth Amendment to the Rail Line Easement Agreement, among City of Orlando, Greater Orlando Aviation Authority and All Aboard Florida – Operations LLC, dated January 30, 2017
Fifth Amendment to the Rail Line Easement Agreement, among City of Orlando, Greater Orlando Aviation Authority and All Aboard Florida – Operations LLC, dated December 26, 2017
Sixth Amendment to Rail Line Easement Agreement, among City of Orlando, Greater Orlando Aviation Authority and Brightline Trains LLC (f/k/a All Aboard Florida – Operations LLC), dated September 4, 2018
Seventh Amendment to the Rail Line Easement Agreement, among City of Orlando, Greater Orlando Aviation Authority and Brightline Trains LLC (f/k/a All Aboard Florida -- Operations LLC), dated December 18, 2018
Premises Lease and Use Agreement for Orlando International Airport, between Greater Orlando Aviation Authority and All Aboard Florida – Operations LLC, dated January 22, 2014
First Amendment to Premises Lease and Use Agreement, between Greater Orlando Aviation Authority and All Aboard Florida – Operations LLC, dated September 25, 2014
Second Amendment to Premises Lease and Use Agreement, between Greater Orlando Aviation Authority and All Aboard Florida – Operations LLC, dated December 21, 2015
Third Amendment to Premises Lease and Use Agreement, between Greater Orlando Aviation Authority and All Aboard Florida – Operations LLC, dated January 24, 2017
Fourth Amendment to Premises and Land Use Agreement, between Greater Orlando Aviation Authority and All Aboard Florida – Operations LLC, dated December 28, 2017
Escrow Extension Agreement among All Aboard Florida – Operations LLC, Greater Orlando Aviation Authority and City of Orlando, dated December 23, 2015

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EXHIBIT
NO.
DESCRIPTION OF EXHIBIT
Fifth Amendment to Escrow Extension Agreement, among Brightline Trains LLC (f/k/a All Aboard Florida – Operations LLC), Greater Orlando Aviation Authority and City of Orlando, dated December 18, 2018
Real Estate Lease, between Florida East Coast Railway, L.L.C. and All Aboard Florida – Operations LLC, dated June 24, 2015
Real Estate Lease Amendment No. 1, between Florida East Coast Railway, L.L.C. and All Aboard Florida – Operations LLC, dated October 23, 2015
Real Estate Lease Amendment No. 2, between Florida East Coast Railway, L.L.C. and All Aboard Florida – Operations LLC, dated March 20, 2017
Real Estate Lease Amendment No. 3, between FECI WPB LLC and All Aboard Florida – Operations LLC, dated December 19, 2017
Acknowledgment and Reinstatement of Real Estate Lease, between FECI WPB LLC and All Aboard Florida – Operations LLC, dated June 30, 2017
Garage Lease, between DTS FLL Parking LLC and All Aboard Florida – Operations LLC, dated August 4, 2016
First Amendment to Garage Lease, between DTS FLL Parking LLC and All Aboard Florida – Operations LLC, dated December 19, 2017
Second Amendment to Garage Lease, between DTS FLL Parking LLC and All Aboard Florida – Operations LLC, dated March 15, 2018
Garage Lease, between WPB Rosemary LLC and All Aboard Florida – Operations LLC, dated August 26, 2016
First Amendment to Garage Lease, between WPB Rosemary LLC and All Aboard Florida – Operations LLC, dated December 19, 2017
Second Amendment to Garage Lease, between WPP Rosemary LLC and All Aboard Florida – Operations LLC, dated May 23, 2018
Garage Lease, between DTS 3M Parking LLC and All Aboard Florida – Operations LLC, dated September 2, 2016
First Amendment to Garage Lease, between DTS 3MC Parking LLC and All Aboard Florida – Operations LLC, dated December 19, 2017
Second Amendment to Garage Lease, between DTS 3MC Parking LLC and All Aboard Florida – Operations LLC, dated May 23, 2018
Lease Agreement, between State of Florida, Department of Transportation and All Aboard Florida – Operations LLC, dated March 29, 2018 (Brevard County)
Lease Agreement, between State of Florida, Department of Transportation and All Aboard Florida – Operations LLC, dated March 29, 2018 (Orange County)
Central Florida Expressway Authority Rail Line Easement, between Central Florida Expressway Authority and All Aboard Florida – Operations LLC, dated November 30, 2015
Central Florida Expressway Authority Rail Line Easement between Central Florida Expressway Authority and All Aboard Florida – Operations LLC, dated December 14, 2015
Central Florida Expressway Authority Rail Line Easement, between Central Florida Expressway Authority and All Aboard Florida – Operations LLC, dated December 14, 2015
Central Florida Expressway Authority Rail Line Easement of Existing Authority Property, between Central Florida Expressway Authority and All Aboard Florida – Operations LLC, dated December 16, 2015
Central Florida Expressway Authority Rail Line Easement of Acquired Property, between Central Florida Expressway Authority and All Aboard Florida – Operations LLC, dated December 16, 2015
Central Florida Expressway Authority Rail Line Easement, between Central Florida Expressway Authority and All Aboard Florida – Operations LLC, dated December 17, 2015
Right of Way and Easements Agreement, between City of Orlando and All Aboard Florida – Operations LLC, dated January 26, 2017

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EXHIBIT
NO.
DESCRIPTION OF EXHIBIT
Dispatching Services Agreement, among Florida East Coast Dispatch LLC, Florida East Coast Railway, L.L.C. and All Aboard Florida – Operations LLC, dated December 27, 2016
First Amendment to Dispatching Services Agreement, among Florida East Coast Dispatch LLC, Florida East Coast Railway, L.L.C. and All Aboard Florida – Operations LLC, dated June 30, 2017
Second Amendment to Dispatching Services Agreement, among Florida East Coast Dispatch LLC, Florida East Coast Railway, L.L.C. and All Aboard Florida – Operations LLC, dated August 31, 2017
Second Amended and Restated Joint Use Agreement (Shared Infrastructure), between Florida East Coast Railway, L.L.C. and All Aboard Florida – Operations LLC, dated December 27, 2016
First Amendment to Second Amended and Restated Joint Use Agreement (Shared Infrastructure), between Florida East Coast Railway, L.L.C. and All Aboard Florida – Operations LLC, dated June 30, 2017
Memorandum of Joint Use Agreement (Shared Infrastructure), between Florida East Coast Railway, L.L.C. and All Aboard Florida – Operations LLC, dated June 30, 2017
Contractor Agreement, between All Aboard Florida – Operations LLC and Suffolk Construction Company, dated November 21, 2014
Guaranteed Maximum Price Amendment, between All Aboard Florida – Operations LLC and Suffolk Construction Company, dated August 9, 2016
Amended and Restated Joint Use and Operating Agreement, among Florida East Coast Railway, L.L.C., All Aboard Florida – Operations LLC and FDG Flagler Station II LLC, dated June 13, 2014
Tri-Rail Downtown Miami Link Access, Operating and Funding Agreement between Florida East Coast Railway, L.L.C., All Aboard Florida – Operations LLC and South Florida Regional Transportation Authority, dated August 8, 2016
Vehicle Terms and Conditions Agreement, between All Aboard Florida – Operations LLC and Siemens Industry, Inc., dated August 15, 2014
Amendment 1 to the Vehicle Terms and Conditions, between All Aboard Florida – Operations LLC and Siemens Industry, Inc., dated July 17, 2015
Amendment 2 to the Vehicle Terms and Conditions, between All Aboard Florida – Operations LLC and Siemens Industry, Inc., dated May 15, 2017
Amendment 3 to the Vehicle Terms and Conditions, between All Aboard Florida – Operations LLC and Siemens Industry, Inc., dated June 1, 2018
Amendment 4 to the Vehicle Terms and Conditions, between Brightline Trains LLC and Siemens Industry, Inc., dated November 30, 2018
Amendment 5 to the Vehicle Terms and Conditions, between Brightline Trains LLC and Siemens Industry, Inc., dated January 21, 2019
Maintenance Terms and Conditions, between All Aboard Florida – Operations LLC and Siemens Industry, Inc., dated December 31, 2014
Amendment to the Maintenance Terms and Conditions, between Brightline Trains LLC (f/k/a All Aboard Florida – Operations LLC) and Siemens Industry, Inc., dated June 28, 2018
Senior Loan Agreement, between Florida Development Finance Corporation and All Aboard Florida – Operations LLC, dated December 1, 2017
General Operations, Management and Administrative Services Agreement, between All Aboard Florida – Operations LLC and All Aboard Florida Operations Management LLC, dated December 19, 2017
Aerial Railroad Bridge, Bridge Support and Drainage Easement between All Aboard Florida – Operations LLC and Brevard County, Florida, dated January 31, 2017
Amendment to Aerial Railroad Bridge, Bridge Support and Drainage Easement, between All Aboard Florida – Operations LLC and Brevard County, Florida, dated July 25, 2017
Use and Occupancy Agreement between State of Florida, Department of Transportation and All Aboard Florida, Operations LLC, dated January 31, 2017

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EXHIBIT
NO.
DESCRIPTION OF EXHIBIT
Board of Trustees of the Internal Improvement Trust Fund of the State of Florida Sovereignty Submerged Land Easement granted by the Board of Trustees of the Internal Improvement Fund to All Aboard Florida – Operations LLC, with an effective date of December 20, 2017 (Brevard County)
Board of Trustees of the Internal Improvement Trust Fund of the State of Florida Sovereignty Submerged Land Easement granted by the Board of Trustees of the Internal Improvement Fund to All Aboard Florida – Operations LLC, with an effective date of December 20, 2017 (Orange County)
Subscription Agreement, between Brightline Holdings LLC and Corvina Holdings Limited, dated November 15, 2018
Membership Interest Purchase Agreement, among Brightline Holdings LLC, DesertXpress Enterprises, LLC and Benny's HoldCo, LLC, dated as of September 17, 2018
Real Estate Purchase and Sale Agreement, by and among Tharaldson Ethanol Plant I, LLC, TMII South Tech, LLC, C.Y. & R.I. Heritage Inn of Palmdale, Inc., C.Y. Heritage Inn of Dayton, Inc., and 4424 Polaris Avenue, LLC and Brightline Holdings, LLC, dated as of September 17, 2018
First Amendment to Real Estate Purchase and Sale Agreement, by and among Tharaldson Ethanol Plant I, LLC, TMII South Tech, LLC, C.Y. & R.I. Heritage Inn of Palmdale, Inc., C.Y. Heritage Inn of Dayton, Inc., and 4424 Polaris Avenue, LLC and Brightline Holdings, LLC, dated as of October 31, 2018
Second Amendment to Real Estate Purchase and Sale Agreement, by and among Tharaldson Ethanol Plant I, LLC, TMII South Tech, LLC, C.Y. & R.I. Heritage Inn of Palmdale, Inc., C.Y. Heritage Inn of Dayton, Inc., and 4424 Polaris Avenue, LLC and Brightline Holdings, LLC, dated as of November 30, 2018
Third Amendment to Real Estate Purchase and Sale Agreement, by and among Tharaldson Ethanol Plant I, LLC, TMII South Tech, LLC, C.Y. & R.I. Heritage Inn of Palmdale, Inc., C.Y. Heritage Inn of Dayton, Inc., and 4424 Polaris Avenue, LLC and Brightline Holdings, LLC, dated as of December 5, 2018
Purchase and Sale Agreement, among Greater Orlando Aviation Authority, Central Florida Expressway Authority, the City of Orlando and All Aboard Florida – Operations LLC, dated as of November 21, 2018
First Amendment to Purchase and Sale Agreement, among Greater Orlando Aviation Authority, Central Florida Expressway Authority, City of Orlando and All Aboard Florida – Operations LLC, dated January 14, 2019
List of Subsidiaries
Consent of Skadden, Arps, Slate, Meagher & Flom LLP (included in Exhibit 5.1)
Consent of Ernst & Young LLP
Consent of Louis Berger U.S., Inc.
Powers of Attorney (included in the signature pages to this registration statement)
Brightline Ridership and Revenue Study by Louis Berger U.S., Inc., dated September 2018
Brightline Operations and Maintenance Cost and Ancillary Revenue Independent Review by Louis Berger U.S., Inc., dated April 22, 2018
Consent of Wesley R. Edens, as Director Nominee
Consent of Evan M. Lovell, as Director Nominee
Consent of Anthony A. Marnell II, as Director Nominee
Consent of W. Porter Payne, Jr., as Director Nominee

* Previously filed.

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SIGNATURES

Pursuant to the requirements of the Securities Act, the registrant has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of New York on January 30, 2019.

 
VIRGIN TRAINS USA LLC
 
 
 
 
By:
/s/ Patrick Goddard
 
Name:
Patrick Goddard
 
Title:
President

II-8

TABLE OF CONTENTS

POWER OF ATTORNEY

KNOW ALL PERSONS BY THESE PRESENTS, that each officer and director of Virgin Trains USA LLC whose signature appears below constitutes and appoints Patrick Goddard and Jeff Swiatek and each of them, his or her true and lawful attorney-in-fact and agent, with full power of substitution and revocation, for him or her and in his or her name, place and stead, in any and all capacities, to execute any or all amendments including any post-effective amendments and supplements to this registration statement, and any additional registration statement filed pursuant to Rule 462(b), and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney-in-fact and agent full power and authority to do and perform each and every act and thing requisite and necessary to be done, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorney-in-fact and agent, or his or her substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

* * * *

Pursuant to the requirements of the Securities Act, this registration statement has been signed by the following persons in the capacities indicated on the date indicated below:

Signature
Title
Date
 
 
 
/s/ Patrick Goddard
President
(principal executive officer)
January 30, 2019
Patrick Goddard
 
 
 
/s/ Jeff Swiatek
Chief Financial Officer
(principal financial officer)
January 30, 2019
Jeff Swiatek
 
 
 
/s/ Gary Smith
Chief Accounting Officer
(principal accounting officer)
January 30, 2019
Gary Smith

II-9

EX-1.1 2 s002218x10_ex1-1.htm EXHIBIT 1.1  
Exhibit 1.1



VIRGIN TRAINS USA INC.

(a Delaware corporation)

         Shares of Common Stock

UNDERWRITING AGREEMENT






Dated:                , 2019


VIRGIN TRAINS USA INC.

(a Delaware corporation)

       Shares of Common Stock

UNDERWRITING AGREEMENT

    , 2019

Barclays Capital Inc.
 
J.P. Morgan Securities LLC
 
Morgan Stanley & Co. LLC
 

As Representatives of the  

several Underwriters listed  

in Schedule A hereto  
   
c/o
Barclays Capital Inc.
 
 
745 Seventh Avenue
 
 
New York, New York 10019
 
   
c/o
J.P. Morgan Securities LLC
 
 
383 Madison Avenue
 
 
New York, New York 10179
 
   
c/o
Morgan Stanley & Co. LLC
 
 
1585 Broadway
 
 
New York, New York 10036
 
   

Ladies and Gentlemen:

Virgin Trains USA Inc., a Delaware corporation (the “Company”), confirms its agreement with Barclays Capital Inc., J.P. Morgan Securities LLC, Morgan Stanley & Co. LLC and each of the other Underwriters named in Schedule A hereto (collectively, the “Underwriters,” which term shall also include any underwriter substituted as hereinafter provided in Section 10 hereof), for whom you are acting as representatives (in such capacity, the “Representatives”), with respect to (i) the sale by the Company and the purchase by the Underwriters, acting severally and not jointly, of the respective numbers of shares representing capital stock of the Company (“Shares”) set forth in Schedule A hereto and (ii) the grant by the Company to the Underwriters, acting severally and not jointly, of the option described in Section 2(b) hereof to purchase all or any part of            additional Shares.  The aforesaid         Shares (the “Initial Securities”) to be purchased by the Underwriters and all or any part of the         Shares subject to the option described in Section 2(b) hereof (the “Option Securities”) are herein called, collectively, the “Securities.”
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The Company understands that the Underwriters propose to make a public offering of the Securities as soon as the Representatives deem advisable after this agreement (this “Agreement”) has been executed and delivered.

The Company has filed with the Securities and Exchange Commission (the “Commission”) a registration statement on Form S-1 (No. 333-228447), including the related preliminary prospectus or prospectuses, covering the registration of the sale of the Securities under the Securities Act of 1933, as amended (the “1933 Act”).  Promptly after execution and delivery of this Agreement, the Company will prepare and file a prospectus in accordance with the provisions of Rule 430A (“Rule 430A”) of the rules and regulations of the Commission under the 1933 Act (the “1933 Act Regulations”) and Rule 424(b) (“Rule 424(b)”) of the 1933 Act Regulations.  The information included in such prospectus that was omitted from such registration statement at the time it became effective but that is deemed to be part of such registration statement at the time it became effective pursuant to Rule 430A(b) is herein called the “Rule 430A Information.”  Such registration statement, including the amendments thereto, the exhibits thereto and any schedules thereto, at the time it became effective, and including the Rule 430A Information, is herein called the “Registration Statement.”  Any registration statement filed pursuant to Rule 462(b) of the 1933 Act Regulations is herein called the “Rule 462(b) Registration Statement” and, after such filing, the term “Registration Statement” shall include the Rule 462(b) Registration Statement.  Each prospectus used prior to the effectiveness of the Registration Statement, and each prospectus that omitted the Rule 430A Information that was used after such effectiveness and prior to the execution and delivery of this Agreement, is herein called a “preliminary prospectus.”  The final prospectus, in the form first furnished to the Underwriters for use in connection with the offering of the Securities, is herein called the “Prospectus.”  For purposes of this Agreement, all references to the Registration Statement, any preliminary prospectus, the Prospectus or any amendment or supplement to any of the foregoing shall be deemed to include the copy filed with the Commission pursuant to its Electronic Data Gathering, Analysis and Retrieval system or any successor system (“EDGAR”).

As used in this Agreement:

“Applicable Time” means         p.m., New York City time, on           , 2019 or such other time as agreed by the Company and the Representatives.

“General Disclosure Package” means any Issuer General Use Free Writing Prospectuses issued at or prior to the Applicable Time, the most recent preliminary prospectus that is distributed to investors prior to the Applicable Time and the information included on Schedule B-1 hereto, all considered together.

“Issuer Free Writing Prospectus” means any “issuer free writing prospectus,” as defined in Rule 433 of the 1933 Act Regulations (“Rule 433”), including without limitation any “free writing prospectus” (as defined in Rule 405 of the 1933 Act Regulations (“Rule 405”)) relating to the Securities that is (i) required to be filed with the Commission by the Company, or (ii) a “road show that is a written communication” within the meaning of Rule 433(d)(8)(i), whether or not required to be filed with the Commission, or (iii) exempt from filing with the Commission pursuant to Rule 433(d)(5)(i) because it contains a description of the Securities or of the offering that does not reflect the final terms, in each case in the form filed or required to be filed with the Commission or, if not required to be filed, in the form retained in the Company’s records pursuant to Rule 433(g).
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“Issuer General Use Free Writing Prospectus” means any Issuer Free Writing Prospectus that is intended for general distribution to prospective investors (other than a “bona fide electronic road show,” as defined in Rule 433 (the “Bona Fide Electronic Road Show”)), as evidenced by its being specified in Schedule B-2 hereto.

        “Issuer Limited Use Free Writing Prospectus” means any Issuer Free Writing Prospectus that is not an Issuer General Use Free Writing Prospectus.

SECTION 1.  Representations and Warranties

     (a)          Representations and Warranties by the Company. The Company represents and warrants to each Underwriter as of the date hereof, the Applicable Time, the Closing Time and any Date of Delivery (as defined below), and agrees with each Underwriter, as follows:

(i)          Registration Statement and Prospectuses.  Each of the Registration Statement and any post-effective amendment thereto has become effective under the 1933 Act.  No stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto has been issued under the 1933 Act, no order preventing or suspending the use of any preliminary prospectus or the Prospectus has been issued and no proceedings for any of those purposes have been instituted or are pending or, to the knowledge of the Company, threatened by the Commission.  The Company has complied with each request (if any) from the Commission for additional information.

Each of the Registration Statement and any post-effective amendment thereto, at the time it became effective, complied in all material respects with the requirements of the 1933 Act and the 1933 Act Regulations.  Each preliminary prospectus, the Prospectus and any amendment or supplement thereto, at the time each was filed with the Commission, complied in all material respects with the requirements of the 1933 Act and the 1933 Act Regulations.  Each preliminary prospectus delivered by the Company to the Underwriters for use in connection with this offering and the Prospectus was or will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to EDGAR, except to the extent permitted by Regulation S-T.

(ii)         Accurate Disclosure.  Neither the Registration Statement nor any amendment thereto, at its effective time, at the Closing Time or at any Date of Delivery, contained, contains or will contain an untrue statement of a material fact or omitted, omits or will omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading.  As of the Applicable Time, none of (A) the General Disclosure Package, (B) any individual Issuer Limited Use Free Writing Prospectus, when considered together with the General Disclosure Package, (C) any individual Written Testing-the-Waters Communication (as defined below), when considered together with the General Disclosure Package, and (D) the Bona Fide Electronic Road Show, when considered together with the General Disclosure Package, included, includes or will include an untrue statement of a material fact or omitted, omits or will omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.  Neither the Prospectus nor any amendment or supplement thereto (including any prospectus wrapper), as of its issue date, at the time of any filing with the Commission pursuant to Rule 424(b), at the Closing Time or at any Date of Delivery, included, includes or will include an untrue statement of a material fact or omitted, omits or will omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
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The representations and warranties in this subsection shall not apply to statements in or omissions from the Registration Statement (or any amendment thereto), the General Disclosure Package, any Issuer Free Writing Prospectus or the Prospectus (or any amendment or supplement thereto) made in reliance upon and in conformity with written information furnished to the Company by any Underwriter through the Representatives expressly for use therein. For purposes of this Agreement, the only information so furnished shall be the statements regarding the selling concession and reallowance figures and the paragraph relating to stabilization by the Underwriters appearing under the caption “Underwriting” in the Prospectus (collectively, the “Underwriter Information”).

(iii)       Issuer Free Writing Prospectuses.  No Issuer Free Writing Prospectus conflicts or will conflict with the information contained in the Registration Statement or the Prospectus, and any preliminary or other prospectus deemed to be a part thereof that has not been superseded or modified.  The Company has made available a Bona Fide Electronic Road Show in compliance with Rule 433(d)(8)(ii) such that no filing of any “road show” (as defined in Rule 433(h)) is required in connection with the offering of the Securities.

(iv)        Company Not Ineligible Issuer.  At the time of filing the Registration Statement and any post-effective amendment thereto, at the earliest time thereafter that the Company or another offering participant made a bona fide offer (within the meaning of Rule 164(h)(2) of the 1933 Act Regulations) of the Securities, and at the date hereof, the Company was not and is not an “ineligible issuer,” as defined in Rule 405, without taking account of any determination by the Commission pursuant to Rule 405 that it is not necessary that the Company be considered an ineligible issuer.

(v)         Due Organization, Valid Existence and Good Standing.  The Company and each of its subsidiaries has been duly organized, is validly existing and in good standing as a limited liability company, limited partnership, corporation or other business entity under the laws of its jurisdiction of organization and is duly qualified to do business and in good standing as a foreign limited liability company, limited partnership, corporation or other business entity in each jurisdiction in which its ownership or lease of property or the conduct of its businesses requires such qualification, except where the failure to be so qualified or in good standing could not, in the aggregate, reasonably be expected to have a material adverse effect on the condition (financial or otherwise), results of operations, members’ or stockholders’ equity, properties or business of the Company and each of its subsidiaries taken as a whole (a “Material Adverse Effect”).  The Company and each of its subsidiaries has all power and authority necessary to own or hold its properties and to conduct the businesses in which it is engaged.
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(vi)         Capitalization.  The Company has an authorized capitalization as set forth in each of the Registration Statement, the General Disclosure Package and the Prospectus, and all of the authorized, issued and outstanding shares of capital stock of the Company have been duly authorized and validly issued and are fully paid and non-assessable.  All of the issued and outstanding shares of capital stock or other equity interests of each subsidiary of the Company have been duly authorized and validly issued, are fully paid and non-assessable and are owned directly or indirectly by the Company, free and clear of all liens, encumbrances, equities or claims, except for such liens, encumbrances, equities or claims as could not, in the aggregate, reasonably be expected to have a Material Adverse Effect.

(vii)       Authorization and Description of Securities.  The Securities to be purchased by the Underwriters from the Company have been duly authorized for issuance and sale to the Underwriters pursuant to this Agreement and, when issued and delivered by the Company pursuant to this Agreement against payment of the consideration set forth herein, will be validly issued and fully paid and non-assessable; and the issuance of the Securities is not subject to the preemptive or other similar rights of any securityholder of the Company.  The Shares conform in all material respects to all statements relating thereto contained in the Registration Statement, the General Disclosure Package and the Prospectus and such description conforms in all material respects to the rights set forth in the instruments defining the same.

(viii)      Power and Authority.  The Company has all requisite corporate power and authority to execute, deliver and perform its obligations under this Agreement.  This Agreement has been duly and validly authorized, executed and delivered by the Company.

(ix)         Absence of Violations, Defaults and Conflicts with this Agreement.  The execution, delivery and performance of this Agreement, and the consummation of the transactions, contemplated herein and in the Registration Statement, the General Disclosure Package and the Prospectus (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described therein under the caption “Use of Proceeds”) will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, impose any lien, charge or encumbrance upon any property or assets of the Company or its subsidiaries, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement, license, lease or other agreement or instrument to which the Company or its subsidiaries is a party or by which the Company or its subsidiaries is bound or to which any of the property or assets of the Company or its subsidiaries is subject, (ii) result in any violation of the provisions of the charter or bylaws (or similar organizational documents) of the Company or its subsidiaries, or (iii) result in any violation of any statute or any judgment, order, decree, rule or regulation of any court or governmental agency or body having jurisdiction over the Company or its subsidiaries or any of its properties or assets, except, with respect to clauses (i) and (iii), conflicts or violations that would not reasonably be expected to have a Material Adverse Effect.

(x)          Absence of Further Requirements.  No consent, approval, authorization or order of, or filing, registration or qualification with, any court or governmental agency or body having jurisdiction over the Company or its subsidiaries or any of its properties or assets is required for the execution, delivery and performance by the Company of this Agreement, the application of the proceeds from the sale of the Securities as described under “Use of Proceeds” in each of the Registration Statement, the General Disclosure Package and the Prospectus and the consummation by the Company of the transactions contemplated hereby and thereby, except (A) such as have been already obtained or as may be required under the 1933 Act, the 1933 Act Regulations, the rules of the Nasdaq Stock Market LLC, state securities or Blue Sky laws or the rules of the Financial Industry Regulatory Authority (“FINRA”), and (B) such consents, approvals, authorizations or orders that would not, in the aggregate, reasonably be expected to have a Material Adverse Effect.
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(xi)        Accuracy of Exhibits.  There are no contracts or documents which are required to be described in the Registration Statement, the General Disclosure Package or the Prospectus or to be filed as exhibits to the Registration Statement which have not been so described and filed as required.

(xii)      Related-Party Transactions. There are no business relationships or related-party transactions involving the Company or any of its subsidiaries or any other related person as defined under Item 404 of Regulation S-K of the 1933 Act (“Regulation S-K”) required to be described in the Registration Statement, the General Disclosure Package or the Prospectus that have not been described as required.

(xiii)     Financial Statements; Non-GAAP Financial Measures.  The historical financial statements (including the related notes and supporting schedules) included in the Registration Statement, the General Disclosure Package and the Prospectus present fairly in all material respects the financial condition, results of operations and cash flows of the entities purported to be shown thereby, at the dates and for the periods indicated, and have been prepared in conformity with accounting principles generally accepted in the United States (“GAAP”) applied on a consistent basis throughout the periods involved except for any annual year-end adjustment, the adoption of new accounting principles, and except as otherwise noted therein.  The supporting schedules, if any, present fairly in accordance with GAAP the information required to be stated therein.  The selected financial data and the summary financial information included in the Registration Statement, the General Disclosure Package and the Prospectus present fairly the information shown therein and have been compiled on a basis consistent with that of the audited financial statements included therein.  All disclosures contained in the Registration Statement, the General Disclosure Package or the Prospectus, regarding “non-GAAP financial measures” (as such term is defined by the rules and regulations of the Commission) comply with Regulation G of the Securities Exchange Act of 1934, as amended (the “1934 Act”) and Item 10 of Regulation S-K, to the extent applicable.
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(xiv)      Emerging Growth Company. From the time of initial confidential submission of the Registration Statement to the Commission (or, if earlier, the first date on which the Company engaged directly or through any person authorized to act on its behalf in any Testing-the-Waters Communication) through the date hereof, the Company has been and is an “emerging growth company,” as defined in Section 2(a) of the 1933 Act (an “Emerging Growth Company”).  “Testing-the-Waters Communication” means any oral or written communication with potential investors undertaken in reliance on Section 5(d) of the 1933 Act.

(xv)       Testing-the-Waters Communications. The Company (i) has not alone engaged in any Testing-the-Waters Communication other than Testing-the-Waters Communications with the consent of the Representatives with entities that are qualified institutional buyers within the meaning of Rule 144A under the 1933 Act or institutions that are accredited investors within the meaning of Rule 501 under the 1933 Act and (ii) has not authorized anyone other than the Representatives to engage in Testing-the-Waters Communications.  The Company reconfirms that the Representatives have been authorized to act on its behalf in undertaking Testing-the-Waters Communications.  The Company has not distributed any Written Testing-the-Waters Communications other than those listed on Schedule E hereto.  “Written Testing-the-Waters Communication” means any Testing-the-Waters Communication that is a written communication within the meaning of Rule 405 under the 1933 Act.

(xvi)     Distributions. Except as described in the General Disclosure Package, no subsidiary of the Company is prohibited or restricted, directly or indirectly, from paying distributions or dividends to the Company, or from making any other distribution with respect to such subsidiary’s equity securities or from repaying to the Company or any other subsidiary of the Company any amounts that may from time to time become due under any loans or advances to such subsidiary from the Company or from transferring any property or assets to the Company or to any other subsidiary, except (i) as described in or contemplated by the Registration Statement, the General Disclosure Package and the Prospectus (including any amendment or supplement thereto), (ii) such prohibitions mandated by the laws of each such subsidiary’s jurisdiction of formation or the organizational documents of such subsidiaries, as applicable, (iii) for such prohibitions arising under the debt agreements of such subsidiaries and (iv) where such prohibition would not, individually or in the aggregate, have a Material Adverse Effect.

(xvii)   Independent Auditors.  Ernst & Young LLP, which have audited certain financial statements of the Company, the reports of which appear in the Registration Statement, the General Disclosure Package and the Prospectus and which have delivered the initial letter referred to in Section 5(f) hereof, are independent auditors with respect to the Company under Rule 101 of the American Institute of Certified Public Accounts’ Code of Professional Conduct, and its related interpretation and ruling.

(xviii) Accounting Controls.  The Company and each of its subsidiaries maintains a system of internal accounting controls sufficient to provide reasonable assurance that (A) transactions are executed in accordance with management’s general or specific authorizations; (B) transactions are recorded as necessary to permit preparation of financial statements in conformity with GAAP and to maintain asset accountability; (C) access to assets is permitted only in accordance with management’s general or specific authorization; and (D) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences. Except as described in the Registration Statement, the General Disclosure Package and the Prospectus, since the end of the Company’s most recent audited fiscal year, there has been (1) no material weakness in the Company’s internal control over financial reporting (whether or not remediated) and (2) no change in the Company’s internal control over financial reporting that has materially affected, or is reasonably likely to materially affect, the Company’s internal control over financial reporting.
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(xix)      No Material Changes.  Except as described in each of the Registration Statement, the General Disclosure Package and the Prospectus, since the date of the latest audited financial statements included in the Registration Statement, the General Disclosure Package and the Prospectus, neither the Company nor any of its subsidiaries has (A) sustained any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor disturbance or dispute or court or governmental action, order or decree, (B) issued or granted any equity securities, (C) incurred any material liability or obligation, direct or contingent, other than liabilities and obligations that were incurred in the ordinary course of business, (D) entered into any material transaction not in the ordinary course of business, (E) declared or paid any dividend, capital stock or other equity interests, and (F) since such date, there has not been any change in the capital stock, limited partnership or membership interests, as applicable, or short- or long-term debt of the Company or its subsidiaries or any adverse change in or affecting the condition (financial or otherwise), results of operations, members’ or stockholders’ equity, properties, management or business of the Company or its subsidiaries, taken as a whole, in each case except as could not, in the aggregate, reasonably be expected to have a Material Adverse Effect.

(xx)   Title to Property.  The Company and each of its subsidiaries have (i) good and marketable title in fee simple to all real property and (ii) good and marketable title to all personal property owned by them, in each case free and clear of all liens, encumbrances, equities and claims, except such liens, encumbrances, equities and claims as are described in the Registration Statement, the General Disclosure Package and the Prospectus or which would not reasonably be expected to have a Material Adverse Effect, and do not interfere with the use made and proposed to be made of any property by the Company or its subsidiaries; and any real property and buildings held under lease by the Company or any of its subsidiaries are held by them under valid, subsisting and enforceable leases with such exceptions as are not material and do not interfere with the use made and proposed to be made of such property and buildings by the Company or such subsidiary, in each case except as described in the Registration Statement, the General Disclosure Package and the Prospectus.

(xxi)      Rights-of-Way. The Company and each of its subsidiaries have such consents, easements, rights-of-way or licenses from any person (“rights-of-way”) as are necessary to conduct their businesses in the manner described in the Registration Statement, the General Disclosure Package and the Prospectus, subject to such qualifications as may be set forth in the Registration Statement, the General Disclosure Package and the Prospectus and except for such rights-of-way the failure of which to have obtained would not have, individually or in the aggregate, a Material Adverse Effect; the Company and its subsidiaries have fulfilled and performed all their material obligations with respect to such rights-of-way, and no event has occurred which allows, or after notice or lapse of time would allow, revocation or termination thereof or would result in any impairment of the rights of the holder of any such rights-of-way, except for such revocations, termination and impairments that will not have a Material Adverse Effect, subject in each case to such qualification as may be set forth in the Registration Statement, the General Disclosure Package and the Prospectus; and, except as described in the Registration Statement, the General Disclosure Package and the Prospectus, none of such rights-of-way contains any restriction that is materially burdensome to the Company or its subsidiaries, taken as a whole.
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(xxii)     Possession of Licenses and Permits.  Each of the Company and each of its subsidiaries has such permits, licenses, patents, franchises, certificates of need and other approvals or authorizations of governmental or regulatory authorities (“Permits”) as are necessary under applicable law to own its properties and conduct its businesses in the manner described in the Registration Statement, the General Disclosure Package and the Prospectus, except for any of the foregoing that could not, singly or in the aggregate, reasonably be expected to have a Material Adverse Effect.  Each of the Company and each of its subsidiaries has fulfilled and performed all of its obligations with respect to the Permits, and no event has occurred that allows, or after notice or lapse of time would allow, revocation or termination thereof or results in any other impairment of the rights of the holder or any such Permits, except for any of the foregoing that could not reasonably be expected to have a Material Adverse Effect or except as described in the Registration Statement, the General Disclosure Package and the Prospectus.  Neither the Company nor its subsidiaries has received notice of any revocation or modification of any such Permits or has reason to believe that any such Permits will not be renewed in the ordinary course, except for any of the foregoing that could not reasonably be expected to have a Material Adverse Effect.

(xxiii)     Possession of Intellectual Property.  The Company and its subsidiaries own or possess, or can acquire on reasonable terms, all patents, patent rights, licenses, inventions, copyrights, know‑how (including trade secrets and other unpatented and/or unpatentable proprietary or confidential information, systems or procedures), trademarks, service marks and trade names currently employed by them in connection with the business now operated by them, and neither the Company nor any of its subsidiaries has received any notice of infringement of or conflict with asserted rights of others with respect to any of the foregoing which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would have a Material Adverse Effect.

(xxiv)     Absence of Proceedings.  Except as described in the Registration Statement, the General Disclosure Package and the Prospectus, there are no legal or governmental proceedings pending to which the Company or any of its subsidiaries are a party or of which any property or assets of the Company or its subsidiaries are the subject that could, singly or in the aggregate, reasonably be expected to have a Material Adverse Effect or could, singly or in the aggregate, reasonably be expected to have a material adverse effect on the performance by the Company of its obligations under this Agreement or the consummation of any of the transactions contemplated hereby.  To the knowledge of the Company, no such proceedings are threatened by governmental authorities or others.

(xxv)     Authorization of Descriptions of Proceedings.  The statements made in the Registration Statement, the General Disclosure Package and the Prospectus under the captions “Risk Factors—Risks Related to Our Business,” “Risk Factors—Risks Related to Our Industry and Regulation,” “Business—Regulations” and “Certain Relationships and Related Party Transactions” insofar as they purport to constitute summaries of the terms of statutes, rules or regulations, legal or governmental proceedings or contracts and other documents, constitute accurate summaries of the terms of such statutes, rules and regulations, legal and governmental proceedings and contracts and other documents in all material respects.
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(xxvi)     Insurance.  The Company and its subsidiaries are insured by insurers of recognized financial responsibility against such losses and risks and in such amounts as are prudent and customary in the businesses in which they are engaged; none of the Company or any of its subsidiaries have been refused any insurance coverage sought or applied for; and none of the Company or any of its subsidiaries have any reason to believe that it will not be able to renew its existing insurance coverage as and when such coverage expires or to obtain similar coverage from similar insurers as may be necessary to continue its business at a cost that would not have a Material Adverse Effect, except as described in the Registration Statement, the General Disclosure Package and the Prospectus.

(xxvii)   Absence of Labor Dispute.  No labor dispute with the employees of the Company or any of its subsidiaries exists or, to the knowledge of the Company, is imminent; and the Company are not aware of any existing, threatened or imminent labor disturbance by the employees of any of its principal suppliers, manufacturers or contractors that could have a Material Adverse Effect.

(xxviii)  Absence of Violations, Defaults and Conflicts by the Company and its Subsidiaries Generally.  Neither the Company nor any of its subsidiaries (A) is in violation of its charter, certificate of formation, bylaws, limited partnership agreement or limited liability company agreement (or similar organizational documents), (B) is in default, and no event has occurred that, with notice or lapse of time or both, would constitute a default, in the due performance or observance of any term, covenant, condition or other obligation contained in any indenture, mortgage, deed of trust, loan agreement, license or other agreement or instrument to which it is a party or by which it is bound or to which any of its properties or assets is subject, or (C) is in violation of any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over it or its property or assets or has failed to obtain any license, permit, certificate, franchise or other governmental authorization or permit necessary to the ownership of its property or to the conduct of its business, except in the case of clauses (B) and (C), to the extent any such conflict, breach, violation or default could not, singly or in the aggregate, reasonably be expected to have a Material Adverse Effect.

(xxix)  Environmental Laws.
       Except as described in the Registration Statement, the General Disclosure Package and the Prospectus:
(A) the Company and its subsidiaries (i) are in compliance with any and all applicable foreign, federal, state and local laws, rules, regulations, requirements, decisions, judgments, decrees, orders and the common law relating to the protection of the environment, natural resources, wildlife or human health or safety, including, without limitation, those relating to the Release (as defined below) or threat of Release of Hazardous Materials (as defined below) or to the manufacture, processing, distribution, use, treatment, storage, disposal, transport or handling of Hazardous Materials (collectively, “Environmental Laws”), (ii) have applied for or received and are in compliance with all permits, licenses, certificates or other authorizations or approvals required of them under applicable Environmental Laws to conduct their respective businesses, (iii) have not received written notice of any actual or potential liability under or relating to, or actual or potential violation of, any Environmental Laws, including for the investigation or remediation of any Release or threat of Release of Hazardous Materials, and have no knowledge of any event or condition that would reasonably be expected to result in any such notice, (iv) are not subject to any written or, to the knowledge of the Company, threatened adverse claim by any governmental agency or government body or other person relating to Environmental Laws or Hazardous Materials and (v) to the knowledge of the Company, does not have any liability in connection with the Release into the environment of any Hazardous Material, except where such failure to comply with Environmental Laws in clause (i) above, such failure to receive required permits in clause (ii) above, such failure to comply with the terms and conditions of such permits in clause (iii) above, and such claims in clause (iv) above would not have a Material Adverse Effect on the Company and its subsidiaries, taken as a whole. “Hazardous Materials” means any material, chemical, substance, waste, pollutant, contaminant, compound, mixture, or constituent thereof, in any form or amount, including petroleum (including crude oil or any fraction thereof) and petroleum products, natural gas liquids, asbestos and asbestos containing materials, naturally occurring radioactive materials, brine, and drilling mud, regulated or which can give rise to liability under any Environmental Law. “Release” means any spilling, leaking, seepage, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, disposing, depositing, dispersing, or migrating in, into or through the environment, or in, into, from or through any building or structure.
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(B) there are no proceedings that are pending, or that are known to be contemplated, against Company or any of its subsidiaries under any Environmental Laws and the Company is not aware of any facts or issues regarding compliance with Environmental Laws, or liabilities or other obligations under Environmental Laws, including the Release or threat of Release of Hazardous Materials, that could, singly or in the aggregate, have a Material Adverse Effect on the Company and its subsidiaries, taken as a whole.

(C) to the knowledge of the Company, there are no costs or liabilities associated with Environmental Laws (including, without limitation, any capital or operating expenditures required for clean‑up, closure of properties or compliance with Environmental Laws or any permit, license or approval, any related constraints on operating activities and any potential liabilities to third parties) which would, singly or in the aggregate, have a Material Adverse Effect on the Company and its subsidiaries, taken as a whole.

(xxx)     Payment of Taxes. The Company and its subsidiaries have filed all federal, state, local and foreign tax returns required to be filed through the date of this Agreement or have requested extensions thereof (except where the failure to file would not, individually or in the aggregate, have a Material Adverse Effect) and have paid all taxes required to be paid by them (except for cases in which the failure to file or pay would not have a Material Adverse Effect, or, except as currently being contested in good faith and for which reserves required by U.S. GAAP have been created in the financial statements of the Company), and no tax deficiency has been determined adversely to the Company or any of its subsidiaries which has had (nor do the Company or any of its subsidiaries have any notice or knowledge of any tax deficiency which could reasonably be expected to be determined adversely to the Company or its subsidiaries and which could reasonably be expected to have) a Material Adverse Effect.

(xxxi)    Employee Benefits.  Except as would not reasonably be expected to result in a Material Adverse Effect on the Company and its subsidiaries, taken as a whole, (i) each “employee benefit plan” (within the meaning of Section 3(3) of the Employee Retirement Security Act of 1974, as amended (“ERISA”)) for which the Company or any of its subsidiaries would have, directly or indirectly (including as a result of being in a "controlled group" for purposes of Section 414 of the Internal Revenue Code of 1986, as amended (the “Code”) , any liability (each a “Plan”) has been maintained, and all required contributions to each Plan have been made, in compliance with its terms and with the requirements of applicable statutes, rules and regulations including ERISA and the Code; (ii) no prohibited transaction, within the meaning of Section 406 of ERISA or Section 4975 of the Code, or violation of fiduciary obligations, has occurred with respect to any Plan, excluding transactions effected pursuant to a statutory or administrative exemption; (iii) with respect to each Plan subject to Title IV of ERISA (A) no “reportable event” (within the meaning of Section 4043(c) of ERISA) has occurred or is reasonably expected to occur, (B) no failure to satisfy the minimum funding standard (within the meaning of Section 302 of ERISA or Sections 412 and 430 of the Code), whether or not waived, has occurred or is reasonably expected to occur, (C) the fair market value of the assets under each Plan exceeds the present value of all benefits accrued under such Plan (determined based on those assumptions used to fund such Plan), and (D) neither the Company nor any of its subsidiaries has incurred, or reasonably expects to incur, any liability under Title IV of ERISA (other than contributions to the Plan or premiums to the Pension Benefit Guaranty Corporation in the ordinary course and without default) in respect of a Plan (including a “multiemployer plan,” within the meaning of Section 4001(c)(3) of ERISA); and (iv) each Plan that is intended to be qualified under Section 401(a) of the Code is so qualified and nothing has occurred, whether by action or by failure to act, that could reasonably be expected to cause the loss of such qualification.
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(xxxii)    Statistical and Market-Related Data.  The statistical and market-related data included in the Registration Statement, the General Disclosure Package and the Prospectus and the consolidated financial statements included in the Registration Statement, the General Disclosure Package and the Prospectus are based on or derived from sources that the Company believes to be reliable in all material respects and, to the extent required, the Company has obtained the written consent to the use of such data from such sources.

(xxxiii)   Investment Company Act.  The Company is not, and immediately after giving effect to the offer and sale of the Securities as herein contemplated and the application of the proceeds therefrom as described under “Use of Proceeds” in each of the Registration Statement, the General Disclosure Package and the Prospectus, will not be, an “investment company” or a company “controlled” by an “investment company” within the meaning of the Investment Company Act of 1940, as amended, and the rules and regulations of the Commission thereunder.

(xxxiv)  Authorization of Description of Laws and Documents.  The statements set forth in each of the Registration Statement, the General Disclosure Package and the Prospectus under the captions “U.S. Federal Income and Estate Tax Considerations for Non-U.S. Holders of Common Stock,” insofar as they purport to summarize provisions of the laws and documents referred to therein, are accurate summaries in all material respects.

(xxxv)    Registration Rights.  Except as described in the Registration Statement, the General Disclosure Package and the Prospectus, there are no contracts, agreements or understandings between the Company and any person granting such person the right to require the Company to file a registration statement under the 1933 Act with respect to any securities of the Company owned or to be owned by such person or to require the Company to include such securities in the securities registered pursuant to the Registration Statement.

(xxxvi)  Expert Report.   Louis Berger U.S., Inc., whose reports appear in the Registration Statement, the Pricing Disclosure Packet and the Prospectus and who has delivered the letter referred to in Section 5(g) hereof, is, as of the date of such reports, and is, as of the date hereof, an independent ridership and revenue advisor with respect to the Company.

(xxxvii) No Broker.  None of the Company or any of its subsidiaries is a party to any contract, agreement or understanding with any person (other than this Agreement) that could give rise to a valid claim against any of them or the Underwriters for a brokerage commission, finder’s fee or like payment in connection with the offering and sale of the Securities.
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(xxxviii)  No Additional Securities.   The Company has not sold or issued any securities that would be integrated with the offering of the Stock contemplated by this Agreement pursuant to the Securities Act, the rules and regulations thereunder or the interpretations thereof by the Commission.

(xxxix)  Absence of Manipulation.  The Company and its affiliates have not taken, directly or indirectly, any action designed to or that has constituted or that could reasonably be expected to cause or result in the stabilization or manipulation of the price of any security of the Company in connection with the offering of the Securities.

(xl)        Stabilization Safe Harbor.  None of the Company has taken any action or omitted to take any action (such as issuing any press release relating to any Securities without an appropriate legend) which may result in the loss by the Underwriters of the ability to rely on any stabilization safe harbor provided by the Financial Services Authority under the Financial Services Markets Act of 2000.

(xli)       Foreign Corrupt Practices Act.  Neither the Company nor any of its subsidiaries, nor, to the knowledge of the Company, after reasonable inquiry, any director, officer, or employee, agent or representative of the Company or any of its subsidiaries, has taken or will take any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment, giving or receipt of money, property, gifts or anything else of value, directly or indirectly, to any government official (including any officer or employee of a government or government-owned or controlled entity or of a public international organization, or any person acting in an official capacity for or on behalf of any of the foregoing, or any political party or party official or candidate for political office) (“Government Official”) in order to influence official action, or to any person in violation of any applicable anti-corruption laws; (B) the Company and its subsidiaries have conducted their businesses in compliance with applicable anti-corruption laws and have instituted and maintained and intend to continue to maintain policies and procedures reasonably designed to promote and achieve compliance with such laws and with the representations and warranties contained herein; and (C) none of the Company or any of its subsidiaries will use, directly or indirectly, the proceeds of the offering in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any person in violation of any applicable anti-corruption laws.

(xlii)      Money Laundering Laws.  The operations of the Company and its subsidiaries are and have been conducted at all times in material compliance with applicable financial recordkeeping and reporting requirements, including those of the Bank Secrecy Act, as amended by Title III of the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (USA PATRIOT Act), and the applicable anti-money laundering statutes of jurisdictions where the New Fortress Energy Parties and their subsidiaries conduct business, the rules and regulations thereunder and any related or similar rules, regulations or guidelines, issued, administered or enforced by any governmental agency (collectively, the “Anti-Money Laundering Laws”), and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the New Fortress Energy Parties or any of their subsidiaries with respect to the Anti-Money Laundering Laws is pending or, to the knowledge of the New Fortress Energy Parties, threatened.
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(xliii)     OFAC.  (A) Neither the Company nor any of its subsidiaries nor, to the knowledge of the Company, after reasonable inquiry, any director, officer, employee or agent of the Company or any of its subsidiaries, is an individual or entity (“Person”) that is, or is owned or controlled by one or more Persons that are: (1) the subject of any sanctions administered or enforced by the U.S. Department of Treasury’s Office of Foreign Assets Control (“OFAC”), the United Nations Security Council (“UNSC”), the European Union (“EU”), Her Majesty’s Treasury (“HMT”), or other relevant sanctions authority (collectively, “Sanctions”), or (2) located, organized or resident in a country or territory that is the subject of Sanctions (including, without limitation, Crimea, Cuba, Iran, North Korea and Syria); (B) neither the Company nor any of its subsidiaries will, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person: (1) to fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding or facilitation, is the subject of Sanctions; or (2) in any other manner that will result in a violation of Sanctions by any Person, including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise; and (C) for the past five years, the Company and its subsidiaries have not knowingly engaged in, and are not now knowingly engaged in, any dealings or transactions with any Person, or in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions.

             (b)   Officer’s Certificates.  Any certificate signed by any officer of the Company or any of its subsidiaries delivered to the Representatives or to counsel for the Underwriters shall be deemed a representation and warranty by the Company to each Underwriter as to the matters covered thereby.

            SECTION 2.  Sale and Delivery to Underwriters; Closing.

        (a)         Initial Securities.  On the basis of the representations and warranties herein contained and subject to the terms and conditions herein set forth, the Company agrees to sell to each Underwriter and each Underwriter, severally and not jointly, agrees to purchase from the Company, at the price per share set forth in Schedule A, the number of Initial Securities set forth in Schedule A opposite the name of such Underwriter, plus any additional number of Initial Securities which such Underwriter may become obligated to purchase pursuant to the provisions of Section 10 hereof, subject, in each case, to such adjustments among the Underwriters as the Representatives in their sole discretion shall make to eliminate any sales or purchases of fractional shares.

        (b)         Option Securities.  In addition, on the basis of the representations and warranties herein contained and subject to the terms and conditions herein set forth, the Company hereby grants an option to the Underwriters, severally and not jointly, to purchase up to an additional          Shares, at the price per share set forth in Schedule A, less an amount per share equal to any dividends or distributions declared by the Company and payable on the Initial Securities but not payable on the Option Securities.  The option hereby granted may be exercised for 30 days after the date hereof and may be exercised in whole or in part at any time from time to time upon notice by the Representatives to the Company setting forth the number of Option Securities as to which the several Underwriters are then exercising the option and the time and date of payment and delivery for such Option Securities. Any such time and date of delivery (a “Date of Delivery”) shall be determined by the Representatives, but shall not be earlier than two or later than seven full business days after the exercise of said option, nor in any event prior to the Closing Time.  If the option is exercised as to all or any portion of the Option Securities, each of the Underwriters, acting severally and not jointly, will purchase the number of Option Securities set forth in Schedule A opposite the name of such Underwriter, subject, in each case, to such adjustments as the Representatives in their sole discretion shall make to eliminate any sales or purchases of fractional shares.
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       (c)         Payment.  Payment of the purchase price for, and delivery of certificates for, the Initial Securities shall be made at the offices of Davis Polk & Wardwell LLP, or at such other date or place as shall be agreed upon by the Representatives and the Company, at 10:00 A.M. (New York City time) on the second (third, if the pricing occurs after 4:30 P.M. (New York City time) on any given day) business day after the date hereof (unless postponed in accordance with the provisions of Section 10), or such other time not later than ten business days after such date as shall be agreed upon by the Representatives and the Company (such time and date of payment and delivery being herein called the “Closing Time”).
 

       In addition, in the event that any or all of the Option Securities are purchased by the Underwriters, payment of the purchase price for, and delivery of such Option Securities shall be made at the above mentioned offices, or at such other place as shall be agreed upon by the Representatives and the Company, on each Date of Delivery as specified in the notice from the Representatives to the Company.

       Payment shall be made to the Company by wire transfer of immediately available funds to the bank account designated by the Company against delivery to the Representatives for the respective accounts of the Underwriters of the Securities to be purchased by them.  It is understood that each Underwriter has authorized the Representatives, for its account, to accept delivery of, receipt for, and make payment of the purchase price for, the Initial Securities and the Option Securities, if any, which it has agreed to purchase.  Each of the Representatives, individually (as agreed among the Representatives) and not as representative of the Underwriters, may (but shall not be obligated to) make payment of the purchase price for the Initial Securities or the Option Securities, if any, to be purchased by any Underwriter whose funds have not been received by the Closing Time or the relevant Date of Delivery, as the case may be, but such payment shall not relieve such Underwriter from its obligations hereunder.

       SECTION 3.  Covenants of the Company.  The Company covenants with each Underwriter as follows:

    (a)         Compliance with Securities Regulations and Commission Requests.  The Company, subject to Section 3(b), will comply with the requirements of Rule 430A, and will notify the Representatives as soon as practicable (i) when any post-effective amendment to the Registration Statement shall become effective or any amendment or supplement to the Prospectus shall have been filed, (ii) of the receipt of any comments from the Commission, (iii) of any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or for additional information, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any post-effective amendment or of any order preventing or suspending the use of any preliminary prospectus or the Prospectus, or of the suspension of the qualification of the Securities for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes or of any examination pursuant to Section 8(d) or 8(e) of the 1933 Act concerning the Registration Statement and (v) if the Company becomes the subject of a proceeding under Section 8A of the 1933 Act in connection with the offering of the Securities. The Company will effect all filings required under Rule 424(b) in the manner and within the time period required by Rule 424(b) (without reliance on Rule 424(b)(8)).  The Company will make every commercially reasonable effort to prevent the issuance of any stop order, prevention or suspension and, if any such order is issued, to obtain the lifting thereof as soon as practicable.
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       (b)         Continued Compliance with Securities Laws.  The Company will comply with the 1933 Act and the 1933 Act Regulations so as to permit the completion of the distribution of the Securities as contemplated in this Agreement and in the Registration Statement, the General Disclosure Package and the Prospectus.  If at any time when a prospectus relating to the Securities is (or, but for the exception afforded by Rule 172 of the 1933 Act Regulations (“Rule 172”), would be) required by the 1933 Act to be delivered in connection with sales of the Securities, any event shall occur or condition shall exist as a result of which it is necessary, in the opinion of counsel for the Underwriters or for the Company, to (i) amend the Registration Statement in order that the Registration Statement will not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (ii) amend or supplement the General Disclosure Package or the Prospectus in order that the General Disclosure Package or the Prospectus, as the case may be, will not include any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein not misleading in the light of the circumstances existing at the time it is delivered to a purchaser or (iii) amend the Registration Statement or amend or supplement the General Disclosure Package or the Prospectus, as the case may be, in order to comply with the requirements of the 1933 Act or the 1933 Act Regulations, the Company will promptly (A) give the Representatives notice of such event, (B) prepare any amendment or supplement as may be necessary to correct such statement or omission or to make the Registration Statement, the General Disclosure Package or the Prospectus comply with such requirements and, a reasonable amount of time prior to any proposed filing or use, furnish the Representatives with copies of any such amendment or supplement and (C) file with the Commission any such amendment or supplement; provided that the Company shall not file or use any such amendment or supplement to which the Representatives or counsel for the Underwriters shall reasonably object.  The Company will furnish to the Underwriters such number of copies of such amendment or supplement as the Underwriters may reasonably request.

       (c)         Delivery of Registration Statements.  The Company has furnished or will deliver upon request to the Representatives and counsel for the Underwriters, without charge, conformed copies of the Registration Statement as originally filed and each amendment thereto (including exhibits filed therewith or incorporated by reference therein and documents incorporated or deemed to be incorporated by reference therein) and signed copies of all consents and certificates of experts, and will also deliver to the Representatives, without charge, upon request, a conformed copy of the Registration Statement as originally filed and each amendment thereto (without exhibits) for each of the Underwriters.  The copies of the Registration Statement and each amendment thereto furnished to the Underwriters will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to EDGAR, except to the extent permitted by Regulation S-T.
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       (d)      Delivery of Prospectuses.  The Company has delivered to each Underwriter, without charge, as many copies of each preliminary prospectus as such Underwriter reasonably requested, and the Company hereby consents to the use of such copies for purposes permitted by the 1933 Act.  The Company will furnish to each Underwriter, without charge, during the period when a prospectus relating to the Securities is (or, but for the exception afforded by Rule 172, would be) required to be delivered under the 1933 Act, such number of copies of the Prospectus (as amended or supplemented) as such Underwriter may reasonably request.  The Prospectus and any amendments or supplements thereto furnished to the Underwriters will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to EDGAR, except to the extent permitted by Regulation S-T.

       (e)         Blue Sky Qualifications.  The Company will cooperate with the Underwriters, to qualify the Securities for offering and sale under the applicable securities laws of such states and other jurisdictions (domestic or foreign) as the Representatives may designate and to maintain such qualifications in effect so long as required to complete the distribution of the Securities; provided, however, that the Company shall not be obligated to file any general consent or otherwise subject itself to service of process or to qualify as a foreign corporation or as a dealer in securities in any jurisdiction in which it is not so qualified or to subject itself to taxation in respect of doing business in any jurisdiction in which it is not otherwise so subject.

       (f)         Rule 158.  The Company will timely file such reports pursuant to the 1934 Act as are necessary in order to make generally available to its securityholders as soon as practicable an earnings statement for the purposes of, and to provide to the Underwriters the benefits contemplated by, the last paragraph of Section 11(a) of the 1933 Act.

       (g)         Use of Proceeds.  The Company will use the net proceeds received by it from the sale of the Securities in the manner specified in the Registration Statement, the General Disclosure Package and the Prospectus under “Use of Proceeds.”

       (h)         Restriction on Sale of Securities.  During a period of 180 days from the date of the Prospectus (the “Lock-Up Period”), the Company will not, without the prior written consent of Barclays Capital Inc., J.P. Morgan Securities LLC and Morgan Stanley & Co. LLC, (i) directly or indirectly, offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase or otherwise transfer or dispose of any Shares or any securities convertible into or exercisable or exchangeable for Shares or file any registration statement under the 1933 Act with respect to any of the foregoing or (ii) enter into any swap or any other agreement or any transaction that transfers, in whole or in part, directly or indirectly, the economic consequence of ownership of the Shares or any securities convertible into or exercisable or exchangeable for Shares, whether any such swap or transaction described in clause (i) or (ii) above is to be settled by delivery of Shares or such other securities, in cash or otherwise.  The foregoing sentence shall not apply to (A) the Securities to be sold hereunder, (B) any Shares issued by the Company upon the exercise of an option or warrant or the conversion of a security outstanding on the date hereof and referred to in the Registration Statement, the General Disclosure Package and the Prospectus, (C) any grants of share options, restricted shares, notional units or other equity or equity-based securities to employees, directors, contractors or other individuals eligible to receive awards pursuant to the terms of any plan in effect as of the Closing Time and described in the Registration Statement, General Disclosure Package and Prospectus, issuances of Shares pursuant to the exercise of such options or the exercise of any other employee share options or units outstanding on the date hereof pursuant to the Company’s equity incentive plans that are described in the Registration Statement, General Disclosure Package and Prospectus, (D) any Shares issued pursuant to any non-employee director share plan or dividend reinvestment plan referred to in the Registration Statement, the General Disclosure Package and the Prospectus, and (E) any registration statement on Form S-8 under the 1933 Act with respect to the foregoing clauses (B), (C) and (D); provided that, the holders of Shares issued pursuant to (B), (C) or (D) above agree to execute a lock-up letter substantially in the form of Exhibit 1 hereto (to the extent such holder has not previously signed a lock-up letter covering such Shares) or such Shares do not vest until after the expiry of the Lock-Up Period.
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       (i)         If Barclays Capital Inc., J.P. Morgan Securities LLC and Morgan Stanley & Co. LLC, each in its sole discretion, agrees to release or waive the restrictions set forth in a lock-up agreement described in Section 5(l) hereof for an officer or director of the Company and provides the Company with notice of the impending release or waiver at least three business days before the effective date of the release or waiver, the Company agrees to announce the impending release or waiver by a press release substantially in the form of Exhibit 2 hereto through a major news service at least two business days before the effective date of the release or waiver.

       (j)         Reporting Requirements.  The Company, during the period when the Prospectus is (or, but for the exception afforded by Rule 172, would be) required to be delivered under the 1933 Act, will file all documents required to be filed with the Commission pursuant to the 1934 Act within the time periods required by the 1934 Act and 1934 Act Regulations.  Additionally, the Company shall report the use of proceeds from the issuance of the Securities as may be required under Rule 463 under the 1933 Act.

       (k)         Issuer Free Writing Prospectuses.  The Company agrees that, unless it obtains the prior written consent of the Representatives, it will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus,” or a portion thereof, required to be filed by the Company with the Commission or retained by the Company under Rule 433; provided that the Representatives will be deemed to have consented to the Issuer Free Writing Prospectuses listed on Schedule B-2 hereto and any “road show that is a written communication” within the meaning of Rule 433(d)(8)(i) that has been reviewed by the Representatives.  The Company represents that it has treated or agrees that it will treat each such free writing prospectus consented to, or deemed consented to, by the Representatives as an “issuer free writing prospectus,” as defined in Rule 433, and that it has complied and will comply with the applicable requirements of Rule 433 with respect thereto, including timely filing with the Commission where required, legending and record keeping.  If at any time following issuance of an Issuer Free Writing Prospectus there occurred or occurs an event or development as a result of which such Issuer Free Writing Prospectus conflicted or would conflict with the information contained in the Registration Statement, any preliminary prospectus or the Prospectus or included or would include an untrue statement of a material fact or omitted or would omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances existing at that subsequent time, not misleading, the Company will promptly notify the Representatives and will promptly amend or supplement, at its own expense, such Issuer Free Writing Prospectus to eliminate or correct such conflict, untrue statement or omission.  Each Underwriter represents that it has not made, and agrees that, without the prior consent of the Company, it will not make any offer relating to the Securities that would constitute a “free writing prospectus” required to be filed by the Company with the Commission or retained by the Company under Rule 433.
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     SECTION 4.  Payment of Expenses.

    (a)         Expenses.  The Company will pay or cause to be paid all expenses incident to the performance of its obligations under this Agreement other than to the extent described in Section 4(b) below, including (i) the preparation, printing and filing of the Registration Statement (including financial statements and exhibits) as originally filed and of each amendment thereto, (ii) the preparation, printing and delivery to the Underwriters of copies of each preliminary prospectus, each Issuer Free Writing Prospectus and the Prospectus and any amendments or supplements thereto and any costs associated with electronic delivery of any of the foregoing by the Underwriters to investors, (iii) the preparation, issuance and delivery of the certificates for the Securities to the Underwriters, if any, including any stock or other transfer taxes and any stamp or other duties payable upon the sale, issuance or delivery of the Securities to the Underwriters, (iv) the fees and disbursements of the counsel, accountants and other advisors of the Company, (v) the qualification of the Securities under securities laws in accordance with the provisions of Section 3(e) hereof, including filing fees and the reasonable and documented fees and disbursements of counsel for the Underwriters in connection therewith and in connection with the preparation of the Blue Sky Survey and any supplement thereto; provided, however, that all such fees and disbursements of counsel shall not exceed $10,000 (vi) the fees and expenses of any transfer agent or registrar for the Securities, (vii) the costs and expenses of the Company relating to investor presentations on any “road show” undertaken in connection with the marketing of the Securities, including without limitation, expenses associated with the production of road show slides and graphics, reasonable and documented fees and expenses of any consultants engaged with the consent of the Company in connection with the road show presentations, travel and lodging expenses of the representatives of the Company (which, for the avoidance of doubt, does not include the Underwriters for purposes of this Section 4(a)(vii)) and officers of the Company and any such consultants, as well as one half (50%) of the cost of aircraft and other transportation chartered in connection with the road show, (viii) the filing fees incident to, and the reasonable fees and disbursements of counsel to the Underwriters in connection with, the review by FINRA of the terms of the sale of the Securities (such counsel fees not to exceed $50,000) and (ix) the fees and expenses incurred in connection with the listing of the Securities on the Nasdaq Stock Market. It is understood that, except as provided in clause (a) of this Section 4, the Underwriters will pay all of their own costs and expenses, including the fees of their counsel, stock transfer taxes on resale of any of the Securities by them, and any advertising expenses connected with any offers they may make.
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    (b)         Termination of Agreement.  If this Agreement is terminated by the Representatives in accordance with the provisions of Section 5, Section 9(a)(i) or (iii), or Section 11 hereof, the Company shall reimburse the Underwriters for all of their reasonable and documented out of pocket expenses that were actually incurred, including the reasonable fees and disbursements of counsel for the Underwriters.

    SECTION. 5  Conditions of Underwriters’ Obligations.  The obligations of the several Underwriters hereunder are subject to the accuracy of the representations and warranties of the Company contained herein or in certificates of any officer of the Company delivered pursuant to the provisions hereof, to the performance by the Company of its covenants and other obligations hereunder, and to the following further conditions:

    (a)         Effectiveness of Registration Statement; Rule 430A Information.  The Registration Statement, including any Rule 462(b) Registration Statement, has become effective and, at the Closing Time, no stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto has been issued under the 1933 Act, no order preventing or suspending the use of any preliminary prospectus or the Prospectus has been issued and no proceedings for any of those purposes have been instituted or are pending or, to the knowledge of the Company, threatened by the Commission; and the Company has complied with each request (if any) from the Commission for additional information. A prospectus containing the Rule 430A Information shall have been filed with the Commission in the manner and within the time frame required by Rule 424(b) without reliance on Rule 424(b)(8) or a post-effective amendment providing such information shall have been filed with, and declared effective by, the Commission in accordance with the requirements of Rule 430A.

    (b)         Opinion of Counsel for Company.

(i)          At the Closing Time, the Representatives shall have received the opinion, dated the Closing Time, of Skadden, Arps, Slate, Meagher & Flom LLP, counsel for the Company, in form and substance reasonably satisfactory to counsel for the Underwriters, together with signed or reproduced copies of such letter for each of the other Underwriters.

(ii)          At the Closing Time, the Representatives shall have received the opinion, dated the Closing Time, of the general counsel of the Company in form and substance reasonably satisfactory to counsel for the Underwriters, together with signed or reproduced copies of such letter for each of the other Underwriters.

    (c)         Opinion of Counsel for Underwriters.  At the Closing Time, the Representatives shall have received the opinion, dated the Closing Time, of Davis Polk & Wardwell LLP, counsel for the Underwriters, together with signed or reproduced copies of such letter for each of the other Underwriters in form and substance satisfactory to the Underwriters.  In giving such opinion such counsel may rely, as to all matters governed by the laws of jurisdictions other than the law of the State of New York, the General Corporation Law of the State of Delaware and the federal securities laws of the United States, upon the opinions of counsel satisfactory to the Representatives.  Such counsel may also state that, insofar as such opinion involves factual matters, they have relied, to the extent they deem proper, upon certificates of officers and other representatives of the Company and its subsidiaries and certificates of public officials.
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    (d)         Officers’ Certificate.  At the Closing Time, there shall not have been, since the date hereof or since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package or the Prospectus, any material adverse change in the condition, financial or otherwise, or in the earnings or business affairs or business prospects of the Company and its subsidiaries considered as one enterprise, whether or not arising in the ordinary course of business, and the Representatives shall have received a certificate of the President of the Company and of the chief financial or chief accounting officer of the Company, in their respective capacities as such officers only, dated the Closing Time, to the effect that (i) there has been no such material adverse change, (ii) the representations and warranties of the Company in this Agreement are true and correct, in the case of representations and warranties which are qualified as to materiality, and true and correct in all material respects, in the case of representations and warranties that are not so qualified, with the same force and effect as though expressly made at and as of the Closing Time, (iii) the Company have complied with all agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Time, and (iv) no stop order suspending the effectiveness of the Registration Statement under the 1933 Act has been issued, no order preventing or suspending the use of any preliminary prospectus or the Prospectus has been issued and no proceedings for any of those purposes have been instituted or are pending or, to its knowledge, threatened by the Commission.

    (e)         Accountant’s Comfort Letter.  At the time of the execution of this Agreement, the Representatives shall have received from Ernst & Young LLP a letter, dated such date, in form and substance satisfactory to the Representatives, together with signed or reproduced copies of such letter for each of the other Underwriters containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement, the General Disclosure Package and the Prospectus.

    (f)         Bring-down Comfort Letter.  At the Closing Time, the Representatives shall have received from Ernst & Young LLP a letter, dated as of the Closing Time, to the effect that they reaffirm the statements made in the letter furnished pursuant to subsection (e) of this Section, except that the specified date referred to shall be a date not more than three business days prior to the Closing Time.

(g)          Initial Expert Letter. At the time of execution of this Agreement, the Representatives shall have received from Louis Berger U.S., Inc. the initial letter (the “Initial Expert Letter”), in form and substance satisfactory to the Representatives, addressed to the Underwriters and dated the date hereof and a subsequent letter dated as of the Closing Time, which such letter shall cover the period from any Initial Expert Letter to the Closing Time, stating the conclusions and findings of such firm with respect to ridership and revenue as is customary to underwriters in connection with registered public offerings.

(h)          Chief Financial Officer’s Certificate.  At each of the date hereof and the Closing Time, the Representatives shall have received a certificate of the Chief Financial Officer of the Company, in his capacity as such officer only, dated the date hereof or the Closing Time, respectively, to the effect set forth in Exhibit 3.
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(i)          Bring-down Executive Officers’ Certificate.  At each of the date hereof and the Closing Time, the Representatives shall have received a certificate of both the President and the Chief Financial Officer of the Company, each in such capacity only, dated the date hereof or the Closing Time, respectively, to the effect that they reaffirm the statements made in the Executive Officers’ Certificate dated as of November 16, 2018 in reference to the conclusions, analyses and estimates of the Company’s business and management contained in the Registration Statement (the “Executive Officers’ Certificate”).

    (j)         Approval of Listing.  At the Closing Time, the Securities shall have been approved for listing on the Nasdaq Stock Market, subject only to official notice of issuance.

    (k)         No Objection.  FINRA has confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements relating to the offering of the Securities.

    (l)         Lock-up Agreements.  At the date of this Agreement, the Representatives shall have received an agreement substantially in the form of Exhibit 1 hereto signed by the persons listed on Schedule C hereto.

(m)          [Reserved].

(n)          FinCEN Certificate. On or prior to the date of this Agreement, the Representatives shall have received a certificate satisfying the beneficial ownership due diligence requirements of the Financial Crimes Enforcement Network (“FinCEN”) from the Company, in form and substance satisfactory to the Representatives, along with such additional supporting documentation as the Representatives have requested in connection with the verification of the foregoing certificate.

    (o)         Conditions to Purchase of Option Securities.  In the event that the Underwriters exercise their option provided in Section 2(b) hereof to purchase all or any portion of the Option Securities, the representations and warranties of the Company contained herein and the statements in any certificates furnished by the Company and any of its subsidiaries hereunder shall be true and correct as of each Date of Delivery and, at the relevant Date of Delivery, the Representatives shall have received:

    (i)          Officers’ Certificate.  A certificate, dated such Date of Delivery, of the President of the Company and of the chief financial or chief accounting officer of the Company confirming that the certificate delivered at the Closing Time pursuant to Section 5(d) hereof remains true and correct as of such Date of Delivery.

    (ii)        Opinion of Counsel for Company.  If requested by the Representatives, the favorable opinion of (a) Skadden, Arps, Slate, Meagher & Flom LLP, counsel for the Company and (b) the General Counsel of the Company, each in form and substance satisfactory to counsel for the Underwriters, dated such Date of Delivery, relating to the Option Securities to be purchased on such Date of Delivery and otherwise to the same effect as the opinion required by Section 5(b) hereof.
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    (iii)        Opinion of Counsel for Underwriters.  If requested by the Representatives, the favorable opinion of Davis Polk & Wardwell LLP, counsel for the Underwriters, dated such Date of Delivery, relating to the Option Securities to be purchased on such Date of Delivery and otherwise to the same effect as the opinion required by Section 5(c) hereof.

    (iv)        Bring-down Comfort Letter.  If requested by the Representatives, a letter from Ernst & Young LLP, in form and substance satisfactory to the Representatives and dated such Date of Delivery, substantially in the same form and substance as the letter furnished to the Representatives pursuant to Section 5(f) hereof, except that the “specified date” in the letter furnished pursuant to this paragraph shall be a date not more than three business days prior to such Date of Delivery.

(v)          Bring-down Initial Expert Letter.          If requested by the Representatives, a letter from Louis Berger U.S., Inc., in form and substance satisfactory to the Representatives and dated such Date of Delivery, substantially in the same form and substance as the Initial Expert Letter required by Section 5(g) hereof.

(vi)          Chief Financial Officer’s Certificate.  If requested by the Representatives, a certificate of the Chief Financial Officer of the Company, in his capacity as such officer only, dated such Date of Delivery, to the effect set forth in Exhibit 3.

(vii)        Bring-down Executive Officers’ Certificate.          If requested by the Representatives, a certificate of both the President and Chief Financial Officer of the Company, dated such Date of Delivery, substantially in the same form and substance as the Executive Officers’ Certificate furnished to the Representatives pursuant to Section 5(i) hereof.

    (p)         Additional Documents.  At the Closing Time and at each Date of Delivery (if any) counsel for the Underwriters shall have been furnished with such documents and opinions as they may require for the purpose of enabling them to pass upon the issuance and sale of the Securities as herein contemplated, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company in connection with the issuance and sale of the Securities as herein contemplated shall be satisfactory in form and substance to the Representatives and counsel for the Underwriters.

    (q)         Termination of Agreement.  If any condition specified in this Section shall not have been fulfilled when and as required to be fulfilled, this Agreement, or, in the case of any condition to the purchase of Option Securities on a Date of Delivery which is after the Closing Time, the obligations of the several Underwriters to purchase the relevant Option Securities, may be terminated by the Representatives by notice to the Company at any time at or prior to Closing Time or such Date of Delivery, as the case may be, and such termination shall be without liability of any party to any other party except as provided in Section 4 and except that Sections 1, 6, 7, 8, 15, 16 and 17 shall survive any such termination and remain in full force and effect.
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    SECTION 6.  Indemnification.

    (a)         Indemnification of Underwriters.  The Company agrees to indemnify and hold harmless each Underwriter, its affiliates (as such term is defined in Rule 405 under the 1933 Act (each, an “Affiliate”)), its selling agents, officers, directors, employees and each person, if any, who controls any Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act as follows:

(i)          against any and all loss, liability, claim, damage and expense whatsoever, as incurred, arising out of any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement (or any amendment thereto), including the Rule 430A Information, or the omission or alleged omission therefrom of a material fact required to be stated therein or necessary to make the statements therein not misleading or arising out of any untrue statement or alleged untrue statement of a material fact included in any preliminary prospectus, any Issuer Free Writing Prospectus, the General Disclosure Package, any road show as defined in Rule 433(h) under the 1933 Act (a “road show”) or the Prospectus (or any amendment or supplement thereto), or the omission or alleged omission of a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading;

(ii)          against any and all loss, liability, claim, damage and expense whatsoever, as incurred, to the extent of the aggregate amount paid in settlement of any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or of any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission; provided that any such settlement is effected with the written consent of the Company, which consent shall not be unreasonably withheld, conditioned or delayed;

(iii)         against any and all expense whatsoever, as incurred (including the reasonable fees and disbursements of counsel chosen by the Representatives), reasonably incurred in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, to the extent that any such expense is not paid under (i) or (ii) above;

provided, however, that this indemnity provision shall not apply to any loss, liability, claim, damage or expense to the extent arising out of any untrue statement or omission or alleged untrue statement or omission made in the Registration Statement (or any amendment thereto), including the Rule 430A Information, any Issuer Free Writing Prospectus, any preliminary prospectus, the General Disclosure Package, roadshow or the Prospectus (or any amendment or supplement thereto) in reliance upon and in conformity with the Underwriter Information.
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    (b)         Indemnification of Company and Directors and Officers of the Company.  Each Underwriter severally agrees to indemnify and hold harmless the Company, each director of the Company and each of its officers who signed the Registration Statement, and each person, if any, who controls the Company within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act, against any and all loss, liability, claim, damage and expense described in the indemnity contained in subsection (a) of this Section, as incurred, but only with respect to untrue statements or omissions, or alleged untrue statements or omissions, made in the Registration Statement (or any amendment thereto), including the Rule 430A Information, any preliminary prospectus, the General Disclosure Package or the Prospectus (or any amendment or supplement thereto) or any Issuer Free Writing Prospectus or roadshow in reliance upon and in conformity with the Underwriter Information.

    (c)         Actions against Parties; Notification.  Each indemnified party shall give notice in writing as promptly as reasonably practicable to each indemnifying party of any action commenced against it in respect of which indemnity may be sought hereunder, but failure to so notify an indemnifying party shall not relieve such indemnifying party from any liability hereunder to the extent it is not materially prejudiced as a result thereof and in any event shall not relieve it from any liability which it may have otherwise than on account of this indemnity agreement.  In case any such action is brought against any indemnified party and such indemnified party seeks or intends to seek indemnity from an indemnifying party, the indemnifying party will be entitled to participate in, and, to the extent that it shall elect, jointly with all other indemnifying parties similarly notified, by written notice delivered to the indemnified party promptly after receiving the aforesaid notice from such indemnified party, to assume the defense thereof with counsel reasonably satisfactory to such indemnified party; provided, however, if the defendants in any such action include both the indemnified party and the indemnifying party and the indemnified party shall have reasonably concluded that a conflict may arise between the positions of the indemnifying party and the indemnified party in conducting the defense of any such action or that there may be legal defenses available to it and/or other indemnified parties that are different from or additional to those available to the indemnifying party, the indemnified party or parties shall have the right to select separate counsel to assume such legal defenses and to otherwise participate in the defense of such action on behalf of such indemnified party or parties. Upon receipt of notice from the indemnifying party to such indemnified party of such indemnifying party’s election so to assume the defense of such action and approval by the indemnified party of counsel, the indemnifying party will not be liable to such indemnified party under this Section 6 for any legal or other expenses subsequently incurred by such indemnified party in connection with the defense thereof unless (i) the indemnified party shall have employed separate counsel in accordance with the proviso to the preceding sentence (it being understood, however, that the indemnifying party shall not be liable for the expenses of more than one separate counsel (other than local counsel), reasonably approved by the indemnifying party (or by the Representatives in the case of Section 6(c)), representing the indemnified parties who are parties to such action) or (ii) the indemnifying party shall not have employed counsel reasonably satisfactory to the indemnified party to represent the indemnified party within a reasonable time after notice of commencement of the action, in each of which cases the fees and expenses of counsel shall be at the expense of the indemnifying party. No indemnifying party shall, without the prior written consent of the indemnified parties, settle or compromise or consent to the entry of any judgment with respect to any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever in respect of which indemnification or contribution could be sought under this Section 6 or Section 7 hereof (whether or not the indemnified parties are actual or potential parties thereto), unless such settlement, compromise or consent (i) includes an unconditional release of each indemnified party from all liability arising out of such litigation, investigation, proceeding or claim and (ii) does not include a statement as to or an admission of fault, culpability or a failure to act by or on behalf of any indemnified party.
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    SECTION 7.  Contribution.  If the indemnification provided for in Section 6 hereof is for any reason unavailable to or insufficient to hold harmless an indemnified party in respect of any losses, liabilities, claims, damages or expenses referred to therein, then each indemnifying party shall contribute to the aggregate amount of such losses, liabilities, claims, damages and expenses incurred by such indemnified party, as incurred, (i) in such proportion as is appropriate to reflect the relative benefits received by the Company, on the one hand, and the Underwriters, on the other hand, from the offering of the Securities pursuant to this Agreement or (ii) if the allocation provided by clause (i) is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the Company, on the one hand, and of the Underwriters, on the other hand, in connection with the statements or omissions, or in connection with any violation of the nature referred to in Section 6(e) hereof, which resulted in such losses, liabilities, claims, damages or expenses, as well as any other relevant equitable considerations.

The relative benefits received by the Company, on the one hand, and the Underwriters, on the other hand, in connection with the offering of the Securities pursuant to this Agreement shall be deemed to be in the same respective proportions as the total net proceeds from the offering of the Securities pursuant to this Agreement (before deducting expenses) received by the Company, on the one hand, and the total underwriting discount received by the Underwriters, on the other hand, in each case as set forth on the cover of the Prospectus, bear to the aggregate initial public offering price of the Securities as set forth on the cover of the Prospectus.

The relative fault of the Company, on the one hand, and the Underwriters, on the other hand, shall be determined by reference to, among other things, whether any such untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact relates to information supplied by the Company or by the Underwriters and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission or any violation of the nature referred to in Section 6(e) hereof.

The Company and the Underwriters agree that it would not be just and equitable if contribution pursuant to this Section 7 were determined by pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 7.  The aggregate amount of losses, liabilities, claims, damages and expenses incurred by an indemnified party and referred to above in this Section 7 shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue or alleged untrue statement or omission or alleged omission.
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Notwithstanding the provisions of this Section 7, no Underwriter shall be required to contribute any amount in excess of the underwriting commissions received by such Underwriter in connection with the Securities underwritten by it and distributed to the public.

No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the 1933 Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation.

For purposes of this Section 7, each person, if any, who controls an Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act and each Underwriter’s Affiliates, officers, directors, employees and selling agents shall have the same rights to contribution as such Underwriter, and each director of the Company, each officer of the Company who signed the Registration Statement, and each person, if any, who controls the Company within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall have the same rights to contribution as the Company.  The Underwriters’ respective obligations to contribute pursuant to this Section 7 are several in proportion to the number of Securities set forth opposite their respective names in Schedule A hereto and not joint.

    SECTION 8.  Representations, Warranties and Agreements to Survive.  All representations, warranties and agreements contained in this Agreement or in certificates of officers of the Company submitted pursuant hereto, shall remain operative and in full force and effect regardless of (i) any investigation made by or on behalf of any Underwriter or its Affiliates or selling agents, any person controlling any Underwriter, its officers or directors, any person controlling the Company and (ii) delivery of and payment for the Securities.

    SECTION 9.  Termination of Agreement.

    (a)         Termination.  The Representatives may terminate this Agreement, by notice to the Company, at any time at or prior to the Closing Time (i) if there has been, in the judgment of the Representatives, since the time of execution of this Agreement or since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package or the Prospectus, any material adverse change in the condition, financial or otherwise, or in the earnings, business affairs or business prospects of the Company and its subsidiaries considered as one enterprise, whether or not arising in the ordinary course of business, or (ii) if there has occurred any material adverse change in the financial markets in the United States or the international financial markets, any outbreak of hostilities or escalation thereof or other calamity or crisis or any change or development involving a prospective change in national or international political, financial or economic conditions, in each case the effect of which is such as to make it, in the judgment of the Representatives, impracticable or inadvisable to proceed with the completion of the offering or to enforce contracts for the sale of the Securities, or (iii) if trading in any securities of the Company has been suspended or materially limited by the Commission or the Nasdaq Stock Market, or (iv) if trading generally on the NYSE Amex Equities, New York Stock Exchange or in the Nasdaq Global Market has been suspended or materially limited, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices have been required, by any of said exchanges or by order of the Commission, FINRA or any other governmental authority, or (v) a material disruption has occurred in commercial banking or securities settlement or clearance services in the United States, or (vi) if a banking moratorium has been declared by either Federal or New York authorities.
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    (b)         Liabilities.  If this Agreement is terminated pursuant to this Section, such termination shall be without liability of any party to any other party except as provided in Section 4 hereof, and provided further that Sections 1, 6, 7, 8, 15, 16 and 17 shall survive such termination and remain in full force and effect.

    SECTION 10.  Default by One or More of the Underwriters.  If one or more of the Underwriters shall fail at the Closing Time or a Date of Delivery to purchase the Securities which it or they are obligated to purchase under this Agreement (the “Defaulted Securities”), the Representatives shall have the right, within 24 hours thereafter, to make arrangements for one or more of the non-defaulting Underwriters, or any other underwriters, to purchase all, but not less than all, of the Defaulted Securities in such amounts as may be agreed upon and upon the terms herein set forth; if, however, the Representatives shall not have completed such arrangements within such 24 hour period, then:

(i)         if the number of Defaulted Securities does not exceed 10% of the number of Securities to be purchased on such date, each of the non-defaulting Underwriters shall be obligated, severally and not jointly, to purchase the full amount thereof in the proportions that their respective underwriting obligations hereunder bear to the underwriting obligations of all non-defaulting Underwriters, or

(ii)         if the number of Defaulted Securities exceeds 10% of the number of Securities to be purchased on such date, this Agreement or, with respect to any Date of Delivery which occurs after the Closing Time, the obligation of the Underwriters to purchase, and of the Company to sell, the Option Securities to be purchased and sold on such Date of Delivery shall terminate without liability on the part of any non-defaulting Underwriter.

No action taken pursuant to this Section shall relieve any defaulting Underwriter from liability in respect of its default.

In the event of any such default which does not result in a termination of this Agreement or, in the case of a Date of Delivery which is after the Closing Time, which does not result in a termination of the obligation of the Underwriters to purchase and the Company to sell the relevant Option Securities, as the case may be, either the (i) Representatives or (ii) the Company shall have the right to postpone Closing Time or the relevant Date of Delivery, as the case may be, for a period not exceeding seven days in order to effect any required changes in the Registration Statement, the General Disclosure Package or the Prospectus or in any other documents or arrangements.  As used herein, the term “Underwriter” includes any person substituted for an Underwriter under this Section 10.

    SECTION 11.  Default by the Company.  If the Company shall fail at the Closing Time or a Date of Delivery, as the case may be, to sell the number of Securities that it is obligated to sell hereunder, then this Agreement shall terminate without any liability on the part of any non-defaulting party; provided, however, that the provisions of Sections 1, 4, 6, 7, 8, 15, 16 and 17 shall remain in full force and effect.  No action taken pursuant to this Section shall relieve the Company from liability, if any, in respect of such default.
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    SECTION 12.  Notices.  All notices and other communications hereunder shall be in writing and shall be deemed to have been duly given if mailed or transmitted by any standard form of telecommunication.

Notices to the Underwriters shall be directed to:
     
  Barclays Capital Inc., 745 Seventh Avenue, New York, New York 10019, Attention: Syndicate Registration, Fax: 646-834-8133, with a copy, in the case of any notice pursuant to Section 10, to the Director of Litigation, Office of the General Counsel, Barclays Capital Inc., 745 Seventh Avenue, New York, New York 10019;
     
  J.P. Morgan Securities LLC, 383 Madison Avenue, Attention: Equity Syndicate Desk, New York, NY 10179, Fax: 212-622-8358
     
  Morgan Stanley & Co. LLC, 1585 Broadway, New York, New York 10036, Attention: Legal Department
     
                             Notices to the Company shall be directed to:
     
 
Virgin Trains USA Inc.
 
161 NW 6th Street, Suite 900
 
 
Miami, FL 33136
 
Email:
myles.tobin@gobrightline.com
 
Attention:
Myles Tobin
     
 
with a copy to:
 
 
Skadden, Arps, Slate, Meagher & Flom LLP
 
4 Times Square
 
New York, NY 10036-6522
 
Fax:
(212) 735-3259
 
Email:
joseph.coco@skadden.com
   
michael.zeidel@skadden.com
   
michael.schwartz@skadden.com
 
Attention:
Joseph A. Coco, Esq.
   
Michael J. Zeidel, Esq.
   
Michael J. Schwartz, Esq.

   SECTION 13.  No Advisory or Fiduciary Relationship.  The Company acknowledges and agrees that (a) the purchase and sale of the Securities pursuant to this Agreement, including the determination of the initial public offering price of the Securities and any related discounts and commissions, is an arm’s-length commercial transaction between the Company, on the one hand, and the several Underwriters, on the other hand, (b) in connection with the offering of the Securities and the process leading thereto, each Underwriter is and has been acting solely as a principal and is not the agent or fiduciary of the Company, any of its subsidiaries, or its shareholders, creditors, employees or any other party, (c) no Underwriter has assumed or will assume an advisory or fiduciary responsibility in favor of the Company with respect to the offering of the Securities or the process leading thereto (irrespective of whether such Underwriter has advised or is currently advising either of the Company or any of its subsidiaries on other matters) and no Underwriter has any obligation to the Company with respect to the offering of the Securities except the obligations expressly set forth in this Agreement, (d) the Underwriters and their respective affiliates may be engaged in a broad range of transactions that involve interests that differ from those of the Company, and (e) the Underwriters have not provided any legal, accounting, regulatory or tax advice with respect to the offering of the Securities and the Company has consulted its own legal, accounting, regulatory and tax advisors to the extent it deemed appropriate. The Company hereby waives any claims that the Company may have against the Underwriters with respect to any breach of fiduciary duty in connection with the Securities.

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    SECTION 14.  Parties.  This Agreement shall each inure to the benefit of and be binding upon the Underwriters and the Company and their respective successors.  Nothing expressed or mentioned in this Agreement is intended or shall be construed to give any person, firm or corporation, other than the Underwriters and the Company and their respective successors and the controlling persons and officers and directors referred to in Sections 6 and 7 and their heirs and legal representatives, any legal or equitable right, remedy or claim under or in respect of this Agreement or any provision herein contained.  This Agreement and all conditions and provisions hereof are intended to be for the sole and exclusive benefit of the Underwriters and the Company and their respective successors, and said controlling persons and officers and directors and their heirs and legal representatives, and for the benefit of no other person, firm or corporation.  No purchaser of Securities from any Underwriter shall be deemed to be a successor by reason merely of such purchase.

    SECTION 15.  TRIAL BY JURY.  THE COMPANY (ON ITS BEHALF AND, TO THE EXTENT PERMITTED BY APPLICABLE LAW, ON BEHALF OF ITS SHAREHOLDERS AND AFFILIATES) AND EACH OF THE UNDERWRITERS HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.EC

    SECTION 16.  GOVERNING LAW.  THIS AGREEMENT AND ANY CLAIM, CONTROVERSY OR DISPUTE ARISING UNDER OR RELATED TO THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF, THE STATE OF NEW YORK WITHOUT REGARD TO ITS CHOICE OF LAW PROVISIONS.

    SECTION 17.  Consent to Jurisdiction; Waiver of Immunity.  Any legal suit, action or proceeding arising out of or based upon this Agreement or the transactions contemplated hereby (“Related Proceedings”) shall be instituted in (i) the federal courts of the United States of America located in the City and County of New York, Borough of Manhattan or (ii) the courts of the State of New York located in the City and County of New York, Borough of Manhattan (collectively, the “Specified Courts”), and each party irrevocably submits to the exclusive jurisdiction (except for proceedings instituted in regard to the enforcement of a judgment of any such court (a “Related Judgment”), as to which such jurisdiction is non-exclusive) of such courts in any such suit, action or proceeding.  Service of any process, summons, notice or document by mail to such party’s address set forth above shall be effective service of process for any suit, action or other proceeding brought in any such court. The parties irrevocably and unconditionally waive any objection to the laying of venue of any suit, action or other proceeding in the Specified Courts and irrevocably and unconditionally waive and agree not to plead or claim in any such court that any such suit, action or other proceeding brought in any such court has been brought in an inconvenient forum.
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    SECTION 18.  TIME.  TIME SHALL BE OF THE ESSENCE OF THIS AGREEMENT. EXCEPT AS OTHERWISE SET FORTH HEREIN, SPECIFIED TIMES OF DAY REFER TO NEW YORK CITY TIME.

    SECTION 19.  Counterparts.  This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original, but all such counterparts shall together constitute one and the same Agreement.

    SECTION 20.  Effect of Headings.  The Section headings herein are for convenience only and shall not affect the construction hereof.

SECTION 21.  Recognition of the U.S. Special Resolution Regimes.

    (a)          In the event that any Underwriter that is a Covered Entity (as defined below) becomes subject to a proceeding under (i) the Federal Deposit Insurance Act and the regulations promulgated thereunder or (ii) Title II of the Dodd-Frank Wall Street Reform and Consumer Protection Act and the regulations promulgated thereunder (each, a “U.S. Special Resolution Regime”), the transfer from such Underwriter of this Agreement, and any interest and obligation in or under this Agreement, will be effective to the same extent as the transfer would be effective under the applicable U.S. Special Resolution Regime if this Agreement, and any such interest and obligation, were governed by the laws of the United States or a state of the United States.

(b)          In the event that any Underwriter that is a Covered Entity or a BHC Act Affiliate (as defined below) of such Underwriter becomes subject to a proceeding under a U.S. Special Resolution Regime, Default Rights (as defined below) under this Agreement that may be exercised against such Underwriter are permitted to be exercised to no greater extent than such Default Rights could be exercised under the U.S. Special Resolution Regime if this Agreement were governed by the laws of the United States or a state of the United States.

For purposes of this Section 21:

“BHC Act Affiliate” of a party means an “affiliate” (as such term is defined under, and interpreted in accordance with, 12 U.S.C. 1841(k)) of such party.
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“Covered Entity” means any of the following:


(i)
a “covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b);


(ii)
a “covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or


(iii)
a “covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b).

“Default Right” has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1 as applicable.

 [Signature Pages Follow]
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If the foregoing is in accordance with your understanding of our agreement, please sign and return to the Company a counterpart hereof, whereupon this instrument, along with all counterparts, will become a binding agreement among the Underwriters and the Company in accordance with its terms.

 
Very truly yours,
     
 
VIRGIN TRAINS USA INC.
     
 
By
 
   
Name:
   
Title:

Signature Page to Underwriting Agreement
33

CONFIRMED AND ACCEPTED,  
  as of the date first above written  
   
BARCLAYS CAPITAL INC.  
   
By    
 Name:    
 Title:  
 
   
J.P. MORGAN SECURITIES LLC  
   
By    
 Name:  
 Title:  
   
MORGAN STANLEY & CO. LLC  
   
By  
 Name:  
 Title:  
 
For themselves and as Representatives of  
the several other Underwriters named  
in Schedule A hereto.  

Signature Page to Underwriting Agreement
34

SCHEDULE A

The initial public offering price per share for the Securities shall be $       .

The purchase price per share for the Securities to be paid by the several Underwriters shall be $        , being an amount equal to the initial public offering price set forth above less $        per share, subject to adjustment in accordance with Section 2(b) for dividends or distributions declared by the Company and payable on the Initial Securities but not payable on the Option Securities.

 
Number of
 
Maximum Number of
Name of Underwriter
Initial Securities
 
Option Securities
       
Barclays Capital Inc.      
J.P. Morgan Securities LLC      
Morgan Stanley & Co. LLC      
Merrill Lynch, Pierce, Fenner & Smith      
  Incorporated      
Allen & Company LLC      
JMP Securities LLC      
Raymond James & Associates, Inc.      
Stephens Inc.      
  Total      


Sch. A

SCHEDULE B-1

Pricing Terms


1.
The Company is selling          Shares.


2.
The Company has granted an option to the Underwriters to purchase up to an additional          Shares.


3.
The initial public offering price per share for the Securities shall be $         .

Sch. B -1

SCHEDULE B-2

Free Writing Prospectuses

1.          None.

Sch. B -2

SCHEDULE C

List of Persons and Entities Subject to Lock-up

Wesley R. Edens
Evan M. Lovell
Anthony A. Marnell II
W. Porter Payne, Jr.
Patrick Goddard
Jeff Swiatek
Michael Cegelis
Chris Sariego
Ravneet Bhandari
Gary L. Smith
Mike Salzman
Myles Tobin
Scott Sanders
Adrian Share
Olivier Picq
Tom Rutkowski
AAF Holdings LLC
Corvina Holdings Limited
Sch. C


SCHEDULE E

WRITTEN TESTING-THE-WATERS COMMUNICATIONS

1.          The approved TTW PowerPoint presentation used for TTW meetings in November and December 2018, on behalf of the Company and the Representatives

Sch. E

EXHIBIT 1

FORM OF LOCK-UP AGREEMENT

          , 2019

Barclays Capital Inc.
J.P. Morgan Securities LLC
Morgan Stanley & Co. LLC
As Representatives of the several Underwriters

c/o Barclays Capital Inc.
745 Seventh Avenue
New York, New York 10019

c/o J.P. Morgan Securities LLC
383 Madison Avenue
New York, New York 10179

c/o Morgan Stanley & Co. LLC
1585 Broadway
New York, New York 10036

Ladies and Gentlemen:

The undersigned understands that you and certain other firms (the “Underwriters”) propose to enter into an Underwriting Agreement (the “Underwriting Agreement”) providing for the purchase by the Underwriters of shares (the “Stock”) of Common Stock, par value $0.01 per share (the “Common Stock”), of Virgin Trains USA Inc., a Delaware corporation (the “Company”), and that the Underwriters propose to reoffer the Stock to the public (the “Offering”).

In consideration of the execution of the Underwriting Agreement by the Underwriters, and in recognition of the benefit that the Offering will confer upon the undersigned as a stockholder and/or an officer and/or a director of the Company, and for other good and valuable consideration, the undersigned hereby irrevocably agrees that, for a period commencing on the date hereof and ending on the 180th day after the date of the Prospectus relating to the Offering (such 180-day period, the “Lock-Up Period”), without the prior written consent of Barclays Capital Inc., J.P. Morgan Securities LLC and Morgan Stanley & Co. LLC on behalf of the Underwriters, the undersigned will not, directly or indirectly, (1) offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant for the sale of, or otherwise dispose of or transfer any shares of Common Stock or any securities convertible into or exchangeable or exercisable for Common Stock, whether now owned or hereafter acquired by the undersigned or with respect to which the undersigned has or hereafter acquires the power of disposition (collectively, the “Lock-Up Securities”), or exercise any right with respect to the registration of any of the Lock-Up Securities, or file or cause to be filed any registration statement in connection therewith, under the Securities Act of 1933, as amended (the “Securities Act”), or (2) enter into any swap or any other agreement or any transaction that transfers, in whole or in part, directly or indirectly, the economic consequence of ownership of the Lock-Up Securities, whether any such swap or transaction is to be settled by delivery of Common Stock or other securities, in cash or otherwise, in each case other than the Stock to be sold by the undersigned pursuant to the Underwriting Agreement.
Ex. 1-1


Notwithstanding the foregoing, and subject to the conditions below, the undersigned may transfer the Lock-Up Securities without the prior written consent of Barclays Capital Inc., J.P. Morgan Securities LLC and Morgan Stanley & Co. LLC (i) as a bona fide gift or gifts, (ii) to any trust for the direct or indirect benefit of the undersigned or the immediate family of the undersigned (for purposes of this Lock-Up Letter Agreement, “immediate family” shall mean any relationship by blood, marriage or adoption, not more remote than first cousin), (iii) by will or intestate succession, (iv) if the undersigned is a corporation, partnership, limited liability company or other entity, by distribution to any affiliate, wholly-owned subsidiary, limited partners, members or stockholders of the undersigned, (v) to funds managed by an affiliate of Fortress Investment Group LLC, (vi) to the undersigned’s affiliates or to any investment fund or other entity controlled or managed by the undersigned, (vii) to a nominee or custodian of a person or entity to whom a disposition or transfer would be permissible under clauses (i) through (vi) above and (viii) in connection with a written plan meeting the requirements of Rule 10b5-1 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”); provided that (1) with respect to (i), (ii), (iii), (iv), (v), (vi) or (vii) above (irrespective of whether such transfer involves a disposition of value, to the extent permitted by this Lock-Up Letter Agreement), Barclays Capital Inc., J.P. Morgan Securities LLC and Morgan Stanley & Co. LLC receive a signed lock-up agreement for the balance of the lockup period from each donee, trustee, distributee, nominee or transferee, as the case may be, (2) any transfer described under (i), (ii), (iii), (iv) or (vii) above shall not involve a disposition for value, (3) such transfers (irrespective of whether such transfer involves a disposition of value, to the extent permitted by this Lock-Up Letter Agreement) are not required to be reported with the Securities and Exchange Commission on Form 4 in accordance with Section 16 of the Exchange Act, (4) with respect to (v) and (vi), notice shall be provided to Barclays Capital Inc., J.P. Morgan Securities LLC and Morgan Stanley & Co. LLC at least one business day prior to the transfer and (5) the undersigned does not otherwise voluntarily effect any public filing or report regarding such transfers (other than a filing on Form 5 made after the expiration of the Lock-Up Period), irrespective of whether such transfer involves a disposition of value, to the extent permitted by this Lock-Up Letter Agreement.

Furthermore, the undersigned may sell shares of Common Stock or other securities acquired on the open market following the Offering if and only if (i) such sales are not required to be reported in any public report or filing with the Securities and Exchange Commission, or otherwise and (ii) the undersigned does not otherwise voluntarily effect any public filing or report regarding such sales.

If the undersigned is an officer or director of the Company, (i) the undersigned agrees that the foregoing provisions shall be equally applicable to any issuer-directed Stock, as referred to in FINRA Rule 5131(d)(2)(A) that the undersigned may purchase in the Offering pursuant to an allocation of Stock that is directed in writing by the Company, (ii) Barclays Capital Inc., J.P. Morgan Securities LLC and Morgan Stanley & Co. LLC agree that, at least three business days before the effective date of any release or waiver of the foregoing restrictions in connection with a transfer of shares of Common Stock, Barclays Capital Inc., J.P. Morgan Securities LLC and Morgan Stanley & Co. LLC will notify the Company of the impending release or waiver and (iii) the Company has agreed in the Underwriting Agreement to announce the impending release or waiver by issuing a press release through a major news service (as referred to in FINRA Rule 5131(d)(2)(B)) at least two business days before the effective date of the release or waiver.  Any release or waiver granted by Barclays Capital Inc., J.P. Morgan Securities LLC and Morgan Stanley & Co. LLC hereunder to any such officer or director shall only be effective two business days after the publication date of such press release.  The provisions of this paragraph will not apply if both (a) the release or waiver is effected solely to permit a transfer not for consideration, and (b) the transferee has agreed in writing to be bound by the same terms described in this letter that are applicable to the transferor, to the extent and for the duration that such terms remain in effect at the time of the transfer.
Ex. 1-2


In furtherance of the foregoing, the Company and its transfer agent are hereby authorized to decline to make any transfer of securities if such transfer would constitute a violation or breach of this Lock-Up Letter Agreement.

It is understood that, if the Company notifies the Underwriters that it does not intend to proceed with the Offering, if the Underwriting Agreement does not become effective, or if the Underwriting Agreement (other than the provisions thereof which survive termination) shall terminate or be terminated prior to payment for and delivery of the Stock, the undersigned will be released from its obligations under this Lock-Up Letter Agreement.

The undersigned understands that the Company and the Underwriters will proceed with the Offering in reliance on this Lock-Up Letter Agreement.

Whether or not the Offering actually occurs depends on a number of factors, including market conditions.  Any Offering will only be made pursuant to an Underwriting Agreement, the terms of which are subject to negotiation between the Company and the Underwriters.

This Lock-Up Letter Agreement shall automatically terminate upon the earliest to occur, if any, of (1) the termination of the Underwriting Agreement before the sale of any Stock to the Underwriters or (2) February 15, 2019, in the event that the Underwriting Agreement has not been executed by that date.

[Signature page follows]
Ex. 1-3


The undersigned hereby represents and warrants that the undersigned has full power and authority to enter into this Lock-Up Letter Agreement and that, upon request, the undersigned will execute any additional documents necessary in connection with the enforcement hereof.  Any obligations of the undersigned shall be binding upon the heirs, personal representatives, successors and assigns of the undersigned.

  Very truly yours,  
     
 
By:
 
    Name:
    Title:
     
     
Dated:        

Ex. 1-4

EXHIBIT 2

FORM OF PRESS RELEASE

TO BE ISSUED PURSUANT TO SECTION 3(i)

Virgin Trains USA Inc.

[Insert date]

Virgin Trains USA Inc., (the “Company”) announced today that Barclays Capital Inc., the lead book-running manager in the Company’s recent public sale of          shares of common stock, J.P. Morgan Securities LLC and Morgan Stanley & Co. LLC are [waiving] [releasing] a lock-up restriction with respect to          shares of the Company’s common stock held by [certain officers or directors] [an officer or director] of the Company.  The [waiver] [release] will take effect on [insert date], and the shares may be sold or otherwise disposed of on or after such date.

This press release is not an offer for sale of the securities in the United States or in any other jurisdiction where such offer is prohibited, and such securities may not be offered or sold in the United States absent registration or an exemption from registration under the United States Securities Act of 1933, as amended.

Ex. 2

EXHIBIT 3

FORM OF CHIEF FINANCIAL OFFICER’S CERTIFICATE

    , 2019

Reference is hereby made to the Underwriting Agreement, dated               , 2019 (the “Underwriting Agreement”), between Virgin Trains USA Inc. (the “Company”) and Barclays Capital Inc., J.P. Morgan Securities LLC and Morgan Stanley & Co. LLC as representatives of the several underwriters named on Schedule A thereto (the “Underwriters”). Capitalized terms used but not defined in this certificate have the meaning assigned to them in the Underwriting Agreement.

To assist the Underwriters in conducting and documenting their investigation of the affairs of the Company, I, Jeff Swiatek, in my capacity as Chief Financial Officer of the Company and not my individual capacity, to my knowledge and belief, do hereby certify pursuant to Section 5(h) of the Underwriting Agreement that based upon an examination of the Company’s records undertaken after reasonable inquiry and investigation by myself or members of my staff who are responsible for the Company’s financial and accounting matters:

1.          The items marked with an “A” on the pages of the Registration Statement attached as Exhibit A (1) have been derived from the Company’s records and analyses performed in connection with the transactions contemplated in the Underwriting Agreement and (2) have been prepared by the Company in good faith.

2.          The items marked with a “B” on the pages of the Registration Statement attached as Exhibit A fairly present, in all material respects, the financial performance or position of the Company as of and for the year ending December 31, 2017.

*   *   *
Ex. 3-1


IN WITNESS WHEREOF, the undersigned has caused this certificate to be executed and delivered as of the date first written above.

  By:  
  Name: Jeff Swiatek
  Title: Chief Financial Officer, Virgin Trains USA Inc.

Ex. 3-2
EX-3.1 3 s002218x10_ex3-1.htm EXHIBIT 3.1

Exhibit 3.1
  
CERTIFICATE OF INCORPORATION
OF
VIRGIN TRAINS USA INC.
 

 
Pursuant to Section 102 of the
Delaware General Corporation Law 
   


 
FIRST:  The name of the Corporation is Virgin Trains USA Inc. (the “Corporation”).
 
SECOND:  The address of the registered office of the Corporation in the State of Delaware is c/o Corporation Service Company, 2711 Centerville Road, Suite 400, Wilmington DE 19808.  The name of its registered agent at that address is Corporation Service Company.
 
THIRD:  The purpose of the Corporation is to engage in any lawful act or activity for which a corporation may be organized under the General Corporation Law of the State of Delaware (the “DGCL”).
 
FOURTH:            (a)  Authorized Capital Stock.  The total number of shares of stock which the Corporation shall have authority to issue is two billion, three hundred million (2,300,000,000) shares of capital stock, consisting of (i) two billion (2,000,000,000) shares of common stock, par value $0.01 per share (the “Common Stock”) and (ii) three hundred million (300,000,000) shares of preferred stock, par value $0.01 per share (the “Preferred Stock”).
 
(b)          Common Stock.  The powers, preferences and rights, and the qualifications, limitations and restrictions, of the Common Stock are as follows:

(1)          Except as otherwise expressly provided herein or required by law or the terms of any class or series of Preferred Stock issued in accordance with Part (c) of this Article FOURTH, each holder of record of shares of Common Stock shall be entitled to vote at all meetings of the stockholders and shall have one vote for each share held by such holder of record; provided, however, that, except as otherwise required by law, holders of record of shares of Common Stock shall not be entitled to vote on any amendment to this Certificate of Incorporation (including any certificate of designation relating to any series of Preferred Stock) that relates solely to the terms of one or more outstanding series of Preferred Stock if the holders of such affected series are entitled, either separately or together with the holders of one or more other such series, to vote thereon pursuant to this Certificate of Incorporation (including any resolutions relating to any series of Preferred Stock adopted by the board of directors of the Corporation (the “Board of Directors”) in accordance with this Article FOURTH) or pursuant to the DGCL.

(2)          Subject to applicable law and the preferential rights as to dividends of the holders of all classes or series of Preferred Stock at the time outstanding, the holders of shares of Common Stock shall be entitled to receive, when and as declared by the Board of Directors, out of the assets of the Corporation legally available therefor, such dividends as may be declared from time to time by the Board of Directors.
 
(3)          Subject to the prior rights of creditors of the Corporation and the holders of all classes or series of stock at the time outstanding having prior rights as to distributions upon liquidation, dissolution or winding up of the Corporation, in the event of any liquidation, dissolution or winding up of the Corporation, either voluntary or involuntary, the holders of shares of Common Stock shall be entitled to receive their ratable and proportionate share of the remaining assets of the Corporation. The term “Liquidation Event” shall not be deemed to be occasioned by or to include any voluntary consolidation or merger of the Corporation with or into any other corporation or entity or other corporations or entities or a sale, lease or conveyance of all or a part of the Corporation’s assets.
 
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(4)          No holder of shares of Common Stock shall have cumulative voting rights.
 
(5)          No holder of shares of Common Stock shall be entitled to preemptive or subscription rights.
 
(c)           Preferred Stock.
 
(1)          The Board of Directors is hereby expressly authorized to provide for the issuance of all or any shares of the Preferred Stock in one or more classes or series, and to fix for each such class or series such voting powers, full or limited, or no voting powers, and such designations, preferences and relative, participating, optional or other special rights and such qualifications, limitations or restrictions thereof, as shall be stated and expressed in a resolution or resolutions adopted by the Board of Directors providing for the issuance of such class or series, including, without limitation, the authority to provide that any such class or series may be (i) subject to redemption at such time or times and at such price or prices; (ii) entitled to receive dividends (which may be cumulative or non-cumulative) at such rates, on such conditions, and at such times, and payable in preference to, or in such relation to, the dividends payable on any other class or classes or any other series; (iii) entitled to such rights upon the dissolution of, or upon any distribution of the assets of, the Corporation; or (iv) convertible into, or exchangeable for, shares of any other class or classes of stock, or of any other series of the same or any other class or classes of stock, of the Corporation at such price or prices or at such rates of exchange and with such adjustments; all as may be stated in such resolution or resolutions.
3

(2)          The number of authorized shares of Preferred Stock and Common Stock may be increased (but not above the total number of authorized shares of the class) or decreased (but not below the number of shares thereof then outstanding) by the affirmative vote of the holders of at least a majority of the voting power of the stock of the Corporation entitled to vote thereon irrespective of the provisions of Section 242(b)(2) of the DGCL (or any successor provision thereto), and no vote of the holders of any of the Common Stock or the Preferred Stock voting separately as a class shall be required therefor.
 
(d)          Power to Sell and Purchase Shares.  Subject to the requirements of applicable law, the Corporation shall have the power to issue and sell all or any part of any shares of any class of stock herein or hereafter authorized to such persons, and for such consideration, as the Board of Directors shall from time to time, in its discretion, determine, whether or not greater consideration could be received upon the issue or sale of the same number of shares of another class, and as otherwise permitted by law.  Subject to the requirements of applicable law, the Corporation shall have the power to purchase any shares of any class of stock herein or hereafter authorized from such persons, and for such consideration, as the Board of Directors shall from time to time, in its discretion, determine, whether or not less consideration could be paid upon the purchase of the same number of shares of another class, and as otherwise permitted by law.
 
FIFTH:  The following provisions are inserted for the management of the business and the conduct of the affairs of the Corporation, and for further definition, limitation and regulation of the powers of the Corporation and of its directors and stockholders.
 
(a)          The business and affairs of the Corporation shall be managed by or under the direction of the Board of Directors.
 
(b)          The Board of Directors shall consist of not less than three nor more than fifteen members, the exact number of which shall be fixed from time to time by resolution adopted by the affirmative vote of a majority of the entire Board of Directors.
4

(c)          The directors shall be divided into three classes, designated Class I, Class II and Class III.  Each class shall consist, as nearly as may be possible, of one-third of the total number of directors constituting the entire Board of Directors.  The initial division of the Board of Directors into classes shall be made by the decision of the affirmative vote of a majority of the total number of directors that the Corporation would have if there were no director vacancies (the “entire Board of Directors”).  The term of the initial Class I directors assigned at the time of the filing of this Certificate of Incorporation shall terminate on the date of the annual meeting of stockholders held in 2020; the term of the initial Class II directors assigned at the time of the filing of this Certificate of Incorporation shall terminate on the date of the annual meeting of stockholders held in 2021; and the term of the initial Class III directors assigned at the time of the filing of this Certificate of Incorporation shall terminate on the date of the annual meeting of stockholders held in 2022, or, in each case, upon such director’s earlier death, resignation or removal.  At each succeeding annual meeting of stockholders beginning with the annual meeting of stockholders held in 2020, successors to the class of directors whose term expires at that annual meeting shall be elected for a three-year term and until their successors are duly elected and qualified.  If the number of directors is changed, any increase or decrease shall be apportioned among the classes so as to maintain the number of directors in each class as nearly equal as possible, and any additional director of any class elected to fill a vacancy shall hold office for a term that shall coincide with the remaining term of the other directors of that class, but in no case shall a decrease in the number of directors shorten the term of any incumbent director.
5

(d)          Subject to the rights, if any, of the holders of shares of Preferred Stock then outstanding, any director or the entire Board of Directors may be removed from office at any time, but only for cause and only by the affirmative vote of the holders of at least a majority of the voting power of the then issued and outstanding shares of capital stock of the Corporation entitled to vote in the election of directors (the “Voting Shares”), provided, however, that for so long as the Fortress Stockholders (as defined in Part (a) of Article ELEVENTH), collectively, beneficially own (as defined in Part (a) of Article ELEVENTH) at least fifty percent (50%) of the then issued and outstanding Voting Shares, any director or the entire Board of Directors may be removed from office at any time, with or without cause, by the affirmative vote of the holders of at least a majority of the voting power of the issued and outstanding Voting Shares.  The vacancy or vacancies in the Board of Directors caused by any such removal shall be filled as provided in Part (f) of this Article FIFTH.
 
(e)          A director shall hold office until the annual meeting of stockholders for the year in which his or her term expires and until his or her successor shall be elected and shall qualify, subject, however, to prior death, resignation, retirement, disqualification or removal from office.
 
(f)          Subject to the terms of any one or more classes or series of Preferred Stock, (i) any vacancy on the Board of Directors that results from an increase in the number of directors may be filled by a majority of the Board of Directors then in office, provided that a quorum is present, and (ii) any other vacancy occurring on the Board of Directors, other than for a vacancy resulting from the removal of a director as provided in Part (d) of this Article FIFTH which may be filled in the first instance by the stockholders, may be filled by a majority of the Board of Directors then in office, even if less than a quorum, or by a sole remaining director.  Any director of any class elected to fill a vacancy resulting from an increase in the number of directors of such class shall hold office for a term that shall coincide with the remaining term of that class.  Any director elected to fill a vacancy not resulting from an increase in the number of directors shall have the same remaining term as that of his or her predecessor.  Notwithstanding the foregoing, whenever the holders of any one or more classes or series of Preferred Stock shall have the right, voting separately by class or series, to elect directors at an annual or special meeting of stockholders, the election, term of office, filling of vacancies and other features of such directorships shall be governed by the terms of this Certificate of Incorporation (including any resolutions relating to any series of Preferred Stock adopted by the Board of Directors in accordance with Article FOURTH) applicable thereto, and such directors so elected shall not be divided into classes pursuant to this Article FIFTH unless expressly provided by such terms.
6

(g)          In addition to the powers and authority hereinbefore or by statute expressly conferred upon them, the directors are hereby empowered to exercise all such powers and do all such acts and things as may be exercised or done by the Corporation, subject, nevertheless, to the provisions of the DGCL, this Certificate of Incorporation, and any bylaws of the Corporation adopted by the stockholders or the Board of Directors, as the case may be, as amended and/or restated from time to time (the “Bylaws”); provided, however, that no Bylaws hereafter adopted by the stockholders shall invalidate any prior act of the directors which would have been valid if such Bylaws had not been adopted.
 
(h)          Unless otherwise required by law, special meetings of stockholders, for any purpose or purposes, may be called at any time by either (i) the Chairman of the Board of Directors, if there be one, or (ii) the Chief Executive Officer, if there be one, and shall be called by any such officer at the request in writing of (i) the Board of Directors, (ii) a committee of the Board of Directors that has been duly designated by the Board of Directors and whose powers include the authority to call such meetings or (iii) at any time the Fortress Stockholders, collectively, beneficially own at least twenty percent (20%) of the voting power of the then issued and outstanding shares of capital stock of the Corporation entitled to vote, any Fortress Stockholder. Such request shall state the purpose or purposes of the proposed meeting.  If at any time the Fortress Stockholders do not, collectively, beneficially own at least twenty percent (20%) of the voting power of the then issued and outstanding shares of capital stock of the Corporation entitled to vote, then the ability of the stockholders to call or cause a special meeting of stockholders to be called is hereby specifically denied.
7

SIXTH:  No director shall be personally liable to the Corporation or any of its stockholders for monetary damages for breach of fiduciary duty as a director, except to the extent such exemption from liability or limitation thereof is not permitted under the DGCL as the same exists or may hereafter be amended. If the DGCL is amended hereafter to authorize the further elimination or limitation of the liability of directors, then the liability of a director of the Corporation shall be eliminated or limited to the fullest extent authorized by the DGCL, as so amended.  Any amendment, repeal or modification of this Article SIXTH shall not adversely affect any right or protection of a director of the Corporation existing at the time of such amendment, repeal or modification with respect to acts or omissions occurring prior to such amendment, repeal or modification.
 
SEVENTH:  The Corporation shall indemnify its directors and officers to the fullest extent authorized or permitted by law, as now or hereafter in effect, and such right to indemnification shall continue as to a person who has ceased to be a director or officer of the Corporation and shall inure to the benefit of his or her heirs, executors and personal and legal representatives; provided, however, that, except for proceedings to enforce rights to indemnification, the Corporation shall not be obligated to indemnify any director or officer (or his or her heirs, executors or personal or legal representatives) in connection with a proceeding (or part thereof) initiated by such person unless such proceeding (or part thereof) was authorized or consented to by the Board of Directors.  The right to indemnification conferred by this Article SEVENTH shall include the right to be paid by the Corporation the expenses (including attorneys’ fees) incurred in defending or otherwise participating in any proceeding in advance of its final disposition upon receipt by the Corporation of an undertaking by or on behalf of the director or officer receiving advancement to repay the amount advanced if it shall ultimately be determined that such person is not entitled to be indemnified by the Corporation under this Article SEVENTH.
8

The Corporation may, to the extent authorized from time to time by the Board of Directors, provide rights to indemnification and to the advancement of expenses to employees and agents of the Corporation similar to those conferred in this Article SEVENTH to directors and officers of the Corporation.
 
The rights to indemnification and to the advance of expenses conferred in this Article SEVENTH shall not be exclusive of any other right which any person may have or hereafter acquire under this Certificate of Incorporation, the Bylaws, any statute, agreement, vote of stockholders or disinterested directors or otherwise.
 
The Corporation shall have the power to purchase and maintain insurance on behalf of any person who is or was or has agreed to become a director, officer, employee or agent of the Corporation against any liability asserted against him or her and incurred by him or her or on his or her behalf in such capacity, or arising out of his or her status as such, whether or not the Corporation would have the power to indemnify him or her against such liability.
 
Any repeal or modification of this Article SEVENTH shall not adversely affect any rights to indemnification and to the advancement of expenses of a director or officer of the Corporation existing at the time of such repeal or modification with respect to any acts or omissions occurring prior to such repeal or modification.
9

EIGHTH:  At any time the Fortress Stockholders, collectively, beneficially own at least twenty percent (20%) of the voting power of the then issued and outstanding shares of capital stock of the Corporation entitled to vote generally in the election of directors, any action required or permitted to be taken by the stockholders of the Corporation at any annual or special meeting of stockholders of the Corporation may be taken without a meeting, without prior notice and without a vote, if a consent or consents in writing, setting forth the action so taken, shall be signed by stockholders holding at least the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote with respect to the subject matter thereof were present and voted, and shall be delivered to the Corporation by delivery to its registered office in the State of Delaware, its principal place of business, or an officer or agent of the Corporation having custody of the book in which proceedings of meetings of the stockholders are recorded, or by certified or registered mail, return receipt requested.
 
NINTH:  Meetings of stockholders may be held within or without the State of Delaware, as the Bylaws may provide.  The books of the Corporation may be kept (subject to any provision contained in the DGCL) outside the State of Delaware at such place or places as may be designated from time to time by the Board of Directors or in the Bylaws.
 
TENTH:  (a) Subject to Part (b) of this Article TENTH, the Bylaws may be altered, amended or repealed, in whole or in part, either (i) without the approval of the Board of Directors, by the affirmative vote of the holders of at least sixty-six and two-thirds percent (66 2/3%) of the voting power of the then issued and outstanding shares of capital stock of the Corporation entitled to vote thereon; provided, however, that at any time the Fortress Stockholders, collectively, beneficially own at least twenty percent (20)% of the voting power of the then issued and outstanding shares of capital stock of the Corporation entitled to vote, the Bylaws also may be altered, amended or repealed, in whole or in part, by the affirmative vote of the holders of at least a majority of the voting power of the then issued and outstanding shares of capital stock of the Corporation entitled to vote thereon or (ii) by the affirmative vote of a majority of the entire Board of Directors.
10

(b) Notwithstanding Part (a) of this Article TENTH, or any other provision of the Bylaws (and in addition to any other vote that may be required by law), (i) any amendment, alteration or repeal, in whole or in part, of Section 2.3 (Special Meetings), Section 2.11 (Consent of Stockholders in Lieu of Meeting), Section 3.1 (Number and Election of Directors), Section 3.2 (Vacancies), Section 3.3 (Duties and Powers), Section 3.6 (Resignations and Removals of Directors), Article IX (Amendments) and Article XI (Definitions) of the Bylaws (collectively, the “Specified Bylaws”) as in effect immediately following the initial public offering of Common Stock (which, for the avoidance of doubt, would include the adoption of any provision as part of the Bylaws that is inconsistent with the purpose and intent of the Specified Bylaws), shall require the affirmative vote of the holders of at least eighty percent (80%) of the voting power of the then issued and outstanding shares of capital stock of the Corporation entitled to vote thereon, and (ii) the ability of the Board of Directors to amend, alter or repeal the Specified Bylaws is specifically denied; provided, however, that at any time that the Fortress Stockholders, collectively, beneficially own at least twenty percent (20%) of the voting power of the issued and outstanding shares of capital stock entitled to vote thereon, the Specified Bylaws may be amended, altered or repealed, in whole or in part, by the affirmative vote of a majority of the entire Board of Directors (and, for the avoidance of doubt, without approval of the stockholders).
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ELEVENTH:        (a)  Definitions.  For purposes of this Certificate of Incorporation, the following definitions shall apply:
 
Affiliate” means, with respect to a given person, any other person that, directly or indirectly, controls, is controlled by or is under common control with, such person; provided, however, that for purposes of this definition and this Article ELEVENTH, none of (i) the Virgin Trains USA Entities and any entities (including corporations, partnerships, limited liability companies or other persons) in which such Virgin Trains USA Entities hold, directly or indirectly, an ownership interest, on the one hand, or (ii) the Fortress Stockholders and their Affiliates (excluding any Virgin Trains USA Entities or other entities described in clause (i)), on the other hand, shall be deemed to be “Affiliates” of one another for any purpose of this Article ELEVENTH. For purposes of this definition, “control” (including, with correlative meanings, the terms “controlled by” and “under common control with”) as applied to any person, means the possession, directly or indirectly, of beneficial ownership of, or the power to vote, ten percent (10%) or more of the securities having voting power for the election of directors (or other persons acting in similar capacities) of such person or the power otherwise to direct or cause the direction of the management and policies of such person, whether through the ownership of voting securities, by contract or otherwise.
 
beneficially own” and “beneficial ownership” and similar terms used herein shall be determined in accordance with Rules 13d-3 and 13d-5 under the Securities Exchange Act of 1934.
 
Virgin Trains USA Entities” means the Corporation and its Subsidiaries, and “Virgin Trains USA Entity” includes any of the Virgin Trains USA Entities.
 
Virgin Trains USA Stockholder” means AAF Holdings LLC, a Delaware limited liability company, and its Subsidiaries (other than Subsidiaries that constitute Virgin Trains USA Entities) and successors.
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corporate opportunity” shall include, but not be limited to, business opportunities which the Corporation is financially able to undertake, which are, from their nature, in the line of the Corporation’s business, are of practical advantage to it and are ones in which the Corporation has an interest or a reasonable expectancy, and in which, by embracing the opportunities, the self-interest of the Fortress Stockholders or any of their Affiliates or their officers or directors could be brought into conflict with that of any of the Virgin Trains USA Entities or their Affiliates.
 
Fortress Affiliate Stockholders” means (i) any director of the Corporation who may be deemed an Affiliate of Fortress Investment Group LLC (“FIG”), (ii) any director or officer of FIG or its Affiliates, (iii) any investment funds (including any managed accounts) or entities managed directly or indirectly by FIG or its Affiliates or (iv) any other entity whose day-to-day business and operations are, at the time of any direct or indirect acquisition of any securities of the Corporation, managed or supervised by one or more of the Principals or individuals under such Principal’s supervision, or any Affiliates of such entity.
 
Fortress Stockholders” means (i) the Virgin Trains USA Stockholder, (ii) each Fortress Affiliate Stockholder and each entity formed by a Fortress Affiliate Stockholder to hold any interests in the Virgin Trains USA Stockholder or the Corporation and (iii) each Permitted Transferee who becomes a party to or bound by the provisions of the Stockholders Agreement, in accordance with the terms thereof, or Permitted Transferee thereof who is entitled to enforce the provisions of the Stockholders Agreement in accordance with the terms thereof.
 
Governmental Entity” means any national, state, provincial, municipal, local or foreign government, any court, arbitral tribunal, administrative agency or commission or other governmental or regulatory authority, commission or agency or any non-governmental, self-regulatory authority, commission or agency.
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Judgment” means any order, writ, injunction, award, judgment, ruling or decree of any Governmental Entity.
 
Law” means any statute, law, code, ordinance, rule or regulation of any Governmental Entity.
 
Lien” means any pledge, claim, equity, option, lien, charge, mortgage, easement, right-of-way, call right, right of first refusal, “tag”- or “drag”- along right, encumbrance, security interest or other similar restriction of any kind or nature whatsoever.
 
(a)          Permitted Transferee” means, with respect to each Fortress Stockholder, (i) any other Fortress Stockholder, (ii) such Fortress Stockholder’s Affiliates, (iii) in the case of any Fortress Stockholder, (A) any member or general or limited partner of such Fortress Stockholder (including, without limitation, any member of the Virgin Trains USA Stockholder), (B) any corporation, partnership, limited liability company or other entity that is an Affiliate of such Fortress Stockholder or any member, general or limited partner of such Fortress Stockholder (collectively, “Fortress Stockholder Affiliates”), (C) any investment funds advised or managed directly or indirectly by such Fortress Stockholder or any Fortress Stockholder Affiliate (a “Fortress Stockholder Fund”), (D) any general or limited partner of any Fortress Stockholder Fund, (E) any managing director, general partner, director, limited partner, officer or employee of any Fortress Stockholder Affiliate, or any spouse, lineal descendant, sibling, parent, heir, executor, administrator, testamentary trustee, legatee or beneficiary of any of the foregoing persons described in this clause (E) (collectively, “Fortress Stockholder Associates”) or (F) any trust, the beneficiaries of which, or any corporation, limited liability company or partnership, the stockholders, members or general or limited partners of which, consist solely of any one or more of such Fortress Stockholder, any general or limited partner of such Fortress Stockholder, any Fortress Stockholder Affiliates, any Fortress Stockholder Fund, any Fortress Stockholder Associates, their spouses or their lineal descendants and (iv) any other person that acquires shares of the Corporation’s common stock from such Fortress Stockholder other than pursuant to a Public Offering that agrees to become party to the Stockholders Agreement.
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Principals” means Peter L. Briger, Wesley R. Edens and Randal A. Nardone.
 
Public Offering” means an offering of common stock of the Corporation pursuant to an effective registration statement under the Securities Act of 1933, as amended, including an offering in which Fortress Stockholders are entitled to sell the Corporation’s common stock pursuant to the terms of the Stockholders Agreement.
 
Restriction” with respect to any capital stock, partnership interest, membership interest in a limited liability company or other equity interest or security, means any voting or other trust or agreement, option, warrant, preemptive right, right of first offer, right of first refusal, escrow arrangement, proxy, buy-sell agreement, power of attorney or other contract, any Law, license, permit or Judgment that, conditionally or unconditionally, (i) grants to any person the right to purchase or otherwise acquire, or obligates any person to sell or otherwise dispose of or issue, or otherwise results or, whether upon the occurrence of any event or with notice or lapse of time or both or otherwise, may result in any person acquiring, (A) any of such capital stock, partnership interest, membership interest in a limited liability company or other equity interest or security, (B) any of the proceeds of, or any distributions paid or that are or may become payable with respect to, any of such capital stock, partnership interest, membership interest in a limited liability company or other equity interest or security or (C) any interest in such capital stock, partnership interest, membership interest in a limited liability company or other equity interest or security or any such proceeds or distributions, (ii) restricts or, whether upon the occurrence of any event or with notice or lapse of time or both or otherwise, is reasonably likely to restrict the transfer or voting of, or the exercise of any rights or the enjoyment of any benefits arising by reason of ownership of, any such capital stock, partnership interest, membership interest in a limited liability company or other equity interest or security or any such proceeds or distributions or (iii) creates or, whether upon the occurrence of any event or with notice or lapse of time or both or otherwise, is reasonably likely to create a Lien or purported Lien affecting such capital stock, partnership interest, membership interest in a limited liability company or other equity interest or security, proceeds or distributions.
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Stockholders Agreement” means the stockholders agreement, dated as of               , 2019, between the Corporation and the Virgin Trains USA Stockholder, as may be amended from time to time.
 
Subsidiary” with respect to any person means: (i) a corporation, a majority in voting power of whose capital stock with voting power, under ordinary circumstances, to elect directors is at the time, directly or indirectly owned by such person, by a Subsidiary of such person, or by such person and one or more Subsidiaries of such person, without regard to whether the voting of such capital stock is subject to a voting agreement or similar Restriction, (ii) a partnership or limited liability company in which such person or a Subsidiary of such person is, at the date of determination, (A) in the case of a partnership, a general partner of such partnership with the power affirmatively to direct the policies and management of such partnership or (B) in the case of a limited liability company, the managing member or, in the absence of a managing member, a member with the power affirmatively to direct the policies and management of such limited liability company or (iii) any other person (other than a corporation) in which such person, a Subsidiary of such person or such person and one or more Subsidiaries of such person, directly or indirectly, at the date of determination thereof, has (A) the power to elect or direct the election of a majority of the members of the governing body of such person (whether or not such power is subject to a voting agreement or similar restriction) or (B) in the absence of such a governing body, a majority ownership interest.
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(b)          Fortress Stockholders, etc.  In anticipation and in recognition that:
 
(1)          the Virgin Trains USA Stockholder or its Permitted Transferees or their Affiliates will be significant stockholders of the Corporation;
 
(2)          directors, officers and/or employees of the Fortress Stockholders and their Affiliates may serve as directors, officers and/or employees of the Virgin Trains USA Entities and their Affiliates;
 
(3)          the Virgin Trains USA Entities and their Affiliates, on the one hand, and the Fortress Stockholders and their Affiliates, on the other hand, may engage in the same, similar or related lines of business and may have an interest in the same, similar or related areas of corporate opportunities;
 
(4)          the Virgin Trains USA Entities and their Affiliates, on the one hand, and the Fortress Stockholders and their Affiliates, on the other hand, may enter into, engage in, perform and consummate contracts, agreements, arrangements, transactions and other business relations; and
 
(5)          the Virgin Trains USA Entities and their Affiliates will derive benefits therefrom and through their continued contractual, corporate and business relations with the Fortress Stockholders and their Affiliates, the provisions of this Article ELEVENTH are set forth to regulate, define and guide, to the fullest extent permitted by Law, the conduct of certain affairs of the Virgin Trains USA Entities and their Affiliates as they may involve the Fortress Stockholders and their Affiliates and their officers and directors, and the powers, rights, duties and liabilities of the Virgin Trains USA Entities and the Fortress Stockholders and their respective Affiliates and their officers, directors and stockholders in connection therewith.
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(c)          Related Business Activities, etc.  Except as the Fortress Stockholders and their Affiliates, on the one hand, and the Virgin Trains USA Entities or their Affiliates, on the other hand, may otherwise agree in writing, the Fortress Stockholders and their Affiliates shall have the right to, and shall have no duty to abstain from exercising such right to, (i) engage or invest, directly or indirectly, in the same, similar or related business activities or lines of business as the Virgin Trains USA Entities or their Affiliates, (ii) do business with any client, customer, vendor or lessor of any of the Virgin Trains USA Entities or their Affiliates or (iii) employ or otherwise engage any officer, director or employee of the Virgin Trains USA Entities or their Affiliates, and, to the fullest extent permitted by Law, the Fortress Stockholders and their Affiliates and officers, directors and employees thereof (subject to Part (e) of this Article ELEVENTH) shall not have or be under any fiduciary duty, duty of loyalty nor duty to act in good faith or in the best interests of the Corporation or its stockholders and shall not be liable to the Corporation or its stockholders for any breach or alleged breach thereof or for any derivation of any personal economic gain by reason of any such activities of the Fortress Stockholders or any of their Affiliates or of any of their officer’s, director’s or employee’s participation therein.
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(d)          Corporate Opportunity, etc.  Except as the Fortress Stockholders and their Affiliates, on the one hand, and the Virgin Trains USA Entities or their Affiliates, on the other hand, may otherwise agree in writing, if the Fortress Stockholders or any of their Affiliates, or any officer, director or employee thereof (subject to the provisions of Part (e) of this Article ELEVENTH), acquires knowledge of a potential transaction or matter that may be a corporate opportunity for the Fortress Stockholders or any of their Affiliates, none of the Virgin Trains USA Entities or their Affiliates or any stockholder thereof shall have an interest in, or expectation that, such corporate opportunity be offered to it or that it be offered an opportunity to participate therein, and any such interest, expectation, offer or opportunity to participate, and any other interest or expectation otherwise due to the Corporation or any other Virgin Trains USA Entity with respect to such corporate opportunity, is hereby renounced by the Corporation on its behalf and on behalf of the other Virgin Trains USA Entities and their respective Affiliates and stockholders in accordance with Section 122(17) of the DGCL. Accordingly, subject to Part (e) of this Article ELEVENTH and except as the Fortress Stockholders or their Affiliates may otherwise agree in writing, (i) none of the Fortress Stockholders or their Affiliates or any officer, director or employee thereof will be under any obligation to present, communicate or offer any such corporate opportunity to the Virgin Trains USA Entities or their Affiliates and (ii) the Fortress Stockholders and any of their Affiliates shall have the right to hold any such corporate opportunity for their own account, or to direct, recommend, sell, assign or otherwise transfer such corporate opportunity to any person or persons other than the Virgin Trains USA Entities and their Affiliates, and, to the fullest extent permitted by Law, the Fortress Stockholders and their respective Affiliates and officers, directors and employees thereof (subject to Part (e) of this Article ELEVENTH) shall not have or be under any fiduciary duty, duty of loyalty or duty to act in good faith or in the best interests of the Corporation, the other Virgin Trains USA Entities and their respective Affiliates and stockholders and shall not be liable to the Corporation, the other Virgin Trains USA Entities or their respective Affiliates and stockholders for any breach or alleged breach thereof or for any derivation of personal economic gain by reason of the fact that the Fortress Stockholders or any of their Affiliates or any of their officers, directors or employees pursues or acquires the corporate opportunity for itself, or directs, recommends, sells, assigns or otherwise transfers the corporate opportunity to another person, or the Fortress Stockholders or any of their Affiliates or any of their officers, directors or employees does not present, offer or communicate information regarding the corporate opportunity to the Virgin Trains USA Entities or their Affiliates.
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(e)          Directors, Officers and Employees.  Except as the Fortress Stockholders and their Affiliates, on the one hand, and the Virgin Trains USA Entities or their Affiliates, on the other hand, may otherwise agree in writing, in the event that a director, officer or employee of any of the Virgin Trains USA Entities or their Affiliates who is also a director, officer or employee of any of the Fortress Stockholders or their Affiliates acquires knowledge of a potential transaction or matter that may be a corporate opportunity or is offered a corporate opportunity, if (i) such person acts in good faith and (ii) such knowledge of such potential transaction or matter was not obtained solely in connection with, or such corporate opportunity was not offered to such person solely in, such person’s capacity as director or officer of any of the Virgin Trains USA Entities or their Affiliates, then (A) such director, officer or employee, to the fullest extent permitted by Law, (1) shall be deemed to have fully satisfied and fulfilled such person’s fiduciary duty to the Corporation, the other Virgin Trains USA Entities and their respective Affiliates and stockholders with respect to such corporate opportunity, (2) shall not have or be under any fiduciary duty to the Corporation, the other Virgin Trains USA Entities and their respective Affiliates and stockholders and shall not be liable to the Corporation, the other Virgin Trains USA Entities or their respective Affiliates and stockholders for any breach or alleged breach thereof by reason of the fact that any of the Fortress Stockholders or their Affiliates pursues or acquires the corporate opportunity for itself, or directs, recommends, sells, assigns or otherwise transfers the corporate opportunity to another person, or any of the Fortress Stockholders or their Affiliates or such director, officer or employee does not present, offer or communicate information regarding the corporate opportunity to the Virgin Trains USA Entities or their Affiliates, (3) shall be deemed to have acted in good faith and in a manner such person reasonably believes to be in, and not opposed to, the best interests of the Corporation and its stockholders for the purposes of Article SIXTH and the other provisions of this Certificate of Incorporation and (4) shall not have any duty of loyalty to the Corporation, the other Virgin Trains USA Entities and their respective Affiliates and stockholders or any duty not to derive any personal benefit therefrom and shall not be liable to the Corporation, the other Virgin Trains USA Entities or their respective Affiliates and stockholders for any breach or alleged breach thereof for purposes of Article SIXTH and the other provisions of this Certificate of Incorporation as a result thereof and (B) such potential transaction or matter that may be a corporate opportunity, or the corporate opportunity, shall belong to the applicable Fortress Stockholders or respective Affiliates thereof (and not to any of the Virgin Trains USA Entities or Affiliates thereof).
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(f)          Agreements with Fortress Stockholders.  The Virgin Trains USA Entities and their Affiliates may from time to time enter into and perform one or more agreements (or modifications or supplements to pre-existing agreements) with the Fortress Stockholders and their respective Affiliates pursuant to which the Virgin Trains USA Entities and their Affiliates, on the one hand, and the Fortress Stockholders and their respective Affiliates, on the other hand, agree to engage in transactions of any kind or nature with each other and/or agree to compete, or to refrain from competing or to limit or restrict their competition, with each other, including to allocate and to cause their respective directors, officers and employees (including any who are directors, officers or employees of both) to allocate corporate opportunities between or to refer corporate opportunities to each other. Subject to Part (e) of this Article ELEVENTH, except as otherwise required by Law, and except as the Fortress Stockholders and their Affiliates, on the one hand, and the Virgin Trains USA Entities or their Affiliates, on the other hand, may otherwise agree in writing, no such agreement, or the performance thereof by the Virgin Trains USA Entities and their Affiliates, or the Fortress Stockholders or their Affiliates, shall be considered contrary to or inconsistent with any fiduciary duty to the Corporation, any other Virgin Trains USA Entity or their respective Affiliates and stockholders of any director or officer of the Corporation, any other Virgin Trains USA Entity or any Affiliate thereof who is also a director, officer or employee of any of the Fortress Stockholders or their Affiliates or to any stockholder thereof. Subject to Part (e) of this Article ELEVENTH, to the fullest extent permitted by Law, and except as the Fortress Stockholders or their Affiliates, on the one hand, and the Virgin Trains USA Entities or their Affiliates, on the other hand, may otherwise agree in writing, none of the Fortress Stockholders or their Affiliates shall have or be under any fiduciary duty to refrain from entering into any agreement or participating in any transaction referred to in this Part (f) of Article ELEVENTH and no director, officer or employee of the Corporation, any other Virgin Trains USA Entity or any Affiliate thereof who is also a director, officer or employee of the Fortress Stockholders or their Affiliates shall have or be under any fiduciary duty to the Corporation, the other Virgin Trains USA Entities and their respective Affiliates and stockholders to refrain from acting on behalf of the Fortress Stockholders or their Affiliates in respect of any such agreement or transaction or performing any such agreement in accordance with its terms. Any Director of the Corporation who is also a director of a Fortress Stockholder or Affiliate thereof may be counted in determining the presence of a quorum at a meeting of the Board of Directors or of a committee that authorizes the agreement or transaction.
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(g)          Ambiguity.  Nothing contained in this Article ELEVENTH amends or modifies, or will amend or modify, in any respect, any written contractual arrangement between the Fortress Stockholders or any of their Affiliates, on the one hand and the Virgin Trains USA Entities or any of their Affiliates, on the other hand.
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(h)          Application of Provision, etc.  This Article ELEVENTH shall apply as set forth above except as otherwise provided by Law. It is the intention of this Article ELEVENTH to take full advantage of statutory amendments, the effect of which may be to specifically authorize or approve provisions such as this Article ELEVENTH. No alteration, amendment, termination, expiration or repeal of this Article ELEVENTH nor the adoption of any provision of this Certificate of Incorporation inconsistent with this Article ELEVENTH shall eliminate, reduce, apply to or have any effect on the protections afforded hereby to any director, officer, employee or stockholder of the Virgin Trains USA Entities or their Affiliates for or with respect to any investments, activities or opportunities of which such director, officer, employee or stockholder becomes aware prior to such alteration, amendment, termination, expiration, repeal or adoption, or any matters occurring, or any cause of action, suit or claim that, but for this Article ELEVENTH, would accrue or arise, prior to such alteration, amendment, termination, expiration, repeal or adoption.
 
(i)           Deemed Notice. Any person or entity purchasing or otherwise acquiring any interest in any shares of the capital stock of the Corporation shall be deemed to have notice of and to have consented to the provisions of this Article ELEVENTH.
 
(j)           Chairman or Chairman of a Committee. For purposes of this Article ELEVENTH, a director who is chairman of the Board of Directors or chairman of a committee of the Board of Directors is not deemed an officer of the Corporation by reason of holding that position unless that person is a full-time employee of the Corporation.
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(k)          Severability. If this Article ELEVENTH or any portion hereof shall be invalidated or held to be unenforceable on any ground by any court of competent jurisdiction, the decision of which shall not have been reversed on appeal, this Article ELEVENTH shall be deemed to be modified to the minimum extent necessary to avoid a violation of law and, as so modified, this Article ELEVENTH and the remaining provisions hereof shall remain valid and enforceable in accordance with their terms to the fullest extent permitted by law.
 
(l)           Neither the alteration, amendment or repeal of this Article ELEVENTH nor the adoption of any provision of this Certificate of Incorporation inconsistent with this Article ELEVENTH shall eliminate or reduce the effect of this Article ELEVENTH in respect of any matter occurring, or any cause of action, suit or claim that, but for this Article ELEVENTH, would accrue or arise, prior to such alteration, amendment, repeal or adoption. Following the expiration of this Article ELEVENTH, any contract, agreement, arrangement or transaction involving a corporate opportunity shall not by reason thereof result in any breach of any fiduciary duty or duty of loyalty or failure to act in good faith or in the best interests of the Corporation or derivation of any improper benefit or personal economic gain, but shall be governed by the other provisions of this Certificate of Incorporation, the Bylaws, the DGCL and other applicable law.
 
TWELFTH:          (a) The Corporation expressly elects not to be governed by Section 203 of DGCL.
 
(b)          Notwithstanding Part (a) of this Article TWELFTH, the Corporation shall not engage in any business combination (as defined below), at any point in time at which the Common Stock is registered under Section 12(b) or 12(g) of the Securities Exchange Act of 1934, with any interested stockholder (as defined below) for a period of three (3) years following the time that such stockholder became an interested stockholder, unless:
 
(1)          Prior to such time, the Board of Directors approved either the business combination or the transaction which resulted in the stockholder becoming an interested stockholder; or
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(2)          Upon consummation of the transaction which resulted in the stockholder becoming an interested stockholder, the interested stockholder owned at least 85% of the voting stock (as defined below) of the Corporation outstanding at the time the transaction commenced, excluding for purposes of determining the voting stock outstanding (but not the outstanding voting stock owned by the interested stockholder) those shares owned (i) by persons who are directors and also officers and (ii) employee stock plans in which employee participants do not have the right to determine confidentially whether shares held subject to the plan will be tendered in a tender or exchange offer; or
 
(3)          At or subsequent to such time, the business combination is approved by the Board of Directors and authorized at an annual or special meeting of stockholders, and not by written consent, by the affirmative vote of at least 66 2/3% of the outstanding voting stock of the Corporation which is not owned by the interested stockholder.
 
(c)            For purposes of this Article TWELFTH, references to:
 
(1)          affiliate” means a person that directly, or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with, another person.
 
(2)          associate,” when used to indicate a relationship with any person, means: (i) Any corporation, partnership, unincorporated association or other entity of which such person is a director, officer or partner or is, directly or indirectly, the owner of 20% or more of any class of voting stock; (ii) any trust or other estate in which such person has at least a 20% beneficial interest or as to which such person serves as trustee or in a similar fiduciary capacity; and (iii) any relative or spouse of such person, or any relative of such spouse, who has the same residence as such person.
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(3)          business combination,” when used in reference to the Corporation and any interested stockholder of the Corporation, means:
 
(i)           Any merger or consolidation of the Corporation or any direct or indirect majority-owned subsidiary of the Corporation with (A) the interested stockholder, or (B) any other corporation, partnership, unincorporated association or other entity if the merger or consolidation is caused by the interested stockholder and as a result of such merger or consolidation Part (b) of this Article TWELFTH is not applicable to the surviving entity;
 
(ii)          Any sale, lease, exchange, mortgage, pledge, transfer or other disposition (in one transaction or a series of transactions), except proportionately as a stockholder of the Corporation, to or with the interested stockholder, whether as part of a dissolution or otherwise, of assets of the Corporation or of any direct or indirect majority-owned subsidiary of the Corporation which assets have an aggregate market value equal to 10% or more of either the aggregate market value of all the assets of the Corporation determined on a consolidated basis or the aggregate market value of all the outstanding stock of the Corporation;
 
(iii)         Any transaction which results in the issuance or transfer by the Corporation or by any direct or indirect majority−owned subsidiary of the Corporation of any stock of the Corporation or of such subsidiary to the interested stockholder, except: (A) pursuant to the exercise, exchange or conversion of securities exercisable for, exchangeable for or convertible into stock of the Corporation or any such subsidiary which securities were outstanding prior to the time that the interested stockholder became such; (B) pursuant to a merger under Section 251(g) of the DGCL; (C) pursuant to a dividend or distribution paid or made, or the exercise, exchange or conversion of securities exercisable for, exchangeable for or convertible into stock of the Corporation or any such subsidiary which security is distributed, pro rata to all holders of a class or series of stock of the Corporation subsequent to the time the interested stockholder became such; (D) pursuant to an exchange offer by the Corporation to purchase stock made on the same terms to all holders of said stock; or (E) any issuance or transfer of stock by the Corporation; provided, however, that in no case under items (C)−(E) of this subsection (iii) shall there be an increase in the interested stockholder’s proportionate share of the stock of any class or series of the Corporation or of the voting stock of the Corporation;
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(iv)         Any transaction involving the Corporation or any direct or indirect majority-owned subsidiary of the Corporation which has the effect, directly or indirectly, of increasing the proportionate share of the stock of any class or series, or securities convertible into the stock of any class or series, of the Corporation or of any such subsidiary which is owned by the interested stockholder, except as a result of immaterial changes due to fractional share adjustments or as a result of any purchase or redemption of any shares of stock not caused, directly or indirectly, by the interested stockholder; or
 
(v)          Any receipt by the interested stockholder of the benefit, directly or indirectly (except proportionately as a stockholder of the Corporation), of any loans, advances, guarantees, pledges, or other financial benefits (other than those expressly permitted in subsections (i)−(iv) above) provided by or through the Corporation or any direct or indirect majority-owned subsidiary.
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(4)          control,” including the terms “controlling,” “controlled by” and “under common control with,” means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a person, whether through the ownership of voting stock, by contract, or otherwise. A person who is the owner of 20% or more of the outstanding voting stock of the Corporation, partnership, unincorporated association or other entity shall be presumed to have control of such entity, in the absence of proof by a preponderance of the evidence to the contrary. Notwithstanding the foregoing, a presumption of control shall not apply where such person holds voting stock, in good faith and not for the purpose of circumventing this Section, as an agent, bank, broker, nominee, custodian or trustee for one or more owners who do not individually or as a group have control of such entity.
 
(5)          Fortress Direct Transferee” means any person that acquires (other than in a registered public offering) directly from Fortress or any of its affiliates or successors or any “group”, or any member of any such group, to which such persons are a party under Rule 13d−5 of the Exchange Act beneficial ownership of 15% or more of the then outstanding voting stock of the Corporation.
 
(6)          Fortress Indirect Transferee” means any person that acquires (other than in a registered public offering) directly from any Fortress Direct Transferee or any other Fortress Indirect Transferee beneficial ownership of 15% or more of the then outstanding voting stock of the Corporation.
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(7)          interested stockholder” means any person (other than the Corporation or any direct or indirect majority-owned subsidiary of the Corporation) that (i) is the owner of 15% or more of the outstanding voting stock of the Corporation, or (ii) is an affiliate or associate of the Corporation and was the owner of 15% or more of the outstanding voting stock of the Corporation at any time within the three (3) year period immediately prior to the date on which it is sought to be determined whether such person is an interested stockholder, and the affiliates and associates of such person; provided, however, that “interested stockholder” shall not include (A) any Fortress Stockholder, any Fortress Direct Transferee, any Fortress Indirect Transferee or any of their respective affiliates or successors or any “group”, or any member of any such group, to which such persons are a party under Rule 13d−5 of the Exchange Act, or (B) any person whose ownership of shares in excess of the 15% limitation set forth herein is the result of any action taken solely by the Corporation, provided that, solely with respect to clause (B) and not with respect to clause (A), such person shall be an interested stockholder if thereafter such person acquires additional shares of voting stock of the corporation, except as a result of further corporate action not caused, directly or indirectly, by such person. For the purpose of determining whether a person is an interested stockholder, the voting stock of the Corporation deemed to be outstanding shall include stock deemed to be owned by the person through application of the definition of “owner” below but shall not include any other unissued stock of the Corporation which may be issuable pursuant to any agreement, arrangement or understanding, or upon exercise of conversion rights, warrants or options, or otherwise.
 
(8)          person” means any individual, corporation, partnership, unincorporated association or other entity.
 
(9)          stock” means, with respect to any corporation, capital stock and, with respect to any other entity, any equity interest.
 
(10)        voting stock” means stock of any class or series entitled to vote generally in the election of directors.
 
(11)          owner,” including the terms “own” and “owned,” when used with respect to any stock, means a person that individually or with or through any of its affiliates or associates:
 
(i)           Beneficially owns such stock, directly or indirectly; or
29

(ii)          Has (A) the right to acquire such stock (whether such right is exercisable immediately or only after the passage of time) pursuant to any agreement, arrangement or understanding, or upon the exercise of conversion rights, exchange rights, warrants or options, or otherwise; provided, however, that a person shall not be deemed the owner of stock tendered pursuant to a tender or exchange offer made by such person or any of such person’s affiliates or associates until such tendered stock is accepted for purchase or exchange; or (B) the right to vote such stock pursuant to any agreement, arrangement or understanding; provided, however, that a person shall not be deemed the owner of any stock because of such person’s right to vote such stock if the agreement, arrangement or understanding to vote such stock arises solely from a revocable proxy or consent given in response to a proxy or consent solicitation made to ten (10) or more persons; or
 
(iii)         Has any agreement, arrangement or understanding for the purpose of acquiring, holding, voting (except voting pursuant to a revocable proxy or consent as described in item (B) of subsection (ii) above), or disposing of such stock with any other person that beneficially owns, or whose affiliates or associates beneficially own, directly or indirectly, such stock.
30

THIRTEENTH:  The Corporation reserves the right to amend, alter or repeal any provision contained in this Certificate of Incorporation in the manner now or hereafter prescribed in this Certificate of Incorporation, the Bylaws or the DGCL, and all rights herein conferred upon stockholders are granted subject to such reservation; provided, however, that, notwithstanding any other provision of this Certificate of Incorporation (and in addition to any other vote that may be required by law), the affirmative vote of the holders of at least eighty percent (80%) of the voting power of the then issued and outstanding shares of capital stock of the Corporation entitled to vote thereon shall be required to amend, alter or repeal, or to adopt any provision as part of this Certificate of Incorporation inconsistent with the purpose and intent of Articles FIFTH, EIGHTH, TENTH or ELEVENTH of this Certificate of Incorporation or this Article THIRTEENTH.
31

FOURTEENTH:  Unless the Corporation consents in writing to the selection of an alternative forum (an “Alternative Forum Consent”), the Court of Chancery of the State of Delaware shall be the sole and exclusive forum for (i) any derivative action or proceeding brought on behalf of the Corporation, (ii) any action asserting a claim of breach of a fiduciary duty owed by any director, officer, stockholder, employee or agent of the Corporation to the Corporation or the Corporation's stockholders, (iii) any action asserting a claim against the Corporation or any director, officer, stockholder, employee or agent of the Corporation arising out of or relating to any provision of the DGCL or this Certificate of Incorporation or Bylaws or (iv) any action asserting a claim against the Corporation or any director, officer, stockholder, employee or agent of the Corporation governed by the internal affairs doctrine of the State of Delaware; provided, however, that, in the event that the Court of Chancery of the State of Delaware lacks subject matter jurisdiction over any such action or proceeding, the sole and exclusive forum for such action or proceeding shall be another state or federal court located within the State of Delaware, in each such case, unless the Court of Chancery (or such other state or federal court located within the State of Delaware, as applicable) has dismissed a prior action by the same plaintiff asserting the same claims because such court lacked personal jurisdiction over an indispensable party named as a defendant therein.  Failure to enforce the foregoing provisions would cause the Corporation irreparable harm and the Corporation shall be entitled to equitable relief, including injunctive relief and specific performance, to enforce the foregoing provisions.  Any person or entity purchasing or otherwise acquiring any interest in shares of capital stock of the Corporation shall be deemed to have notice of and consented to the provisions of this Article FOURTEENTH.  The existence of any prior Alternative Forum Consent shall not act as a waiver of the Corporation’s ongoing consent right as set forth above in this Article FOURTEENTH with respect to any current or future actions or claims.
 
FIFTEENTH:  The Corporation is to have perpetual existence.

[Signature page follows]
32


 
IN WITNESS WHEREOF, the Corporation has caused this Certificate of Incorporation to be executed on its behalf this          day of               , 2019.
 
 
 
 
  Virgin Trains USA INC.   
 
 
 
 
  By:    
 
 
Name:
Title:
 
 
 

EX-3.2 4 s002218x10_ex3-2.htm EXHIBIT 3.2

Exhibit 3.2

BYLAWS
 
OF
 
VIRGIN TRAINS USA INC.
 
A Delaware Corporation
  
Effective            , 2019

TABLE OF CONTENTS
 
   
Page
   
Article I OFFICES
2
     
Section 1.1
Registered Office
2
Section 1.2
Other Offices
2
   
Article II MEETINGS OF STOCKHOLDERS
3
     
Section 2.1
Place of Meetings
3
Section 2.2
Annual Meetings
3
Section 2.3
Special Meetings
3
Section 2.4
Notice
4
Section 2.5
Adjournments
5
Section 2.6
Waiver of Notice
5
Section 2.7
Quorum
6
Section 2.8
Organization
6
Section 2.9
Voting
7
Section 2.10
Proxies
8
Section 2.11
Consent of Stockholders in Lieu of Meeting
9
Section 2.12
List of Stockholders Entitled to Vote
10
Section 2.13
Record Date
11
Section 2.14
Stock Ledger
13
Section 2.15
Meetings by Remote Communications
13
Section 2.16
Conduct of Meetings
14
Section 2.17
Inspectors of Election
15
Section 2.18
Nature of Business at Meetings of Stockholders
16
Section 2.19
Nomination of Directors
20
Section 2.20
Requirement to Appear
27
   
Article III DIRECTORS
28
     
Section 3.1
Number and Election of Directors
28
Section 3.2
Vacancies
30
Section 3.3
Duties and Powers
30
Section 3.4
Meetings
31
Section 3.5
Organization
32
Section 3.6
Resignations and Removals of Directors
33
Section 3.7
Quorum
33
Section 3.8
Action at Meeting
34
Section 3.9
Actions of the Board by Written Consent
34

i

Section 3.10
Meetings by Means of Conference Telephone
35
Section 3.11
Rules and Regulations
35
Section 3.12
Committees
36
Section 3.13
Compensation
40
Section 3.14
Interested Directors
40
Section 3.15
Chairman of the Board of Directors
41
   
Article IV OFFICERS
42
     
Section 4.1
General
42
Section 4.2
Election
42
Section 4.3
Salaries of Elected Officers
42
Section 4.4
Voting Securities Owned by the Corporation
43
Section 4.5
Chief Executive Officer.
43
Section 4.6
President
44
Section 4.7
Vice Presidents
45
Section 4.8
Secretary
45
Section 4.9
Chief Financial Officer.
46
Section 4.10
Other Officers.
47
Section 4.11
Resignation
47
Section 4.12
Removal
47
   
Article V STOCK
47
     
Section 5.1
Form of Certificates
47
Section 5.2
Signatures
48
Section 5.3
Lost Certificates
48
Section 5.4
Transfers
49
Section 5.5
Record Owners
49
Section 5.6
Transfer and Registry Agents
49
Section 5.7
Regulations
50
   
Article VI NOTICES
50
     
Section 6.1
Notices
50
Section 6.2
Waivers of Notice
51
   
Article VII GENERAL PROVISIONS
52
     
Section 7.1
Dividends
52
Section 7.2
Disbursements
53
Section 7.3
Fiscal Year
53
Section 7.4
Corporate Seal
53
Section 7.5
Records to be Kept.
54
Section 7.6
Execution of Instruments
54
Section 7.7
Certificate of Incorporation
54
ii

Section 7.8
Construction
55
   
Article VIII INDEMNIFICATION
55
     
Section 8.1
Power to Indemnify in Actions, Suits or Proceedings other than Those by or in the Right of the Corporation
55
Section 8.2
Power to Indemnify in Actions, Suits or Proceedings by or in the Right of the Corporation
56
Section 8.3
Authorization of Indemnification
57
Section 8.4
Good Faith Defined
58
Section 8.5
Indemnification by a Court
59
Section 8.6
Expenses Payable in Advance
60
Section 8.7
Non-exclusivity of Indemnification and Advancement of Expenses
61
Section 8.8
Insurance
62
Section 8.9
Certain Definitions
63
Section 8.10
Survival of Indemnification and Advancement of Expenses
63
Section 8.11
Contractual Rights
63
Section 8.12
Limitation on Indemnification
63
Section 8.13
Indemnification of Employees and Agents
64
Section 8.14
Severability
64
   
Article IX AMENDMENTS
64
     
Section 9.1
Amendments
64
   
Article X EMERGENCY BYLAWS
66
     
Section 10.1
Emergency Board of Directors
66
Section 10.2
Membership of Emergency Board of Directors
66
Section 10.3
Powers of the Emergency Board
67
Section 10.4
Stockholders’ Meeting
67
Section 10.5
Emergency Corporate Headquarters
67
Section 10.6
Limitation of Liability
67
Section 10.7
Amendments; Repeal
67
     
Article XI DEFINITIONS
68
     
Section 11.1
Defined terms
68
iii

BYLAWS

OF

VIRGIN TRAINS USA INC.

(hereinafter called the “Corporation”)
 
Adopted by the Board of Directors of Virgin Trains USA Inc. on               , 2019 (the “Bylaws”).
 
ARTICLE I

OFFICES
 
Section 1.1   Registered Office. The registered office of the Corporation shall be in the City of Wilmington, State of Delaware.
 
Section 1.2    Other Offices. The Corporation may also have offices at such other places, both within and without the State of Delaware, as the Board of Directors of the Corporation (the “Board of Directors”) may from time to time determine.
2

ARTICLE II
 
MEETINGS OF STOCKHOLDERS
 
Section 2.1     Place of Meetings. Meetings of the stockholders for the election of directors or for any other purpose shall be held at such time and place, either within or outside the State of Delaware, as shall be designated from time to time by the Board of Directors. The Board of Directors may, in its discretion, determine that a meeting of the stockholders shall not be held at any place, but may instead be held solely by means of remote communication in the manner authorized by the General Corporation Law of the State of Delaware (the “DGCL”).
 
Section 2.2    Annual Meetings. The Annual Meeting of Stockholders for the election of directors shall be held on such date and at such time as shall be designated from time to time by the Board of Directors. Any other proper business may be transacted at the Annual Meeting of Stockholders.
 
Section 2.3    Special Meetings. Unless otherwise required by law or by the certificate of incorporation of the Corporation, as amended and/or restated from time to time (the “Certificate of Incorporation”), Special Meetings of Stockholders, for any purpose or purposes, may be called at any time by either (i) the Chairman of the Board of Directors, if there be one, or (ii) the Chief Executive Officer, if there be one, and shall be called by any such officer at the request in writing of (i) the Board of Directors, (ii) a committee of the Board of Directors that has been duly designated by the Board of Directors and whose powers include the authority to call such meetings or (iii) at any time the Fortress Stockholders, collectively, beneficially own at least twenty percent (20%) of the voting power of the then issued and outstanding shares of capital stock of the Corporation entitled to vote, any Fortress Stockholder. Such request shall state the purpose or purposes of the proposed meeting. If at any time the Fortress Stockholders do not, collectively, beneficially own at least twenty percent (20%) of the voting power of the then issued and outstanding shares of capital stock of the Corporation entitled to vote, then the ability of the stockholders to call or cause a Special Meeting of Stockholders to be called is hereby specifically denied. At a Special Meeting of Stockholders, only such business shall be conducted as shall be specified in the notice of meeting (or any supplement thereto).
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Section 2.4    Notice. Except as otherwise provided by law, these Bylaws or the Certificate of Incorporation, whenever stockholders are required or permitted to take any action at a meeting, a written notice of the meeting shall be given in accordance with Section 6.1 hereof, which shall state the place, if any, date and hour of the meeting, the means of remote communications, if any, by which stockholders and proxyholders may be deemed to be present in person and vote at such meeting, and, in the case of a Special Meeting of Stockholders, the purpose or purposes for which the meeting is called. Unless otherwise required by law, written notice of any meeting shall be given not less than ten (10) nor more than sixty (60) days before the date of the meeting to each stockholder entitled to notice of and to vote at such meeting, except that, where any other minimum or maximum notice period for any action to be taken at such meeting is required under the DGCL, then such other minimum or maximum notice period shall control.
4

Section 2.5    Adjournments. Any meeting of the stockholders may be adjourned from time to time to reconvene at the same or some other place, and notice need not be given of any such adjourned meeting if the time and place, if any, thereof and the means of remote communications, if any, by which stockholders and proxyholder may be deemed to be present in person and vote at such adjourned meeting thereof are announced at the meeting at which the adjournment is taken. At the adjourned meeting, the Corporation may transact any business that might have been transacted at the original meeting. If the adjournment is for more than thirty (30) days, or if after the adjournment a new record date is fixed for the adjourned meeting, notice of the adjourned meeting in accordance with the requirements of Section 2.4 hereof shall be given to each stockholder of record entitled to notice of and to vote at the meeting.
 
Section 2.6    Waiver of Notice . Notice of any meeting of stockholders shall not be required to be given to any stockholder who shall attend such meeting in person or by proxy and shall not, at the beginning of such meeting, object to the transaction of any business because the meeting has not been lawfully called or convened, or who shall, either before or after the meeting, submit a signed waiver of notice or waive notice by electronic transmission, in person or by proxy. To the extent permitted by law, a stockholder’s attendance at a meeting, in person or by proxy, waives objection to consideration of a particular matter at the meeting that is not within the purpose or purposes described in the meeting notice, unless the stockholder objects to considering the matter when it is presented. Any stockholder so waiving notice of a meeting shall be bound by the proceedings of such meeting in all respects as if due notice thereof had been given.
5

Section 2.7    Quorum. Unless otherwise required by applicable law or the Certificate of Incorporation, the holders of a majority of the Corporation’s capital stock issued and outstanding and entitled to vote thereat, present in person or represented by proxy, shall constitute a quorum at all meetings of the stockholders for the transaction of business. Where a separate vote by one or more series or classes is required, a majority in voting power of the outstanding shares of such one or more series or classes present in person or by proxy shall constitute a quorum entitled to take action with respect to that vote on that matter. A quorum, once established, shall not be broken by the withdrawal of enough votes to leave less than a quorum. If, however, such quorum shall not be present or represented at any meeting of the stockholders, the stockholders entitled to vote thereat, present in person or represented by proxy, shall have power to adjourn the meeting from time to time, in the manner provided in Section 2.5 hereof, until a quorum shall be present or represented.
 
Section 2.8    Organization. Such person as the Chairman of the Board may have designated or, in the absence of such person, such person as the Board of Directors may have designated or, in the absence of such person, the Chief Executive Officer, or in his or her absence, such person as may be chosen by the holders of a majority of the Corporation’s shares of capital stock issued and outstanding and entitled to vote who are present, in person or by proxy, shall call to order any meeting of the stockholders and act as chairman of the meeting. In the absence of the Secretary, the secretary of the meeting shall be such person as the chairman of the meeting appoints.
6

Section 2.9    Voting. Unless otherwise required by law, the Certificate of Incorporation or these Bylaws or permitted by the rules of any stock exchange on which the Corporation’s shares are listed and traded, any question brought before any meeting of the stockholders, other than the election of directors, shall be decided by the vote of the holders of a majority of the total number of votes of the Corporation’s capital stock present or represented at the meeting and entitled to vote on such question, voting as a single class. Unless otherwise provided in the Certificate of Incorporation, and subject to Section 2.13 of this Article II, each stockholder present or represented at a meeting of the stockholders shall be entitled to cast one (1) vote for each share of the capital stock entitled to vote thereat held by such stockholder. Such votes may be cast in person or by proxy as provided in Section 2.10 of this Article II. The Board of Directors, in its discretion, or the officer of the Corporation presiding at a meeting of the stockholders, in such officer’s discretion, may require that any votes cast at such meeting shall be cast by written ballot.
7

Section 2.10    Proxies. Each stockholder entitled to vote at a meeting of the stockholders, or to express consent or dissent to corporate action in writing without a meeting, may authorize another person or persons to act for such stockholder as proxy, but no such proxy shall be voted upon after three years from its date, unless such proxy provides for a longer period. Any proxy to be used at a meeting of stockholders must be filed with the Secretary or his or her representative at or before the time of the meeting. Except as otherwise limited therein, proxies shall entitle the persons authorized thereby with respect to a meeting of stockholders to vote at any adjournment of such meeting but shall not be valid after final adjournment of such meeting. A proxy with respect to stock held in the name of two or more persons shall be valid if executed by one of them if the person signing appears to be acting on behalf of all the co-owners unless prior to exercise of the proxy the Corporation receives a specific written notice to the contrary from any one of them. Subject to the provisions of Section 212 of the DGCL and to any express limitation on the proxy’s authority provided in the appointment form, the Corporation is entitled to accept the proxy’s vote or other action as that of the stockholder making the appointment. Without limiting the manner in which a stockholder may authorize another person or persons to act for such stockholder as proxy, the following shall constitute a valid means by which a stockholder may grant such authority:
  
(i)          A stockholder may execute a writing authorizing another person or persons to act for such stockholder as proxy. Execution may be accomplished by the stockholder or such stockholder’s authorized officer, director, employee or agent signing such writing or causing such person’s signature to be affixed to such writing by any reasonable means, including, but not limited to, by facsimile signature.
 
   (ii)          A stockholder may authorize another person or persons to act for such stockholder as proxy by transmitting or authorizing the transmission of a telegram, cablegram or other means of electronic transmission to the person who will be the holder of the proxy or to a proxy solicitation firm, proxy support service organization or like agent duly authorized by the person who will be the holder of the proxy to receive such transmission, provided that any such telegram, cablegram or other means of electronic transmission must either set forth or be submitted with information from which it can be determined that such transmission was authorized by the stockholder. If it is determined that such telegrams, cablegrams or other means of electronic transmission are valid, the inspectors or, if there are no inspectors, such other persons making that determination shall specify the information on which they relied.
8

Any copy, facsimile telecommunication or other reliable reproduction of the writing or transmission authorizing another person or persons to act as proxy for a stockholder may be substituted or used in lieu of the original writing, telegram, cablegram or transmission for any and all purposes for which the original writing, telegram or cablegram could be used; provided, however, that such copy, facsimile telecommunication or other reproduction shall be a complete reproduction of the entire original writing or transmission.
 
Section 2.11    Consent of Stockholders in Lieu of Meeting. At any time the Fortress Stockholders, collectively, beneficially own at least twenty percent (20%) of the voting power of the then issued and outstanding shares of capital stock of the Corporation entitled to vote generally in the election of directors, any action required or permitted to be taken by the stockholders of the Corporation at any annual or special meeting of stockholders of the Corporation may be taken without a meeting, without prior notice and without a vote, if a consent or consents in writing, setting forth the action so taken, shall be signed by stockholders holding at least the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote with respect to the subject matter thereof were present and voted, and shall be delivered to the Corporation by delivery to its registered office in the State of Delaware, its principal place of business, or an officer or agent of the Corporation having custody of the book in which proceedings of meetings of the stockholders are recorded, or by certified or registered mail, return receipt requested.
9

Section 2.12    List of Stockholders Entitled to Vote. In accordance with Section 219 of the DGCL, the officer of the Corporation who has charge of the stock ledger of the Corporation shall prepare and make available, at least ten (10) days before every meeting of the stockholders, a complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each stockholder and the number of shares registered in the name of each stockholder; provided, however, that if the record date for determining the stockholders entitled to vote is less than ten (10) days before the meeting date, the list shall reflect the stockholders entitled to vote as of the tenth (10th) day before the meeting date. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting, during ordinary business hours, for a period of at least ten (10) days prior to the meeting either (i) on a reasonably accessible electronic network, provided that the information required to gain access to such list is provided with the notice of the meeting, or (ii) during ordinary business hours, at the principal place of business of the Corporation. In the event that the Corporation determines to make the list available on an electronic network, the Corporation may take reasonable steps to ensure that such information is available only to stockholders of the Corporation. If the meeting is to be held at a place, then the list shall be produced and kept at the time and place of the meeting during the whole time thereof, and may be inspected by any stockholder who is present. If the meeting is to be held solely by means of remote communication, then the list shall also be open to the examination of any stockholder during the whole time of the meeting on a reasonably accessible electronic network, and the information required to access such list shall be provided with the notice of the meeting.
10

Section 2.13    Record Date

(a)       In order that the Corporation may determine the stockholders entitled to notice of or to vote at any meeting of the stockholders or any adjournment thereof, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board of Directors, and which record date shall not be more than sixty (60) nor less than ten (10) days before the date of such meeting. If no record date is fixed by the Board of Directors, the record date for determining stockholders entitled to notice of or to vote at a meeting of the stockholders shall be at the close of business on the day immediately preceding the day on which notice is given, or, if notice is waived, at the close of business on the day immediately preceding the day on which the meeting is held. A determination of stockholders of record entitled to notice of or to vote at a meeting of the stockholders shall apply to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned meeting. In such case, the Board of Directors shall also fix as the record date for stockholders entitled to notice of such adjourned meeting the same or an earlier date as that fixed for determination of stockholders entitled to vote in accordance with the foregoing provisions of this clause (a) at the adjourned meeting.
11

(b)      In order that the Corporation may determine the stockholders entitled to consent to corporate action in writing without a meeting, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board of Directors, and which record date shall not be more than ten (10) days after the date upon which the resolution fixing the record date is adopted by the Board of Directors. If no record date has been fixed by the Board of Directors, the record date for determining stockholders entitled to consent to corporate action in writing without a meeting, when no prior action by the Board of Directors is required by applicable law, shall be the first date on which a signed written consent setting forth the action taken or proposed to be taken is delivered to the Corporation by delivery to its registered office in the State of Delaware, its principal place of business, or an officer or agent of the Corporation having custody of the book in which proceedings of meetings of the stockholders are recorded. Delivery made to the Corporation’s registered office shall be by hand or by certified or registered mail, return receipt requested. If no record date has been fixed by the Board of Directors and prior action by the Board of Directors is required by applicable law, the record date for determining stockholders entitled to consent to corporate action in writing without a meeting shall be at the close of business on the day on which the Board of Directors adopts the resolution taking such prior action.
 
(c)       Any stockholder’s notice requesting the setting of a record date pursuant to clause (b) of this Section 2.13 shall be valid and effective only if received by the Secretary at the principal executive offices of the Corporation and only if it contains the information set forth in Section 2.19 (and, if such notice relates to the nomination of any person for election or re-election as a director of the Corporation, the questionnaire, representation and agreement required by Section 2.19 must also be delivered with and at the same time as such notice). The Corporation may require any proposed nominee to furnish such other information as it may reasonably require to determine the eligibility of such proposed nominee to serve as a director of the Corporation. In addition, a stockholder requesting a record date for proposed stockholder action by consent shall promptly provide any other information reasonably requested by the Corporation.
12

Section 2.14     Stock Ledger. The stock ledger of the Corporation shall be the only evidence as to who are the stockholders entitled to examine the stock ledger, the list required by Section 2.12 of this Article II or the books of the Corporation, or to vote in person or by proxy at any meeting of the stockholders.
 
Section 2.15     Meetings by Remote Communications. Unless otherwise provided in the Certificate of Incorporation, if authorized by the Board of Directors, any annual or special meeting of stockholders, whether such meeting is to be held at a designated place or by means of remote communication, may be conducted in whole or in part by means of remote communication. If authorized by the Board of Directors, and subject to such guidelines and procedures as the Board of Directors may adopt, stockholders and proxyholders not physically present at a meeting of stockholders may, by means of remote communications: (a) participate in such meeting of stockholders; and (b) be deemed present in person and vote at such meeting of stockholders whether such meeting is to be held at a designated place or solely by means of remote communication, provided that: (i) the Corporation shall implement reasonable measures to verify that each person deemed present and permitted to vote at the meeting by means of remote communication is a stockholder or proxyholder; (ii) the Corporation shall implement reasonable measures to provide such stockholders and proxyholders a reasonable opportunity to participate in the meeting and to vote on matters submitted to the stockholders, including an opportunity to read or hear the proceedings of the meeting substantially concurrently with such proceedings; and (iii) if any stockholder or proxyholder votes or takes other action at the meeting by means of remote communication, a record of such vote or other action shall be maintained by the Corporation.
13

Section 2.16      Conduct of Meetings.

(a)      The Board of Directors may adopt by resolution such rules and regulations for the conduct of any meeting of the stockholders as it shall deem appropriate. Except to the extent inconsistent with such rules and regulations as adopted by the Board of Directors, the chairman of any meeting of the stockholders shall have the right and authority to convene and (for any or no reason) to recess and/or adjourn the meeting, to prescribe such rules, regulations and procedures and to do all such acts as, in the judgment of such chairman of the meeting, are appropriate for the proper conduct of the meeting. Such rules, regulations or procedures, whether adopted by the Board of Directors or prescribed by the chairman of the meeting, may include, without limitation, the following: (i) the establishment of an agenda or order of business for the meeting; (ii) the determination of when the polls shall open and close for any given matter to be voted on at the meeting; (iii) rules and procedures for maintaining order at the meeting and the safety of those present; (iv) limitations on attendance at or participation in the meeting to stockholders of record of the Corporation, their duly authorized and constituted proxies or such other persons as the chairman of the meeting shall determine; (v) restrictions on entry to the meeting after the time fixed for the commencement thereof; and (vi) limitations on the time allotted to questions or comments by participants.
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(b)          The chairman of any meeting of stockholders shall have the power and duty to determine all matters relating to the conduct of the meeting, including determining whether any nomination or item of business has been properly brought before the meeting in accordance with these Bylaws (including whether the stockholder or beneficial owner, if any, on whose behalf the nomination or proposal is made, solicited (or is part of a group that solicited) or did not so solicit, as the case may be, proxies in support of such stockholder’s nominee or proposal in compliance with such stockholder’s representation as required by Section 2.19), and if the chairman should so determine and declare that any nomination or item of business has not been properly brought before a meeting of stockholders, then such business shall not be transacted or considered at such meeting and such nomination shall be disregarded. Unless and to the extent determined by the Board of Directors or the chairman of the meeting, meetings of stockholders shall not be required to be held in accordance with the rules of parliamentary procedure.
 
Section 2.17    Inspectors of Election. In advance of any meeting of the stockholders, the Board of Directors, by resolution, the Chairman or the Chief Executive Officer shall appoint one or more inspectors to act at the meeting and make a written report thereof. One or more other persons may be designated as alternate inspectors to replace any inspector who fails to act. If no inspector or alternate is able to act at a meeting of the stockholders, the chairman of the meeting shall appoint one or more inspectors to act at the meeting. Unless otherwise required by applicable law, inspectors may be officers, employees or agents of the Corporation. Each inspector, before assuming the duties of inspector, shall take and sign an oath to execute faithfully the duties of inspector with strict impartiality and according to the best of such inspector’s ability. The inspector shall have the duties prescribed by law and shall take charge of the polls and, when the vote is completed, shall make a certificate of the result of the vote taken and of such other facts as may be required by applicable law.
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Section 2.18    Nature of Business at Meetings of Stockholders. Only such business (other than nominations for election to the Board of Directors, which must comply with the provisions of Section 2.19 of this Article II) may be transacted at an Annual Meeting as is either (i) specified in the notice of meeting (or any supplement thereto) given by or at the direction of the Board of Directors (or any duly authorized committee thereof), (ii) otherwise properly brought before the Annual Meeting by or at the direction of the Board of Directors (or any duly authorized committee thereof), or (iii) otherwise properly brought before the Annual Meeting by any stockholder of the Corporation (A) who is a stockholder of record on the date of the giving of the notice provided for in this Section 2.18 and on the record date for the determination of stockholders entitled to notice of and to vote at such Annual Meeting and (B) who complies with the notice procedures set forth in this Section 2.18. This Section shall be the exclusive means for a stockholder to make business proposals before a special meeting of stockholders (other than matters properly bought under Rule 14a-8 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”) and included in the Corporation’s notice of meeting). Subject to Rule 14a-8 under the Exchange Act, nothing in these Bylaws shall be construed to permit any stockholder, or give any stockholder the right, to include or have disseminated or described in the Corporation’s proxy statement any business proposal.
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In addition to any other applicable requirements, for business to be properly brought before an Annual Meeting by a stockholder, such stockholder must have given timely notice thereof in proper written form to the Secretary of the Corporation.
 
To be timely, a stockholder’s notice to the Secretary must be delivered to or be mailed and received at the principal executive offices of the Corporation not less than ninety (90) days nor more than one hundred twenty (120) days prior to the anniversary date of the immediately preceding Annual Meeting of Stockholders; provided, however, that in the event that no annual meeting was held in the previous year, or the Annual Meeting is called for a date that is not within thirty (30) days before or after such anniversary date, notice by the stockholder in order to be timely must be so received not earlier than the opening of business one hundred twenty (120) days before the date of such annual meeting, and not later than the close of business on the tenth (10th) day following the day on which such notice of the date of the Annual Meeting was mailed or such public disclosure of the date of the Annual Meeting was made, whichever first occurs. In no event shall the adjournment or postponement of an Annual Meeting, or the public announcement of such an adjournment or postponement, commence a new time period (or extend any time period) for the giving of a stockholder’s notice as described above.
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To be in proper written form, a stockholder’s notice to the Secretary must set forth the following information: (i) as to each matter such stockholder proposes to bring before the Annual Meeting, (A) a brief description of the business desired to be brought before the Annual Meeting and the reasons for conducting such business at the Annual Meeting; and (B) the text of the proposal to be voted on by stockholders (including the text of any resolutions proposed for consideration and, in the event that such business includes a proposal to amend the Bylaws, the language of the proposed amendment); and (ii) as to the stockholder giving notice and the beneficial owner, if any, on whose behalf the proposal is being made, (A) the name and address of such person; (B)(I) the class or series and number of all shares of capital stock of the Corporation that are Beneficially Owned or of record by such person and any affiliates or associates of such person, (II) the name of each nominee holder of shares of all capital stock of the Corporation Beneficially Owned but not of record by such person or any affiliates or associates of such person, and the number of such shares of capital stock of the Corporation held by each such nominee holder, (III) whether and the extent to which any derivative instrument, swap, option, warrant, short interest, hedge or profit interest or other transaction has been entered into by or on behalf of such person, or any affiliates or associates of such person, with respect to shares of capital stock of the Corporation and (IV) whether and the extent to which any other transaction, agreement, arrangement or understanding (including any short position or any borrowing or lending of shares of capital stock of the Corporation) has been made by or on behalf of such person, or any affiliates or associates of such person, the effect or intent of any of the foregoing being to mitigate loss to, or to manage risk or benefit of stock price changes for, such person, or any affiliates or associates of such person, or to increase or decrease the voting power or pecuniary or economic interest of such person, or any affiliates or associates of such person, with respect to capital stock of the Corporation; (C) a description of all agreements, arrangements, or understandings (whether written or oral) between or among such person, or any affiliates or associates of such person, and any other person or persons (including their names) in connection with or relating to (I) the Corporation or (II) the proposal, including any material interest in, or anticipated benefit from the proposal to such person, or any affiliates or associates of such person; (D) a representation that the stockholder giving notice intends to appear in person or by proxy at the Annual Meeting to bring such business before the meeting; and (E) any other information relating to such person that would be required to be disclosed in a proxy statement or other filing required to be made in connection with the solicitation of proxies by such person with respect to the proposed business to be brought by such person before the Annual Meeting pursuant to Section 14 of the Exchange Act, and the rules and regulations promulgated thereunder. In addition, the stockholder making such proposal shall promptly provide any other information reasonably requested by the Corporation.
 
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A stockholder providing notice of business proposed to be brought before an Annual Meeting shall further update and supplement such notice, if necessary, so that the information provided or required to be provided in such notice pursuant to this Section 2.18 shall be true and correct as of the record date for determining the stockholders entitled to receive notice of the Annual Meeting and such update and supplement shall be delivered to or be mailed and received by the Secretary at the principal executive offices of the Corporation not later than five (5) business days after the record date for determining the stockholders entitled to receive notice of the Annual Meeting.
 
No business shall be conducted at the Annual Meeting of Stockholders except business brought before the Annual Meeting in accordance with the procedures set forth in this Section 2.18; provided, however, that, once business has been properly brought before the Annual Meeting in accordance with such procedures, nothing in this Section 2.18 shall be deemed to preclude discussion by any stockholder of any such business. If the chairman of an Annual Meeting determines that business was not properly brought before the Annual Meeting in accordance with the foregoing procedures, the chairman shall declare to the meeting that the business was not properly brought before the meeting and such business shall not be transacted.
 
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Nothing contained in this Section 2.18 shall be deemed to affect any rights of stockholders to request inclusion of proposals in the Corporation’s proxy statement pursuant to Rule 14a-8 under the Exchange Act (or any successor provision of law).
 
Section 2.19   Nomination of Directors. Only persons who are nominated in accordance with the following procedures shall be eligible for election as directors of the Corporation, except as may be otherwise provided in the Certificate of Incorporation with respect to the right of holders of preferred stock of the Corporation to nominate and elect a specified number of directors in certain circumstances and except as otherwise provided under the Stockholders Agreement (as defined in Section 11.1). Nominations of persons for election to the Board of Directors may be made at any Annual Meeting of Stockholders, or at any Special Meeting of Stockholders called for the purpose of electing directors, (i) by or at the direction of the Board of Directors (or any duly authorized committee thereof) or (ii) by any stockholder of the Corporation (A) who is a stockholder of record on the date of the giving of the notice provided for in this Section 2.19 and on the record date for the determination of stockholders entitled to notice of and to vote at such Annual Meeting or Special Meeting and (B) who complies with the notice procedures set forth in this Section 2.19. This Section shall be the exclusive means for a stockholder to make nominations before a special meeting of stockholders (other than matters properly bought under Rule 14a-8 under the Exchange Act and included in the Corporation’s notice of meeting). Nothing in these Bylaws shall be construed to permit any stockholder, or give any stockholder the right, to include or have disseminated or described in the Corporation’s proxy statement any nomination of director or directors.
 
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In addition to any other applicable requirements, for a nomination to be made by a stockholder, such stockholder must have given timely notice thereof in proper written form to the Secretary of the Corporation.
 
To be timely, a stockholder’s notice to the Secretary must be delivered to or be mailed and received at the principal executive offices of the Corporation (i) in the case of an Annual Meeting, not less than ninety (90) days nor more than one hundred twenty (120) days prior to the anniversary date of the immediately preceding Annual Meeting of Stockholders; provided, however, that in the event that no annual meeting was held in the previous years, or the Annual Meeting is called for a date that is not within thirty (30) days before or after such anniversary date, notice by the stockholder in order to be timely must be so received not earlier than the opening of business one hundred twenty (120) days before the date of the annual meeting, and not later than the close of business on the tenth (10th) day following the day on which such notice of the date of the Annual Meeting was mailed or such public disclosure of the date of the Annual Meeting was made, whichever first occurs; and (ii) in the case of a Special Meeting of Stockholders called for the purpose of electing directors, not later than the close of business on the tenth (10th) day following the day on which notice of the date of the Special Meeting was mailed or public disclosure of the date of the Special Meeting was made, whichever first occurs. In no event shall the adjournment or postponement of an Annual Meeting or a Special Meeting called for the purpose of electing directors, or the public announcement of such an adjournment or postponement, commence a new time period (or extend any time period) for the giving of a stockholder’s notice as described above. In the event that the number of directors to be elected to the Board of Directors at an annual meeting of stockholders is increased and there is no public announcement by the Corporation naming the nominees for the additional directorships at least one hundred (100) days prior to the first anniversary of the date of the Corporation’s proxy statement released to stockholders in connection with the previous year’s annual meeting of stockholders, a stockholder’s notice required by this Section 2.19 shall also be considered timely, but only with respect to nominees for the additional directorships, if it shall be received by the Secretary at the principal executive offices of the Corporation not later than the close of business on the tenth (10th) day following the day on which such public announcement is first made by the Corporation.
 
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To be in proper written form, a stockholder’s notice to the Secretary must set forth the following information: (i) as to each person whom the stockholder proposes to nominate for election as a director (A) the name, age, business address and residence address of such person, (B) the principal occupation or employment of such person, (C)(I) the class or series and number of all shares of capital stock of the Corporation that are Beneficially Owned or of record by such person and any affiliates or associates of such person, (II) the name of each nominee holder of shares of all capital stock of the Corporation Beneficially Owned but not of record by such person or any affiliates or
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associates of such person, and the number of such shares of capital stock of the Corporation held by each such nominee holder, (III) whether and the extent to which any derivative instrument, swap, option, warrant, short interest, hedge or profit interest or other transaction has been entered into by or on behalf of such person, or any affiliates or associates of such person, with respect to shares of capital stock of the Corporation and (IV) whether and the extent to which any other transaction, agreement, arrangement or understanding (including any short position or any borrowing or lending of shares of capital stock of the Corporation) has been made by or on behalf of such person, or any affiliates or associates of such person, the effect or intent of any of the foregoing being to mitigate loss to, or to manage risk or benefit of stock price changes for, such person, or any affiliates or associates of such person, or to increase or decrease the voting power or pecuniary or economic interest of such person, or any affiliates or associates of such person, with respect to capital stock of the Corporation; (D) such person’s written representation and agreement that such person (I) is not and will not become a party to any agreement, arrangement or understanding with, and has not given any commitment or assurance to, any person or entity as to how such person, if elected as a director of the Corporation, will act or vote on any issue or question, (II) is not and will not become a party to any agreement, arrangement or understanding with any person or entity other than the Corporation with respect to any direct or indirect compensation, reimbursement or indemnification in connection with service or action as a director of the Corporation that has not been disclosed to the Corporation in such representation and agreement and (III) in such person’s individual capacity, would be in compliance, if elected as a director of the Corporation, and will comply with, all applicable publicly disclosed confidentiality,
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corporate governance, conflict of interest, Regulation FD, code of conduct and ethics, and stock ownership and trading policies and guidelines of the Corporation; and (E) any other information relating to such person that would be required to be disclosed in a proxy statement or other filings required to be made in connection with solicitations of proxies for election of directors pursuant to Section 14 of the Exchange Act, and the rules and regulations promulgated thereunder; and (ii) as to the stockholder giving the notice, and the beneficial owner, if any, on whose behalf the nomination is being made, (A) the name and record address of such person; (B)(I) the class or series and number of all shares of capital stock of the Corporation that are Beneficially Owned or of record by such person and any affiliates or associates of such person, (II) the name of each nominee holder of shares of the Corporation Beneficially Owned but not of record by such person or any affiliates or associates of such person, and the number of shares of capital stock of the Corporation held by each such nominee holder, (III) whether and the extent to which any derivative instrument, swap, option, warrant, short interest, hedge or profit interest or other transaction has been entered into by or on behalf of such person, or any affiliates or associates of such person, with respect to shares of capital stock of the Corporation and (IV) whether and the extent to which any other transaction, agreement, arrangement or understanding (including any short position or any borrowing or lending of shares of capital stock of the Corporation) has been made by or on behalf of such person, or any affiliates or associates of such person, the effect or intent of any of the foregoing being to mitigate loss to, or to manage risk or benefit of stock price changes for, such person, or any affiliates or associates of such person, or to increase or decrease the voting power or pecuniary or economic interest of such person, or any affiliates or associates of such
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person, with respect to capital stock of the Corporation; (C) a description of (I) all agreements, arrangements, or understandings (whether written or oral) between such person, or any affiliates or associates of such person, and any proposed nominee, or any affiliates or associates of such proposed nominee, (II) all agreements, arrangements, or understandings (whether written or oral) between such person, or any affiliates or associates of such person, and any other person or persons (including their names) pursuant to which the nomination(s) are being made by such person, or otherwise relating to the Corporation or their ownership of capital stock of the Corporation, and (III) any material interest of such person, or any affiliates or associates of such person, in such nomination, including any anticipated benefit therefrom to such person, or any affiliates or associates of such person; (D) a representation that the stockholder giving notice intends to appear in person or by proxy at the Annual Meeting or Special Meeting to nominate the persons named in its notice; and (E) any other information relating to such person that would be required to be disclosed in a proxy statement or other filings required to be made in connection with the solicitation of proxies for election of directors pursuant to Section 14 of the Exchange Act and the rules and regulations promulgated thereunder. Such notice must be accompanied by a written consent of each proposed nominee to being named as a nominee and to serve as a director if elected.
 
A stockholder providing notice of any nomination proposed to be made at an Annual Meeting or Special Meeting shall further update and supplement such notice, if necessary, so that the information provided or required to be provided in such notice pursuant to this Section 2.19 shall be true and correct as of the record date for determining the stockholders entitled to receive notice of the Annual Meeting or Special Meeting, and such update and supplement shall be delivered to or be mailed and received by the Secretary at the principal executive offices of the Corporation not later than five (5) business days after the record date for determining the stockholders entitled to receive notice of such Annual Meeting or Special Meeting.
 
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To be eligible to be a nominee for election or re-election by the stockholders as a director of the Corporation or to serve as a Director of the Corporation, a person must deliver (not later than the deadline prescribed in the foregoing) to the Secretary a written questionnaire with respect to the background and qualification of such person and, if applicable, the background of any other person on whose behalf the nomination is being made (which questionnaire shall be provided by the Secretary upon written request) and a written representation and agreement (in the form provided by the Secretary upon written request) that such person: (i) is not and will not become a party to any agreement, arrangement or understanding with, and has not given any commitment or assurance to, any person as to how such person, if elected as a director, will act or vote on any issue or question that has not been disclosed in such questionnaire; (ii) is not and will not become a party to any agreement, arrangement or understanding with any person other than the Corporation with respect to any direct or indirect compensation, reimbursement or indemnification in connection with service or action as a director that has not been disclosed in such questionnaire; and (iii) in such person’s individual capacity and on behalf of any person on whose behalf the nomination is being made, would be in compliance, if elected as a director, and will comply with, applicable law and all conflict of interest, confidentiality and other policies and guidelines of the Corporation (including the Corporation’s Corporate Governance Guidelines) applicable to directors generally and publicly available (whether on the Corporation’s website or otherwise) as of the date of such representation and agreement.
 
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No person shall be eligible for election as a director of the Corporation unless nominated in accordance with the procedures set forth in this Section 2.19. If the chairman of the meeting determines that a nomination was not made in accordance with the foregoing procedures, the chairman shall declare to the meeting that the nomination was defective and such defective nomination shall be disregarded.
 
Section 2.20   Requirement to Appear. Notwithstanding anything to the contrary contained in Section 2.18 and Section 2.19, if the stockholder (or a qualified representative of the stockholder) does not appear at the annual or special meeting of stockholders of the Corporation to present a nomination or item of business, such proposed business shall not be transacted and such nomination shall be disregarded, notwithstanding that proxies in respect of such vote may have been received by the Corporation.
 
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ARTICLE III

DIRECTORS
 
Section 3.1     Number and Election of Directors. The Board of Directors shall consist of not less than three (3) nor more than fifteen (15) members, the exact number of which shall be fixed from time to time by resolution adopted by the affirmative vote of a majority of the entire Board of Directors. The directors shall be divided into three (3) classes, designated Class I, Class II and Class III. Each class shall consist, as nearly as may be possible, of one-third of the total number of directors constituting the entire Board of Directors. The initial division of the Board of Directors into classes shall be made by the decision of the affirmative vote of a majority of the entire Board of Directors. The term of the initial Class I directors assigned at the time of the filing of the Certificate of Incorporation shall terminate on the date of the annual meeting of stockholders held in 2020; the term of the initial Class II directors assigned at the time of the filing of the Certificate of Incorporation shall terminate on the date of the annual meeting of stockholders held in 2021; and the term of the initial Class III directors assigned at the time of the filing of the Certificate of Incorporation shall terminate on the date of the annual meeting of stockholders held in 2022 or, in each case, upon such director’s earlier death, resignation or removal. At each succeeding annual meeting of stockholders beginning with the annual meeting of stockholders held in 2020, successors to the class of directors whose term expires at that annual meeting shall be elected for a three-year term and until their successors are duly elected and qualified. If the number of directors is changed, any increase or decrease shall be apportioned among the classes so as to maintain the number of directors in each class as nearly equal as possible, and any additional director of any class elected to fill a vacancy shall hold office for a term that shall coincide with the remaining term of the other directors of that class, but in no case shall a decrease in the number of directors shorten the term of any incumbent director. Except as provided in Section 3.2 of this Article III, directors shall be elected by a plurality of the votes of the shares of capital stock of the Corporation present in person or represented by proxy and entitled to vote on the election of directors (“Voting Shares”) at any meeting of stockholders or in any action by written consent in lieu of such a meeting with respect to which (a) the Corporation receives a notice that a stockholder has nominated a person for election to the Board of Directors that was timely made in accordance with the applicable nomination periods provided in these Bylaws, and (ii) such nomination or notice has not been withdrawn on or before the tenth (10th) day before the Corporation first mails its initial proxy statement in connection with such election of directors; provided, however, that the determination that directors shall be elected by a plurality of the votes cast shall be determinative only as to the timeliness of a notice of nomination and not otherwise as to its validity. If directors are to be elected by a plurality of the votes cast, stockholders shall not be permitted to vote against a nominee. Directors need not be stockholders.
 
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The Board of Directors shall present to the stockholders nominations of candidates for election to the Board of Directors (or recommend the election of such candidates as nominated by others) such that, and shall take such other corporate actions as may be reasonably required to provide that, to the best knowledge of the Board of Directors, if such candidates are elected by the stockholders, at least a majority of the members of the Board of Directors shall be Independent Directors (as hereinafter defined). The Board of Directors shall only elect any person to fill a vacancy on the Board of Directors if, to the best knowledge of the Board of Directors, after such person’s election at least a majority of the members of the Board of Directors shall be Independent Directors. The foregoing provisions of this paragraph shall not cause a director who, upon commencing his or her service as a member of the Board of Directors was determined by the Board of Directors to be an Independent Director but did not in fact qualify as such, or who by reason of any change in circumstances ceases to qualify as an Independent Director, from serving the remainder of the term as a director for which he or she was selected. Notwithstanding the foregoing provisions of this paragraph, no action of the Board of Directors shall be invalid by reason of the failure at any time of a majority of the members of the Board of Directors to be Independent Directors.
 
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Section 3.2     Vacancies. Unless otherwise required by law or the Certificate of Incorporation, and subject to the terms of any one or more classes or series of preferred stock of the Corporation, (i) any vacancy on the Board of Directors that results from an increase in the number of directors may be filled by a majority of the Board of Directors then in office, provided that a quorum is present, and (ii) any other vacancy occurring on the Board of Directors, other than for a vacancy resulting from the removal of a director as provided in Section 3.6 which may be filled in the first instance by the stockholders, may be filled by a majority of the Board of Directors then in office, even if less than a quorum, or by a sole remaining director. Any director of any class elected to fill a vacancy resulting from an increase in the number of directors of such class shall hold office for a term that shall coincide with the remaining term of that class. Any director elected to fill a vacancy not resulting from an increase in the number of directors shall have the same remaining term as that of his or her predecessor.
 
Section 3.3     Duties and Powers. The business and affairs of the Corporation shall be managed by or under the direction of the Board of Directors, which may exercise all such powers of the Corporation and do all such lawful acts and things as are not by statute or by the Certificate of Incorporation or by these Bylaws required to be exercised or done by the stockholders.
 
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Section 3.4   Meetings. The Board of Directors and any committee thereof may hold meetings , both regular and special, either within or without the State of Delaware. Regular meetings of the Board of Directors or any committee thereof may be held without notice at such time and at such place as may from time to time be determined by the Board of Directors or such committee, respectively. Special meetings of the Board of Directors may be called by the Chairman, if there be one, the Chief Executive Officer, or by any two directors. Special meetings of any committee of the Board of Directors may be called by the chairman of such committee, if there be one, the Chief Executive Officer or any director serving on such committee. Notice thereof stating the place, date and hour of the special meeting shall be given to each director (or, in the case of a committee, to each member of such committee) either by mail not less than forty-eight (48) hours before the date of the meeting, by telephone, telegram or electronic means on twenty-four (24) hours’ notice, or on such shorter notice as the person or persons calling such meeting may deem necessary or appropriate in the circumstances. A notice of a special meeting of the Board of Directors need not specify the purpose of the meeting unless required by the Certificate of Incorporation or these Bylaws. Notice of any meeting of the Board shall not, however, be required to be given to any director who submits a signed waiver of notice, or waives notice of such meeting by electronic transmission, whether before or after the meeting, or if he or she shall be present at such meeting; and any meeting of the Board of Directors shall be a legal meeting without any notice thereof having been given if all the directors of the Corporation then in office shall be present thereat or shall have waived notice thereof.
 
The Independent Directors shall meet periodically without any member of management present and, except as the Independent Directors may otherwise determine, without any other director present to consider the overall performance of management and the performance of the role of the Independent Directors in the governance of the Corporation; such meetings shall be held in connection with a regularly scheduled meeting of the Board of Directors except as the Independent Directors shall otherwise determine.
 
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Section 3.5   Organization. At each meeting of the Board of Directors or any committee thereof, the Chairman of the Board of Directors or the chairman of such committee, as the case may be, or, in his or her absence or if there be none, a director chosen by a majority of the directors present, shall act as chairman. Except as provided below, the Secretary of the Corporation shall act as secretary at each meeting of the Board of Directors and of each committee thereof. In case the Secretary shall be absent from any meeting of the Board of Directors or of any committee thereof, an Assistant Secretary shall perform the duties of secretary at such meeting; and in the absence from any such meeting of the Secretary and all the Assistant Secretaries, the chairman of the meeting may appoint any person to act as secretary of the meeting. Notwithstanding the foregoing, the members of each committee of the Board of Directors may appoint any person to act as secretary of any meeting of such committee and the Secretary or any Assistant Secretary of the Corporation may, but need not if such committee so elects, serve in such capacity.
 
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Section 3.6   Resignations and Removals of Directors. Any director of the Corporation may resign from the Board of Directors or any committee thereof at any time, by giving notice in writing or electronic transmission to (i) the Chairman of the Board of Directors, if there be one, or to the Chief Executive Officer, if there is no Chairman of the Board, and (ii) the Secretary of the Corporation and, in the case of a committee, to the chairman of such committee, if there be one. Such resignation shall take effect at the time therein specified or, if no time is specified, immediately; and, unless otherwise specified in such notice, the acceptance of such resignation shall not be necessary to make it effective. Except as otherwise required by applicable law and subject to the rights, if any, of the holders of shares of preferred stock of the Corporation then outstanding, any director or the entire Board of Directors may be removed from office at any time, but only for cause and only by the affirmative vote of the holders of at least a majority of the voting power of the then issued and outstanding Voting Shares; provided, however, that for so long as the Fortress Stockholders, collectively, beneficially own at least fifty percent (50%) of the then issued and outstanding Voting Shares, any director or the entire Board of Directors may be removed from office at any time, with or without cause, by the affirmative vote of the holders of at least a majority of the voting power of the then issued and outstanding Voting Shares. The vacancy or vacancies in the Board of Directors caused by any such removal shall be filled as provided in Section 3.2. Any director serving on a committee of the Board of Directors may be removed from such committee at any time by the Board of Directors.
 
Section 3.7   Quorum. Except as otherwise required by law, the Certificate of Incorporation or the rules and regulations of any securities exchange on which the Corporation’s securities are listed and traded, at all meetings of the Board of Directors or any committee thereof, a majority of the entire Board of Directors or a majority of the directors constituting such committee, as the case may be, shall constitute a quorum for the transaction of business and the act of a majority of the directors or committee members present at any meeting at which there is a quorum shall be the act of the Board of Directors or such committee, as applicable. If a quorum shall not be present at any meeting of the Board of Directors or any committee thereof, the directors present thereat may adjourn the meeting from time to time, without notice other than announcement at the meeting of the time and place of the adjourned meeting, until a quorum shall be present.
 
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Section 3.8   Action at Meeting. At any meeting of the Board of Directors at which a quorum is present (or such smaller number as may make a determination pursuant to Section 145 of the DGCL or any successor provision), business shall be transacted in such order and manner as the Board of Directors may from time to time determine, and all matters shall be determined by the vote of a majority of the directors present at such meeting at which there is a quorum, except as is required or provided by law, by the Certificate of Incorporation or by any other provision of these Bylaws.
 
Section 3.9   Actions of the Board by Written Consent. Unless otherwise provided in the Certificate of Incorporation or these Bylaws, any action required or permitted to be taken at any meeting of the Board of Directors or of any committee thereof may be taken without a meeting, if all the members of the Board of Directors or such committee, as the case may be, consent thereto in writing or by electronic transmission, and the writing or writings or electronic transmission or transmissions are filed with the minutes of proceedings of the Board of Directors or such committee. Action taken under this Section 3.9 is effective when the last director signs or delivers the consent, unless the consent specifies a different effective date. A consent signed or delivered under this Section 3.9 has the effect of a meeting vote and may be described as such in any document.
 
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Section 3.10   Meetings by Means of Conference Telephone. Unless otherwise provided in the Certificate of Incorporation or these Bylaws, members of the Board of Directors, or any committee thereof, may participate in a meeting of the Board of Directors or such committee by means of a telephone conference or other communications equipment by means of which all persons participating in the meeting can hear each other, and participation in a meeting pursuant to this Section 3.10 shall constitute presence in person at such meeting.
 
Section 3.11   Rules and Regulations. The Board of Directors may adopt such rules and regulations for the conduct of its meetings and the management of the affairs of the Corporation as it may deem proper, not inconsistent with the laws of the State of Delaware, the Certificate of Incorporation or the other provisions of these Bylaws.
 
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Section 3.12   Committees.
 
(a) Delegation of Board Powers. The Board of Directors shall appoint from among its members an audit committee (the "Audit Committee"). The Audit Committee shall be composed of at least three (3) members of the Board of Directors (or such lesser number of directors as permitted by applicable law and the rules and regulations of any securities exchange or quotation system on which the securities of the Corporation are listed or quoted for trading). The Board of Directors may, by resolution or resolutions passed by a majority of the then total number of members of the Board of Directors, designate one (1) or more other committees consisting of one (1) or more Directors of the Company, which, to the extent provided in such resolution or resolutions, shall have and may exercise, subject to the provisions of these Bylaws, the powers and authority of the Board of Directors granted hereunder; but no such committee shall have the power to fill vacancies in the Board of Directors or any committee or in their respective membership, to approve or adopt, or recommend to the members, any action or matter, other than the election or removal of Directors, expressly required by these Bylaws to be submitted to members for their approval, or to authorize the issuance of shares, except that such a committee may, to the extent provided in such resolutions, (a) grant and authorize options and other rights with respect to the shares pursuant to and in accordance with any plan or authorizing resolutions approved by the Board of Directors and (b) function as the pricing committee with respect to any offering of shares authorized by the Board of Directors. A majority of all the members of any such committee may determine its action and fix the time and place, if any, of its meetings and specify what notice thereof, if any, shall be given, unless the Board of Directors shall otherwise provide. Each member of a committee must meet the requirements for membership, if any, imposed by applicable law and the rules and regulations of any securities exchange or quotation system on which the securities of the Corporation are listed or quoted for trading. All members of any committee of the Board of Directors shall serve at the pleasure of the Board of Directors, and the Board of Directors may abolish any such committee at any time. Any committee to which the Board of Directors delegates any of its powers or duties shall keep records of its meetings and shall report its actions to the Board of Directors. The Board of Directors shall have the power to rescind any action of any such committee, but no such rescission shall have retroactive effect.
 
(b) Audit Committee. The Audit Committee shall assist the Board of Directors in overseeing the Corporation’s financial reporting and shall have such authority and responsibility as is provided in the Audit Committee’s charter (as hereinafter provided for) and, subject thereto, as is normally incident to the functioning of the audit committee of a publicly-traded company and shall perform the other functions provided to be performed by it by the Bylaws and such other functions as are from time to time assigned to it by the Board of Directors.

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(c) Committee Charters. The Board of Directors, by majority of the entire Board of Directors, shall approve a charter describing the purposes, functions and responsibilities of each standing committee of the Board of Directors (each, a “Board-approved Charter”). Each standing committee of the Board of Directors shall prepare and recommend to the Board of Directors for its approval the committee’s charter and shall, at least annually, review and report to the Board of Directors on the adequacy thereof. In addition to and without limiting the provisions of paragraphs (a) through (d) of this section, each standing committee of the Board of Directors shall have the authority and responsibility provided by its Board-approved charter, subject to further action by the Board of Directors, and no further authorization of the Board of Directors shall be necessary for actions by a committee within the scope of its charter. Any other committee of the Board of Directors may likewise prepare and recommend to the Board of Directors a charter for the committee and shall have the authority and responsibility provided by its Board-approved charter.
 
(d) Committee Advisors and Resources. Each standing committee of the Board of Directors shall have the authority to retain, at the Corporation’s expense, such legal and other counsel and advisors as it determines to be necessary or appropriate to carry out its responsibilities within the scope of its charter. Each other committee of the Board of Directors shall have like authority to the extent provided by its charter or otherwise authorized by the Board of Directors. The Corporation shall pay the compensation of the independent auditor of the Corporation for all audit services, as approved by the Audit Committee, without need for further authorization.
 
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(e) Alternate Members. The Board of Directors may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of any such committee. Subject to the rules and regulations of any securities exchange on which the securities of the Corporation are listed traded, in the absence or disqualification of a member of a committee, and in the absence of a designation by the Board of Directors of an alternate member to replace the absent or disqualified member, the member or members thereof present at any meeting and not disqualified from voting, whether or not such member or members constitute a quorum, may unanimously appoint another qualified member of the Board of Directors to act at the meeting in the place of any absent or disqualified member.
 
(f) Committee Powers. Any committee, to the extent permitted by law and provided in the resolution establishing such committee, shall have and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs of the Corporation, and may authorize the seal of the Corporation to be affixed to all papers which may require it, but no such committee shall have the power or authority to (i) approve or adopt, or recommend to the stockholders, any action or matter (other than the election or removal of directors) required by the DGCL to be submitted to stockholders for approval; or (ii) adopt, amend or repeal the Bylaws of the Corporation. The Board of Directors shall have the power to rescind any action of any such committee, but no such rescission shall have retroactive effect.
 
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(g) Committee Procedures. Each committee may determine the procedural rules for meeting and conducting its business and shall act in accordance therewith, except as otherwise provided herein or required by law. Adequate provision shall be made for notice to members of all meetings. A majority of the members shall constitute a quorum unless the committee shall consist of one (1) or two (2) members, in which event one member shall constitute a quorum; and all matters shall be determined by a majority vote of the members present. Notwithstanding anything to the contrary contained in this Article III, the resolution of the Board of Directors establishing any committee of the Board of Directors and/or the charter of any such committee may establish requirements or procedures relating to the governance and/or operation of such committee that are different from, or in addition to, those set forth in these Bylaws and, to the extent that there is any inconsistency between these Bylaws and any such resolution or charter, the terms of such resolution or charter shall be controlling.
 
(h) Modification, Termination and Removal. The Board, subject to the requirements specifically set forth in this Section 3.12, may at any time change, increase or decrease the number of members of a committee or terminate the existence of a committee. A director’s membership on a committee shall terminate on the date of his or her death or resignation, but the Board of Directors may at any time for any reason remove any individual committee member and the Board of Directors may, subject to any requirements specifically set forth in this Section 3.12, fill any committee vacancy created by death, resignation, removal or increase in the number of members of the committee.
 
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Section 3.13   Compensation. The Board of Directors may establish reasonable compensation (including reasonable pensions, disability or death benefits, and other benefits or payments) of directors for services to the Corporation as directors, or may delegate such authority to an appropriate committee, irrespective of any personal interest of any of its members. The directors may be paid their expenses, if any, of attendance at each meeting of the Board of Directors and may be paid a fixed sum for attendance at each meeting of the Board of Directors in addition to a stated salary for service as director, payable in cash or securities. No such payment shall preclude any director from serving the Corporation in any other capacity and receiving compensation therefor. Members of special or standing committees may be allowed like compensation for service as committee members.
 
Section 3.14   Interested Directors. No contract or transaction between the Corporation and one or more of its directors or officers, or between the Corporation and any other corporation, partnership, association or other organization in which one or more of its directors or officers are directors or officers or have a financial interest, shall be void or voidable solely for this reason, or solely because the director or officer is present at or participates in the meeting of the Board of Directors or committee thereof which authorizes the contract or transaction, or solely because any such director’s or officer’s vote is counted for such purpose if: (i) the material facts as to the director’s or officer’s relationship or interest and as to the contract or transaction are disclosed or are known to the Board of Directors or the committee, and the Board of Directors or committee in good faith authorizes the contract or transaction by the affirmative votes of a majority of the disinterested directors, even though the disinterested directors be less than a quorum; or (ii) the material facts as to the director’s or officer’s relationship or interest and as to the contract or transaction are disclosed or are known to the stockholders entitled to vote thereon, and the contract or transaction is specifically approved in good faith by vote of the stockholders; or (iii) the contract or transaction is fair as to the Corporation as of the time it is authorized, approved or ratified by the Board of Directors, a committee thereof or the stockholders. Common or interested directors may be counted in determining the presence of a quorum at a meeting of the Board of Directors or of a committee which authorizes the contract or transaction.
 
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Section 3.15   Chairman of the Board of Directors. The Chairman of the Board of Directors, if there be one, shall preside at all meetings of the stockholders and of the Board of Directors. The Chairman of the Board of Directors (who must be a director but is not required to be an employee of the Corporation) shall be designated by the Board of Directors and, except where by law the signature of the President is required, the Chairman of the Board of Directors shall possess the same power as the President to sign all contracts, certificates and other instruments of the Corporation that may be authorized by the Board of Directors. During the absence or disability of the President, the Chairman of the Board of Directors shall exercise all the powers and discharge all the duties of the President. The Chairman of the Board of Directors shall also perform such other duties and may exercise such other powers as may from time to time be assigned by these Bylaws or by the Board of Directors.
 
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ARTICLE IV
  
OFFICERS
 
Section 4.1   General. The officers of the Corporation shall be chosen by the Board of Directors and shall include a Chief Executive Officer, a President, a Chief Financial Officer and a Secretary. The Board of Directors, in its discretion, also may choose a Treasurer and one or more Vice Presidents, Assistant Secretaries, Assistant Treasurers and other officers. Any number of offices may be held by the same person, unless otherwise prohibited by law, the Certificate of Incorporation or these Bylaws. The officers of the Corporation need not be (i) stockholders of the Corporation or (ii) directors of the Corporation. Whenever an officer or officers is absent, or whenever for any reason the Board of Directors may deem it desirable, the Board may delegate the powers and duties of any officer or officers to any director or directors. The Board of Directors may from time to time delegate the powers or duties of any officer to any other officers or agents, notwithstanding any other provision hereof.
 
Section 4.2   Election. The Board of Directors shall elect the officers of the Corporation who shall hold their offices for such terms and exercise such powers and perform such duties as shall be determined from time to time by the Board of Directors, except that the Chief Executive Officers may from time to time appoint one or more Vice Presidents, Assistant Secretaries, Assistant Treasurers or other officers. Each officer of the Corporation shall hold office until such officer’s successor is elected and qualified, or until such officer’s earlier death, resignation or removal. Any officer elected by the Board of Directors may be removed at any time by the Board of Directors, including by unanimous written consent. Any vacancy occurring in any office of the Corporation shall be filled by the Board of Directors.
 
Section 4.3   Salaries of Elected Officers. The salaries of all officers of the Corporation shall be fixed from time to time by the Board of Directors. An officer of the Corporation shall not be prevented from receiving compensation by reason of the fact that he or she is also a director of the Corporation.
 
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Section 4.4   Voting Securities Owned by the Corporation. Powers of attorney, proxies, waivers of notice of meeting, consents and other instruments relating to securities owned by the Corporation may be executed in the name of and on behalf of the Corporation by the Chief Executive Officer, the President or any Vice President or any other officer authorized to do so by the Board of Directors and any such officer may, in the name of and on behalf of the Corporation, take all such action as any such officer may deem advisable to vote in person or by proxy at any meeting of security holders of any corporation in which the Corporation may own securities and at any such meeting shall possess and may exercise any and all rights and power incident to the ownership of such securities and which, as the owner thereof, the Corporation might have exercised and possessed if present. The Board of Directors may, by resolution, from time to time confer like powers upon any other person or persons.
 
Section 4.5   Chief Executive Officer. The Chief Executive Officer shall, subject to the control of the Board of Directors and if there be one, the Chairman of the Board, have general supervision of the affairs of the Corporation and general and active control of all its business. In the absence or disability of the Chairman of the Board of Directors, or if there be none, the Chief Executive Officer shall preside at all meetings of the stockholders and, provided the Chief Executive Officer is also a director, the Board of Directors. The Chief Executive Officer shall see that all orders and resolutions of the Board of Directors and the stockholders are carried into effect. The Chief Executive Officer shall have general authority to execute bonds, deeds and contracts in the name of the Corporation and affix the corporate seal thereto; to sign stock certificates; to cause the employment or appointment of such employees and agents of the Corporation as the proper conduct of operations may require, and to fix their compensation, subject to the provisions of these Bylaws; to remove or suspend any employee or agent who shall have been employed or appointed under the Chief Executive Officer’s authority or under authority of an officer subordinate to the Chief Executive Officer; to suspend for cause, pending final action by the authority which shall have elected or appointed the Chief Executive Officer, any officer subordinate to the Chief Executive Officer; and, in general, to exercise all the powers and authority usually appertaining to the chief executive officer of a corporation, except as otherwise provided in these Bylaws.
 
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Section 4.6   President. The President shall, subject to the control of the Board of Directors and, if there be one, the Chairman of the Board of Directors, have general supervision of the business of the Corporation and shall see that all orders and resolutions of the Board of Directors are carried into effect. The President shall execute all bonds, mortgages, contracts and other instruments of the Corporation requiring a seal, under the seal of the Corporation, except where required or permitted by law to be otherwise signed and executed and except that the other officers of the Corporation may sign and execute documents when so authorized by these Bylaws, the Board of Directors or the President. If there be no Chairman of the Board of Directors, or if the Board of Directors shall otherwise designate, the President shall be the Chief Executive Officer of the Corporation. The President shall also perform such other duties and may exercise such other powers as may from time to time be assigned to such officer by these Bylaws or by the Board of Directors.
 
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Section 4.7   Vice Presidents. At the request of the President or in the President’s absence or in the event of the President’s inability or refusal to act (and if there be no Chairman of the Board of Directors), the Vice President, or the Vice Presidents if there are more than one (in the order designated by the Board of Directors), shall perform the duties of the President, and when so acting, shall have all the powers of and be subject to all the restrictions upon the President. Each Vice President shall perform such other duties and have such other powers as the Board of Directors from time to time may prescribe. If there be no Chairman of the Board of Directors and no Vice President, the Board of Directors shall designate the officer of the Corporation who, in the absence of the President or in the event of the inability or refusal of the President to act, shall perform the duties of the President, and when so acting, shall have all the powers of and be subject to all the restrictions upon the President.
 
Section 4.8   Secretary. Except as otherwise provided herein, the Secretary shall record all the proceedings of meetings of the Board of Directors and all meetings of the stockholders in a book or books to be kept for that purpose, and the Secretary shall also perform like duties for committees of the Board of Directors when required. The Secretary shall give, or cause to be given, notice of all meetings of the stockholders and special meetings of the Board of Directors, and shall perform such other duties as may be prescribed by the Board of Directors, the Chairman of the Board of Directors or the President, under whose supervision the Secretary shall be. If the Secretary shall be unable or shall refuse to cause to be given notice of all meetings of the stockholders and special meetings of the Board of Directors, and if there be no Assistant Secretary, then either the Board of Directors or the President may choose another officer to cause such notice to be given. The Secretary shall have custody of the seal of the Corporation and the Secretary or any Assistant Secretary, if there be one, shall have authority to affix the same to any instrument requiring it and when so affixed, it may be attested by the signature of the Secretary or by the signature of any such Assistant Secretary. The Board of Directors may give general authority to any other officer to affix the seal of the Corporation and to attest to the affixing by such officer’s signature. The Secretary shall see that all books, reports, statements, certificates and other documents and records required by law to be kept or filed are properly kept or filed, as the case may be.
 
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Section 4.9   Chief Financial Officer. The Chief Financial Officer shall, subject to the control of the Board of Directors, and if there be one, the Chairman of the Board, the Chief Executive Officer and President, keep full and accurate accounts of receipts and disbursements in books belonging to the Corporation and shall deposit all monies and other valuable effects in the name and to the credit of the Corporation in such depositories as shall be designated by the Board of Directors or, in the absence of such designation in such depositories, as the Chief Financial Officer shall from time to time deem proper. The Chief Financial Officer shall be the treasurer of the Corporation, unless a Treasurer shall be appointed. The Chief Financial Officer, Treasurer or Assistant Chief Financial Officer, shall sign all stock certificates as treasurer of the Corporation. The Chief Financial Officer shall disburse the funds of the Corporation as shall be ordered by the Board of Directors, taking proper vouchers for such disbursements, shall promptly render to the Chief Executive Officer and to the Board of Directors such statements of his or her transactions and accounts as the Chief Executive Officer and Board of Directors respectively may from time to time require, and in general, shall exercise all the powers and authority usually appertaining to the chief financial officer of a corporation, except as otherwise provided in these Bylaws.
 
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Section 4.10   Other Officers. Such other officers as the Board of Directors may choose shall perform such duties and have such powers as from time to time may be assigned to them by the Board of Directors. The Board of Directors may delegate to any other officer of the Corporation the power to appoint such other officers and to prescribe their respective duties and powers.
 
Section 4.11   Resignation. Any officer may resign by delivering his or her written resignation to the Corporation at its principal office, and such resignation shall be effective upon receipt unless it is specified to be effective at a later time. If a resignation is made effective at a later date and the Corporation accepts the future effective date, the Board of Directors may fill the pending vacancy before the effective date if the Board of Directors provides that the successor shall not take office until the effective date. An officer’s resignation shall not affect the Corporation’s contract rights, if any, with the officer.
 
Section 4.12   Removal. The Board of Directors may remove any officer with or without cause. Nothing herein shall limit the power of any officer to discharge any subordinate.
 
ARTICLE V

STOCK
 
Section 5.1   Form of Certificates. Except as otherwise provided in a resolution approved by the Board of Directors, all shares of capital stock of the Corporation issued after              , 2019 shall be uncertificated shares.
 
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Section 5.2     Signatures. Any or all of the signatures on a certificate may be a facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent or registrar before such certificate is issued, it may be issued by the Corporation with the same effect as if such person were such officer, transfer agent or registrar at the date of issue.

 

Section 5.3     Lost Certificates. The Board of Directors may direct a new certificate or uncertificated shares be issued in place of any certificate theretofore issued by the Corporation alleged to have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the person claiming the certificate of stock to be lost, stolen or destroyed. When authorizing such issuance of a new certificate or uncertificated shares, the Board of Directors may, in its discretion and as a condition precedent to the issuance thereof, require the owner of such lost, stolen or destroyed certificate, or such owner’s legal representative, to advertise the same in such manner as the Board of Directors shall require and/or to give the Corporation a bond in such sum as it may direct as indemnity, or provide a written undertaking to indemnify, against any claim that may be made against the Corporation on account of the alleged loss, theft or destruction of such certificate or the issuance of such new certificate or uncertificated shares.

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Section 5.4     Transfers. Stock of the Corporation shall be transferable in the manner prescribed by applicable law and in these Bylaws. Transfers of stock shall be made on the books of the Corporation, and in the case of certificated shares of stock, only by the person named in the certificate or by such person’s attorney lawfully constituted in writing and upon the surrender of the certificate therefor, properly endorsed or accompanied by a written assignment and power of attorney properly executed for transfer and payment of all necessary transfer taxes; or, in the case of uncertificated shares of stock, upon receipt of proper transfer instructions from the registered holder of the shares or by such person’s attorney lawfully constituted in writing, and upon payment of all necessary transfer taxes and compliance with appropriate procedures for transferring shares in uncertificated form; provided, however, that such surrender and endorsement, compliance or payment of taxes shall not be required in any case in which any of the officers of the Corporation shall determine to waive such requirement. With respect to certificated shares of stock, every certificate exchanged, returned or surrendered to the Corporation shall be marked “Cancelled,” with the date of cancellation, by the Secretary or Assistant Secretary of the Corporation or the transfer agent thereof. No transfer of stock shall be valid as against the Corporation for any purpose until it shall have been entered in the stock records of the Corporation by an entry showing from and to whom transferred.

 

Section 5.5     Record Owners. The Corporation shall be entitled to recognize the exclusive right of a person registered on its books as the owner of shares to receive dividends, and to vote as such owner, and to hold liable for calls and assessments a person registered on its books as the owner of shares, and shall not be bound to recognize any equitable or other claim to or interest in such share or shares on the part of any other person, whether or not it shall have express or other notice thereof, except as otherwise required by law.

 

Section 5.6     Transfer and Registry Agents. The Corporation may from time to time maintain one or more transfer offices or agencies and registry offices or agencies at such place or places as may be determined from time to time by the Board of Directors.

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Section 5.7     Regulations. The issue, transfer, conversion and registration of certificates of stock shall be governed by such other regulations as the Board of Directors may establish.

  

Article VI


NOTICES

 

Section 6.1     Notices. Whenever written notice is required by law, the Certificate of Incorporation or these Bylaws, to be given to any director, member of a committee or stockholder, such notice may be given by mail, addressed to such director, member of a committee or stockholder, at such person’s address as it appears on the records of the Corporation, with postage thereon prepaid, and such notice shall be deemed to be given at the time when the same shall be deposited in the United States mail. Without limiting the manner by which notice otherwise may be given effectively to stockholders, any notice to stockholders given by the Corporation under applicable law, the Certificate of Incorporation or these Bylaws shall be effective if given by a form of electronic transmission if consented to by the stockholder to whom the notice is given. Any such consent shall be revocable by the stockholder by written notice to the Corporation. Any such consent shall be deemed to be revoked if (i) the Corporation is unable to deliver by electronic transmission two (2) consecutive notices by the Corporation in accordance with such consent and (ii) such inability becomes known to the Secretary or Assistant Secretary of the Corporation or to the transfer agent, or other person responsible for the giving of notice; provided, however, that the inadvertent failure to treat such inability as a revocation shall not invalidate any meeting or other action. Notice given by electronic transmission, as described above, shall be deemed given: (i) if by facsimile telecommunication, when directed to a number at which the stockholder has consented to receive notice; (ii) if by electronic mail, when directed to an electronic mail address at which the stockholder has consented to receive notice; (iii) if by a posting on an electronic network, together with separate notice to the stockholder of such specific posting, upon the later of (A) such posting and (B) the giving of such separate notice; and (iv) if by any other form of electronic transmission, when directed to the stockholder. An affidavit of the mailing or other means of giving any notice of any stockholders’ meeting, executed by the Secretary, an Assistant Secretary or any transfer agent of the Corporation giving the notice, shall be prima facie evidence of the giving of such notice or report. Notice shall be deemed to have been given to all stockholders of record who share an address if notice is given in accordance with the “householding” rules set forth in Rule 14a-3(e) under the Exchange Act, and Section 233 of the DGCL. Notice to directors or committee members may be given personally or by telegram, telex, cable or other means of electronic transmission.

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Section 6.2     Waivers of Notice. Whenever any notice is required by applicable law, the Certificate of Incorporation or these Bylaws, to be given to any director, member of a committee or stockholder, a waiver thereof in writing, signed by the person or persons entitled to notice, or a waiver by electronic transmission by the person or persons entitled to notice, or a waiver by electronic transmission by the person or persons entitled to notice whether before or after the time stated therein, shall be deemed equivalent thereto. Attendance of a person at a meeting, present in person or represented by proxy, shall constitute a waiver of notice of such meeting, except where the person attends the meeting for the express purpose of objecting at the beginning of the meeting to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at, nor the purpose of, any Annual or Special Meeting of Stockholders or any regular or special meeting of the directors or members of a committee of directors need be specified in any written waiver of notice unless so required by law, the Certificate of Incorporation or these Bylaws.

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Article VII


GENERAL PROVISIONS

 

Section 7.1     Dividends.

 

(a)    Dividends upon the capital stock of the Corporation, subject to the requirements of the DGCL and the provisions of the Certificate of Incorporation, if any, may be declared by the Board of Directors at any regular or special meeting of the Board of Directors (or any action by written consent in lieu thereof in accordance with Section 3.9 of Article III hereof), and may be paid in cash, in property, or in shares of the Corporation’s capital stock. Before payment of any dividend, there may be set aside out of any funds of the Corporation available for dividends such sum or sums as the Board of Directors from time to time, in its discretion, deems proper as a reserve or reserves to meet contingencies, or for purchasing any of the shares of capital stock, warrants, rights, options, bonds, debentures, notes, scrip or other securities or evidences of indebtedness of the Corporation, or for equalizing dividends, or for repairing or maintaining any property of the Corporation, or for any proper purpose, and the Board of Directors may modify or abolish any such reserve.

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(b)    In order that the Corporation may determine the stockholders entitled to receive payment of any dividend or other distribution or allotment of any rights or the stockholders entitled to exercise any rights in respect of any change, conversion or exchange of stock, or for the purpose of any other lawful action, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted, and which record date shall be not more than sixty (60) days prior to such action. If no record date is fixed, the record date for determining stockholders for any such purpose shall be at the close of business on the day on which the Board of Directors adopts the resolution relating thereto.

 

Section 7.2     Disbursements. All checks or demands for money and notes of the Corporation shall be signed by such officer or officers or such other person or persons as the Board of Directors may from time to time designate.

 

Section 7.3     Fiscal Year. The fiscal year of the Corporation shall be fixed by resolution of the Board of Directors. If the Board makes no determination to the contrary, the fiscal year of the Corporation shall be the twelve months ending with December 31 in each year.

 

Section 7.4     Corporate Seal. The corporate seal shall have inscribed thereon the name of the Corporation, the year of its organization and the words “Corporate Seal, Delaware”. The seal may be used by causing it or a facsimile thereof to be impressed or affixed or reproduced or otherwise. If and when so directed by the Board of Directors or a committee thereof, duplicates of the seal (the original of which shall be kept with the Secretary) may be kept and used by the Treasurer or by an Assistant Treasurer or Assistant Secretary (if there be such officers appointed).

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Section 7.5     Records to be Kept.

 

(a)    The Corporation shall keep as permanent records minutes of all meetings of its stockholders and Board of Directors, a record of all actions taken by the stockholders or Board of Directors without a meeting, and a record of all actions taken by a committee of the Board of Directors in place of the Board of Directors on behalf of the Corporation. The Corporation or its agent shall maintain a record of its stockholders, in a form that permits preparation of a list of the names and addresses of all stockholders, in alphabetical order by class or series of shares showing the number and class or series of shares held by each. The Corporation shall maintain its records in written form or in another form capable of conversion into written form within a reasonable time.

 

(b)    The Corporation shall keep within the State of Delaware a copy of such records at its principal office or an office of its transfer agent or of its Secretary or Assistant Secretary or of its registered agent as may be required by law.

 

Section 7.6     Execution of Instruments. The Board of Directors may authorize, or provide for the authorization of, officers, employees or agents to enter into any contract or execute and deliver any instrument in the name and on behalf of the Corporation. Any such authorization must be in writing or by electronic transmission and may be general or limited to specific contracts or instruments.

 

Section 7.7     Certificate of Incorporation. All references in these Bylaws to the Certificate of Incorporation shall be deemed to refer to the Certificate of Incorporation of the Corporation, as amended and in effect from time to time, including any certificate of designations in effect from time to time with respect to Preferred Stock.

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Section 7.8     Construction. The words “include” and “including” and similar terms shall be deemed to be followed by the words “without limitation.” Whenever used in these Bylaws, any noun or pronoun shall be deemed to include the plural as well as the singular and to cover all genders. Any reference in these Bylaws to provision of any statute shall be deemed to include any successor provision. Unless the context otherwise requires, the term “person” shall be deemed to include any natural person or any corporation, organization or other entity.

 

Article VIII


INDEMNIFICATION

 

Section 8.1     Power to Indemnify in Actions, Suits or Proceedings other than Those by or in the Right of the Corporation. Subject to Section 8.3 of this Article VIII, the Corporation shall indemnify and hold harmless to the fullest extent authorized by Delaware law any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of the Corporation), by reason of the fact that such person is or was a director or officer of the Corporation, or is or was a director or officer of the Corporation serving at the request of the Corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, whether the basis of such proceeding is alleged action in an official capacity as a director or officer or in any other capacity while serving in such official capacity, against expenses (including attorneys’ fees), liability, loss, judgments, fines, penalties and amounts paid in settlement actually and reasonably incurred by such person in connection with such action, suit or proceeding if such person acted in good faith and in a manner such person reasonably believed to be in or not opposed to the best interests of the Corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe such person’s conduct was unlawful. The termination of any action, suit or proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its equivalent, shall not, of itself, create a presumption that the person did not act in good faith and in a manner which such person reasonably believed to be in or not opposed to the best interests of the Corporation, and, with respect to any criminal action or proceeding, had reasonable cause to believe that such person’s conduct was unlawful.

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Section 8.2     Power to Indemnify in Actions, Suits or Proceedings by or in the Right of the Corporation. Subject to Section 8.3 of this Article VIII, the Corporation shall indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action or suit by or in the right of the Corporation to procure a judgment in its favor by reason of the fact that such person is or was a director or officer of the Corporation, or is or was a director or officer of the Corporation serving at the request of the Corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, whether the basis of such proceeding is alleged action in an official capacity as a director or officer or in any other capacity while serving in such official capacity, against expenses (including attorneys’ fees) actually and reasonably incurred by such person in connection with the defense or settlement of such action or suit if such person acted in good faith and in a manner such person reasonably believed to be in or not opposed to the best interests of the Corporation; except that no indemnification shall be made in respect of any claim, issue or matter as to which such person shall have been adjudged to be liable to the Corporation unless and only to the extent that the Court of Chancery of the State of Delaware or the court in which such action or suit was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses that the Court of Chancery or such other court shall deem proper.

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Section 8.3     Authorization of Indemnification. Any indemnification under this Article VIII (unless ordered by a court) shall be made by the Corporation only as authorized in the specific case upon a determination that indemnification of the present or former director or officer is proper in the circumstances because such person has met the applicable standard of conduct set forth in Section 8.1 or Section 8.2 of this Article VIII, as the case may be. Such determination shall be made, with respect to a person who is a director or officer at the time of such determination, (i) by a majority vote of the directors who are not parties to such action, suit or proceeding, even though less than a quorum, or (ii) by a committee of such directors designated by a majority vote of such directors, even though less than a quorum, or (iii) if there are no such directors, or if such directors so direct, by independent legal counsel in a written opinion or (iv) by the stockholders. Such determination shall be made, with respect to former directors and officers, by any person or persons having the authority to act on the matter on behalf of the Corporation. To the extent, however, that a present or former director or officer of the Corporation has been successful on the merits or otherwise in defense of any action, suit or proceeding described above, or in defense of any claim, issue or matter therein, such person shall be indemnified against expenses (including attorneys’ fees) actually and reasonably incurred by such person in connection therewith, without the necessity of authorization in the specific case.

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Section 8.4     Good Faith Defined. For purposes of any determination under Section 8.3 of this Article VIII, a person shall be deemed to have acted in good faith and in a manner such person reasonably believed to be in or not opposed to the best interests of the Corporation, or, with respect to any criminal action or proceeding, to have had no reasonable cause to believe such person’s conduct was unlawful, if such person’s action is based on the records or books of account of the Corporation or another enterprise, or on information supplied to such person by the officers of the Corporation or another enterprise in the course of their duties, or on the advice of legal counsel for the Corporation or another enterprise or on information or records given or reports made to the Corporation or another enterprise by an independent certified public accountant or by an appraiser or other expert selected with reasonable care by the Corporation or another enterprise. The provisions of this Section 8.4 shall not be deemed to be exclusive or to limit in any way the circumstances in which a person may be deemed to have met the applicable standard of conduct set forth in Section 8.1 or Section 8.2 of this Article VIII, as the case may be.

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Section 8.5     Indemnification by a Court. Notwithstanding any contrary determination in the specific case under Section 8.3 of this Article VIII, and notwithstanding the absence of any determination thereunder, any director or officer may apply to the Court of Chancery of the State of Delaware or any other court of competent jurisdiction in the State of Delaware for indemnification to the extent otherwise permissible under Section 8.1 or Section 8.2 of this Article VIII. The basis of such indemnification by a court shall be a determination by such court that indemnification of the director or officer is proper in the circumstances because such person has met the applicable standard of conduct set forth in Section 8.1 or Section 8.2 of this Article VIII, as the case may be. Neither a contrary determination in the specific case under Section 8.3 of this Article VIII nor the absence of any determination thereunder shall be a defense to such application or create a presumption that the director or officer seeking indemnification has not met any applicable standard of conduct. Notice of any application for indemnification pursuant to this Section 8.5 shall be given to the Corporation promptly upon the filing of such application. If successful, in whole or in part, the director or officer seeking indemnification shall also be entitled to be paid the expense of prosecuting such application; provided, however, that such >notice shall not be a requirement for an award of or a determination of entitlement to indemnification or advancement of expenses.

 

Section 8.6     Expenses Payable in Advance. To the fullest extent authorized by Delaware law, expenses (including attorneys’ fees and other professionals’ fees and disbursements and court costs) incurred by a director or officer in defending any civil, criminal, administrative or investigative action, suit or proceeding shall be paid by the Corporation in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of such director or officer to repay such amount if it shall ultimately be determined that such person is not entitled to be indemnified by the Corporation as authorized in this Article VIII. Such expenses (including attorneys’ fees) incurred by former directors and officers or other employees and agents may be so paid upon such terms and conditions, if any, as the Corporation deems appropriate.

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Section 8.7     Non-exclusivity of Indemnification and Advancement of Expenses. The indemnification and advancement of expenses provided by, or granted pursuant to, this Article VIII shall not be deemed exclusive of any other rights to which those seeking indemnification or advancement of expenses may be entitled under the Certificate of Incorporation, these Bylaws, any statute, agreement, vote of stockholders or disinterested directors or otherwise, both as to action in such person’s official capacity and as to action in another capacity while holding such office, it being the policy of the Corporation that indemnification of and advancement of expenses to the persons specified in Section 8.1 and Section 8.2 of this Article VIII shall be made to the fullest extent permitted by law, including as a result of any amendment of the DGCL expanding the right of corporations to indemnify and advance expenses. The provisions of this Article VIII shall not be deemed to preclude the indemnification of any person who is not specified in Section 8.1 or Section 8.2 of this Article VIII but whom the Corporation has the power or obligation to indemnify under the provisions of the DGCL, or otherwise. The Corporation’s obligation, if any, to indemnify, to hold harmless, or to provide advancement of expenses to any indemnitee who was or is serving at its request as a director, officer, employee, agent or manager of another corporation, partnership, limited liability company, joint venture, trust or other enterprise or nonprofit entity (including service with respect to an employee benefit plan) shall be reduced by any amount such indemnitee actually collects as indemnification, holding harmless, or advancement of expenses from such other corporation, partnership, limited liability company, joint venture, trust or other enterprise nonprofit entity.

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Section 8.8     Insurance. The Corporation may, but shall not be required, to purchase and maintain at its expense insurance on behalf of any person who is or was a director or officer of the Corporation, or is or was a director or officer of the Corporation serving at the request of the Corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against any liability asserted against such person and incurred by such person in any such capacity, or arising out of such person’s status as such, whether or not the Corporation would have the power or the obligation to indemnify such person against such liability under the provisions of this Article VIII or Delaware law. Nothing contained in this Article VIII shall prevent the Corporation from entering into with any person any agreement that provides independent indemnification, hold harmless or exoneration rights to such person or further regulates the terms on which indemnification, hold harmless or exoneration rights are to be provided to such person or provides independent assurance of the Corporation’s obligation to indemnify, hold harmless and/or exonerate such person, whether or not such indemnification, hold harmless or exoneration rights are on the same or different terms than provided for by this Article VIII or is in respect of such person acting in any other capacity, and nothing contained herein shall be exclusive of, or a limitation on, any right to indemnification, to be held harmless, to exoneration or to advancement of expenses to which any person is otherwise entitled. The Corporation may create a trust fund, grant a security interest or use other means (including a letter of credit) to ensure the payment of such amounts as may be necessary to effect indemnification and the advancement of expenses as provided in this Article VIII.

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Section 8.9     Certain Definitions. For purposes of this Article VIII, references to the “Corporation” shall include, in addition to the resulting corporation, any constituent corporation (including any constituent of a constituent) absorbed in a consolidation or merger which, if its separate existence had continued, would have had power and authority to indemnify its directors or officers, so that any person who is or was a director or officer of such constituent corporation, or is or was a director or officer of such constituent corporation serving at the request of such constituent corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, shall stand in the same position under the provisions of this Article VIII with respect to the resulting or surviving corporation as such person would have with respect to such constituent corporation if its separate existence had continued. The term “another enterprise” as used in this Article VIII shall mean any other corporation or any partnership, joint venture, trust, employee benefit plan or other enterprise of which such person is or was serving at the request of the Corporation as a director, officer, employee or agent. For purposes of this Article VIII, references to “fines” shall include any excise taxes assessed on a person with respect to an employee benefit plan; and references to “serving at the request of the Corporation” shall include any service as a director, officer, employee or agent of the Corporation that imposes duties on, or involves services by, such director or officer with respect to an employee benefit plan, its participants or beneficiaries; and a person who acted in good faith and in a manner such person reasonably believed to be in the interest of the participants and beneficiaries of an employee benefit plan shall be deemed to have acted in a manner “not opposed to the best interests of the Corporation” as referred to in this Article VIII.

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Section 8.10  Survival of Indemnification and Advancement of Expenses. The indemnification and advancement of expenses provided by, or granted pursuant to, this Article VIII shall, unless otherwise provided when authorized or ratified, continue as to a person who has ceased to be a director or officer and shall inure to the benefit of the heirs, executors and administrators of such a person.

 

Section 8.11  Contractual Rights. The rights conferred upon any person in this Article VIII shall be contract rights and such rights shall continue as to any person who has ceased to be a director, officer, employee, trustee or agent, and shall inure to the benefit of such person’s heirs, executors and administrators. A right to indemnification or to advancement of expenses arising under any provision of this Article VIII shall not be eliminated or impaired by an amendment, alteration or repeal of any provision of the Bylaws of this Corporation after the occurrence of the act or omission that is the subject of the proceeding for which indemnification or advancement of expenses is sought (even in the case of a proceeding based on such a state of facts that is commenced after such time).

 

Section 8.12  Limitation on Indemnification. Notwithstanding anything contained in this Article VIII to the contrary, except for proceedings to enforce rights to indemnification (which shall be governed by Section 8.5 of this Article VIII), the Corporation shall not be obligated to indemnify any director or officer (or his or her heirs, executors or personal or legal representatives) or advance expenses in connection with a proceeding (or part thereof) initiated by such person unless such proceeding (or part thereof) was authorized or consented to by the Board of Directors.

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Section 8.13  Indemnification of Employees and Agents. Subject to applicable law, the Corporation may, to the extent authorized from time to time by the Board of Directors, provide rights to indemnification and to the advancement of expenses to employees and agents of the Corporation similar to those conferred in this Article VIII to directors and officers of the Corporation.

 

Section 8.14  Severability. If this Article VIII or any portion hereof shall be invalidated or held to be unenforceable on any ground by any court of competent jurisdiction, the decision of which shall not have been reversed on appeal, this Article VIII shall be deemed to be modified to the minimum extent necessary to avoid a violation of law and, as so modified, this Article and the remaining provisions hereof shall remain valid and enforceable in accordance with their terms to the fullest extent permitted by law.

 

Article IX


AMENDMENTS

 

Section 9.1     Amendments.

 

(a)    Subject to Section 9.1(b) below, these Bylaws may be altered, amended or repealed, in whole or in part, either (i) without the approval of the Board of Directors, by the affirmative vote of the holders of at least sixty-six and two-thirds percent (66 2/3%) of the voting power of the then issued and outstanding shares of capital stock of the Corporation entitled to vote thereon; provided, however, that at any time the Fortress Stockholders, collectively, beneficially own at least twenty percent (20)% of the voting power of the then issued and outstanding shares of capital stock of the Corporation entitled to vote, any such alterations, amendments, repeals or adoptions may be approved by the affirmative vote of the holders of at least a majority of the voting power of the then issued and outstanding shares of capital stock of the Corporation entitled to vote thereon or (ii) by the affirmative vote of a majority of the entire Board of Directors; provided, however, that notice of such alteration, amendment, repeal or adoption of new Bylaws be contained in the notice of such meeting (if there is one) of the stockholders or Board of Directors, as the case may be.

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(b)    Notwithstanding Section 9.1(a), or any other provision of these Bylaws (and in addition to any other vote that may be required by law), (i) any amendment, alteration or repeal, in whole or in part, of Section 2.3 (Special Meetings), Section 2.11 (Consent of Stockholders in Lieu of Meeting), Section 3.1 (Number and Election of Directors), Section 3.2 (Vacancies), Section 3.3 (Duties and Powers), Section 3.6 (Resignations and Removals of Directors), this Article IX and Article XI (Definitions) (collectively, the “Specified Bylaws”) (which, for the avoidance of doubt, would include the adoption of any provision as part of these Bylaws that is inconsistent with the purpose and intent of the Specified Bylaws) shall require the affirmative vote of the holders of at least eighty percent (80%) of the voting power of the then issued and outstanding shares of capital stock of the Corporation entitled to vote thereon, in addition to any amendment to the Certificate of Incorporation that may be required, and (ii) the ability of the Board of Directors to amend, alter, repeal, or adopt any provision as part of these Bylaws inconsistent with the purpose and intent of the Specified Bylaws is hereby specifically denied; provided, however, that at any time that the Fortress Stockholders, collectively, beneficially own at least twenty percent (20%) of the voting power of the issued and outstanding shares of capital stock entitled to vote thereon, the Specified Bylaws may be amended, altered or repealed, in whole or in part, by the affirmative vote of a majority of the entire Board of Directors (and, for the avoidance of doubt, without approval of the stockholders).

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Article X


EMERGENCY BYLAWS

 

Section 10.1  Emergency Board of Directors. In case of an attack on the United States or on a locality in which the Corporation conducts its business or customarily holds meetings of the Board of Directors or its stockholders, or during any nuclear or atomic disaster, or during the existence of any catastrophe, or other similar emergency condition, as a result of which a quorum of the Board of Directors or a committee thereof cannot readily be convened for action in accordance with the provisions of the Bylaws, the business and affairs of the Corporation shall be managed by or under the direction of an Emergency Board of Directors (hereinafter called the “Emergency Board”) established in accordance with Section 10.2.

 

Section 10.2  Membership of Emergency Board of Directors. The Emergency Board shall consist of at least three of the following persons present or available at the Emergency Corporate Headquarters determined according to Section 10.5: (a) those persons who were directors at the time of the attack or other event mentioned in Section 10.1, and (b) any other persons appointed by such directors to the extent required to provide a quorum at any meeting of the Board of Directors. If there are no such directors present or available at the Emergency Corporate Headquarters, the Emergency Board shall consist of the three highest-ranking officers or employees of the Corporation present or available and any other persons appointed by them.

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Section 10.3  Powers of the Emergency Board. The Emergency Board will have the same powers as those granted to the Board of Directors in these Bylaws, but will not be bound by any requirement of these Bylaws which a majority of the Emergency Board believes impracticable under the circumstances.

 

Section 10.4  Stockholders’ Meeting. At such time as it is practicable to do so, the Emergency Board shall call a meeting of stockholders for the purpose of electing directors. Such meeting will be held at a time and place (or by means of remote communication) to be fixed by the Emergency Board and pursuant to such notice to stockholders as it is deemed practicable to give. The stockholders entitled to vote at the meeting, present in person or represented by proxy, shall constitute a quorum.

 

Section 10.5  Emergency Corporate Headquarters. Emergency Corporate Headquarters shall be at such location as the Board of Directors or the Chief Executive Officer shall determine prior to the attack or other event, or if not so determined, at such place as the Emergency Board may determine.

 

Section 10.6  Limitation of Liability. No officer, director or employee acting in accordance with the provisions of this Article X shall be liable except for willful misconduct.

 

Section 10.7  Amendments; Repeal. At any meeting of the Emergency Board, the Emergency Board may modify, amend or add to the provisions of this Article X so as to make any provision that may be practical or necessary for the circumstances of the emergency. The provisions of this Article X shall be subject to repeal or change by further action of the Board of Directors or by action of the stockholders, but no such repeal or change shall modify the provisions of Section 10.6 with regard to action taken prior to the time of such repeal or change.

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Article XI


DEFINITIONS

 

Section 11.1  Defined terms. For purposes of these Bylaws, the following terms shall have the following meanings:

 

(a)             Affiliate” means, with respect to a given person, any other person that, directly or indirectly, controls, is controlled by or is under common control with, such person; provided, however, that for purposes of these Bylaws, none of (i) the Virgin Trains USA Entities and any entities (including corporations, partnerships, limited liability companies or other persons) in which such Virgin Trains USA Entities hold, directly or indirectly, an ownership interest, on the one hand, or (ii) the Fortress Stockholders and their Affiliates (excluding any Virgin Trains USA Entities or other entities described in clause (i)) , on the other hand, shall be deemed to be “Affiliates” of one another. For purposes of this definition, “control” (including, with correlative meanings, the terms “controlled by” and “under common control with”) as applied to any person, means the possession, directly or indirectly, of beneficial ownership of, or the power to vote, ten percent (10%) or more of the securities having voting power for the election of directors (or other persons acting in similar capacities) of such person or the power otherwise to direct or cause the direction of the management and policies of such person, whether through the ownership of voting securities, by contract or otherwise.

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(b)            Beneficially own” and “beneficial ownership” and similar terms used herein shall be determined in accordance with Rules 13d-3 and 13d-5 under the Exchange Act; provided that for purposes of this Restated Certificate of Incorporation, the Fortress Stockholders shall be deemed to beneficially own Voting Shares or other securities held by record by the Virgin Trains USA Stockholders in an amount proportionate to the aggregate voting power of the Virgin Trains USA Stockholder held of record or beneficially owned by the Fortress Stockholders.

 

(c)             Virgin Trains USA Entities” shall mean the Corporation and its Subsidiaries, and “Virgin Trains USA Entity” shall mean any of the Virgin Trains USA Entities.

 

(d)            Virgin Trains USA Stockholder” means AAF Holdings LLC, a Delaware limited liability company, and its Subsidiaries (other than Subsidiaries that constitute Virgin Trains USA Entities) and successors.

 

(e)             Bylaws” shall have the meaning set forth in the Preamble.

 

(f)             Certificate of Incorporation” shall have the meaning set forth in Section 2.3.

 

(g)            Corporation” shall have the meaning set forth in the Preamble.

 

(h)            DGCL” shall have the meaning set forth in Section 2.1.

 

(i)              entire Board of Directors” means the total number of directors that the Corporation would have if there were no director vacancies.

 

(j)              Exchange Act” shall have the meaning set forth in Section 2.18.

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(k)            Fortress Affiliate Stockholders” shall mean (A) any director of the Corporation who may be deemed an Affiliate of Fortress Investment Group LLC (“FIG”), (B) any director or officer of FIG or its Affiliates, (C) any investment funds (including any managed accounts) or entities managed directly or indirectly by FIG or its Affiliates or (D) any other entity whose day-to-day business and operations are, at the time of any direct or indirect acquisition of any securities of the Corporation, managed or supervised by one or more of the Principals or individuals under such Principal’s supervision, or any Affiliates of such entity.

 

(l)              Fortress Stockholders” shall mean (i) the Virgin Trains USA Stockholder, (ii) each Fortress Affiliate Stockholder and each entity formed by a Fortress Affiliate Stockholder to hold any interests in the Virgin Trains USA Stockholder or the Corporation and (iii) each Permitted Transferee who becomes a party to or bound by the provisions of the Stockholders Agreement, in accordance with the terms thereof, or Permitted Transferee thereof who is entitled to enforce the provisions of the Stockholders Agreement in accordance with the terms thereof.

 

(m)          Governmental Entity” shall mean any national, state, provincial, municipal, local or foreign government, any court, arbitral tribunal, administrative agency or commission or other governmental or regulatory authority, commission or agency or any non-governmental, self-regulatory authority, commission or agency.

 

(n)            Judgment” shall mean any order, writ, injunction, award, judgment, ruling or decree of any Governmental Entity.

 

(o)            Law” shall mean any statute, law, code, ordinance, rule or regulation of any Governmental Entity.

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(p)            Lien” shall mean any pledge, claim, equity, option, lien, charge, mortgage, easement, right-of-way, call right, right of first refusal, “tag”- or “drag”- along right, encumbrance, security interest or other similar restriction of any kind or nature whatsoever.

 

(q)            Permitted Transferee” means, with respect to each Fortress Stockholder, (i) any other Fortress Stockholder, (ii) such Fortress Stockholder’s Affiliates, (iii) in the case of any Fortress Stockholder, (A) any member or general or limited partner of such Fortress Stockholder (including, without limitation, any member of the Virgin Trains USA Stockholder), (B) any corporation, partnership, limited liability company or other entity that is an Affiliate of such Fortress Stockholder or any member, general or limited partner of such Fortress Stockholder (collectively, “Fortress Stockholder Affiliates”), (C) any investment funds advised or managed directly or indirectly by such Fortress Stockholder or any Fortress Stockholder Affiliate (a “Fortress Stockholder Fund”), (D) any general or limited partner of any Fortress Stockholder Fund, (E) any managing director, general partner, director, limited partner, officer or employee of any Fortress Stockholder Affiliate, or any spouse, lineal descendant, sibling, parent, heir, executor, administrator, testamentary trustee, legatee or beneficiary of any of the foregoing persons described in this clause (E) (collectively, “Fortress Stockholder Associates”) or (F) any trust, the beneficiaries of which, or any corporation, limited liability company or partnership, the stockholders, members or general or limited partners of which, consist solely of any one or more of such Fortress Stockholder, any general or limited partner of such Fortress Stockholder, any Fortress Stockholder Affiliates, any Fortress Stockholder Fund, any Fortress Stockholder Associates, their spouses or their lineal descendants and (iv) any other person that acquires shares of the Corporation’s common stock from such Fortress Stockholder other than pursuant to a Public Offering that agrees to become party to the Stockholders Agreement.

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(r)             Person” shall mean any individual, firm, corporation, partnership, limited liability company or other entity, and shall include any successor (by merger or otherwise) of such entity.

 

(s)             Principals” means Peter L. Briger, Wesley R. Edens and Randal A. Nardone.

 

(t)              Public Offering” shall mean an offering of common stock of the Corporation pursuant to an effective registration statement under the Securities Act of 1933, as amended, including an offering in which Fortress Stockholders are entitled to sell the Corporation’s common stock pursuant to the terms of the Stockholders Agreement.

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(u)            Restriction” with respect to any capital stock, partnership interest, membership interest in a limited liability company or other equity interest or security, shall mean any voting or other trust or agreement, option, warrant, preemptive right, right of first offer, right of first refusal, escrow arrangement, proxy, buy-sell agreement, power of attorney or other contract, any Law, license, permit or Judgment that, conditionally or unconditionally, (i) grants to any person the right to purchase or otherwise acquire, or obligates any person to sell or otherwise dispose of or issue, or otherwise results or, whether upon the occurrence of any event or with notice or lapse of time or both or otherwise, may result in any person acquiring, (A) any of such capital stock, partnership interest, membership interest in a limited liability company or other equity interest or security, (B) any of the proceeds of, or any distributions paid or that are or may become payable with respect to, any of such capital stock, partnership interest, membership interest in a limited liability company or other equity interest or security or (C) any interest in such capital stock, partnership interest, membership interest in a limited liability company or other equity interest or security or any such proceeds or distributions, (ii) restricts or, whether upon the occurrence of any event or with notice or lapse of time or both or otherwise, is reasonably likely to restrict the transfer or voting of, or the exercise of any rights or the enjoyment of any benefits arising by reason of ownership of, any such capital stock, partnership interest, membership interest in a limited liability company or other equity interest or security or any such proceeds or distributions or (iii) creates or, whether upon the occurrence of any event or with notice or lapse of time or both or otherwise, is reasonably likely to create a Lien or purported Lien affecting such capital stock, partnership interest, membership interest in a limited liability company or other equity interest or security, proceeds or distributions.

 

(v)            Securities Act” shall mean the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.

 

(w)           Stockholders Agreement” shall mean the stockholders’ agreement, dated as of                , 2019, between the Corporation and the Virgin Trains USA Stockholder, as may be amended from time to time.

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(x)            Subsidiary” with respect to any person means: (i) a corporation, a majority in voting power of whose capital stock with voting power, under ordinary circumstances, to elect directors is at the time, directly or indirectly owned by such person, by a Subsidiary of such person, or by such person and one or more Subsidiaries of such person, without regard to whether the voting of such capital stock is subject to a voting agreement or similar Restriction, (ii) a partnership or limited liability company in which such person or a Subsidiary of such person is, at the date of determination, (A) in the case of a partnership, a general partner of such partnership with the power affirmatively to direct the policies and management of such partnership or (B) in the case of a limited liability company, the managing member or, in the absence of a managing member, a member with the power affirmatively to direct the policies and management of such limited liability company or (iii) any other person (other than a corporation) in which such person, a Subsidiary of such person or such person and one or more Subsidiaries of such person, directly or indirectly, at the date of determination thereof, has (A) the power to elect or direct the election of a majority of the members of the governing body of such person (whether or not such power is subject to a voting agreement or similar restriction) or (B) in the absence of such a governing body, a majority ownership interest.

 

(y)            “Voting Shares” shall have the meaning set forth in Section 3.1.

 

* * *

 

Adopted as of:               , 2019


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EX-5 5 s002218x10_ex5-1.htm EXHIBIT 5.1

Exhibit 5.1
January 30, 2019

Virgin Trains USA LLC
161 NW 6th Street, Suite 900
Miami, FL 33136


Re:
Virgin Trains USA LLC
 
Registration Statement on Form S-1


Ladies and Gentlemen:

We have acted as special counsel to Virgin Trains USA LLC, a Delaware limited liability company that will be converted into a Delaware corporation named “Virgin Trains USA Inc.” (the “Company”), in connection with the public offering by the Company of 32,584,100 shares of common stock, par value $0.01 per share (“Common Stock”), of the Company including up to 4,250,100 shares of Common Stock subject to an over-allotment option (the “Shares”).

This opinion is being furnished in accordance with the requirements of Item 601(b)(5) of Regulation S-K under the Securities Act of 1933, as amended (the “Securities Act”).

In rendering the opinions stated herein, we have examined and relied upon the following:

(a)          the registration statement on Form S-1 (File No. 333-228447) of the Company relating to the Shares of the Company filed on November 16, 2018 with the Securities and Exchange Commission (the “Commission”) under the Securities Act and Pre-Effective Amendments No. 1 through No. 3 thereto, including the information deemed to be a part of the registration statement pursuant to Rule 430A of the General Rules and Regulations under the Securities Act (the “Rules and Regulations”) and the Notice of Effectiveness of the Commission posted on its website declaring such registration statement effective on           , 2019 (such registration statement, as so amended, being hereinafter referred to as the “Registration Statement”);

(b)          the preliminary prospectus, dated January 30, 2019 (the “Preliminary Prospectus”), relating to the offering of the Shares, in the form filed with the Commission pursuant to Rule 424(b) of the Rules and Regulations;

Virgin Trains USA LLC
January 30, 2019
Page 2


(c)          the prospectus, dated           , 2019 (the “Prospectus”), relating to the offering of the Shares, in the form filed with the Commission pursuant to Rule 424(b) of the Rules and Regulations;

(d)          an executed copy of the Underwriting Agreement (the “Underwriting Agreement”), dated                     , 2019, among the Company, Barclays Capital Inc., J.P. Morgan Securities LLC and Morgan Stanley & Co. LLC, as representatives (the “Representatives”) of the several Underwriters named therein (the “Underwriters”), relating to the sale by the Company to the Underwriters of the Shares, filed as Exhibit 1.1 to the Registration Statement;

(e)          an executed copy of a certificate of Myles Tobin, Secretary of the Company, dated the date hereof (the “Secretary’s Certificate”);

(f)          the form of the Company’s Certificate of Incorporation, to be in effect immediately prior to the consummation of the offering of the Shares and filed as Exhibit 3.1 to the Registration Statement;

(g)          the form of the Company’s Bylaws, to be in effect immediately prior to the consummation of the offering of the Shares and filed as Exhibit 3.2 to the Registration Statement; and

(h)          copies of the action by written consent of the sole member of the Company, dated           , 2019, and certain resolutions of the Board of Directors adopted on           , 2019 and of the Pricing Committee thereof adopted on           , 2019, in each case certified pursuant to the Secretary’s Certificate.

We have also examined originals or copies, certified or otherwise identified to our satisfaction, of such records of the Company and such agreements, certificates and receipts of public officials, certificates of officers or other representatives of the Company and others, and such other documents as we have deemed necessary or appropriate as a basis for the opinions stated below, including the facts and conclusions set forth in the Secretary’s Certificate and the factual representations and warranties contained in the Underwriting Agreement.

In our examination, we have assumed the genuineness of all signatures, the legal capacity and competency of all natural persons, the authenticity of all documents submitted to us as originals, the conformity to original documents of all documents submitted to us as facsimile, electronic, certified or photostatic copies, and the authenticity of the originals of such copies. As to any facts relevant to the opinions stated herein that we did not independently establish or verify, we have relied upon statements and representations of officers and other representatives of the Company and others and of public officials, including the factual representations and warranties set forth in the Underwriting Agreement.

We do not express any opinion with respect to the laws of any jurisdiction other than the General Corporation Law of the State of Delaware (the “DGCL”).

Virgin Trains USA LLC
January 30, 2019
Page 3

Based upon the foregoing and subject to the qualifications and assumptions stated herein, we are of the opinion that:

When (i) the Registration Statement, as finally amended (including all necessary post-effective amendments), has become effective under the Securities Act; (ii) the Underwriting Agreement has been duly authorized, executed and delivered by the Company and the other parties thereto; (iii) the Certificate of Incorporation has been filed with the Secretary of State of the State of Delaware and has become effective and the Board of Directors of the Company, including any appropriate committee appointed thereby, has taken all necessary corporate action to adopt the Company’s Bylaws and to approve the issuance and sale of the Shares and related matters, including the price per share of the Shares; (iv) certificates in the form required under the DGCL representing the Shares are duly executed and countersigned by the transfer agent; and (v) the Shares are registered in the Company’s share registry and delivered upon payment of the consideration therefor determined by the Board of Directors, the Shares, when issued and sold in accordance with the provisions of the Underwriting Agreement, will be duly authorized by all requisite corporate action on the part of the Company under the DGCL and validly issued, fully paid and nonassessable.

The opinions stated herein are subject to the following qualifications:

(a)          the issuance of the Shares does not violate or conflict with, or require any consent pursuant to,  any contract or agreement binding on the Company or any of its stockholders (except that we do not make this assumption with respect to those agreements or instruments expressed to be governed by the laws of the State of Delaware or the State of New York which are listed in Part II of the Registration Statement).

We hereby consent to the reference to our firm under the heading “Legal Matters” in the prospectus forming part of the Registration Statement. We also hereby consent to the filing of this opinion with the Commission as an exhibit to the Registration Statement. In giving this consent, we do not thereby admit that we are within the category of persons whose consent is required under Section 7 of the Securities Act or the Rules and Regulations.

Very truly yours,

/s/ Skadden, Arps, Slate, Meagher & Flom LLP

MJZ



EX-10.2 6 s002218x10_ex10-2.htm EXHIBIT 10.2

Exhibit 10.2

VIRGIN TRAINS USA INC.
2019 OMNIBUS INCENTIVE PLAN

Section 1.          Purpose of Plan.

The name of the Plan is the Virgin Trains USA Inc. 2019 Omnibus Incentive Plan (the “Plan”).  The purposes of the Plan are to provide an additional incentive to selected officers, employees, non-employee directors, independent contractors, and consultants of the Company or its Affiliates (as hereinafter defined) whose contributions are essential to the growth and success of the business of the Company and its Affiliates, in order to strengthen the commitment of such persons to the Company and its Affiliates, motivate such persons to faithfully and diligently perform their responsibilities and attract and retain competent and dedicated persons whose efforts will result in the long-term growth and profitability of the Company and its Affiliates.  To accomplish such purposes, the Plan provides that the Company may grant Options, Stock Appreciation Rights, Restricted Stock, Restricted Stock Units, Stock Bonuses, Other Stock-Based Awards, Cash Awards or any combination of the foregoing.

Section 2.          Definitions.

For purposes of the Plan, the following terms shall be defined as set forth below:

(a)          Administrator” means the Board, or, if and to the extent the Board does not administer the Plan, the Committee in accordance with Section 3 hereof.

(b)          Affiliate” means a Person that directly, or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with, the Person specified.

(c)          Award” means any Option, Stock Appreciation Right, Restricted Stock, Restricted Stock Unit, Stock Bonus, Other Stock-Based Award or Cash Award granted under the Plan.

(d)          Award Agreement” means any written agreement, contract or other instrument or document evidencing an Award, including through electronic medium, which shall contain such terms and conditions with respect to an Award as the Administrator shall determine, consistent with the Plan.  Each Participant who is granted an Award shall enter into an Award Agreement with the Company, containing such terms and conditions as the Administrator shall determine, in its sole discretion.

(e)          Base Price” has the meaning set forth in Section 8(b) hereof.

(f)          Beneficial Owner” (or any variant thereof) has the meaning defined in Rule 13d-3 under the Exchange Act.

(g)          Board” means the Board of Directors of the Company.

(h)          Cash Award” means an Award granted pursuant to Section 12 hereof.


(i)          Cause” has the meaning assigned to such term in the Award Agreement or in any individual employment or severance agreement with the Participant or, if any such agreement does not define “Cause,” Cause means (i) the commission of an act of fraud or dishonesty by the Participant in the course of the Participant’s employment or service; (ii) the indictment of, or conviction of, or entering of a plea of guilty or nolo contendere by, the Participant for a crime constituting a felony or in respect of any act of fraud or dishonesty; (iii) the commission of an act by the Participant which would make the Participant or the Company (including any of its Subsidiaries or Affiliates) subject to being enjoined, suspended, barred or otherwise disciplined for violation of federal or state securities laws, rules or regulations, including a statutory disqualification; (iv) gross negligence or willful misconduct in connection with the Participant’s performance of his or her duties in connection with the Participant’s employment by or service with the Company (including any Subsidiary or Affiliate for whom the Participant may be employed by or providing services to at the time) or the Participant’s failure to comply with any of the restrictive covenants to which the Participant is subject; (v) the Participant’s willful failure to comply with any material policies or procedures of the Company as in effect from time to time, provided that the Participant shall have been delivered a copy of such policies or notice that they have been posted on a Company website prior to such compliance failure; or (vi) the Participant’s failure to perform the material duties in connection with the Participant’s position, unless the Participant remedies the failure referenced in this clause (vi) no later than ten (10) days following delivery to the Participant of a written notice from the Company (including any of its Subsidiaries or Affiliates) describing such failure in reasonable detail (provided that the Participant shall not be given more than one opportunity in the aggregate to remedy failures described in this clause (vi)).

(j)          Change in Capitalization” means any (1) merger, consolidation, reclassification, recapitalization, spin-off, spin-out, repurchase or other reorganization or corporate transaction or event, (2) special or extraordinary dividend or other extraordinary distribution (whether in the form of cash, Common Stock, or other property), stock split, reverse stock split, subdivision or consolidation, (3) combination or exchange of shares, or (4) other change in corporate structure, which, in any such case, the Administrator determines, in its sole discretion, affects the Common Stock such that an adjustment pursuant to Section 5 hereof is appropriate.

(k)          Change in Control” shall mean an event or series of events after which Fortress Entities collectively directly or indirectly legally or beneficially own less than 40% of the voting stock (or other voting equity interests) of the Company; provided, however, that a “Change in Control” shall not be deemed to occur upon the occurrence of either of the following events:

(1)          an acquisition, merger, continuation into another jurisdiction or other business combination involving the Company, including the sale of all or substantially all of the assets of the Company (each, a “Business Combination”), if one or more Fortress Entities collectively (x) directly or indirectly legally or Beneficially Own at least 30% of the voting stock (or other voting equity interests) of the Company or the surviving/acquiring entity, as the case may be, and (y) continue to be the largest stockholder (or other holder of equity) of the Company or the surviving/acquiring entity, as the case may be, following such Business Combination; and a “Change in Control” will not result after any such Business Combination so long as (but only so long as) the conditions set forth in clause (x) and clause (y) continue to be satisfied; or

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(2)          (x) upon an initial public offering of the voting stock or other equity interests of the Company or any direct or indirect parent of the Company (without regard to the percentage of voting stock or other equity interests of the Company or such other entity directly or indirectly legally or beneficially owned by the Fortress Entities immediately after such offering) or (y) without limiting clause (x), if at any time following such initial public offering, one or more Fortress Entities collectively directly or indirectly legally or beneficially own at least 30% of the voting stock (or other voting equity interests) of the Company or such direct or indirect parent and are the largest stockholder (or other holder of equity) of the Company or such direct or indirect parent.

Notwithstanding the foregoing, for each Award that constitutes deferred compensation under Section 409A of the Code, and to the extent required to avoid accelerated taxation and/or tax penalties under Section 409A of the Code, a Change in Control shall be deemed to have occurred under the Plan with respect to such Award only if a change in the ownership or effective control of the Company or a change in ownership of a substantial portion of the assets of the Company shall also be deemed to have occurred under Section 409A of the Code.

(l)          Code” means the Internal Revenue Code of 1986, as amended from time to time, or any successor thereto.

(m)          Committee” means any committee or subcommittee the Board may appoint to administer the Plan.  Subject to the discretion of the Board, the Committee shall be composed entirely of individuals who meet the qualifications of (i) a “non-employee director” within the meaning of Rule 16b-3 and (ii) any other qualifications required by the applicable stock exchange on which the Common Stock is traded.  If at any time or to any extent the Board shall not administer the Plan, then the functions of the Administrator specified in the Plan shall be exercised by the Committee.  Except as otherwise provided in the organizational documents of the Company, any action of the Committee with respect to the administration of the Plan shall be taken by a majority vote at a meeting at which a quorum is duly constituted or unanimous written consent of the Committee’s members.

(n)          Common Stock” means the common stock, $0.01 par value per share, of the Company.

(o)          Company” means Virgin Trains USA Inc., a Delaware corporation (or any successor company, except as the term “Company” is used in the definition of “Change in Control” above).

(p)          Disability” has the meaning assigned to such term in the Award Agreement or in any individual employment or severance agreement with the Participant or, if any such agreement does not define “Disability,” Disability means, with respect to any Participant, that such Participant (i) as determined by the Administrator in its sole discretion, is unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or can be expected to last for a continuous period of not less than twelve (12) months, or (ii) is, by reason of any medically determinable physical or mental impairment which can be expected to result in death or can be expected to last for a continuous period of not less than twelve (12) months, receiving income replacement benefits for a period of not less than three (3) months under an accident and health plan covering employees of the Company or an Affiliate thereof.

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(q)          Effective Date” has the meaning set forth in Section 20 hereof.

(r)          Eligible Recipient” means an officer, employee, non-employee director, independent contractor or consultant of the Company or any Affiliate of the Company who has been selected as an eligible participant by the Administrator; provided, however, to the extent required to avoid accelerated taxation and/or tax penalties under Section 409A of the Code, an Eligible Recipient of an Option or a Stock Appreciation Right means an employee, non-employee director, independent contractor or consultant of the Company or any Affiliate of the Company with respect to whom the Company is an “eligible issuer of service recipient stock” within the meaning of Section 409A of the Code.

(s)          Exchange Act” means the Securities Exchange Act of 1934, as amended from time to time.

(t)          Exercise Price” means, with respect to any Option, the per share price at which a holder of such Option may purchase such shares of Common Stock issuable upon the exercise of such Option.

(u)          Fair Market Value” of Common Stock or another security as of a particular date shall mean the fair market value as determined by the Administrator in its sole discretion; provided, however, (i) if the Common Stock or other security is admitted to trading on a national securities exchange, the fair market value on any date shall be the closing sale price reported on such date, or if no shares were traded on such date, on the last preceding date for which there was a sale of a share of Common Stock on such exchange, or (ii) if the Common Stock or other security is then traded in an over-the-counter market, the fair market value on any date shall be the average of the closing bid and asked prices for such share in such over-the-counter market for the last preceding date on which there was a sale of such share in such market.

(v)          Fortress Entities” means Fortress Investment Group LLC and its Affiliates.

(w)          Free Standing Right” has the meaning set forth in Section 8(a) hereof.

(x)          Good Reason” has the meaning assigned to such term in the Award Agreement or in any individual employment or severance agreement with the Participant or, if any such agreement does not define “Good Reason,” Good Reason and any provision of this Plan that refers to Good Reason shall not be applicable to such Participant.

(y)          ISO” means an Option intended to be and designated as an “incentive stock option” within the meaning of Section 422 of the Code.

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(z)          Nonqualified Stock Option” means an Option that is not designated as an ISO.

(aa)         Option” means an option to purchase shares of Common Stock granted pursuant to Section 7 hereof.  The term “Option” as used in the Plan includes the terms “Nonqualified Stock Option” and “ISO.”

(bb)        Other Stock-Based Award” means an Award granted pursuant to Section 10 hereof.

(cc)         Participant” means any Eligible Recipient selected by the Administrator, pursuant to the Administrator’s authority provided for in Section 3 hereof, to receive grants of Awards, and, upon his or her death, his or her successors, heirs, executors and administrators, as the case may be.

(dd)         Performance Goals” means performance goals based on criteria selected by the Administrator in its sole discretion, including, without limitation, one or more of the following criteria:  (i) earnings, including one or more of operating income, net operating income, earnings before or after taxes, earnings before or after interest, depreciation, amortization, adjusted EBITDA, economic earnings, or extraordinary or special items or book value per share (which may exclude nonrecurring items); (ii) pre-tax income or after-tax income; (iii) earnings per share (basic or diluted); (iv) operating profit; (v) revenue, revenue growth or rate of revenue growth; (vi) return on assets (gross or net), return on investment, return on capital, or return on equity; (vii) returns on sales or revenues; (viii) operating expenses; (ix) stock price appreciation; (x) cash flow, free cash flow, cash flow return on investment (discounted or otherwise), net cash provided by operations, or cash flow in excess of cost of capital; (xi) implementation or completion of critical projects or processes; (xii) cumulative earnings per share growth; (xiii) operating margin or profit margin; (xiv) stock price or total shareholder return; (xv) cost targets, reductions and savings, productivity and efficiencies; (xvi) strategic business criteria, consisting of one or more objectives based on meeting specified market penetration, geographic business expansion, customer satisfaction, employee satisfaction, human resources management, supervision of litigation and information technology goals, and goals relating to acquisitions, divestitures, joint ventures and similar transactions, and budget comparisons; (xvii) personal professional objectives, including any of the foregoing performance goals, the implementation of policies and plans, the negotiation of transactions, the development of long term business goals, formation of joint ventures, research or development collaborations, and the completion of other corporate transactions; and (xviii) any combination of, or a specified increase in, any of the foregoing. Where applicable, the Performance Goals may be expressed in terms of attaining a specified level of the particular criteria or the attainment of a percentage increase or decrease in the particular criteria, and may be applied to one or more of the Company or any Affiliate thereof, or a division or strategic business unit of the Company or any Affiliate thereof, or may be applied to the performance of the Company relative to a market index, a group of other companies or a combination thereof, all as determined by the Administrator.  The Performance Goals may include a threshold level of performance below which no payment shall be made (or no vesting shall occur), levels of performance at which specified payments shall be made (or specified vesting shall occur), and a maximum level of performance above which no additional payment shall be made (or at which full vesting shall occur).  The Administrator shall have the authority to make equitable adjustments to the Performance Goals as may be determined by the Administrator, in its sole discretion.

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(ee)         Person” has the meaning given in Section 3(a)(9) of the Exchange Act, as modified and used in Sections 13(d) and 14(d) thereof.

(ff)          Plan” has the meaning set forth in Section 1 hereof.

(gg)        Related Right” has the meaning set forth in Section 8(a) hereof.

(hh)        Restricted Stock” means Shares granted pursuant to Section 9 hereof subject to certain restrictions that lapse at the end of a specified period or periods.

(ii)          Restricted Stock Unit” means the right, granted pursuant to Section 9 hereof, to receive an amount in cash or Shares (or any combination thereof) equal to the Fair Market Value of a Share subject to certain restrictions that lapse at the end of a specified period or periods.

(jj)          Rule 16b-3” has the meaning set forth in Section 3(a) hereof.

(kk)        Shares” means Common Stock reserved for issuance under the Plan, as adjusted pursuant to the Plan, and any successor (pursuant to a merger, consolidation or other reorganization) security.

(ll)          Stock Appreciation Right” means the right to receive, upon exercise of the right, the applicable amounts as described in Section 8 hereof.

(mm)      Stock Bonus” means a bonus payable in fully vested shares of Common Stock granted pursuant to Section 11 hereof.

(nn)        Subsidiary” means, with respect to any Person, as of any date of determination, any other Person as to which such first Person owns or otherwise controls, directly or indirectly, more than 50% of the voting shares or other similar interests or a sole general partner interest or managing member or similar interest of such other Person.

(oo)        Transfer” has the meaning set forth in Section 18 hereof.

Section 3.          Administration.

(a)          The Plan shall be administered by the Administrator and shall be administered in accordance with the requirements of Rule 16b-3 under the Exchange Act (“Rule 16b-3”), to the extent applicable.

(b)          Pursuant to the terms of the Plan, the Administrator, subject, in the case of any Committee, to any restrictions on the authority delegated to it by the Board, shall have the power and authority, without limitation:

(1)          to select those Eligible Recipients who shall be Participants;

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(2)          to determine whether and to what extent Awards are to be granted hereunder to Participants;

(3)          to determine the number of Shares to be covered by each Award granted hereunder;

(4)          to determine the terms and conditions, not inconsistent with the terms of the Plan, of each Award granted hereunder (including, but not limited to, (i) the restrictions applicable to Restricted Stock or Restricted Stock Units and the conditions under which restrictions applicable to such Restricted Stock or Restricted Stock Units shall lapse, (ii) the Performance Goals and periods applicable to Awards, (iii) the Exercise Price of each Option and the Base Price of each Stock Appreciation Right, (iv) the vesting schedule applicable to each Award, subject to Section 4(d) hereof, (v) the number of Shares or amount of cash or other property subject to each Award and (vi) subject to the requirements of Section 409A of the Code (to the extent applicable), any amendments to the terms and conditions of outstanding Awards, including, but not limited to, extending the exercise period of such Awards and accelerating the vesting schedule of such Awards);

(5)          to determine the terms and conditions, not inconsistent with the terms of the Plan, which shall govern all written instruments evidencing Awards;

(6)          to determine the Fair Market Value in accordance with the terms of the Plan;

(7)          to determine the duration and purpose of leaves of absence which may be granted to a Participant without constituting termination of the Participant’s employment or service for purposes of Awards granted under the Plan;

(8)          to adopt, alter and repeal such administrative rules, guidelines and practices governing the Plan as it shall from time to time deem advisable; and

(9)          to prescribe, amend and rescind rules and regulations relating to sub-plans established for the purpose of satisfying applicable foreign laws or qualifying for favorable tax treatment under applicable foreign laws, which rules and regulations may be set forth in an appendix or appendices to the Plan; and

(10)          to construe and interpret the terms and provisions of the Plan and any Award issued under the Plan (and any Award Agreement relating thereto), and to otherwise supervise the administration of the Plan and to exercise all powers and authorities either specifically granted under the Plan or necessary and advisable in the administration of the Plan.

(c)          All decisions made by the Administrator pursuant to the provisions of the Plan shall be final, conclusive and binding on all persons, including the Company and the Participants.  No member of the Board or the Committee, nor any officer or employee of the Company or any Subsidiary thereof acting on behalf of the Board or the Committee, shall be personally liable for any action, omission, determination, or interpretation taken or made in good faith with respect to the Plan, and all members of the Board or the Committee and each and any officer or employee of the Company and of any Subsidiary thereof acting on their behalf shall, to the maximum extent permitted by law, be fully indemnified and protected by the Company in respect of any such action, omission, determination or interpretation.

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(d)          The Administrator may, in its sole discretion, delegate its authority, in whole or in part, under this Section 3 (including, but not limited to, its authority to grant Awards under the Plan, other than its authority to grant Awards under the Plan to any Participant who is subject to reporting under Section 16 of the Exchange Act) to one or more officers of the Company, subject to the requirements of applicable law or any stock exchange on which the Shares are traded.

Section 4.          Shares Reserved for Issuance; Certain Limitations.

(a)          The maximum number of shares of Common Stock reserved for issuance under the Plan shall be           shares (subject to adjustment as provided in Section 5), as increased on the first day of each fiscal year of the Company beginning in calendar year 2020 by a number of shares of Common Stock equal to (x) the excess, if any, of 10% of the number of outstanding shares of Common Stock on the last day of the immediately preceding fiscal year, over (y) the number of shares of Common Stock reserved and available for issuance in respect of future grants of Awards under the Plan as of the last day of the immediately preceding fiscal year.  All shares of Common Stock reserved for issuance under the Plan may be granted in the form of ISOs.

(b)          Shares issued under the Plan may, in whole or in part, be authorized but unissued Shares or Shares that shall have been or may be reacquired by the Company in the open market, in private transactions or otherwise.  If any Shares subject to an Award are forfeited, cancelled, exchanged or surrendered or if an Award otherwise terminates or expires without a distribution of Shares to the Participant, the Shares with respect to such Award shall, to the extent of any such forfeiture, cancellation, exchange, surrender, termination or expiration, again be available for Awards under the Plan.  Notwithstanding the foregoing, Shares that are exchanged by a Participant or withheld by the Company as full or partial payment in connection with the exercise of any Option or Stock Appreciation Right under the Plan or the payment of any purchase price with respect to any other Award under the Plan, as well as any Shares exchanged by a Participant or withheld by the Company or any Subsidiary to satisfy the tax withholding obligations related to any Award under the Plan, shall not be available for subsequent Awards under the Plan, and notwithstanding that a Stock Appreciation Right is settled by the delivery of a net number of shares of Common Stock, the full number of shares of Common Stock underlying such Stock Appreciation Right shall not be available for subsequent Awards under the Plan. Upon the exercise of any Award granted in tandem with any other Awards, such related Awards shall be cancelled to the extent of the number of Shares as to which the Award is exercised and, notwithstanding the foregoing, such number of Shares shall no longer be available for Awards under the Plan.  Shares of Common Stock, if any, that are repurchased by the Company using the proceeds received by the Company from the exercise of any Option or Stock Appreciation Right or from the payment of any purchase price with respect to any other Award shall not be added to the aggregate number of shares of Common Stock available for Awards under the Plan.  In addition, (i) to the extent an Award is denominated in shares of Common Stock, but paid or settled in cash, the number of shares of Common Stock with respect to which such payment or settlement is made shall again be available for grants of Awards pursuant to the Plan and (ii) shares of Common Stock underlying Awards that can only be settled in cash shall not be counted against the aggregate number of shares of Common Stock available for Awards under the Plan.

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(c)          No Participant who is a non-employee director of the Company shall be granted Awards during any calendar year that, when aggregated with such non-employee director’s cash fees with respect to such calendar year, exceed $           in total value (calculating the value of any such Awards based on the grant date fair value of such Awards for the Company’s financial reporting purposes).

Section 5.          Equitable Adjustments.

(a)          In the event of any Change in Capitalization, an equitable substitution or proportionate adjustment shall be made, in each case, as may be determined by the Administrator, in its sole discretion, in (i) the aggregate number of shares of Common Stock reserved for issuance under the Plan and the maximum number of shares of Common Stock or cash that may be subject to Awards granted to any Participant in any calendar year, (ii) the kind and number of securities subject to, and the Exercise Price or Base Price of, any outstanding Options and Stock Appreciation Rights granted under the Plan, (iii) the kind, number and purchase price of shares of Common Stock, or the amount of cash or amount or type of other property, subject to outstanding Restricted Stock, Restricted Stock Units, Stock Bonuses and Other Stock-Based Awards granted under the Plan or (iv) the Performance Goals and performance periods applicable to any Awards granted under the Plan; provided, however, that any fractional Shares resulting from the adjustment shall be eliminated.  Such other equitable substitutions or adjustments shall be made as may be determined by the Administrator, in its sole discretion.

(b)          Without limiting the generality of the foregoing, in connection with a Change in Capitalization, the Administrator may provide, in its sole discretion, but subject in all events to the requirements of Section 409A of the Code, for the cancellation of any outstanding Award in exchange for payment in cash or other property having an aggregate Fair Market Value equal to the Fair Market Value of the shares of Common Stock, cash or other property covered by such Award, reduced by the aggregate Exercise Price or Base Price thereof, if any; provided, however, that if the Exercise Price or Base Price of any outstanding Award is equal to or greater than the Fair Market Value of the shares of Common Stock, cash or other property covered by such Award, the Board may cancel such Award without the payment of any consideration to the Participant.

(c)          The determinations made by the Administrator or the Board, as applicable, pursuant to this Section 5 shall be final, binding and conclusive.

Section 6.          Eligibility.


       The Participants under the Plan shall be selected from time to time by the Administrator, in its sole discretion, from those individuals that qualify as Eligible Recipients.

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Section 7.          Options.

(a)          General.  Each Participant who is granted an Option shall enter into an Award Agreement with the Company, containing such terms and conditions as the Administrator shall determine, in its sole discretion, which Award Agreement shall set forth, among other things, the Exercise Price of the Option, the term of the Option and provisions regarding exercisability of the Option, and whether the Option is intended to be an ISO or a Nonqualified Stock Option (and in the event the Award Agreement has no such designation, the Option shall be a Nonqualified Stock Option).  The provisions of each Option need not be the same with respect to each Participant.  More than one Option may be granted to the same Participant and be outstanding concurrently hereunder.  Options granted under the Plan shall be subject to the terms and conditions set forth in this Section 7 and shall contain such additional terms and conditions, not inconsistent with the terms of the Plan, as the Administrator shall deem desirable and set forth in the applicable Award Agreement.

(b)          Exercise Price.  The Exercise Price of Shares purchasable under an Option shall be determined by the Administrator in its sole discretion at the time of grant, but in no event shall the exercise price of an Option be less than one hundred percent (100%) of the Fair Market Value of the related shares of Common Stock on the date of grant.

(c)          Option Term.  The maximum term of each Option shall be fixed by the Administrator, but no Option shall be exercisable more than ten (10) years after the date such Option is granted.  Each Option’s term is subject to earlier expiration pursuant to the applicable provisions in the Plan and the Award Agreement.

(d)          Exercisability.  Each Option shall be exercisable at such time or times and subject to such terms and conditions, including the attainment of Performance Goals, as shall be determined by the Administrator in the applicable Award Agreement.  The Administrator may also provide that any Option shall be exercisable only in installments, and the Administrator may waive such installment exercise provisions at any time, in whole or in part, based on such factors as the Administrator may determine in its sole discretion.  Notwithstanding anything to the contrary contained herein, an Option may not be exercised for a fraction of a share.

(e)          Method of Exercise.  Options may be exercised in whole or in part by giving written notice of exercise to the Company specifying the number of whole Shares to be purchased, accompanied by payment in full of the aggregate Exercise Price of the Shares so purchased in cash or its equivalent, as determined by the Administrator.  As determined by the Administrator, in its sole discretion, with respect to any Option or category of Options, payment in whole or in part may also be made (i) by means of consideration received under any cashless exercise procedure approved by the Administrator (including the withholding of Shares otherwise issuable upon exercise), (ii) in the form of unrestricted Shares already owned by the Participant which have a Fair Market Value on the date of surrender equal to the aggregate exercise price of the Shares as to which such Option shall be exercised, (iii) any other form of consideration approved by the Administrator and permitted by applicable law or (iv) any combination of the foregoing.

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(f)          ISOs.  The terms and conditions of ISOs granted hereunder shall be subject to the provisions of Section 422 of the Code and the terms, conditions, limitations and administrative procedures established by the Administrator from time to time in accordance with the Plan.  At the discretion of the Administrator, ISOs may be granted only to an employee of the Company, its “parent corporation” (as such term is defined in Section 424(e) of the Code) or a Subsidiary of the Company.

(i)          ISO Grants to 10% Stockholders.  Notwithstanding anything to the contrary in the Plan, if an ISO is granted to a Participant who owns shares representing more than ten percent (10%) of the voting power of all classes of shares of the Company, its “parent corporation” (as such term is defined in Section 424(e) of the Code) or a Subsidiary of the Company, the term of the ISO shall not exceed five (5) years from the time of grant of such ISO and the Exercise Price shall be at least one hundred and ten percent (110%) of the Fair Market Value of the Shares on the date of grant.

(ii)          $100,000 Per Year Limitation For ISOs.  To the extent the aggregate Fair Market Value (determined on the date of grant) of the Shares for which ISOs are exercisable for the first time by any Participant during any calendar year (under all plans of the Company) exceeds $100,000, such excess ISOs shall be treated as Nonqualified Stock Options.

(iii)          Disqualifying Dispositions.  Each Participant awarded an ISO under the Plan shall notify the Company in writing immediately after the date the Participant makes a “disqualifying disposition” of any Share acquired pursuant to the exercise of such ISO.  A “disqualifying disposition” is any disposition (including any sale) of such Shares before the later of (i) two years after the date of grant of the ISO and (ii) one year after the date the Participant acquired the Shares by exercising the ISO.  The Company may, if determined by the Administrator and in accordance with procedures established by it, retain possession of any Shares acquired pursuant to the exercise of an ISO as agent for the applicable Participant until the end of the period described in the preceding sentence, subject to complying with any instructions from such Participant as to the sale of such Shares.

(g)          Rights as Stockholder.  A Participant shall have no rights to dividends, dividend equivalents or distributions or any other rights of a stockholder with respect to the Shares subject to an Option until the Participant has given written notice of the exercise thereof, has paid in full for such Shares and has satisfied the requirements of Section 17 hereof.

(h)          Termination of Employment or Service.  In the event of the termination of employment or service with the Company and all Affiliates thereof of a Participant who has been granted one or more Options, such Options shall be exercisable at such time or times and subject to such terms and conditions as set forth in the Award Agreement.

(i)          Other Change in Employment or Service Status.  An Option shall be affected, both with regard to vesting schedule and termination, by leaves of absence, including unpaid and un-protected leaves of absence, changes from full-time to part-time employment, partial Disability or other changes in the employment status or service status of a Participant, in the discretion of the Administrator.

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Section 8.          Stock Appreciation Rights.

(a)          General.  Stock Appreciation Rights may be granted either alone (“Free Standing Rights”) or in conjunction with all or part of any Option granted under the Plan (“Related Rights”).  Related Rights may be granted either at or after the time of the grant of such Option.  The Administrator shall determine the Eligible Recipients to whom, and the time or times at which, grants of Stock Appreciation Rights shall be made, the number of Shares to be awarded, the Base Price, and all other conditions of Stock Appreciation Rights.  Notwithstanding the foregoing, no Related Right may be granted for more Shares than are subject to the Option to which it relates.  The provisions of Stock Appreciation Rights need not be the same with respect to each Participant.  Stock Appreciation Rights granted under the Plan shall be subject to the following terms and conditions set forth in this Section 8 and shall contain such additional terms and conditions, not inconsistent with the terms of the Plan, as the Administrator shall deem desirable, as set forth in the applicable Award Agreement.

(b)          Base Price.  Each Stock Appreciation Right shall be granted with a base price that is not less than one hundred percent (100%) of the Fair Market Value of the related shares of Common Stock on the date of grant (such amount, the “Base Price”).

(c)          Rights as Stockholder.  A Participant shall have no rights to dividends, dividend equivalents or any other rights of a stockholder with respect to the Shares, if any, subject to a Stock Appreciation Right until the Participant has given written notice of the exercise thereof and has satisfied the requirements of Section 17 hereof.

(d)          Exercisability.

(1)          Stock Appreciation Rights that are Free Standing Rights shall be exercisable at such time or times and subject to such terms and conditions as shall be determined by the Administrator in the applicable Award Agreement.

(2)          Stock Appreciation Rights that are Related Rights shall be exercisable only at such time or times and to the extent that the Options to which they relate shall be exercisable in accordance with the provisions of Section 7 hereof and this Section 8.

(e)          Consideration Upon Exercise.

(1)          Upon the exercise of a Free Standing Right, the Participant shall be entitled to receive up to, but not more than, that number of Shares equal in value to (i) the excess of the Fair Market Value of a share of Common Stock as of the date of exercise over the Base Price per share specified in the Free Standing Right, multiplied by (ii) the number of Shares in respect of which the Free Standing Right is being exercised.

(2)          A Related Right may be exercised by a Participant by surrendering the applicable portion of the related Option.  Upon such exercise and surrender, the Participant shall be entitled to receive up to, but not more than, that number of Shares equal in value to (i) the excess of the Fair Market Value of a share of Common Stock as of the date of exercise over the Exercise Price specified in the related Option, multiplied by (ii) the number of Shares in respect of which the Related Right is being exercised.  Options which have been so surrendered, in whole or in part, shall no longer be exercisable to the extent the Related Rights have been so exercised.

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(3)          Notwithstanding the foregoing, the Administrator may determine to settle the exercise of a Stock Appreciation Right in cash (or in any combination of Shares and cash).

(f)          Termination of Employment or Service.

(1)          In the event of the termination of employment or service with the Company and all Affiliates thereof of a Participant who has been granted one or more Free Standing Rights, such rights shall be exercisable at such time or times and subject to such terms and conditions as set forth in the Award Agreement.

(2)          In the event of the termination of employment or service with the Company and all Affiliates thereof of a Participant who has been granted one or more Related Rights, such rights shall be exercisable at such time or times and subject to such terms and conditions as set forth in the related Options.

(g)          Term.

(1)          The term of each Free Standing Right shall be fixed by the Administrator, but no Free Standing Right shall be exercisable more than ten (10) years after the date such right is granted.

(2)          The term of each Related Right shall be the term of the Option to which it relates, but no Related Right shall be exercisable more than ten (10) years after the date such right is granted.

(h)          Other Change in Employment or Service Status.  Stock Appreciation Rights shall be affected, both with regard to vesting schedule and termination, by leaves of absence, including unpaid and un-protected leaves of absence, changes from full-time to part-time employment, partial Disability or other changes in the employment status or service status of a Participant, in the discretion of the Administrator.

Section 9.          Restricted Stock and Restricted Stock Units.

(a)          General.  Restricted Stock and Restricted Stock Units may be issued under the Plan.  The Administrator shall determine the Eligible Recipients to whom, and the time or times at which, Restricted Stock or Restricted Stock Units shall be made; the number of Shares to be awarded; the price, if any, to be paid by the Participant for the acquisition of Restricted Stock or Restricted Stock Units; the period of time prior to which Restricted Stock or Restricted Stock Units become vested and free of restrictions on Transfer (the “Restricted Period”); the Performance Goals (if any); and all other conditions of the Restricted Stock and Restricted Stock Units.  If the restrictions, Performance Goals and/or conditions established by the Administrator are not attained, a Participant shall forfeit his or her Restricted Stock or Restricted Stock Units, in accordance with the terms of the grant.  The provisions of Restricted Stock or Restricted Stock Units need not be the same with respect to each Participant.

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(b)          Awards and Certificates.

(1)          Except as otherwise provided in Section 9(c) hereof, (i) each Participant who is granted an Award of Restricted Stock may, in the Company’s sole discretion, be issued a stock certificate in respect of such Restricted Stock; and (ii) any such certificate so issued shall be registered in the name of the Participant, and shall bear an appropriate legend referring to the terms, conditions, and restrictions applicable to any such Award.  The Company may require that the stock certificates, if any, evidencing Restricted Stock granted hereunder be held in the custody of the Company until the restrictions thereon shall have lapsed, and that, as a condition of any award of Restricted Stock, the Participant shall have delivered a stock transfer form, endorsed in blank, relating to the Shares covered by such award.  Certificates for shares of unrestricted Common Stock may, in the Company’s sole discretion, be delivered to the Participant only after the Restricted Period has expired without forfeiture in respect of such Restricted Stock.

(2)          With respect to an Award of Restricted Stock Units to be settled in Shares, at the expiration of the Restricted Period, stock certificates in respect of the shares of Common Stock underlying such Restricted Stock Units may, in the Company’s sole discretion, be delivered to the Participant, or his legal representative, in a number equal to the number of shares of Common Stock underlying the Award of Restricted Stock Units.

(3)          Notwithstanding anything in the Plan to the contrary, any Restricted Stock or Restricted Stock Units to be settled in Shares (at the expiration of the Restricted Period) may, in the Company’s sole discretion, be issued in uncertificated form.

(4)          Further, notwithstanding anything in the Plan to the contrary, with respect to Restricted Stock Units, at the expiration of the Restricted Period, Shares (either in certificated or uncertificated form) or cash, as applicable, shall promptly be issued to the Participant, unless otherwise deferred in accordance with procedures established by the Company in accordance with Section 409A of the Code, and such issuance or payment shall in any event be made no later than March 15th of the calendar year following the year of vesting or within such other period as is required to avoid accelerated taxation and/or tax penalties under Section 409A of the Code.

(c)          Restrictions and Conditions.  The Restricted Stock and Restricted Stock Units granted pursuant to this Section 9 shall be subject to the following restrictions and conditions and any additional restrictions or conditions as determined by the Administrator at the time of grant or, subject to Section 409A of the Code where applicable, thereafter:

(1)          Subject to Section 4(d) hereof, the Award Agreement may provide for the lapse of restrictions in installments and may accelerate or waive such restrictions in whole or in part based on such factors and such circumstances as set forth in the Award Agreement, including, but not limited to, the attainment of certain performance related goals, the Participant’s termination of employment or service with the Company or any Affiliate thereof, or the Participant’s death or Disability.  Notwithstanding the foregoing, upon a Change in Control, the outstanding Awards shall be subject to Section 14 hereof.

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(2)          Except as provided in the applicable Award Agreement, the Participant shall generally have the rights of a stockholder of the Company with respect to shares of Restricted Stock during the Restricted Period, including the right to vote such shares and to receive any dividends declared with respect to such shares; provided, however, that except as provided in the applicable Award Agreement, any dividends declared during the Restricted Period with respect to such shares shall only become payable if (and to the extent) the underlying Restricted Shares vest.  Except as provided in the applicable Award Agreement, the Participant shall generally not have the rights of a stockholder with respect to shares of Common Stock subject to Restricted Stock Units during the Restricted Period; provided, however, that, subject to Section 409A of the Code, an amount equal to any dividends declared during the Restricted Period with respect to the number of shares of Common Stock covered by Restricted Stock Units may, to the extent set forth in an Award Agreement, be provided to the Participant at the time (and to the extent) that shares of Common Stock in respect of the related Restricted Stock Units are delivered to the Participant.

(d)          Termination of Employment or Service. The rights of Participants granted Restricted Stock or Restricted Stock Units upon termination of employment or service with the Company and all Affiliates thereof for any reason during the Restricted Period shall be set forth in the Award Agreement.

(e)          Form of Settlement.  The Administrator reserves the right in its sole discretion to provide (either at or after the grant thereof) that any Restricted Stock Unit represents the right to receive the amount of cash per unit that is determined by the Administrator in connection with the Award.

Section 10.          Other Stock-Based Awards.

Other forms of Awards valued in whole or in part by reference to, or otherwise based on, Common Stock, including but not limited to dividend equivalents, may be granted either alone or in addition to other Awards (other than in connection with Options or Stock Appreciation Rights) under the Plan. Any dividend or dividend equivalent awarded hereunder shall be subject to the same restrictions, conditions and risks of forfeiture as the underlying Awards and shall only become payable if (and to the extent) the underlying Awards vest.  Subject to the provisions of the Plan, the Administrator shall have sole and complete authority to determine the individuals to whom and the time or times at which such Other Stock-Based Awards shall be granted, the number of shares of Common Stock to be granted pursuant to such Other Stock-Based Awards, or the manner in which such Other Stock-Based Awards shall be settled (e.g., in shares of Common Stock, cash or other property), or the conditions to the vesting and/or payment or settlement of such Other Stock-Based Awards (which may include, but not be limited to, achievement of performance criteria) and all other terms and conditions of such Other Stock-Based Awards.

Section 11.          Stock Bonuses.

In the event that the Administrator grants a Stock Bonus, the Shares constituting such Stock Bonus shall, as determined by the Administrator, be evidenced in uncertificated form or by a book entry record or a certificate issued in the name of the Participant to whom such grant was made and delivered to such Participant as soon as practicable after the date on which such Stock Bonus is payable.

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Section 12.          Cash Awards.

The Administrator may grant Awards that are payable solely in cash, as deemed by the Administrator to be consistent with the purposes of the Plan, and such Cash Awards shall be subject to the terms, conditions, restrictions and limitations determined by the Administrator, in its sole discretion, from time to time.  Cash Awards may be granted with value and payment contingent upon the achievement of Performance Goals.

Section 13.          Change in Control Provisions.

Unless otherwise determined by the Administrator prior to a Change in Control or evidenced in an Award Agreement, in the event that (a) a Change in Control occurs and (b) the Participant’s employment or service is terminated by the Company, its successor or an Affiliate thereof without Cause or by the Participant for Good Reason (if applicable) on or after the effective date of the Change in Control but prior to twelve (12) months following the Change in Control, then:

(a)          any unvested or unexercisable portion of any Award carrying a right to exercise shall become fully vested and exercisable; and

(b)          the restrictions, deferral limitations, payment conditions and forfeiture conditions applicable to an Award granted under the Plan shall lapse and such Awards shall be deemed fully vested and any performance conditions imposed with respect to such Awards shall be deemed to be fully achieved.

Section 14.          Voting Proxy.

The Company reserves the right to require the Participant, to the fullest extent permitted by applicable law, to appoint the company’s Secretary (or another person at the request of the Administrator) as the Participant’s proxy with respect to all applicable unvested Awards of which the Participant may be the record holder of from time to time to (A) attend all meetings of the holders of the shares of Common Stock, with full power to vote and act for the Participant with respect to such Awards in the same manner and extent that the Participant might were the Participant personally present at such meetings, and (B) execute and deliver, on behalf of the Participant, any written consent in lieu of a meeting of the holders of the shares of Common Stock in the same manner and extent that the Participant might but for the proxy granted pursuant to this sentence.

Section 15.          Amendment and Termination.

The Board may amend, alter or terminate the Plan, but no amendment, alteration, or termination shall be made that would impair the rights of a Participant under any Award theretofore granted without such Participant’s consent.  Unless the Board determines otherwise, the Board shall obtain approval of the Company’s stockholders for any amendment to the Plan that would require such approval in order to satisfy any rules of the stock exchange on which the Common Stock is traded or other applicable law.  The Administrator may amend the terms of any Award theretofore granted, prospectively or retroactively, but, subject to Section 5 hereof and the immediately preceding sentence, no such amendment shall impair the rights of any Participant without his or her consent.

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Section 16.          Unfunded Status of Plan.

The Plan is intended to constitute an “unfunded” plan for incentive compensation.  With respect to any payments not yet made to a Participant by the Company, nothing contained herein shall give any such Participant any rights that are greater than those of a general creditor of the Company.

Section 17.          Withholding Taxes.

Each Participant shall, no later than the date as of which the value of an Award first becomes includible in the gross income of such Participant for purposes of applicable taxes, pay to the Company, or make arrangements satisfactory to the Administrator regarding payment of, an amount in respect of such taxes up to the maximum statutory rates in the Participant’s applicable jurisdiction with respect to the Award, as determined by the Company.  The obligations of the Company under the Plan shall be conditional on the making of such payments or arrangements, and the Company shall, to the extent permitted by law, have the right to deduct any such taxes from any payment of any kind otherwise due to such Participant.  Whenever cash is to be paid pursuant to an Award, the Company shall have the right to deduct therefrom an amount sufficient to satisfy any applicable withholding tax requirements related thereto as determined by the Company.  Whenever Shares or property other than cash are to be delivered pursuant to an Award, the Company shall have the right to require the Participant to remit to the Company in cash an amount sufficient to satisfy any related taxes to be withheld and applied to the tax obligations as determined by the Company; provided, that, with the approval of the Administrator, a Participant may satisfy the foregoing requirement by either (i) electing to have the Company withhold from delivery of Shares or other property, as applicable, or (ii) by delivering already owned unrestricted shares of Common Stock, in each case, having a value not exceeding the applicable taxes to be withheld and applied to the tax obligations as determined by the Company.  Such already owned and unrestricted shares of Common Stock shall be valued at their Fair Market Value on the date on which the amount of tax to be withheld is determined and any fractional share amounts resulting therefrom shall be settled in cash.  Such an election may be made with respect to all or any portion of the Shares to be delivered pursuant to an award.  The Company may also use any other method of obtaining the necessary payment or proceeds, as permitted by law, to satisfy its withholding obligation with respect to any Award as determined by the Company.

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Section 18.          Transfer of Awards.

Until such time as the Awards are fully vested and/or exercisable in accordance with the Plan or an Award Agreement, no purported sale, assignment, mortgage, hypothecation, transfer, charge, pledge, encumbrance, gift, transfer in trust (voting or other) or other disposition of, or creation of a security interest in or lien on, any Award or any agreement or commitment to do any of the foregoing (each, a “Transfer”) by any holder thereof in violation of the provisions of the Plan or an Award Agreement will be valid, except with the prior written consent of the Administrator, which consent may be granted or withheld in the sole discretion of the Administrator.  Any purported Transfer of an Award or any economic benefit or interest therein in violation of the Plan or an Award Agreement shall be null and void ab initio, and shall not create any obligation or liability of the Company, and any Person purportedly acquiring any Award or any economic benefit or interest therein transferred in violation of the Plan or an Award Agreement shall not be entitled to be recognized as a holder of any shares of Common Stock or other property underlying such Award.  Unless otherwise determined by the Administrator in accordance with the provisions of the immediately preceding sentence, an Option or Stock Appreciation Right may be exercised, during the lifetime of the Participant, only by the Participant or, during any period during which the Participant is under a legal disability, by the Participant’s guardian or legal representative.

Section 19.          Continued Employment or Service.

Neither the adoption of the Plan nor the grant of an Award hereunder shall confer upon any Eligible Recipient any right to continued employment or service with the Company or any Affiliate thereof, as the case may be, nor shall it interfere in any way with the right of the Company or any Affiliate thereof to terminate the employment or service of any of its Eligible Recipients at any time.

Section 20.          Effective Date.

The Plan was adopted by the Board on           , 2019, and became effective on          , 2019 (“Effective Date”), the date on which the Plan was approved by the Company’s stockholders.

Section 21.          Term of Plan.

No Award shall be granted pursuant to the Plan on or after the tenth anniversary of the Effective Date, but Awards theretofore granted may extend beyond that date.

Section 22.          Securities Matters and Regulations.

(a)          Notwithstanding anything herein to the contrary, the obligation of the Company to sell or deliver Common Stock with respect to any Award granted under the Plan shall be subject to all applicable laws, rules and regulations, including all applicable federal and state securities laws, the obtaining of all such approvals by governmental agencies as may be deemed necessary or appropriate by the Administrator and the listing requirements of any securities exchange on which the shares of Common Stock are traded. The Administrator may require, as a condition of the issuance and delivery of certificates evidencing shares of Common Stock pursuant to the terms hereof, that the recipient of such shares make such agreements and representations, and that such certificates bear such legends, as the Administrator, in its sole discretion, deems necessary or advisable.

(b)          Each Award is subject to the requirement that, if at any time the Administrator determines that the listing, registration or qualification of Common Stock issuable pursuant to the Plan is required by any securities exchange or under any state or federal law, or the consent or approval of any governmental regulatory body is necessary or desirable as a condition of, or in connection with, the grant of an Award or the issuance of Common Stock, no such Award shall be granted or payment made or Common Stock issued, in whole or in part, unless such listing, registration, qualification, consent or approval has been effected or obtained free of any conditions not acceptable to the Administrator.

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(c)          In the event that the disposition of Common Stock acquired pursuant to the Plan is not covered by a then current registration statement under the Securities Act and is not otherwise exempt from such registration, such Common Stock shall be restricted against transfer to the extent required by the Securities Act or regulations thereunder, and the Administrator may require a Participant receiving Common Stock pursuant to the Plan, as a condition precedent to receipt of such Common Stock, to represent to the Company in writing that the Common Stock acquired by such Participant is acquired for investment only and not with a view to distribution.

Section 23.          Notification of Election Under Section 83(b) of the Code.

If any Participant shall, in connection with the acquisition of shares of Common Stock under the Plan, make the election permitted under Section 83(b) of the Code, such Participant shall notify the Company of such election within ten (10) days after filing notice of the election with the Internal Revenue Service.

Section 24.          No Fractional Shares.

No fractional shares of Common Stock shall be issued or delivered pursuant to the Plan. The Administrator shall determine whether cash, other Awards, or other property shall be issued or paid in lieu of such fractional shares or whether such fractional shares or any rights thereto shall be forfeited or otherwise eliminated.

Section 25.          Beneficiary.

A Participant may file with the Administrator a written designation of a beneficiary on such form as may be prescribed by the Administrator and may, from time to time, amend or revoke such designation. If no designated beneficiary survives the Participant, the executor or administrator of the Participant’s estate shall be deemed to be the Participant’s beneficiary.

Section 26.          Paperless Administration.

In the event that the Company establishes, for itself or using the services of a third party, an automated system for the documentation, granting or exercise of Awards, such as a system using an internet website or interactive voice response, then the paperless documentation, granting or exercise of Awards by a Participant may be permitted through the use of such an automated system.

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Section 27.          Severability.

If any provision of the Plan is held to be invalid or unenforceable, the other provisions of the Plan shall not be affected but shall be applied as if the invalid or unenforceable provision had not been included in the Plan.

Section 28.          Clawback.

Notwithstanding any other provisions in this Plan, any Award which is subject to recovery under any law, government regulation, stock exchange listing requirement or pursuant to any policy adopted by the Company, as approved by the Board, will be subject to such deductions and clawback as may be required to be made pursuant to such law, government regulation, stock exchange listing requirement or policy adopted by the Company.

Section 29.          Section 409A of the Code.

The Plan as well as payments and benefits under the Plan are intended to be exempt from, or to the extent subject thereto, to comply with Section 409A of the Code, and, accordingly, to the maximum extent permitted, the Plan shall be interpreted in accordance therewith. Notwithstanding anything contained herein to the contrary, to the extent required in order to avoid accelerated taxation and/or tax penalties under Section 409A of the Code, the Participant shall not be considered to have terminated employment or service with the Company for purposes of the Plan and no payment shall be due to the Participant under the Plan or any Award until the Participant would be considered to have incurred a “separation from service” from the Company and its Affiliates within the meaning of Section 409A of the Code. Any payments described in the Plan that are due within the “short term deferral period” as defined in Section 409A of the Code shall not be treated as deferred compensation unless applicable law requires otherwise. Notwithstanding anything to the contrary in the Plan, to the extent that any Awards (or any other amounts payable under any plan, program or arrangement of the Company or any of its Affiliates) are payable upon a separation from service and such payment would result in the imposition of any individual tax and penalty interest charges imposed under Section 409A of the Code, the settlement and payment of such awards (or other amounts) shall instead be made on the first business day after the date that is six (6) months following such separation from service (or death, if earlier). Each amount to be paid or benefit to be provided under this Plan shall be construed as a separate identified payment for purposes of Section 409A of the Code.  The Company makes no representation that any or all of the payments or benefits described in this Plan will be exempt from or comply with Section 409A of the Code and makes no undertaking to preclude Section 409A of the Code from applying to any such payment. The Participant shall be solely responsible for the payment of any taxes and penalties incurred under Section 409A of the Code.

Section 30.          Governing Law.

The Plan shall be governed by and construed in accordance with the laws of the State of Delaware, without giving effect to the principles of conflicts of law of such state.

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Section 31.          Titles and Headings.

The titles and headings of the sections in the Plan are for convenience of reference only and, in the event of any conflict, the text of the Plan, rather than such titles or headings, shall control.

Section 32.          Successors.

The obligations of the Company under the Plan shall be binding upon any successor corporation or organization resulting from the merger, consolidation or other reorganization of the Company, or upon any successor corporation or organization succeeding to substantially all of the assets and business of the Company.

Section 33.          Relationship to Other Benefits.

 No payment pursuant to the Plan shall be taken into account in determining any benefits under any pension, retirement, savings, profit sharing, group insurance, welfare, or other benefit plan of the Company or any Affiliate except to the extent otherwise expressly provided in writing in such other plan or an agreement thereunder.

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EX-10.6 7 s002218x10_ex10-6.htm EXHIBIT 10.6

Exhibit 10.6

FORM OF TRANSITION SERVICES AGREEMENT

This TRANSITION SERVICES AGREEMENT (the “Agreement”), dated as of           , 2019 and effective as of the Closing (as defined below), is made by and between Virgin Trains USA LLC, a Delaware limited liability company (the “Company”), and Florida East Coast Industries, LLC, a Delaware limited liability company (“Parent”). The Company and Parent are collectively referred to as the Parties” and each individually as a “Party”.

W I T N E S S E T H:

WHEREAS, the Company intends to offer and sell common stock, par value $0.01 per share, of the Company (“Common Stock”) to the public and list the Common Stock on a national securities exchange (the “Offering”); and

WHEREAS, from and after the closing of the Offering (the “Closing”), (i) the Company and its affiliates will continue to require that Parent or its affiliates provide or cause to be provided certain services to the Company and its affiliates and (ii) Parent and its affiliates will continue to require that the Company or its affiliates provide or cause to be provided certain services to Parent and its affiliates; and

WHEREAS, the Parties and their respective affiliates desire to continue to provide or cause to be provided such services during a transitional period following the Closing on the terms and subject to the conditions set forth herein.

NOW, THEREFORE, in consideration of the foregoing and the respective representations, warranties, covenants and agreements set forth herein, and intending to be legally bound hereby, subject to the conditions and other terms herein set forth, the Parties hereby agree as follows:

ARTICLE I

SERVICES

1.1          Services.  On the terms and subject to the conditions of this Agreement, including the condition requiring approval of services in accordance with Section 1.2, (a) Parent shall provide to the Company and/or its affiliates certain services set forth on Schedule A (the “Parent Service Schedule” and the services set forth thereon from time to time, the “Parent Services”) and (b) the Company shall provide to Parent and/or its affiliates certain services set forth on Schedule B (the “Company Service Schedule” and the services set forth thereon from time to time, “Company Services” and, together with the Parent Services, the “Services”).  Each of Parent and the Company is referred to herein as “Service Provider” in its capacity as the provider of Parent Services and Company Services, respectively, and as “Service Recipient” in its capacity as the recipient of Company Services and Parent Services, respectively.



1.2          Approval of Services.  At any time and from time to time during the Term, (a) Parent may request in writing that any service provided by the Company or its affiliates to Parent or its affiliates during the twelve (12) month period prior to the Closing (the “Pre-Transition Period”) be added to the Company Service Schedule and (b) the Company may request in writing that any service provided by Parent or its affiliates to the Company or its affiliates during the Pre-Transition Period be added to the Parent Service Schedule.  Upon the approval of (i) a majority of the members of the board of directors of the Company that qualify as independent directors under the listing standards of The Nasdaq Stock Market and (ii) a majority of the members of the board of directors of Parent that qualify as independent under Item 407(a)(1)(ii) of Regulation S-K, 17 CFR § 229.407, each of which approvals shall include a determination that the fees for such Services are at a price consistent with market transactions for similar services, (1) the Company Service Schedule or the Parent Service Schedule, as applicable, shall be deemed amended to include such services, (2) the fees for such services shall be set forth on the Company Service Schedule or the Parent Service Schedule, as applicable, and (3) such services shall be deemed to be Company Services or Parent Services, as applicable.

1.3          Provision of Services.  Service Provider may provide Services directly or by or through one or more of its affiliates or, subject to Service Recipient’s prior consent upon reasonable advance notice, third party contractors; provided, however, Service Provider shall remain responsible for Services provided by its affiliates or third party contractors and any subcontracting shall not relieve Service Provider of its obligations hereunder, including with respect to the scope and level of Services.  Service Provider shall use commercially reasonable efforts consistent with its general practices to cause each third party contractor on whose services the Services are dependent to comply with the relevant third party contractor’s contractual obligations.

1.4          Performance of Services.  Service Provider shall use commercially reasonable efforts to provide, or cause one or more of its affiliates or third party contractors to provide, the Services in accordance with applicable law and any of Service Provider’s written policies and procedures and within the standard and manner that is commensurate in all material respects (in nature, quality and timeliness) with the manner in which they were provided during the Pre-Transition Period, subject to any limitations or restrictions agreed to in writing by the Parties (such agreement not to be unreasonably withheld, conditioned or delayed), which limitations or restrictions are posed by or resulting from (a) any modification in process for providing Services necessitated by the separation of the Company from Parent’s continuing operations, (b) any change in scope and (c) any restrictions imposed on Service Provider by applicable law.  For the avoidance of doubt, in providing the Services, Service Provider may use any information systems, hardware, software, processes and procedures it deems necessary or desirable in its reasonable discretion.

1.5          Connectivity, Compliance and Security Measures.  Service Recipient shall comply with all policies, standards and procedures of Service Provider that have been provided to Service Recipient in connection with its access to and use of the Services.  Service Provider shall comply with all policies, standards and procedures of Service Recipient that have been provided to Service Provider in connection with its provision of the Services.

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1.6          Service Fees.

(a)          As compensation to Service Provider for the Services rendered hereunder, Service Recipient shall, for each Service performed, reimburse Service Provider for its cost of providing the Services, including the allocated cost of, among other things, overhead, employee wages and compensation and out-of-pocket expenses, in each case, determined using Service Provider’s cost allocation methodology consistent with past practice, without any intent to cause Service Provider to receive profit or incur loss (the “Cost Reimbursements”). On a monthly basis, Service Provider shall provide an invoice setting forth the Cost Reimbursements to be charged in arrears to Service Recipient hereunder, including reasonable supporting documentation.    Services Fees shall be paid within forty-five (45) days of Service Recipient’s receipt of such invoice. Late payments shall bear interest at the lesser of ten (10%) per annum or the maximum rate allowed by law.

(b)          All sales, use and other taxes, levies and charges imposed by applicable taxing authorities on the provision of Services (collectively, “Taxes”) shall be borne by Service Recipient.  If Service Provider or any of its affiliates or third party contractors are required to pay such Taxes, (i) Service Provider shall invoice Service Recipient for such Taxes and (ii) Service Recipient shall promptly reimburse Service Provider therefor in accordance with this Section 1.6(b).

1.7          Direction and Control of Employees.  Unless otherwise agreed by the Parties, for purposes of all compensation and employee benefits and welfare matters, all employees and representatives of Service Provider, its affiliates and third party contractors shall be deemed to be employees or representatives of Service Provider, its affiliates or third party contractors and not employees or representatives of Service Recipient.  In performing the Services, such employees and representatives shall be under the direction, control and supervision of Service Provider, its affiliates or third party contractors (and not Service Recipient or its affiliates) and Service Provider, its affiliates and third party contractors shall have the sole right to exercise all authority with respect to the employment (including termination of employment), assignment and compensation of such employees, representatives and third party contractors.

1.8          Cooperation of Service Provider. From and after the Closing (whether or not during the Term), Service Provider shall, and shall use commercially reasonable efforts to cause its affiliates and third party contractors to, at Service Recipient’s cost, cooperate in good faith with Service Recipient and its affiliates to transfer records and take such other actions reasonably requested by Service Recipient to enable it to make alternative arrangements for the provision of services substantially consistent with or replacing the Services provided pursuant to this Agreement.

1.9          Return of Records owned by Service Recipient. Upon termination of a Service with respect to which Service Provider or its affiliates holds books, records or files, including current or archived copies of computer files, owned by Service Recipient or its affiliates and used by Service Provider, its affiliates or its third party contractors in connection with the provision of a Service to Service Recipient or its affiliates, Service Provider will use commercially reasonable efforts to return all of such books, records or files as soon as reasonably practicable.  However, Service Provider or its affiliates may retain books, records and files (a) as necessary to comply with applicable laws or court orders and (b) to the extent they have become included in automatic “backups” by routine procedures or by electronic communication or information management systems without the requirement to “scrub” such systems or its backup servers, provided that such books, records or files retained by Service Provider shall remain subject to the use and confidentiality restrictions in this Agreement until such books, records or files are destroyed by Service Provider in accordance with its own information technology and record retention policies and applicable law.

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1.10          Work Product and Intellectual Property.  Service Provider acknowledges that any and all writings, documents, designs, data and other materials that Service Provider makes, conceives or develops at any time as a result of Service Provider’s performance of the Services may be utilized by Service Recipient to the extent necessary to receive and use the Services hereunder.  Each Party shall retain any and all right, title and interest in and to any intellectual property and other proprietary information that it held prior to, or that it acquires independently of, its performance of the Services.  In addition, each Party shall be the sole and exclusive owner of any right, title, license or other interest in or to any Parent IP or Company IP to the extent that such Parent IP or Company IP is exclusively related to the business of such Party.  Except as set forth in the preceding sentence, Parent shall be the sole and exclusive owner of any right, title, license or other interest in or to all Parent IP and the Company shall be the sole and exclusive owner of any right, title, license or other interest in or to all Company IP (and, for the avoidance of doubt, no such items shall be considered a work made for hire within the meaning of Title 17 of the United States Code).  For purpose of this Agreement, “Parent IP” shall mean any copyrights, patents, trade secrets and other intellectual property rights to the extent developed, created, modified or improved by Parent or its affiliates or third party contractors in connection with providing the Parent Services and “Company IP” shall mean any copyrights, patents, trade secrets and other intellectual property rights to the extent developed, created, modified or improved by the Company or its affiliates or third party contractors in connection with providing the Company Services.

ARTICLE II

CERTAIN COVENANTS

2.1          Cooperation of Service Recipient.  Service Recipient shall cooperate with Service Provider in all reasonable respects in the performance of the Services, as applicable.

2.2          Independent Contractor.  In providing the Services, Service Provider shall act solely as an independent contractor.  Nothing herein shall constitute or be construed to be or create a partnership, joint venture or principal/agent relationship between Service Recipient or any of its affiliates or their respective directors, officers or employees, on the one hand, and Service Provider or any of its affiliates or their respective directors, officers or employees, on the other hand.

2.3          Compliance with Laws and Regulations.  Each Party shall be responsible for its own compliance with any and all applicable laws in connection with its performance under this Agreement.

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2.4          Limitation of Liability; Indemnity.

(a)          It is the intent of the Parties that each Party will be responsible for its own acts, errors and omissions and that each Party is liable to the other Party for any actual direct damages incurred by the non-breaching Party as a result of the breaching Party’s failure to perform its obligations in the manner required by this Agreement.  Notwithstanding the foregoing, no Party will be liable hereunder for, and each Party hereby expressly waives any and all rights with respect to, exemplary, punitive, presumptive, special, incidental, lost profits, consequential or speculative damages.  SUBJECT TO SECTION 2.4(c), IN NO EVENT SHALL SERVICE PROVIDER’S LIABILITY IN THE AGGREGATE FOR ANY AND ALL DAMAGES AND LOSSES HEREUNDER ARISING FROM SERVICE PROVIDER’S PROVISION OF SERVICES EXCEED $          .

(b)          Service Recipient shall indemnify, defend and hold Service Provider and its successors, assigns, members, affiliates, employees, officers, participants, shareholders, directors and personal representatives, harmless from and against all losses, liabilities, claims, damages, costs and expenses (including, without limitation, reasonable attorneys’ fees and expenses) (collectively, the “Losses”) that arise out of this Agreement (including the provision of Services to or receipt and use of Services by Service Recipient and its affiliates), except for Losses to the extent arising from any breach of this Agreement by Service Provider or the gross negligence or willful misconduct of Service Provider.  The foregoing indemnity shall survive the termination of this Agreement.

(c)          Service Provider shall indemnify, defend and hold Service Recipient and its successors, assigns, members, affiliates, employees, officers, participants, shareholders, directors and personal representatives, harmless from and against all Losses arising from the gross negligence or willful misconduct of Service Provider in connection with providing Services; provided that in no event shall Service Provider’s liability in the aggregate for all Losses indemnified under this Section 2.4(c) exceed $          .  The foregoing indemnity shall survive the termination of this Agreement.

ARTICLE III

TERM AND TERMINATION

3.1          Term.  This Agreement shall be effective as of the Closing and shall terminate on the earliest to occur of (a) the date on which this Agreement is terminated pursuant to Section 3.4, (b) the latest date on which any Parent Service is to be provided as indicated on the Parent Service Schedule or any Company Service is to be provided as indicated on the Company Service Schedule and (c) the date on which the provision of all Services has been canceled pursuant to Section 3.3 (such period, the “Term”).

3.2          Extension of Individual Services.  Service Recipient may extend the provision of any individual Service provided under this Agreement on a Service-by-Service basis upon written notice to Service Provider (which notice must be provided no less than 60 days prior to the latest date on which such Service is to be provided, as indicated on the applicable Service Schedule, at the time of such written notice) identifying the particular Service to be extended and the additional period requested by Service Recipient (which additional period may not exceed the period set forth under the heading “Extension Period” on the applicable Service Schedule).

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3.3          Termination of Individual Services.  Service Recipient may terminate at any time any individual Service provided under this Agreement on a Service-by-Service basis upon written notice to Service Provider identifying the particular Service to be terminated and the effective date of termination, which date shall not be less than thirty (30) days after receipt of such notice unless Service Provider otherwise agrees; provided that Service Recipient shall reimburse Service Provider for any actual costs and expenses owed by Service Provider or its affiliates with respect to such Service to the extent owed by Service Provider in connection with such Service up to the date that such Service would otherwise have been provided (i.e., in the absence of such early termination) under the applicable Service Schedule; provided further that Service Provider shall reasonably promptly inform Service Recipient if any Services depend upon a Service for which Service Recipient has provided notice of termination, and Service Provider shall be under no further obligation to provide such dependent Services upon such termination.

3.4          Termination of Agreement.

(a)          This Agreement may be terminated at any time by the mutual written consent of Parent and the Company.

(b)          Either Parent or the Company (the “Initiating Party”) may terminate this Agreement with immediate effect by written notice to the other Party on or at any time after the other Party is in material breach of any of its obligations under this Agreement and has failed to remedy the breach within thirty (30) days of receipt of written notice from the Initiating Party giving particulars of the breach and requiring the other Party to remedy the breach.

(c)          Without prejudice to the other rights or remedies it may have, either Party may terminate this Agreement with immediate effect by written notice to the other Party if such other Party shall have failed to pay any Service Fee due and payable for a period of at least thirty (30) days, unless such amount is being disputed in good faith.

(d)          Except as otherwise provided in this Agreement, all rights and obligations of Service Provider and Service Recipient shall cease to have effect immediately upon termination of this Agreement except that termination shall not affect the accrued rights and obligations of Service Provider and Service Recipient at the date of termination or any rights and obligations that expressly survive the termination of this Agreement.

ARTICLE IV

DISPUTE RESOLUTION

4.1          Appointed Representative.  Each Party shall appoint a representative who shall be responsible for administering the dispute resolution provisions in Section 4.2 (each, an “Appointed Representative”).  Each Appointed Representative shall have the authority to resolve any Agreement Disputes on behalf of the Party appointing such representative.

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4.2          Negotiation and Dispute Resolution.

(a)          Except as otherwise provided in this Agreement, in the event of a controversy, dispute or claim arising out of, in connection with, or in relation to the interpretation, performance, nonperformance, validity, termination or breach of this Agreement or otherwise arising out of, or in any way related to, this Agreement or any of the transactions contemplated hereby or thereby (each, an “Agreement Dispute”), the Appointed Representatives shall negotiate in good faith for thirty (30) days to settle any such Agreement Dispute.

(b)          Nothing said or disclosed, nor any document produced, in the course of any negotiations, conferences and discussions in connection with efforts to settle an Agreement Dispute that is not otherwise independently discoverable shall be offered or received as evidence or used for impeachment or for any other purpose, but shall be considered as to have been disclosed for settlement purposes.

(c)          If a satisfactory resolution of any Agreement Dispute is not achieved by the Appointed Representatives within thirty (30) days, each Party will be entitled to refer the dispute to arbitration in accordance with Section 4.3.

4.3          Arbitration.

(a)          If a satisfactory resolution of any Agreement Dispute is not achieved by the Appointed Representatives within thirty (30) days, such Agreement Dispute shall be resolved, at the request of either Party, by arbitration administered by the CPR under its Arbitration Rules (the “CPR Rules”), conducted in New York, New York.  There shall be three arbitrators.  Each Party shall appoint one arbitrator.  The two Party-appointed arbitrators shall agree on a third arbitrator who will chair the arbitral tribunal.  Any arbitrator not appointed within a reasonable time shall be appointed in accordance with the CPR Rules.  Any controversy concerning whether an Agreement Dispute is an arbitrable Agreement Dispute, whether arbitration has been waived, whether an assignee of this Agreement is bound to arbitrate, or as to the interpretation or enforceability of this Section 4.3 will be determined by the arbitrators.  In resolving any Agreement Dispute, the Parties intend that the arbitrators apply the substantive laws of the State of New York, without regard to any choice of law principles thereof that would mandate the application of the laws of another jurisdiction.  The Parties intend that the provisions to arbitrate set forth herein be valid, enforceable and irrevocable, and any award rendered by the arbitrators shall be final and binding on the Parties.  The Parties agree to comply with any award made in any such arbitration proceedings and agree to enforcement of or entry of judgment upon such award, in any court of competent jurisdiction, including any New York State or federal court.  The arbitrators shall be entitled, if appropriate, to award monetary damages and other remedies, subject to the provisions of Section 2.4(a).  The Parties will use commercially reasonable efforts to encourage the arbitrators to resolve any arbitration related to any Agreement Dispute as promptly as practicable.  Except as required by applicable law, including disclosure or reporting requirements, the arbitrators and the Parties shall maintain the confidentiality of all information, records, reports, or other documents obtained in the course of the arbitration, and of all awards, orders, or other arbitral decisions rendered by the arbitrators.

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(b)          Unless otherwise agreed in writing, the Parties will continue to provide the Services and honor all other commitments under this Agreement during the course of dispute resolution pursuant to the provisions of this ARTICLE IV with respect to all matters not subject to such dispute resolution.

ARTICLE V

MISCELLANEOUS

5.1          Amendments; Waiver.  This Agreement may not be amended, altered or otherwise modified, and no provision hereof may be waived, except by written instrument executed by the Company and Parent.

5.2          Confidentiality.  Each Party shall treat as confidential and shall not make available or disclose any information or material (collectively, “Confidential Material”) of the other Party that is or has been (a) disclosed by such other Party (the Party disclosing such information or materials, the “Disclosing Party”) under or in connection with this Agreement, whether orally, electronically, in writing or otherwise, including copies, or (b) learned or acquired by the other Party in connection with this Agreement (the Party receiving such information or materials, the “Receiving Party”) to any person, or make or permit any use of such Confidential Material without the prior written consent of the Disclosing Party.  Notwithstanding the foregoing, Confidential Material may be disclosed on a need to know basis to personnel and third party contractors of the Receiving Party and its affiliates as required for the purpose of fulfilling the Receiving Party’s obligations or exercising Receiving Party’s rights under this Agreement. The Receiving Party shall take all reasonable steps to ensure that any such Confidential Material disclosed in accordance with this Section 5.2 is treated as confidential by such person. The provisions of this Section 5.2 shall not apply to any Confidential Material which: (i) is or becomes commonly known within the public domain other than by breach of this Agreement or any other agreement; (ii) is obtained from a third party who is lawfully authorized to disclose such information free from any obligation of confidentiality; or (iii) is independently developed without reference to any Confidential Material.  Notwithstanding any other provision of this Agreement, if the Receiving Party or any of its representatives is (A) compelled in any legal process or proceeding to disclose any Confidential Material of the Disclosing Party or (B) requested or required by any governmental entity to disclose any Confidential Material, the Receiving Party shall, to the extent not prohibited by law or rule, promptly notify the Disclosing Party in writing of such request or requirement so that the Disclosing Party may seek an appropriate protective order and/or waive in writing the Receiving Party’s compliance with the provisions of this Section 5.2.  If, in the absence of a protective order or the receipt of a waiver hereunder, the Receiving Party is nonetheless compelled to disclose Confidential Material, the Receiving Party, after written notice to the Disclosing Party (to the extent not prohibited by law or rule), may disclose such Confidential Material only to the extent so required by applicable law.  Each Party shall exercise reasonable efforts to obtain reliable assurances that confidential treatment will be accorded the Confidential Material so disclosed.

5.3          Force Majeure.  Any delay, failure or omission by any Party in the performance of any obligation under this Agreement shall not be deemed a breach of this Agreement or create any liability, if such delay, failure or omission arises from any cause or causes beyond the reasonable control of such Party, including, but not limited to, acts of God, fire, storm, flood, earthquake, governmental regulation or direction, war, terrorist acts, insurrection, riot, invasion, strike or lockout; provided, however, that (a) the affected Party shall promptly notify the other Party of the existence of such cause or causes and its anticipated duration, (b) the affected Party shall make commercially reasonable efforts to prevent, limit and remove the effects of any such cause or causes and (c) the affected Party shall resume the performance whenever such causes are removed.

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5.4          Notices.  Unless expressly provided otherwise in this Agreement, all notices, requests, demands and other communications required or permitted under this Agreement shall be in writing and shall be deemed to have been duly given, made and received when delivered against receipt or upon actual receipt of (i) personal delivery, (ii) delivery by reputable overnight courier, (iii) delivery by facsimile transmission against answerback, (iv) delivery by registered or certified mail, postage prepaid, return receipt requested, addressed as set forth below:

If to Parent, at:

Florida East Coast Industries, LLC



Attention:

If to the Company, at:

Virgin Trains USA LLC
161 NW 6th Street, Suite 900
Miami, Florida 33136
Attention: Myles Tobin

Either Party may alter the address to which communications or copies are to be sent by giving notice of such change of address in conformity with the provisions of this Section 5.4 for the giving of notice.

5.5          Entire Agreement.  This Agreement contains the entire agreement and understanding among the Parties with respect to the subject matter of this Agreement, and supersedes all prior and contemporaneous agreements, understandings, inducements and conditions, express or implied, oral or written, of any nature whatsoever with respect to the subject matter of this Agreement. The express terms of this Agreement control and supersede any course of performance and/or usage of the trade inconsistent with any of the terms of this Agreement. This Agreement may not be modified or amended other than by an agreement in writing executed by the Parties.

5.6          Binding Nature Of Agreement; Successors And Assigns. This Agreement shall be binding upon and inure to the benefit of the Parties and their respective heirs, personal representatives, successors and permitted assigns as provided in this Agreement.  This Agreement may not be assigned by either of the Parties without the prior written consent of the other Party, except that either Party may assign its rights hereunder to any of its affiliates.

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5.7          Controlling Law.  This Agreement and all questions relating to its validity, interpretation, performance and enforcement shall be governed by and construed, interpreted and enforced in accordance with the laws of the State of New York, notwithstanding any New York or other conflict-of-law provisions to the contrary.

5.8          Indulgences, Not Waivers.  Neither the failure nor any delay on the part of a Party to exercise any right, remedy, power or privilege under this Agreement shall operate as a waiver thereof, nor shall any single or partial exercise of any right, remedy, power or privilege preclude any other or further exercise of the same or of any other right, remedy, power or privilege, nor shall any waiver of any right, remedy, power or privilege with respect to any occurrence be construed as a waiver of, or estoppel with respect to, such right, remedy, power or privilege with respect to any other occurrence. No waiver shall be effective unless it is in writing and is signed by the Party asserted to have granted such waiver.

5.9          Titles Not to Affect Interpretation.  The titles of paragraphs and subparagraphs contained in this Agreement are for convenience only, and they neither form a part of this Agreement nor are they to be used in the construction or interpretation of this Agreement.

5.10         Execution in Counterparts.  This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original as against any Party whose signature appears thereon, and all of which shall together constitute one and the same instrument. This Agreement shall become binding when one or more counterparts of this Agreement, individually or taken together, shall bear the signatures of both Parties as signatories.

5.11         Provisions Separable.  The provisions of this Agreement are independent of and separable from each other, and no provision shall be affected or rendered invalid or unenforceable by virtue of the fact that for any reason any other or others of them may be invalid or unenforceable in whole or in part.

5.12         Gender.  Words used herein regardless of the number and gender specifically used, shall be deemed and construed to include any other number, singular or plural, and any other gender, masculine, feminine or neuter, as the context requires.

[The remainder of this page is intentionally left blank.]

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IN WITNESS WHEREOF, the Parties have executed this Agreement on the date first written above.

 
 VIRGIN TRAINS USA LLC
 
 
 
 
By:

 
 
Name:
 
 
Title:
 
 
 
 
 FLORIDA EAST COAST INDUSTRIES, LLC
 
By:

 
 
Name:
 
 
Title:
 
 
 


[Signature Page to Transition Services Agreement]


Schedule A

Parent Services


Service Category
Service Detail
TSA End Date (mm/dd/yyyy)
Extension Period
 
1.
   
2.
   



Schedule B

Company Services


Service Category
Service Detail
TSA End Date (mm/dd/yyyy)
Extension Period
 
1.
   
2.
   


EX-10.7 8 s002218x10_ex10-7.htm EXHIBIT 10.7

Exhibit 10.7

 

FORM OF INDEMNIFICATION AGREEMENT

 

AGREEMENT, dated as of           , 2019 (this “Agreement”), between Virgin Trains USA Inc., a Delaware corporation (the “Company”), and            (“Indemnitee”).

 

WHEREAS, it is essential to the Company to retain and attract as directors and officers the most capable persons available;

 

WHEREAS, Indemnitee is a director and/or officer of the Company;

 

WHEREAS, both the Company and Indemnitee recognize the increased risk of litigation and other claims being asserted against directors and officers of public companies in today’s environment;

 

WHEREAS, the Company’s Certificate of Incorporation, as amended from time to time (“Certificate of Incorporation”), and Bylaws, as amended from time to time (“Bylaws”), require the Company to indemnify and advance expenses to its directors and officers to the fullest extent permitted by law and the Indemnitee has been serving and continues to serve as a director and/or officer of the Company in part in reliance on such Certificate of Incorporation and Bylaws;

 

WHEREAS, uncertainties as to the availability of indemnification created by certain court decisions may increase the risk that the Company will be unable to retain and attract as directors and officers the most capable persons available;

 

WHEREAS, the board of directors of the Company (“Board of Directors”) has determined that the inability of the Company to retain and attract as directors and officers the most capable persons would be detrimental to the interests of the Company and that the Company therefore should seek to assure such persons that indemnification and insurance coverage will be available in the future;

 

WHEREAS, the parties intend that any rights the Indemnitee may have from Indemnitee-Related Entities (as defined herein) shall be secondary to the primary obligation of the Company to indemnify and hold harmless the Indemnitee under this Agreement; and

 

WHEREAS, in recognition of Indemnitee’s need for protection against personal liability, and in part to provide Indemnitee with specific contractual assurance that the protection promised by the Company’s Certificate of Incorporation and Bylaws will be available to Indemnitee (regardless of, among other things, any amendment to or revocation of such Certificate of Incorporation and Bylaws or any change in the composition of the Company’s Board of Directors or acquisition transaction relating to the Company), the Company wishes to provide in this Agreement for the indemnification of and the advancing of expenses to Indemnitee to the fullest extent (whether partial or complete) permitted by law and as set forth in this Agreement and for the continued coverage of Indemnitee under the directors’ and officers’ liability insurance policy of the Company.

 

NOW, THEREFORE, in consideration of the premises and of Indemnitee continuing to serve the Company directly or, at its request, another enterprise, and intending to be legally bound hereby, the parties hereto agree as follows:


 


1.                Certain Definitions. In addition to terms defined elsewhere herein, the following terms have the following meanings when used in this Agreement:
 

(a) Claim: means any threatened, asserted, pending or completed action, suit or proceeding, whether civil, criminal, administrative, investigative or other, including any arbitration or other alternative dispute resolution mechanism, or any appeal of any kind thereof, or any inquiry or investigation, whether instituted by (or in the right of) the Company or any governmental agency or any other person or entity, in which Indemnitee was, is, may be or will be involved as a party, witness or otherwise.

 


(b) ERISA: means the Employee Retirement Income Security Act of 1974, as amended.

 


(c) Expenses: include attorneys’ fees and all other direct or indirect costs, expenses and obligations, including judgments, fines, penalties, interest, appeal bonds, amounts paid in settlement with the approval of the Company, and counsel fees and disbursements (including, without limitation, experts’ fees, court costs, retainers, appeal bond premiums, transcript fees, duplicating, printing and binding costs, as well as telecommunications, postage and courier charges) paid or incurred in connection with investigating, prosecuting, defending, being a witness in or participating in (including on appeal), or preparing to investigate, prosecute, defend, be a witness in or participate in, any Claim relating to any Indemnifiable Event, and shall include (without limitation) all attorneys’ fees and all other expenses incurred by or on behalf of an Indemnitee in connection with preparing and submitting any requests or statements for indemnification, advancement or any other right provided by this Agreement (including, without limitation, such fees or expenses incurred in connection with legal proceedings contemplated by Section 2(d) hereof).

 


(d) Indemnifiable Amounts: means (i) any and all liabilities, Expenses, damages, judgments, fines, penalties, ERISA excise taxes and amounts paid in settlement (including all interest, assessments and other charges paid or payable in connection with or in respect of such liabilities, Expenses, damages, judgments, fines, penalties, ERISA excise taxes or amounts paid in settlement) arising out of or resulting from any Claim relating to an Indemnifiable Event, (ii) any liability pursuant to a loan guaranty or otherwise, for any indebtedness of the Company or any subsidiary of the Company, including, without limitation, any indebtedness which the Company or any subsidiary of the Company has assumed or taken subject to, and (iii) any liabilities which an Indemnitee incurs as a result of acting on behalf of the Company (whether as a fiduciary or otherwise) in connection with the operation, administration or maintenance of an employee benefit plan or any related trust or funding mechanism (whether such liabilities are in the form of excise taxes assessed by the United States Internal Revenue Service, penalties assessed by the Department of Labor, restitutions to such a plan or trust or other funding mechanism or to a participant or beneficiary of such plan, trust or other funding mechanism, or otherwise).

 


(e) Indemnifiable Event: means any event or occurrence, whether occurring before, on or after the date of this Agreement, related to the fact that Indemnitee is or was a director and/or officer or fiduciary of the Company, or is or was serving at the request of the Company as a director, officer, employee, manager, member, partner, tax matter partner, trustee, agent, fiduciary or similar capacity, of another company, corporation, limited liability company, partnership, joint venture, employee benefit plan, trust or other entity or enterprise, or by reason of anything done or not done by Indemnitee in any such capacity (in all cases whether or not Indemnitee is acting or serving in any such capacity or has such status at the time any Indemnifiable Amount is incurred for which indemnification, advancement or any other right can be provided by this Agreement). The term “Company,” where the context requires when used in this Agreement, may be construed to include such other company, corporation, limited liability company, partnership, joint venture, employee benefit plan, trust or other entity or enterprise.
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(f) Indemnitee-Related Entities: means any company, corporation, limited liability company, partnership, joint venture, trust, employee benefit plan or other entity or enterprise (other than the Company or any other company, corporation, limited liability company, partnership, joint venture, trust, employee benefit plan or other entity or enterprise Indemnitee has agreed, on behalf of the Company or at the Company’s request, to serve as a director, officer, employee or agent and which service is covered by the indemnity described in this Agreement) from whom an Indemnitee may be entitled to indemnification or advancement of Expenses with respect to which, in whole or in part, the Company may also have an indemnification or advancement obligation.

 


(g) Jointly Indemnifiable Claim: means any Claim for which the Indemnitee may be entitled to indemnification from both an Indemnitee-Related Entity and the Company pursuant to applicable law, any indemnification agreement or the certificate of incorporation, by-laws, partnership agreement, operating agreement, certificate of formation, certificate of limited partnership or comparable organizational documents of the Company and an Indemnitee-Related Entity.

 


(h) Reviewing Party: means any appropriate person or body consisting of a member or members of the Board of Directors or any other person or body appointed by the Board of Directors who is not a party to the particular Claim for which Indemnitee is seeking indemnification.

 


(i) Voting Securities: means any securities of the Company which vote generally in the election of directors.

 

2.             Basic Indemnification Arrangement; Advancement of Expenses.

 


(a) In the event Indemnitee was, is or becomes a party to or witness or other participant in, or is threatened to be made a party to or witness or other participant in, a Claim by reason of (or arising in part out of) an Indemnifiable Event, the Company shall indemnify Indemnitee, or cause Indemnitee to be indemnified, to the fullest extent permitted by law as soon as practicable but in any event no later than thirty (30) days after written demand is presented to the Company, and hold Indemnitee harmless against any and all Indemnifiable Amounts.

 


(b) If so requested by Indemnitee, the Company shall advance, or cause to be advanced (within two business days of such request), any and all Expenses incurred by Indemnitee (an “Expense Advance”). The Company shall, in accordance with such request (but without duplication), either (i) pay, or cause to be paid, such Expenses on behalf of Indemnitee, or (ii) reimburse, or cause the reimbursement of, Indemnitee for such Expenses. Subject to Section 2(d), Indemnitee’s right to an Expense Advance is absolute and shall not be subject to any prior determination by the Reviewing Party that the Indemnitee has satisfied any applicable standard of conduct for indemnification.

 


(c) Notwithstanding anything in this Agreement to the contrary, Indemnitee shall not be entitled to indemnification or advancement of Expenses pursuant to this Agreement in connection with any Claim initiated by Indemnitee unless (i) the Company has joined in or the Board of Directors has authorized or consented to the initiation of such Claim or (ii) the Claim is one to enforce Indemnitee’s rights under this Agreement.
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(d) Notwithstanding the foregoing, (i) the indemnification obligations of the Company under Section 2(a) shall be subject to the condition that the Reviewing Party shall not have determined that Indemnitee would not be permitted to be indemnified under applicable law, and (ii) the obligation of the Company to make an Expense Advance pursuant to Section 2(b) shall be subject to the condition that, if, when and to the extent that the Reviewing Party determines that Indemnitee would not be permitted to be so indemnified under applicable law, the Company shall be entitled to be reimbursed by Indemnitee (who hereby agrees to reimburse the Company) for all such amounts theretofore paid (it being understood and agreed that the foregoing agreement by Indemnitee shall be deemed to satisfy any requirement that Indemnitee provide the Company with an undertaking to repay any Expense Advance if it is ultimately determined that the Indemnitee is not entitled to indemnification under applicable law); provided, however, that if Indemnitee has commenced or thereafter commences legal proceedings in a court of competent jurisdiction to secure a determination that Indemnitee should be indemnified under applicable law, any determination made by the Reviewing Party that Indemnitee would not be permitted to be indemnified under applicable law shall not be binding and Indemnitee shall not be required to reimburse the Company for any Expense Advance until a final judicial determination is made with respect thereto (as to which all rights of appeal therefrom have been exhausted or lapsed). Indemnitee’s undertaking to repay such Expense Advances shall be unsecured and interest-free. The Reviewing Party shall be selected by the Board of Directors. If there has been no determination by the Reviewing Party within thirty (30) days after written demand is presented to the Company or if the Reviewing Party determines that Indemnitee would not be permitted to be indemnified in whole or in part under applicable law, Indemnitee shall have the right to commence litigation in any court in the State of New York or the State of Delaware having subject matter jurisdiction thereof and in which venue is proper seeking an initial determination by the court or challenging any such determination by the Reviewing Party or any aspect thereof, including the legal or factual bases therefor, and the Company hereby consents to service of process and to appear in any such proceeding. Any determination by the Reviewing Party otherwise shall be conclusive and binding on the Company and Indemnitee.

 

3.           Indemnification for Additional Expenses. The Company shall indemnify, or cause the indemnification of, Indemnitee against any and all Expenses and, if requested by Indemnitee, shall advance such Expenses to Indemnitee subject to and in accordance with Section 2(b), which are incurred by Indemnitee in connection with any action brought by Indemnitee for (i) indemnification or an Expense Advance by the Company under this Agreement or any provision of the Company’s Certificate of Incorporation or the Bylaws now or hereafter in effect and/or (ii) recovery under any directors’ and officers’ liability insurance policies maintained by the Company, regardless of whether Indemnitee ultimately is determined to be entitled to such indemnification, Expense Advance or insurance recovery, as the case may be; provided that Indemnitee shall be required to reimburse such Expenses in the event that a final judicial determination is made (as to which all rights of appeal therefrom have been exhausted or lapsed) that such action brought by Indemnitee, or the defense by Indemnitee of an action brought by the Company or any other person, as applicable, was frivolous or in bad faith.

 

4.            Partial Indemnity, Etc. If Indemnitee is entitled under any provision of this Agreement to indemnification by the Company for some or a portion of the Expenses or other Indemnifiable Amounts in respect of a Claim but not, however, for all of the total amount thereof, the Company shall nevertheless indemnify Indemnitee for the portion thereof to which Indemnitee is entitled. Moreover, notwithstanding any other provision of this Agreement, to the extent that Indemnitee has been successful on the merits or otherwise in defense of any or all Claims relating in whole or in part to an Indemnifiable Event or in defense of any issue or matter therein, including dismissal without prejudice, Indemnitee shall be indemnified against all Expenses incurred in connection therewith.

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5.            Burden of Proof, Etc. In connection with any determination by the Reviewing Party or otherwise as to whether Indemnitee is entitled to be indemnified hereunder the Reviewing Party, court, any finder of fact or other relevant person shall presume that the Indemnitee has satisfied the applicable standard of conduct and is entitled to indemnification, and the burden of proof shall be on the Company (or any other person or entity disputing such conclusions) to establish, by clear and convincing evidence, that Indemnitee is not so entitled.

 

6.            Reliance as Safe Harbor. For purposes of this Agreement, Indemnitee shall be deemed to have acted in good faith and in a manner he or she reasonably believed to be in or not opposed to the best interests of the Company if Indemnitee’s actions or omissions to act are taken in good faith reliance upon the records of the Company, including its financial statements, or upon information, opinions, reports or statements furnished to Indemnitee by the officers or employees of the Company in the course of their duties, or by committees of the Board of Directors, or by any other person (including legal counsel, accountants and financial advisors) as to matters Indemnitee reasonably believes are within such other person’s professional or expert competence and who has been selected with reasonable care by or on behalf of the Company. In addition, the knowledge and/or actions, or failures to act, of any director, officer, agent or employee of the Company shall not be imputed to Indemnitee for purposes of determining the right to indemnity hereunder.

 

7.            No Other Presumptions. For purposes of this Agreement, the termination of any Claim by judgment, order, settlement (whether with or without court approval) or conviction, or upon a plea of nolo contendere, or its equivalent, shall not create a presumption that Indemnitee did not meet any particular standard of conduct or have any particular belief or that a court has determined that indemnification is not permitted by applicable law. In addition, neither the failure of the Reviewing Party to have made a determination as to whether Indemnitee has met any particular standard of conduct or had any particular belief, nor an actual determination by the Reviewing Party that Indemnitee has not met such standard of conduct or did not have such belief, prior to the commencement of legal proceedings by Indemnitee to secure a judicial determination that Indemnitee should be indemnified under applicable law shall be a defense to Indemnitee’s claim or create a presumption that Indemnitee has not met any particular standard of conduct or did not have any particular belief.

 

8.            Nonexclusivity, Etc. The rights of the Indemnitee hereunder shall be in addition to any other rights Indemnitee may have under the Company’s Certificate of Incorporation, the Bylaws or the Delaware General Corporation Law or otherwise. To the extent that a change in applicable law (whether by statute or judicial decision) permits greater indemnification by agreement than would be afforded currently under the Company’s Certificate of Incorporation, the Bylaws or this Agreement, it is the intent of the parties hereto that Indemnitee shall enjoy by this Agreement the greater benefits so afforded by such change. To the extent that there is a conflict or inconsistency between the terms of this Agreement, the Company’s Certificate of Incorporation or the Bylaws, it is the intent of the parties hereto that the Indemnitee shall enjoy the greater benefits regardless of whether contained herein or in the Company’s Certificate of Incorporation or the Bylaws. No amendment or alteration of the Company’s Certificate of Incorporation or the Bylaws or any other agreement shall adversely affect the rights provided to Indemnitee under this Agreement.

 

9.            Liability Insurance. To the extent the Company maintains an insurance policy or policies providing directors’ and officers’ liability insurance, the Indemnitee shall be covered by such policy or policies in accordance with its or their terms to the maximum extent of the coverage available for the Company’s directors and officers. If the Company has such insurance in effect at the time the Company receives from Indemnitee any notice of the commencement of an action, suit or proceeding, the Company shall give prompt notice of the commencement of such action, suit or proceeding to the insurers in accordance with the procedures set forth in the policy. The Company shall thereafter take all necessary or desirable action to cause such insurers to pay, on behalf of Indemnitee, all amounts payable as a result of such proceeding in accordance with the terms of such policy.

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10.          Period of Limitations. No legal action shall be brought and no cause of action shall be asserted by or in the right of the Company against Indemnitee, Indemnitee’s spouse, heirs, executors or personal or legal representatives after the expiration of two years from the date of accrual of such cause of action, and any claim or cause of action of the Company shall be extinguished and deemed released unless asserted by the timely filing of a legal action within such two-year period; provided, however, that if any shorter period of limitations is otherwise applicable to any such cause of action such shorter period shall govern.

 

11.          Amendments, Etc. No supplement, modification or amendment of this Agreement shall be binding unless executed in writing by both of the parties hereto. No waiver of any of the provisions of this Agreement shall be deemed or shall constitute a waiver of any other provisions hereof (whether or not similar) nor shall such waiver constitute a continuing waiver.

 

12.          Subrogation. Subject to Section 13 hereof, in the event of payment under this Agreement, the Company shall be subrogated to the extent of such payment to all of the rights of recovery of Indemnitee, who shall execute all papers reasonably required and shall do everything that may be reasonably necessary to secure such rights, including the execution of such documents necessary to enable the Company effectively to bring suit to enforce such rights. The Company shall pay or reimburse all Expenses actually and reasonably incurred by Indemnitee in connection with such subrogation.

 

13.          Jointly Indemnifiable Claims. Given that certain Jointly Indemnifiable Claims may arise due to the relationship between the Indemnitee-Related Entities and the Company and the service of the Indemnitee as a director and/or officer of the Company at the request of the Indemnitee-Related Entities, the Company acknowledges and agrees that the Company shall be fully and primarily responsible for the payment to the Indemnitee in respect of indemnification and advancement of expenses in connection with any such Jointly Indemnifiable Claim, pursuant to and in accordance with the terms of this Agreement, irrespective of any right of recovery the Indemnitee may have from the Indemnitee-Related Entities. Under no circumstance shall the Company be entitled to any right of subrogation or contribution by the Indemnitee-Related Entities and no right of recovery the Indemnitee may have from the Indemnitee-Related Entities shall reduce or otherwise alter the rights of the Indemnitee or the obligations of the Company hereunder. In the event that any of the Indemnitee-Related Entities shall make any payment to the Indemnitee in respect of indemnification or advancement of Expenses with respect to any Jointly Indemnifiable Claim, the Company agrees that such payment or advancement shall not extinguish or affect in any way the rights of the Indemnitee under this Agreement and further agrees that the Indemnitee-Related Entity making such payment shall be subrogated to the extent of such payment to all of the rights of recovery of the Indemnitee against the Company. Each of the Indemnitee-Related Entities shall be third-party beneficiaries with respect to this Section 13, entitled to enforce this Section 13 against the Company as though each such Indemnitee-Related Entity were a party to this Agreement.

 

14.          No Duplication of Payments. Subject to Section 13 hereof, the Company shall not be liable under this Agreement to make any payment in connection with any Claim made against Indemnitee to the extent Indemnitee has otherwise actually received payment (under any insurance policy, or any provision of the Company’s Certificate of Incorporation or the Bylaws or otherwise) of the amounts otherwise indemnifiable hereunder.

6

15.          Defense of Claims. The Company shall be entitled to participate in the defense of any Claim relating to an Indemnifiable Event or to assume the defense thereof, with counsel reasonably satisfactory to the Indemnitee; provided that if Indemnitee believes, after consultation with counsel selected by Indemnitee, that (i) the use of counsel chosen by the Company to represent Indemnitee would present such counsel with an actual or potential conflict of interest, (ii) the named parties in any such Claim (including any impleaded parties) include both the Company, or any subsidiary of the Company, and Indemnitee and Indemnitee concludes that there may be one or more legal defenses available to him or her that are different from or in addition to those available to the Company or any subsidiary of the Company, or (iii) any such representation by such counsel would be precluded under the applicable standards of professional conduct then prevailing, then Indemnitee shall be entitled to retain separate counsel (but not more than one law firm plus, if applicable, local counsel in respect of any particular Claim) at the Company’s expense. The Company shall not be liable to Indemnitee under this Agreement for any amounts paid in settlement of any Claim relating to an Indemnifiable Event effected without the Company’s prior written consent. The Company shall not, without the prior written consent of the Indemnitee, effect any settlement of any Claim relating to an Indemnifiable Event which the Indemnitee is or could have been a party unless such settlement solely involves the payment of money and includes a complete and unconditional release of Indemnitee from all liability on all claims that are the subject matter of such Claim. Neither the Company nor Indemnitee shall unreasonably withhold, condition or delay its or his or her consent to any proposed settlement; provided that Indemnitee may withhold consent to any settlement that does not provide a complete and unconditional release of Indemnitee. In no event shall Indemnitee be required to waive, prejudice or limit attorney-client privilege or work-product protection or other applicable privilege or protection.

 

16.          No Adverse Settlement. The Company shall not seek, nor shall it agree to, consent to, support, or agree not to contest any settlement or other resolution of any Claim(s), or settlement or other resolution of any other claim, action, proceeding, demand, investigation or other matter that has the actual or purported effect of extinguishing, limiting or impairing Indemnitee’s rights hereunder, including without limitation the entry of any bar order or other order, decree or stipulation, pursuant to 15 U.S.C. § 78u-4 (the Private Securities Litigation Reform Act), or any similar foreign, federal or state statute, regulation, rule or law.

 

17.          Binding Effect, Etc. This Agreement shall be binding upon and inure to the benefit of and be enforceable by the parties hereto and their respective successors, (including any direct or indirect successor or continuing company by purchase, merger, consolidation or otherwise to all or substantially all of the business and/or assets of the Company), assigns, spouses, heirs, executors and personal and legal representatives. The Company shall require and cause any successor (whether direct or indirect by purchase, merger, consolidation, or otherwise) to all or substantially all of the business and/or assets of the Company, by written agreement in form and substance satisfactory to Indemnitee and his or her counsel, expressly to assume and agree to perform this Agreement in the same manner and to the same extent that the Company would be required to perform if no such succession had taken place. This Agreement shall continue in effect regardless of whether Indemnitee continues to serve as an officer and/or director of the Company or of any other entity or enterprise at the Company’s request.

 

18.          Security. To the extent requested by Indemnitee and approved by the Board of Directors, the Company may at any time and from time to time provide security to Indemnitee for the obligations of the Company hereunder through an irrevocable bank line of credit, funded trust or other collateral or by other means. Any such security, once provided to Indemnitee, may not be revoked or released without the prior written consent of such Indemnitee.

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19.          Severability. If any provision or provisions of this Agreement shall be held to be invalid, illegal or unenforceable for any reason whatsoever, (a) the validity, legality and enforceability of the remaining provisions of this Agreement (including, without limitation, all portions of any paragraph of this Agreement containing any such provision held to be invalid, illegal or unenforceable, that are not themselves invalid, illegal or unenforceable) shall not in any way be affected or impaired thereby and (b) to the fullest extent possible, the provisions of this Agreement (including, without limitation, all portions of any paragraph of this Agreement containing any such provision held to be invalid, illegal or unenforceable) shall be construed so as to give effect to the intent manifested by the provision held invalid, illegal or unenforceable and to give effect to the terms of this Agreement.

 

20.          Specific Performance, Etc. The parties recognize that if any provision of this Agreement is violated by the Company, Indemnitee may be without an adequate remedy at law. Accordingly, in the event of any such violation, Indemnitee shall be entitled, if Indemnitee so elects, to institute proceedings, either in law or at equity, to obtain damages, to enforce specific performance, to enjoin such violation, or to obtain any relief or any combination of the foregoing as Indemnitee may elect to pursue.

 

21.          Notices. All notices, requests, consents and other communications hereunder to any party shall be deemed to be sufficient if contained in a written document delivered in person or sent by nationally recognized overnight courier or personal delivery, addressed to such party at the address set forth below or such other address as may hereafter be designated on the signature pages of this Agreement or in writing by such party to the other parties:

 


(a) If to the Company, to:

 

Virgin Trains USA Inc.
161 NW 6th Street, Suite 900
Miami, FL 33136
Email: myles.tobin@gobrightline.com

Attn: Myles Tobin

 

with a copy (which shall not constitute notice) to:

 

Skadden, Arps, Slate, Meagher & Flom LLP
Four Times Square
New York, New York 10036
Fax: (212) 735-2000
Email:    joseph.coco@skadden.com

  michael.zeidel@skadden.com 

  michael.schwartz@skadden.com 

Attn:      Joseph A. Coco, Esq.

   Michael J. Zeidel, Esq. 

   Michal J. Schwartz, Esq.

 


(b) If to the Indemnitee, to the address set forth on the signature page hereto.

 

All such notices, requests, consents and other communications shall be deemed to have been given or made if and when received (including by overnight courier) by the parties at the above addresses or sent by electronic transmission. Any notice delivered by any party hereto to any other party hereto shall also be delivered to each other party hereto simultaneously with delivery to the first party receiving such notice.

 

22.          Counterparts. This Agreement may be executed in counterparts, each of which shall for all purposes be deemed to be an original but all of which together shall constitute one and the same agreement. Only one such counterpart signed by the party against whom enforceability is sought needs to be produced to evidence the existence of this Agreement.

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23.          Headings. The headings of the sections and paragraphs of this Agreement are inserted for convenience only and shall not be deemed to constitute part of this Agreement or to affect the construction or interpretation thereof.

 

24.          Governing Law. This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of Delaware applicable to contracts made and to be performed in such state without giving effect to the principles of conflicts of laws.

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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above written.
 
  VIRGIN TRAINS USA INC.  
       

By:

  
 
    Name:  
    Title:  
 
  Indemnitee  
       

By:

    
 
    Name:  
    Address:
 
 

EX-10.8 9 s002218x10_ex10-8.htm EXHIBIT 10.8


Exhibit 10.8

STOCKHOLDERS’ AGREEMENT
 
BY AND AMONG
 
VIRGIN TRAINS USA INC.
 
AND

AAF HOLDINGS LLC


  
Dated as of               , 2019

 
TABLE OF CONTENTS
   
Page
     
Article I
     
DEFINITIONS
 
Section 1.1
Certain Defined Terms
1
Section 1.2
Construction
6
     
Article II
     
TRANSFER
     
Section 2.1
Binding Effect on Transferees
6
Section 2.2
Additional Purchases
7
Section 2.3
Charter Provisions
7
Section 2.4
Legend
7
     
Article III
     
BOARD OF DIRECTORS
 
Section 3.1
Board
8
Section 3.2
Committees
9
     
Article IV
     
REGISTRATION RIGHTS
 
Section 4.1
Demand Registration
10
Section 4.2
Piggyback Registrations
12
Section 4.3
Shelf Registration
13
Section 4.4
Withdrawal Rights
15
Section 4.5
Registration Procedures
16
Section 4.6
Registration Expenses
22
Section 4.7
10b5-1 Plans
22

i


Article V
     
MERGER RIGHTS
 
Section 5.1
Right to Cause Merger
22
Section 5.2
Conditions to Merger
22
Section 5.3
Result of Merger
23
     
Article VI
     
ASSISTANCE IN THE SALE OF THE INITIAL STOCKHOLDER’S SHARES
 
Section 6.1
Share Sale
23
Section 6.2
Further Assurances
24
Section 6.3
Expenses
24
     
Article VII
     
INDEMNIFICATION
 
Section 7.1
General Indemnification
24
Section 7.2
Registration Statement Indemnification
25
Section 7.3
Contribution
26
Section 7.4
Procedure
26
Section 7.5
Other Matters
27
     
Article VIII
     
MISCELLANEOUS
 
Section 8.1
Headings
27
Section 8.2
Entire Agreement
27
Section 8.3
Further Actions; Cooperation
28
Section 8.4
Notices
28
Section 8.5
Applicable Law
29
Section 8.6
Severability
29
Section 8.7
Successors and Assigns
29
Section 8.8
Amendments
30
Section 8.9
Waiver
30
Section 8.10
Counterparts
30
Section 8.11
Submission To Jurisdiction
30
Section 8.12
Injunctive Relief
30
Section 8.13
Recapitalizations, Exchanges, Etc. Affecting the Shares of Common Stock; New Issuance
31
Section 8.14
Termination
31

ii

 
Section 8.15
Third Party Beneficiary
31
Section 8.16
Rule 144
31
Section 8.17
Information
31

iii

STOCKHOLDERS’ AGREEMENT
  
THIS STOCKHOLDERS’ AGREEMENT (this “Agreement”) is made as of               , 2019, by and between AAF Holdings LLC, a Delaware limited liability company (the “Initial Stockholder”) and Virgin Trains USA Inc., a Delaware corporation (the “Company”).  Unless otherwise indicated, references to articles and sections shall be to articles and sections of this Agreement.
 
WHEREAS, the Initial Stockholder is a holder of shares of Common Stock (as hereinafter defined); and
 
WHEREAS, the Company has agreed to provide the registration rights and other rights set forth herein.
 
NOW, THEREFORE, in consideration of the foregoing and of the mutual covenants and agreements set forth herein and for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto hereby agree as follows:
 
ARTICLE I

DEFINITIONS
 
Section 1.1           Certain Defined Terms.  For purposes of this Agreement, the following terms shall have the following meanings:
 
(a)          “Actions” shall have the meaning assigned to it in Section 7.1.
 
(b)          “Affiliate” shall have the meaning set forth in Rule 12b-2 promulgated under the Exchange Act; provided that no Stockholder shall be deemed an Affiliate of any other Stockholder solely by reason of any investment in the Company.
 
(c)          “Agreement” shall have the meaning assigned to it in the preamble.
 
(d)          A Person shall be deemed to “Beneficially Own” securities if such Person is deemed to be a “beneficial owner” within the meaning of Rules 13d-3 and 13d-5 under the Exchange Act as in effect on the date of this Agreement.
 
(e)          “Block Trade Offering” shall mean an Underwritten Offering demanded by one or more Requesting Stockholders that is a no-roadshow “block trade” take-down off of a Shelf Registration Statement where pricing is expected to occur no later than the fifth business day after such demand is made. For the avoidance of doubt, management’s participation in one or more conference calls with potential investors shall not constitute a roadshow.
 
(f)          “Board” shall mean the board of directors of the Company.

(g)          “Bylaws” shall mean the bylaws of the Company, as may be amended and/or restated from time to time.
 
(h)          “Certificate of Incorporation” shall mean the certificate of incorporation of the Company, as may be amended and/or restated from time to time.
 
(i)          “Commission” shall mean the United States Securities and Exchange Commission or any successor agency.
 
(j)          “Common Stock” shall mean the Company’s common stock, par value $0.01 per share, and any and all securities of any kind whatsoever of the Company which may be issued and outstanding on or after the date hereof in respect of, in exchange for, or upon conversion of shares of Common Stock pursuant to a merger, consolidation, stock split, stock dividend, recapitalization of the Company or otherwise.
 
(k)          “Company” shall have the meaning assigned to it in preamble.
 
(l)          “Company Securities” shall mean (i) any Common Stock and (ii) any other securities of the Company entitled to vote generally in the election of directors of the Company.
 
(m)          “Demand” shall have the meaning assigned to it in Section 4.1(a).
 
(n)          “Demand Registration” shall have the meaning assigned to it in Section 4.1(a).
 
(o)          “Exchange Act” shall mean the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.
 
(p)          “FIG” shall mean Fortress Investment Group LLC, a Delaware limited liability company.
 
(q)          “FIG LLC” shall mean FIG LLC, a Delaware limited liability company, or any other Person designated as “FIG LLC” by FIG in a written notice to the Company.
 
(r)          “Filings” shall mean annual, quarterly and current reports and other documents filed or furnished by the Company or any Subsidiary of the Company under the Exchange Act; annual reports to stockholders, annual and quarterly statutory statements of the Company or any Subsidiary of the Company; and any registration statements, prospectuses documents filed or furnished by the Company or any of its Subsidiaries under the Securities Act (other than any registration statement, any Issuer Free Writing Prospectus, any prospectus or preliminary prospectus or any amendment thereof or supplement thereto to the extent that Section 7.2 of this Agreement applies).
 
(s)          “FINRA” shall mean the Financial Industry Regulatory Authority.
 
(t)          “Fortress Affiliate Stockholder” shall mean (A) any director of the Company who may be deemed an Affiliate of FIG, (B) any director or officer of FIG and (C) any investment funds (including any managed accounts) managed directly or indirectly by FIG or its Affiliates.
2

(u)          “Form S-3” shall have the meaning assigned to it in Section 4.3(a).
 
(v)          “Free Writing Prospectus” shall mean a free writing prospectus, as defined in Rule 405 under the Securities Act.
 
(w)          “Governmental Entity” shall mean any court, administrative agency, regulatory body, commission or other governmental authority, board, bureau or instrumentality, domestic or foreign, and any subdivision thereof.
 
(x)          “Initial Public Offering” shall mean the initial public offering of Common Stock pursuant to an effective registration statement under the Securities Act.
 
(y)          “Initial Stockholder” shall have the meaning assigned to it in preamble. For purposes of Article III, “Initial Stockholder” shall also mean any Person or Persons designated in writing as the Initial Stockholder by the Initial Stockholder.
 
(z)          “Inspectors” shall have the meaning assigned to it in Section 4.5(a)(viii).
 
(aa)        “IPO Underwriting Agreement” shall mean the underwriting agreement, dated         , 2019, between the Company and the underwriters named therein.
 
(bb)        “Issuer Free Writing Prospectus” shall mean an issuer free writing prospectus, as defined in Rule 433 under the Securities Act.
 
(cc)        “Losses” shall have the meaning assigned to it in Section 7.1.
 
(dd)        “Necessary Action” shall mean, with respect to a specified result, all actions (to the extent such actions are permitted by applicable law and, in the case of any action by the Company that requires a vote or other action on the part of the Board, to the extent such action is consistent with the fiduciary duties that the Company’s directors have in such capacity) necessary to cause such result, including (a) voting or providing a written consent or proxy with respect to shares of Common Stock, (b) causing the adoption of shareholders’ resolutions and amendments to the organizational documents of the Company, (c) causing members of the Board (to the extent such members were designated by the Person obligated to undertake the Necessary Action) to act (subject to any applicable fiduciary duties) in a certain manner or causing them to be removed in the event they do not act in such a manner, (d) executing agreements and instruments and (e) making or causing to be made, with governmental, administrative or regulatory authorities, all filings, registrations or similar actions that are required to achieve such result.
 
(ee)        “Offering Expenses” shall have the meaning assigned to it in Section 4.6(a).
 
(ff)          “Other Demanding Sellers” shall have the meaning assigned to it in Section 4.2(b).
3

(gg)        “Other Proposed Sellers” shall have the meaning assigned to it in Section 4.2(b).
 
(hh)        “Permitted Transferee” shall mean, with respect to each Stockholder, (i) any other Stockholder, (ii) such Stockholder’s Affiliates, (iii) in the case of any Stockholder, (A) any member or general or limited partner of such Stockholder (including any member of the Initial Stockholder), (B) any corporation, partnership, limited liability company or other entity that is an Affiliate of such Stockholder or any member, general or limited partner of such Stockholder (collectively, “Stockholder Affiliates”), (C) any investment funds managed directly or indirectly by such Stockholder or any Stockholder Affiliate (a “Stockholder Fund”), (D) any general or limited partner of any Stockholder Fund, (E) any managing director, general partner, director, limited partner, officer or employee of any Stockholder Affiliate, or any spouse, lineal descendant, sibling, parent, heir, executor, administrator, testamentary trustee, legatee or beneficiary of any of the foregoing persons described in this clause (E) (collectively, “Stockholder Associates”) or (F) any trust, the beneficiaries of which, or any corporation, limited liability company or partnership, the stockholders, members or general or limited partners of which, consist solely of any one or more of such Stockholder, any general or limited partner of such Stockholder, any Stockholder Affiliates, any Stockholder Fund, any Stockholder Associates, their spouses or their lineal descendants and (iv) any other Person that acquires shares of Common Stock from such Stockholder other than pursuant to a Public Offering and that agrees to become party to or be bound by this Agreement.
 
(ii)          “Person” shall mean any individual, firm, corporation, partnership, limited liability company or other entity, and shall include any successor (by merger or otherwise) of such entity.
 
(jj)          “Piggyback Notice” shall have the meaning assigned to it in Section 4.2(a).
 
(kk)        “Piggyback Registration” shall have the meaning assigned to it in Section 4.2(a).
 
(ll)          “Piggyback Seller” shall have the meaning assigned to it in Section 4.2(a).
 
(mm)      “Public Offering” shall mean an offering of equity securities of the Company pursuant to an effective registration statement under the Securities Act, including an offering in which Stockholders are entitled to sell Common Stock pursuant to the terms of this Agreement.
 
(nn)        “Records” shall have the meaning assigned to it in Section 4.5(a)(viii).
 
(oo)        “Registrable Amount” shall mean a number of shares of Common Stock equal to or greater than 1% of the Common Stock issued and outstanding immediately after the consummation of the Initial Public Offering.
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(pp)        “Registrable Securities” shall mean any Common Stock currently owned or hereafter acquired by any Stockholder. As to any particular Registrable Securities, such securities shall cease to be Registrable Securities when (x) a registration statement registering such securities under the Securities Act has been declared effective and such securities have been sold or otherwise transferred by the holder thereof pursuant to such effective registration statement or (y) such securities are sold in accordance with Rule 144 (or any successor provision) promulgated under the Securities Act.
 
(qq)        “Registration Expenses” shall have the meaning assigned to it in Section 4.6(a).
 
(rr)         “Requesting Stockholder” shall have the meaning assigned to it in Section 4.1(a).
 
(ss)         “Securities Act” shall mean the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.
 
(tt)          “Selling Holders” shall have the meaning assigned to it in Section 4.5(a)(i).
 
(uu)        “Shelf Notice” shall have the meaning assigned to it in Section 4.3(a).
 
(vv)        “Shelf Registration Effectiveness Period” shall have the meaning assigned to it in Section 4.3(c).
 
(ww)      “Shelf Registration Statement” shall have the meaning assigned to it in Section 4.3(a).
 
(xx)        “Shelf Underwritten Offering” shall have the meaning assigned to it in Section 4.3(f).
 
(yy)        “Stockholders” shall mean (i) the Initial Stockholder, (ii) each Fortress Affiliate Stockholder and (iii) each Permitted Transferee who becomes a party to or bound by the provisions of this Agreement in accordance with the terms hereof or a Permitted Transferee thereof who is entitled to enforce the provisions of this Agreement in accordance with the terms hereof, in each case of clauses (i), (ii) and (iii) to the extent that the Initial Stockholder, Fortress Affiliate Stockholders and Permitted Transferees, together, hold of record or Beneficially Own at least a Registrable Amount; provided that solely for purposes of determining the number of directors the Initial Stockholder has the right to designate pursuant to Section 3.1(a), the Initial Stockholder shall be deemed to hold of record or Beneficially Own a number of Company Securities equal to the product of (x) the total number of Company Securities held of record or Beneficially Owned by the Initial Stockholder and (y) a fraction, the numerator of which is the total number of voting securities of the Initial Stockholder held of record or beneficially owned by FIG LLC and the Fortress Affiliate Stockholders and the denominator of which is the total number of voting securities of the Initial Stockholder then issued and outstanding.
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(zz)        “Subsidiary” shall mean with respect to any Person (i) a corporation, fifty percent (50%) or more of the voting or capital stock of which is, as of the time in question, directly or indirectly owned by such Person, (ii) any other partnership, joint venture, association, joint stock company, trust, unincorporated organization or other entity in which such Person, directly or indirectly, owns fifty percent (50%) or more of the equity economic interest thereof or has the power to elect or direct the election of fifty percent (50%) or more of the members of the governing body of such entity or otherwise has control over such entity (e.g., as the managing partner of a partnership), or (iii) which would be considered subsidiaries of such Person within the meaning of Regulation S-K or Regulation S-X.
 
(aaa)      “Suspension Period” shall have the meaning assigned to it in Section 4.3(d).
 
(bbb)      “Underwritten Offering” shall mean a sale of securities of the Company to an underwriter or underwriters for reoffering to the public, including any bought deal, Block Trade Offering or other block sale to a financial institution conducted as an underwritten offering to the public.
 
(ccc)       “Voting Power of the Company” shall mean the voting power of the then issued and outstanding capital stock of the Company entitled to vote in the election of directors of the Company.
 
(ddd)      “WKSI” shall mean a well-known seasoned issuer, as defined in Rule 405 under the Securities Act.
 
(eee)       “WKSI Shelf Registration Statement” shall mean an automatic shelf registration statement, as defined in Rule 405 under the Securities Act.
 
Section 1.2      Construction.  For the purposes of this Agreement (i) words (including capitalized terms defined herein) in the singular shall be held to include the plural and vice versa and words (including capitalized terms defined herein) of one gender shall be held to include the other gender as the context requires, (ii) the terms “hereof,” “herein” and “herewith” and words of similar import shall, unless otherwise stated, be construed to refer to this Agreement as a whole and not to any particular provision of this Agreement, and Article and Section references are to Articles and Sections of this Agreement, unless otherwise specified, (iii) the word “including” and words of similar import when used in this Agreement shall mean “including, without limitation,” (iv) all references to any period of days shall be deemed to be to the relevant number of calendar days unless otherwise specified, and (v) all references herein to “$” or dollars shall refer to United States dollars, unless otherwise specified.
 
ARTICLE II

TRANSFER
 
Section 2.1      Binding Effect on Transferees.  A Permitted Transferee shall become a Stockholder hereunder, without any further action by the Company, following a transfer by a Stockholder of Company Securities to such Permitted Transferee upon the execution by such Permitted Transferee of a joinder providing that such Person shall be bound by and shall fully comply with the terms of this Agreement (including the provisions of Article IV with respect to the Company Securities being transferred to such transferee).  The Fortress Affiliate Stockholders shall be deemed to be Stockholders without any further action.
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Section 2.2      Additional Purchases. Any Company Securities owned by a Stockholder on or after the date of this Agreement shall have the benefit of and be subject to the terms and conditions of this Agreement.
 
Section 2.3      Charter Provisions. The parties hereto shall use their respective reasonable efforts (including voting or causing to be voted all of the Company Securities held of record by such party or Beneficially Owned by such party by virtue of having voting power over such Company Securities) so as to cause no amendment to be made to the Certificate of Incorporation or Bylaws as in effect as of the date of this Agreement in a manner that would (a) add restrictions to the transferability of the Company Securities by the Initial Stockholder, any Fortress Affiliate Stockholder or their Permitted Transferees who remain a “Stockholder” (as such term is used herein) at the time of such an amendment, which restrictions are beyond those then provided for in the Certificate of Incorporation, this Agreement or applicable securities laws or (b) nullify any of the rights of the Initial Stockholder, any Fortress Affiliate Stockholder or their Permitted Transferees who remain a “Stockholder” (as such term is used herein) at the time of such amendment, which rights are explicitly provided for in this Agreement, unless, in each such case, such amendment shall have been approved by such Stockholder.
 
Section 2.4      Legend. Any certificate representing Company Securities issued to a Stockholder shall be stamped or otherwise imprinted with a legend in substantially the following form:
 
“The shares represented by this certificate are subject to the provisions contained in the Stockholders’ Agreement, dated as of                    , 2019, by and among Virgin Trains USA Inc. and the stockholder of Virgin Trains USA Inc. described therein.”
 
The Company shall make customary arrangements to cause any Company Securities issued in uncertificated form to be identified on the books of the Company in a substantially similar manner.
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ARTICLE III

BOARD OF DIRECTORS
 
Section 3.1      Board.
 
(a)          For so long as this Agreement is in effect, the Company and each Stockholder shall take all reasonable actions within their respective control (including voting or causing to be voted all of the Company Securities held of record by such Stockholder or Beneficially Owned by such Stockholder by virtue of having voting power over such Company Securities, and, with respect to the Company, as provided in Sections 3.1(c) and (d)) so as to cause to be elected to the Board, and to cause to continue in office, not more than 15 directors (or such other number of directors as the Initial Stockholder may agree to in writing), at any given time:
 
(i)           a number of directors equal to a majority of the Board, plus one director, shall be individuals designated by the Initial Stockholder, for so long as the Stockholders, together, have Beneficial Ownership of at least 30% of the Voting Power of the Company;
 
(ii)          a number of directors equal to a majority of the Board, minus one director, shall be individuals designated by the Initial Stockholder, for so long as the Stockholders, together, have Beneficial Ownership of less than 30% but at least 20% of the Voting Power of the Company, provided that if the Board consists of six or fewer directors, then the Initial Stockholder shall have the right to designate a number of directors equal to three directors;
 
(iii)         a number of directors (rounded up to the nearest whole number) that would be required to maintain the Initial Stockholder’s proportional representation on the Board shall be individuals designated by the Initial Stockholder, for so long as the Stockholders, together, have Beneficial Ownership of less than 20% but at least 10% of the Voting Power of the Company, provided that if the Board consists of six or fewer directors, then the Initial Stockholder shall have the right to designate a number of directors equal to two directors; and
 
(iv)         a number of directors (rounded up to the nearest whole number) that would be required to maintain the Initial Stockholder’s proportional representation on the Board shall be individuals designated by the Initial Stockholder, for so long as the Stockholders, together, have Beneficial Ownership of less than 10% but at least 5% of the Voting Power of the Company, provided that if the Board consists of six or fewer directors, then the Initial Stockholder shall have the right to designate a number of directors equal one director.
 
(b)          So long as the Initial Shareholder is entitled to designate one or more nominees pursuant to Section 3.1(a), the Initial Shareholder will have the right to remove any director previously designated by it to the Board (with or without cause), from time to time and at any time, from the Board, exercisable upon written notice to the Company, and the Company will take all Necessary Action to cause such removal within seven days of receipt of such notice.
 
(c)          If the Initial Stockholder notifies the Stockholders of its desire to remove, with or without cause, any director previously designated by it, the Stockholders shall vote or cause to be voted all of the shares of Company Securities held of record by such Stockholders or Beneficially Owned by such Stockholders by virtue of having voting power over such Company Securities and take all other reasonable actions within its control to cause the removal of such director.
 
(d)          The Company agrees to include in the slate of nominees recommended by the Board those persons designated by the Initial Stockholder in accordance with Section 3.1(a) and to use its reasonable best efforts to cause the election of each such designee to the Board, including nominating such designees to be elected as directors, in each case subject to applicable law.
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(e)          In the event that a vacancy is created at any time by the death, disability, retirement, resignation or removal of any director who is designated by the Initial Stockholder in accordance with Section 3.1(a), the Company agrees to take at any time and from time to time all actions necessary to cause the vacancy created thereby to be filled as promptly as practicable by a new designee of the Initial Stockholder.  In the event that the size of the Board is expanded to more than 15 directors, the Company agrees to take at any time and from time to time all actions necessary to cause the Board to continue to have the number of the Initial Stockholder’s designees that corresponds to the requirements of Section 3.1(a).
 
(f)          In the event that at any time the number of directors entitled to be designated by Initial Stockholder pursuant to Section 3.1(a) decreases, the Initial Stockholder and its Permitted Transferee shall take reasonable actions to cause a sufficient number of designated directors to resign from the Board at or prior to the end of such designated director’s term such that the number of designated directors after such resignation(s) equals the number of directors the Initial Stockholder would have been entitled to designate pursuant to Section 3.1(a).  Any vacancies created by such resignation may remain vacant until the next annual meeting of stockholders or filled by a majority vote of the Board.  Notwithstanding the foregoing, such designated director(s) need not resign from the Board at or prior to the end of such director’s term if the Company’s nominating committee recommends the nomination of such director(s) for election at the next annual meeting coinciding with the end of such director’s term, or otherwise (and for the avoidance of doubt, such director shall no longer be considered a designee of the Initial Stockholder).
 
Section 3.2         Committees.  For so long as this Agreement is in effect, the Company shall take all reasonable actions within its control at any given time so as to cause to be appointed to any committee of the Board a number of directors designated by the Initial Stockholder that is up to the number of directors that is proportionate (rounding up to the next whole director) to the representation that the Initial Stockholder is entitled to designate to the Board under this Agreement, to the extent such directors are permitted to serve on such committees under the applicable rules of the Commission and The Nasdaq Stock Market LLC (“Nasdaq”) or by any other applicable stock exchange. It is understood by the parties hereto that the Initial Stockholder shall not be required to have its directors represented on any committee and any failure to exercise such right in this section in a prior period shall not constitute any waiver of such right in a subsequent period.
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ARTICLE IV

REGISTRATION RIGHTS
 
Section 4.1      Demand Registration.
 
(a)          At any time after the date that is 180 days after the date hereof (or such earlier date (i) as would permit the Company to cause any filings required hereunder to be filed on the 180th day after the date hereof or (ii) as is permitted by waiver under the IPO Underwriting Agreement), any Person that is a Stockholder (a “Requesting Stockholder”) on the date a Demand is made shall be entitled to make a written request of the Company (a “Demand”) for registration under the Securities Act of a number of Registrable Securities that, when taken together with the number of Registrable Securities requested to be registered under the Securities Act by such Requesting Stockholder’s Affiliates, equals or is greater than the Registrable Amount and thereupon the Company will, subject to the terms of this Agreement, use its commercially reasonable efforts to effect the registration (a “Demand Registration”) as promptly as practicable under the Securities Act of:
 
(i)           the Registrable Securities which the Company has been so requested to register by the Requesting Stockholders for disposition in accordance with the intended method of disposition stated in such Demand, which may be an Underwritten Offering;
 
(ii)          all other Registrable Securities which the Company has been requested to register pursuant to Section 4.1(b); and
 
(iii)         all shares of Common Stock which the Company may elect to register in connection with any offering of Registrable Securities pursuant to this Section 4.1, but subject to Section 4.1(f);
 
all to the extent necessary to permit the disposition (in accordance with the intended methods thereof) of the Registrable Securities and the additional Common Stock, if any, to be so registered.
 
(b)          A Demand shall specify: (i) the aggregate number of Registrable Securities requested to be registered in such Demand Registration, (ii) the intended method of disposition in connection with such Demand Registration, to the extent then known, and (iii) the identity of the Requesting Stockholder (or Requesting Stockholders). Within five days after receipt of a Demand, the Company shall give written notice of such Demand to any other Person that on the date a Demand is delivered to the Company is a Stockholder (excluding Fortress Affiliate Stockholders which have not signed a joinder as contemplated by Section 2.1). Subject to Section 4.1(f), the Company shall include in the Demand Registration covered by such Demand all Registrable Securities with respect to which the Company has received a written request for inclusion therein. Such written request shall comply with the requirements of a Demand as set forth in this Section 4.1(b).
 
(c)          Each Stockholder shall be entitled to an unlimited number of Demand Registrations until such time as the Stockholders, together, Beneficially Own less than a Registrable Amount.
 
(d)          Demand Registrations shall be on such registration form of the Commission for which the Company is eligible as shall be selected by the Requesting Stockholders whose shares represent a majority of the Registrable Securities that the Company has been requested to register, including, to the extent permissible, a WKSI Shelf Registration Statement or an existing effective registration statement filed by the Company with the Commission, and shall be reasonably acceptable to the Company.
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(e)          The Company shall not be obligated to effect any Demand Registration (A) within one month of a “firm commitment” Underwritten Offering in which all Stockholders were given “piggyback” rights pursuant to Section 4.2 (subject to Section 4.1(f)) and provided that at least 50% of the number of Registrable Securities requested by such Stockholders to be included in such Demand Registration were included) or (B) within one month of any other Underwritten Offering pursuant to Section 4.3(f). In addition, the Company shall be entitled to postpone (upon written notice to all Stockholders) for a reasonable period of time not to exceed 60 days in succession the filing or the effectiveness of a registration statement for any Demand Registration (but no more than twice, or for more than 90 days in the aggregate, in any period of 12 consecutive months) if the Board determines in good faith and in its reasonable judgment that the filing or effectiveness of the registration statement relating to such Demand Registration would cause the disclosure of material, non-public information that the Company has a bona fide business purpose for preserving as confidential. In the event of a postponement by the Company of the filing or effectiveness of a registration statement for a Demand Registration, (i) the holders of a majority of Registrable Securities held by the Requesting Stockholder(s) shall have the right to withdraw such Demand in accordance with Section 4.4 and (ii) the Company shall not file or cause the effectiveness of any other registration statement for its own account or on behalf of any other stockholders.
 
(f)           The Company shall not include any securities other than Registrable Securities in a Demand Registration, except with the written consent of Stockholders participating in such Demand Registration that hold a majority of the Registrable Securities included in such Demand Registration. If, in connection with a Demand Registration, any managing underwriter (or, if such Demand Registration is not an Underwritten Offering, a nationally recognized investment bank engaged in connection with such Demand Registration) advises the Company, that, in its opinion, the inclusion of all of the securities, including securities of the Company that are not Registrable Securities, sought to be registered in connection with such Demand Registration would adversely affect the marketability of the Registrable Securities sought to be sold pursuant thereto, then the Company shall include in such registration statement only such securities as the Company is advised by such underwriter or investment bank can be sold without such adverse effect as follows and in the following order of priority: (i) first, up to the number of Registrable Securities requested to be included in such Demand Registration by the Stockholders, which, in the opinion of the underwriter can be sold without adversely affecting the marketability of the offering, pro rata among such Stockholders requesting such Demand Registration on the basis of the number of such securities held by such Stockholders; (ii) second, securities the Company proposes to sell; and (iii) third, all other securities of the Company duly requested to be included in such registration statement, pro rata on the basis of the number of such other securities requested to be included or such other method determined by the Company.
 
(g)          Any investment bank(s) that will serve as an underwriter with respect to such Demand Registration or, if such Demand Registration is not an Underwritten Offering, any investment bank engaged in connection therewith, shall be selected (i) by the Initial Stockholder, for so long as at least 30% of the outstanding Common Stock of the Company is owned by the Initial Stockholder, its Permitted Transferees and any Fortress Affiliate Stockholder, and thereafter (ii) by the Stockholder participating in such Demand Registration that holds (together with its Permitted Transferees) the highest number of Registrable Securities included in such Demand Registration.
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Section 4.2      Piggyback Registrations.
 
(a)          Subject to the terms and conditions hereof, whenever the Company (i) proposes to register any of its equity securities under the Securities Act (other than a registration by the Company (x) on a registration statement on Form S-4, (y) on a registration statement on Form S-8 (or, in any of the cases of (x) or (y), on any successor forms thereto), or (z) pursuant to Section 4.1) or (ii) proposes to effect an Underwritten Offering of its own securities pursuant to an effective Shelf Registration Statement (other than an Underwritten Offering pursuant to Section 4.1 or Section 4.3) (each, a “Piggyback Registration”), whether for its own account or for the account of others, the Company shall give the Stockholders (excluding Fortress Affiliate Stockholders which have not signed a joinder as contemplated by Section 2.1) prompt written notice thereof (but not less than five business days prior to the filing by the Company with the Commission of any registration statement with respect thereto; provided that, for any Block Trade Offering, two business days’ notice shall be sufficient). Such notice (a “Piggyback Notice”) shall specify, at a minimum, the number of equity securities proposed to be registered, the proposed date of filing of such registration statement with the Commission, the proposed means of distribution and the proposed managing underwriter or underwriters (if any and if known). Upon the written request of any Person that on the date of such Piggyback Notice is a Stockholder, given within (A) one business day, in the case of any Block Trade Offering, or (B) three business days, in the case of any other offering, after such Piggyback Notice is received by such Person (any such Person, a “Piggyback Seller”) (which written request shall specify the number of Registrable Securities then presently intended to be disposed of by such Piggyback Seller), the Company, subject to the terms and conditions of this Agreement, shall use its commercially reasonable efforts to cause all such Registrable Securities held by Piggyback Sellers with respect to which the Company has received such written requests for inclusion to be included in such Piggyback Registration on the same terms and conditions as the Company’s equity securities being sold in such Piggyback Registration.
 
(b)          If, in connection with a Piggyback Registration, any managing underwriter (or, if such Piggyback Registration is not an Underwritten Offering, a nationally recognized investment bank selected by Stockholders holding a majority of the Registrable Securities included in such Piggyback Registration, reasonably acceptable to the Company, and whose fees and expenses shall be borne solely by the Company) advises the Company in writing that, in its opinion, the inclusion of all the equity securities sought to be included in such Piggyback Registration by (i) the Company, (ii) others who have sought to have equity securities of the Company registered in such Piggyback Registration pursuant to rights to demand (other than pursuant to so-called “piggyback” or other incidental or participation registration rights) such registration (such Persons being “Other Demanding Sellers”), (iii) the Piggyback Sellers and (iv) any other proposed sellers of equity securities of the Company (such Persons being “Other Proposed Sellers”), as the case may be, would adversely affect the marketability of the equity securities sought to be sold pursuant thereto, then the Company shall include in the registration statement applicable to such Piggyback Registration only such equity securities as the Company is so advised by such underwriter or investment bank can be sold without such an effect, as follows and in the following order of priority:
 
(i)           if the Piggyback Registration relates to an offering for the Company’s own account, then (A) first, such number of equity securities to be sold by the Company as the Company, in its reasonable judgment and acting in good faith and in accordance with sound financial practice, shall have determined, (B) second, Registrable Securities of Piggyback Sellers and securities sought to be registered by Other Demanding Sellers (if any), pro rata on the basis of the number of shares of Common Stock held by such Piggyback Sellers and Other Demanding Sellers and (C) third, other equity securities held by any Other Proposed Sellers; or
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(ii)          if the Piggyback Registration relates to an offering other than for the Company’s own account, then (A) first, such number of equity securities sought to be registered by each Other Demanding Seller and the Piggyback Sellers (if any), pro rata in proportion to the number of shares of Common Stock held by all such Other Demanding Sellers and Piggyback Sellers and (B) second, other equity securities held by any Other Proposed Sellers or to be sold by the Company as determined by the Company and with such priorities among them as may from time to time be determined or agreed to by the Company.
 
(c)          In connection with any Underwritten Offering under this Section 4.2 for the Company’s account, the Company shall not be required to include a holder’s Registrable Securities in the Underwritten Offering unless such holder accepts the terms of the underwriting as agreed upon between the Company and the underwriters selected by the Company; provided, that any applicable underwriting agreement includes only customary terms and conditions.
 
(d)          If, at any time after giving written notice of its intention to register any of its equity securities as set forth in this Section 4.2 and prior to the time the registration statement filed in connection with such Piggyback Registration is declared effective, the Company shall determine for any reason not to register such equity securities, the Company may, at its election, give written notice of such determination to each Stockholder and thereupon shall be relieved of its obligation to register any Registrable Securities in connection with such particular withdrawn or abandoned Piggyback Registration (but not from its obligation to pay the Registration Expenses in connection therewith as provided herein); provided, that Stockholders may continue the registration as a Demand Registration pursuant to the terms of Section 4.1.
 
Section 4.3      Shelf Registration.
 
(a)          Subject to Section 4.3(e), and further subject to the availability of a Registration Statement on Form S-3 or a successor form, which may be a WKSI Shelf Registration Statement at any time the Company is eligible (“Form S-3”), the Initial Stockholder or any of its Permitted Transferees (in each case to the extent a Stockholder hereunder) may, by written notice delivered (which notice can be delivered at any time after the eleven month anniversary of the date hereof) to the Company (the “Shelf Notice”) require the Company to (A) file as promptly as practicable (but no later than 30 days after the date the Shelf Notice is delivered), and to use commercially reasonable efforts to cause to be declared effective by the Commission at the earliest possible date permitted under the rules and regulations of the Commission (but no later than 60 days after such filing date), a Form S-3, or (B) use an existing Form S-3 filed with the Commission, in each case providing for an offering to be made on a continuous basis pursuant to Rule 415 under the Securities Act (a “Shelf Registration Statement”) relating to the offer and sale, from time to time, of the number of Registrable Securities designated by the Initial Stockholder or its Permitted Transferee in the Shelf Notice (which, if the Company is a WKSI at the time of the Shelf Notice, may be an unspecified number of Registrable Securities) owned by the Initial Stockholder or the Fortress Affiliate Stockholders (or any of their Permitted Transferees), as the case may be, and any other Person that at the time of the Shelf Notice meets the definition of a Stockholder who elects to participate therein as provided in Section 4.3(b).
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(b)          The Initial Stockholder and its Permitted Transferees shall be entitled to require the Company to file an unlimited number of Shelf Registration Statements until such time as the Stockholders, together, Beneficially Own less than a Registrable Amount.
 
(c)          Within five business days after receipt of a Shelf Notice pursuant to Section 4.3(a), the Company will deliver written notice thereof to each Stockholder (excluding Fortress Affiliate Stockholders which have not signed a joinder as contemplated by Section 2.1). Each Stockholder may elect to participate in the Shelf Registration Statement by delivering to the Company a written request to so participate.
 
(d)          Subject to Section 4.3(e), the Company will use commercially reasonable efforts to keep the Shelf Registration Statement continuously effective until the date on which all Registrable Securities covered by the Shelf Registration Statement have been sold thereunder in accordance with the plan and method of distribution disclosed in the prospectus included in the Shelf Registration Statement, or otherwise (the “Shelf Registration Effectiveness Period”).
 
(e)          Notwithstanding anything to the contrary contained in this Agreement, the Company shall be entitled, from time to time, by providing notice to the Stockholders who elected to participate in the Shelf Registration Statement, to require such Stockholders to suspend the use of the prospectus for sales of Registrable Securities under the Shelf Registration Statement for a reasonable period of time not to exceed 60 days in succession or 90 days in the aggregate in any 12 month period (a “Suspension Period”) if the Board determines in good faith and in its reasonable judgment that it is required to disclose in the Shelf Registration Statement a financing, acquisition, corporate reorganization or other similar transaction or other material event or circumstance affecting the Company or its securities, and that the disclosure of such information at such time would be detrimental to the Company or the holders of its equity interests. Immediately upon receipt of such notice, the Stockholders covered by the Shelf Registration Statement shall suspend the use of the prospectus until the requisite changes to the prospectus have been made as required below. Any Suspension Period shall terminate at such time as the public disclosure of such information is made. After the expiration of any Suspension Period and without any further request from a Stockholder, the Company shall as promptly as practicable prepare a post-effective amendment or supplement to the Shelf Registration Statement or the prospectus, or any document incorporated therein by reference, or file any other required document so that, as thereafter delivered to purchasers of the Registrable Securities included therein, the prospectus will not include an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
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(f)           At any time, and from time-to-time, during the Shelf Registration Effectiveness Period (except during a Suspension Period), each of the Initial Stockholder, the Fortress Affiliate Stockholders or any of their Permitted Transferees (in each case to the extent a Stockholder hereunder) may notify the Company of their intent to sell Registrable Securities covered by the Shelf Registration Statement (in whole or in part) in an Underwritten Offering (a “Shelf Underwritten Offering”); provided that the Company shall not be obligated to participate in more than four underwritten offerings during any twelve-month period. Such notice shall specify (x) the aggregate number of Registrable Securities requested to be registered in such Shelf Underwritten Offering and (y) the identity of the Stockholder(s) requesting such Shelf Underwritten Offering. Upon receipt by the Company of such notice, the Company shall promptly comply with the applicable provisions of this Agreement, including those provisions of Section 4.5 relating to the Company’s obligation to make filings with the Commission, assist in the preparation and filing with the Commission of prospectus supplements and amendments to the Shelf Registration Statement, participate in “road shows,” agree to customary “lock-up” agreements with respect to the Company’s securities and obtain “comfort” letters, and the Company shall take such other actions as necessary or appropriate to permit the consummation of such Shelf Underwritten Offering as promptly as practicable. Each Shelf Underwritten Offering shall be for the sale of a number of Registrable Securities equal to or greater than the Registrable Amount. In any Shelf Underwritten Offering, the Stockholders participating in such Shelf Underwritten Offering that hold a majority of the Registrable Securities included in such Shelf Underwritten Offering shall select the investment bank(s) and managers that will serve as lead or co-managing underwriters with respect to the offering of such Registrable Securities, which shall be reasonably acceptable to the Company.
 
Section 4.4      Withdrawal Rights.  Any Stockholder having notified or directed the Company to include any or all of its Registrable Securities in a registration statement under the Securities Act shall have the right to withdraw any such notice or direction with respect to any or all of the Registrable Securities designated by it for registration by giving written notice to such effect to the Company prior to the effective date of such registration statement. In the event of any such withdrawal, the Company shall not include such Registrable Securities in the applicable registration and such Registrable Securities shall continue to be Registrable Securities for all purposes of this Agreement. No such withdrawal shall affect the obligations of the Company with respect to the Registrable Securities not so withdrawn; provided, however, that in the case of a Demand Registration, if such withdrawal shall reduce the number of Registrable Securities sought to be included in such registration below the Registrable Amount, then the Company shall as promptly as practicable give each holder of Registrable Securities sought to be registered notice to such effect and, within ten days following the mailing of such notice, such holder(s) of Registrable Securities still seeking registration shall, by written notice to the Company, elect to register additional Registrable Securities, when taken together with elections to register Registrable Securities by its Permitted Transferees, to satisfy the Registrable Amount or elect that such registration statement not be filed or, if theretofore filed, be withdrawn. During such ten day period, the Company shall not file such registration statement if not theretofore filed or, if such registration statement has been theretofore filed, the Company shall not seek, and shall use commercially reasonable efforts to prevent, the effectiveness thereof.
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Section 4.5      Registration Procedures.
 
(a)          If and whenever the Company is required to use commercially reasonable efforts to effect the registration of any Registrable Securities under the Securities Act or an Underwritten Offering as provided in Section 4.1, Section 4.2 and Section 4.3, the Company shall as promptly as practicable (in each case, to the extent applicable):
 
(i)           prepare and file with the Commission a registration statement to effect such registration, cause such registration statement to become effective at the earliest possible date permitted under the rules and regulations of the Commission, and thereafter use commercially reasonable efforts to cause such registration statement to remain effective pursuant to the terms of this Agreement; provided, however, that the Company may discontinue any registration of its securities which are not Registrable Securities at any time prior to the effective date of the registration statement relating thereto; provided, further that before filing such registration statement or any amendments thereto, the Company will (A) furnish to the counsel selected by the holders of Registrable Securities which are to be included in such registration (“Selling Holders”) copies of all such documents proposed to be filed, (B) provide each such Selling Holder and their counsel the opportunity to object to any information pertaining to such Selling Holder or its plan of distribution that is contained in the registration statement (it being understood that each Selling Holder and counsel to such Selling Holder will conduct their review and provide any comments promptly) and (C) make any changes reasonably requested by such Selling Holder or their counsel with respect to such information;
 
(ii)          prepare and file with the Commission such amendments (including post-effective amendments) and supplements and “stickers” to such registration statement and the prospectus used in connection therewith and any Exchange Act reports incorporated by reference therein as may be necessary to keep such registration statement effective and to comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such registration statement until the earlier of such time as all of such securities have been disposed of in accordance with the intended methods of disposition by the Selling Holder(s) set forth in such registration statement or (i) in the case of a Demand Registration pursuant to Section 4.1, the expiration of 90 days after such registration statement becomes effective or (ii) in the case of a Piggyback Registration pursuant to Section 4.2, the expiration of 90 days after such registration statement becomes effective or (iii) in the case of a Shelf Registration pursuant to Section 4.3, the Shelf Registration Effectiveness Period;
 
(iii)         furnish to each Selling Holder and each underwriter, if any, of the securities being sold by such Selling Holder such number of conformed copies of such registration statement and of each amendment and supplement thereto (in each case including all exhibits or documents incorporated by reference therein), such number of copies of the prospectus contained in such registration statement (including each preliminary prospectus and any summary prospectus) and any other prospectus filed under Rule 424 under the Securities Act, in conformity with the requirements of the Securities Act, and any Issuer Free Writing Prospectus and such other documents as such Selling Holder and underwriter, if any, may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities owned by such Selling Holder;
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(iv)         use commercially reasonable efforts to register or qualify such Registrable Securities covered by such registration statement under such other securities laws or blue sky laws of such jurisdictions as any Selling Holder and any underwriter of the securities being sold by such Selling Holder shall reasonably request, and take any other action which may be reasonably necessary or advisable to enable such Selling Holder and underwriter to consummate the disposition in such jurisdictions of the Registrable Securities owned by such Selling Holder, except that the Company shall not for any such purpose be required to qualify generally to do business as a foreign corporation in any jurisdiction wherein it would not but for the requirements of this clause (iv) be obligated to be so qualified, to subject itself to taxation in any such jurisdiction or to file a general consent to service of process in any such jurisdiction;
 
(v)          use best efforts to cause such Registrable Securities to be listed on each securities exchange on which similar securities issued by the Company are then listed and, if no such securities are so listed, use commercially reasonable efforts to cause such Registrable Securities to be listed on the Nasdaq or the New York Stock Exchange;
 
(vi)         use commercially reasonable efforts to cause such Registrable Securities covered by such registration statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the Selling Holder(s) thereof to consummate the disposition of such Registrable Securities;
 
(vii)        in connection with an Underwritten Offering, obtain for each Selling Holder and underwriter:
 
(1)      an opinion of counsel for the Company, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such Selling Holder and underwriters, and
 
(2)      a “comfort” letter (or, in the case of any such Person which does not satisfy the conditions for receipt of a “comfort” letter specified in AU Section 634 of the AICPA Professional Standards, an “agreed upon procedures” letter) signed by the independent registered public accountants who have certified the Company’s financial statements included in such registration statement (and, if necessary, any other independent registered public accountant of any Subsidiary of the Company or any business acquired by the Company from which financial statements and financial data are, or are required to be, included in the registration statement);
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(viii)       promptly make available for inspection by any Selling Holder, any underwriter participating in any disposition pursuant to any registration statement, and any attorney, accountant or other agent or representative retained by any such Selling Holder or underwriter (collectively, the “Inspectors”), all financial and other records, pertinent corporate documents and properties of the Company (collectively, the “Records”), as shall be reasonably necessary to enable such Selling Holder or underwriter to exercise their due diligence responsibility, and cause the Company’s officers, directors and employees to supply all information requested by any such Inspector in connection with such registration statement promptly; provided, however, that, unless the disclosure of such Records is necessary to avoid or correct a misstatement or omission in the registration statement or the release of such Records is ordered pursuant to a subpoena or other order from a court of competent jurisdiction, the Company shall not be required to provide any information under this subparagraph (viii) if (i) the Company believes, after consultation with counsel for the Company, that to do so would cause the Company to forfeit an attorney-client privilege that was applicable to such information or (ii) either (A) the Company has requested and been granted from the Commission confidential treatment of such information contained in any filing with the Commission or documents provided supplementally or otherwise or (B) the Company reasonably determines in good faith that such Records are confidential and so notifies the Inspectors in writing unless prior to furnishing any such information with respect to (i) or (ii) such holder of Registrable Securities requesting such information agrees, and causes each of its Inspectors, to enter into a confidentiality agreement on terms reasonably acceptable to the Company; and provided, further, that each Holder of Registrable Securities agrees that it will, upon learning that disclosure of such Records is sought in a court of competent jurisdiction, give notice to the Company and allow the Company, at its expense, to undertake appropriate action and to prevent disclosure of the Records deemed confidential;
 
(ix)         promptly notify in writing each Selling Holder and the underwriters, if any, of the following events:
 
(1)          the filing of the registration statement, the prospectus or any prospectus supplement related thereto, any Issuer Free Writing Prospectus or post-effective amendment to the registration statement, and, with respect to the registration statement or any post-effective amendment thereto, when the same has become effective;
 
(2)          any request by the Commission or any other Governmental Entity for amendments or supplements to the registration statement or the prospectus or for additional information;
 
(3)          the issuance by the Commission or any other Governmental Entity of any stop order suspending the effectiveness of the registration statement or the initiation of any proceedings by any Person for that purpose;
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(4)          when any Issuer Free Writing Prospectus includes information that may conflict with the information contained in the registration statement; and
 
(5)          the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under the securities or blue sky laws of any jurisdiction or the initiation or threat of any proceeding for such purpose;
 
(x)          notify each Selling Holder, at any time when a prospectus relating thereto is required to be delivered under the Securities Act, upon discovery that, or upon the happening of any event as a result of which, the prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading, and, at the request of any Selling Holder, promptly prepare and furnish to such Selling Holder a reasonable number of copies of a supplement to or an amendment of such prospectus as may be necessary so that, as thereafter delivered to the purchasers of such Registrable Securities, such prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading;
 
(xi)         use every reasonable best effort to obtain the withdrawal of any order suspending the effectiveness of such registration statement;
 
(xii)        otherwise use commercially reasonable efforts to comply with all applicable rules and regulations of the Commission, and make available to Selling Holders, as promptly as practicable, an earnings statement covering the period of at least 12 months, but not more than 18 months, beginning with the first day of the Company’s first full quarter after the effective date of such registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;
 
(xiii)       use its reasonable best efforts to assist Stockholders who made a request to the Company to provide for a third party “market maker” for the Common Stock; provided, however, that the Company shall not be required to serve as such “market maker”;
 
(xiv)       cooperate with any Selling Holder and any underwriter and the managing underwriter to facilitate the timely preparation and delivery of certificates (which shall not bear any restrictive legends unless required under applicable law), if necessary or appropriate, representing securities sold under any registration statement, and enable such securities to be in such denominations and registered in such names as the managing underwriter or such Selling Holder may request and keep available and make available to the Company’s transfer agent prior to the effectiveness of such registration statement a supply of such certificates as necessary or appropriate;
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(xv)        have appropriate officers of the Company prepare and make presentations at any “road shows” and before analysts and rating agencies, as the case may be, and other information meetings organized by the underwriters, take other actions to obtain ratings for any Registrable Securities (if they are eligible to be rated) and otherwise use its reasonable best efforts to cooperate as reasonably requested by the Selling Holders and the underwriters in the offering, marketing or selling of the Registrable Securities;
 
(xvi)       have appropriate officers of the Company, and cause representatives of the Company’s independent registered public accountants, to participate in any due diligence discussions reasonably requested by any Selling Holder or any underwriter;
 
(xvii)      if requested by any underwriter, agree, and cause the Company and any directors or officers of the Company to agree, to be bound by customary “lock-up” agreements restricting the ability to dispose of Company Securities;
 
(xviii)     if requested by any Selling Holders or any underwriter, promptly incorporate in the registration statement or any prospectus, pursuant to a supplement or post-effective amendment if necessary, such information as such Selling Holders may reasonably request to have included therein, including information relating to the “Plan of Distribution” of the Registrable Securities;
 
(xix)       cooperate and assist in any filings required to be made with the FINRA and in the performance of any due diligence investigation by any underwriter that is required to be undertaken in accordance with the rules and regulations of the FINRA;
 
(xx)        otherwise use reasonable best efforts to cooperate as reasonably requested by the Selling Holders and the underwriters in the offering, marketing or selling of the Registrable Securities;
 
(xxi)       otherwise use commercially reasonable efforts to comply with all applicable rules and regulations of the Commission and all reporting requirements under the rules and regulations of the Exchange Act; and
 
(xxii)      use reasonable best efforts to take any action requested by the Selling Holders, including any action described in clauses (i) through (xxi) above to prepare for and facilitate any “over-night deal,” Block Trade Offering or other proposed sale of Registrable Securities over a limited timeframe.
 
The Company may require each Selling Holder and each underwriter, if any, to furnish the Company in writing such information regarding each Selling Holder or underwriter and the distribution of such Registrable Securities as the Company may from time to time reasonably request to complete or amend the information required by such registration statement.
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(b)          Without limiting any of the foregoing, in the event that the offering of Registrable Securities is to be made by or through an underwriter, the Company shall enter into an underwriting agreement with a managing underwriter or underwriters containing representations, warranties, indemnities and agreements customarily included (but not inconsistent with the covenants and agreements of the Company contained herein) by an issuer of common stock in underwriting agreements with respect to offerings of common stock for the account of, or on behalf of, such issuers. No Selling Holder shall be required to make any representations, warranties, indemnities or agreements with the Company or the underwriters other than the representations, warranties, indemnities and agreements regarding such Selling Holder, its ownership of the Registrable Securities being registered on its behalf, its intended method of distribution and any other representations, warranties, indemnities and agreements required by law.
 
(c)          In connection with any offering of Registrable Securities registered pursuant to this Agreement, the Company shall furnish to the underwriter, if any (or, if no underwriter, the Selling Holder), unlegended certificates representing ownership of the Registrable Securities being sold (unless, in the Company’s sole discretion, such Registrable Securities are to be issued in uncertificated form pursuant to the customary arrangements for issuing shares in such form), in such denominations as requested and instruct any transfer agent and registrar of the Registrable Securities to release any stop transfer order with respect thereto.
 
(d)          Each Selling Holder agrees that upon receipt of any notice from the Company of the happening of any event of the kind described in Section 4.5(a)(ix), such Selling Holder shall forthwith discontinue such Selling Holder’s disposition of Registrable Securities pursuant to the applicable registration statement and prospectus relating thereto until such Selling Holder’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 4.5(a)(ix) and, if so directed by the Company, deliver to the Company, at the Company’s expense, all copies, other than permanent file copies, then in such Selling Holder’s possession of the prospectus current at the time of receipt of such notice relating to such Registrable Securities. In the event the Company shall give such notice, any applicable 60 day period during which such registration statement must remain effective pursuant to this Agreement shall be extended by the number of days during the period from the date of giving of a notice regarding the happening of an event of the kind described in Section 4.5(a)(ix) to the date when all such Selling Holders shall receive such a supplemented or amended prospectus and such prospectus shall have been filed with the Commission.
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Section 4.6           Registration Expenses.
 
(a)          All expenses incident to the Company’s performance of, or compliance with, its obligations under this Agreement including (i)(A) all registration and filing fees, all fees and expenses of compliance with securities and “blue sky” laws, (B) all fees and expenses associated with filings required to be made with FINRA (including, if applicable, the fees and expenses of any “qualified independent underwriter” as such term is defined in FINRA Rule 5121(f)(12)), (C) all fees and expenses of compliance with securities and “blue sky” laws, (D) all printing (including expenses of printing certificates, if any, for the Registrable Securities in a form eligible for deposit with The Depository Trust Company and of printing prospectuses and Issuer Free Writing Prospectuses if the printing of such prospectuses is requested by a holder of Registrable Securities) and copying expenses, (E) all messenger and delivery expenses, (F) all fees and expenses of the Company’s independent certified public accountants and counsel (including with respect to “comfort” letters, “agreed-upon procedures” letters and opinions), (G) fees and expenses of one firm of counsel to the Stockholders selling in such registration (which firm shall be selected by the Stockholders selling in such registration that hold a majority of the Registrable Securities included in such registration), (H) except as provided in clause (ii) below, the fees and expenses (including underwriting discounts and commissions and transfer taxes) of every nationally recognized investment bank engaged in connection with a Demand Registration or a Piggyback Registration that is not an Underwritten Offering (collectively, the “Registration Expenses”) and (ii) any expenses described in clauses (i)(A) through (H) above incurred in connection with the marketing and sale of Registrable Securities (“Offering Expenses”) shall be borne by the Company, regardless of whether a registration is effected, marketing is commenced or sale is made. The Company will pay its internal expenses (including all salaries and expenses of its officers and employees performing legal or accounting duties, the expense of any annual audit and the expense of any liability insurance) and the expenses and fees for listing the securities to be registered on each securities exchange and included in each established over-the-counter market on which similar securities issued by the Company are then listed or traded.
 
(b)          Each Selling Holder shall pay its portion of all underwriting discounts and commissions and transfer taxes, if any, relating to the sale of such Selling Holder’s Registrable Securities pursuant to any registration.
 
Section 4.7           10b5-1 Plans. Subject to the expiration of any applicable lock-up periods, upon the request of any Stockholder to establish a written plan for trading shares of Common Stock  in compliance with Rule 10b5-1(c) of the Exchange Act (a “10b5-1 Plan”), the Company shall use commercially reasonable efforts to assist such Stockholder  in establishing a 10b5-1 Plan.
  
ARTICLE V
 
MERGER RIGHTS
 
Section 5.1           Right to Cause Merger. At any time after the consummation of the Initial Public Offering, FIG LLC shall have the right (but not the obligation), in its sole discretion, to cause any fund (or any subsidiary thereof) managed by an affiliate of FIG LLC and with a direct or indirect interest in the Company (each, a “Blocker Entity”) to merge, amalgamate or consolidate with or into one or more of the Company’s wholly-owned subsidiaries (each, a “VTUSA Subsidiary”). FIG LLC shall also have the right (but not the obligation), in its sole discretion, to cause such surviving entity (whether the Blocker Entity or the VTUSA Subsidiary) to merge, amalgamate or consolidate with or into one or more other VTUSA Subsidiaries.  The Initial Stockholder shall consult with the Company in good faith to determine the structure of any such transaction.
 
Section 5.2           Conditions to Merger. The consummation of any transaction described in Section 5.1 shall be subject only to the following conditions:
 
(a)          the assets of the applicable Blocker Entity at the effective time of the transaction shall consist exclusively of shares of Common Stock;
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(b)          the Blocker Entity shall have no material unpaid liabilities; and
 
(c)          certain customary representations and warranties made by the Blocker Entity shall be true and correct in all material respects.
 
Section 5.3           Result of Merger. Following the consummation of any transaction described in Section 5.1, shares of Common Stock held by the applicable Blocker Entity at the effective time of such transaction shall be cancelled and the owner(s) of the applicable Blocker Entity shall receive a number of shares of Common Stock equal to the number of shares of Common Stock so-cancelled.
  
ARTICLE VI
 
ASSISTANCE IN THE SALE OF THE INITIAL STOCKHOLDER’S SHARES
 
Section 6.1           Share Sale. If the Initial Stockholder seeks to sell its shares of Common Stock other than pursuant to a registration statement (a “Share Sale”), the Company shall cooperate with and provide all assistance reasonably requested by the Initial Stockholder in connection with such Share Sale, including:
 
(a)          hiring legal counsel, regulatory counsel, accountants and other advisors selected by the Company and reasonably acceptable to the Initial Stockholder to act on behalf of the Company in connection with a Share Sale;
 
(b)          cooperating with any prospective purchaser, and any investment bank engaged by any prospective purchaser, in the evaluation of the Share Sale;
 
(c)          facilitating the due diligence process in respect of any Share Sale including (i) establishing and maintaining an online “data room,” (ii) providing access to the Company’s books and records and any other information and copies of documents reasonably requested by any prospective purchaser pursuant to customary confidentiality agreements and (iii) making members of senior management available to meet with any prospective purchaser as reasonably requested by such prospective purchaser;
 
(d)          providing any financial statements, including financial statements audited or reviewed by the Company’s auditors, or other financial information reasonably requested by the Initial Stockholder, any prospective purchaser or such prospective purchaser’s financing sources;
 
(e)          following the decision by the Board to abandon the exploration of any sales process for the entire Company, (i) providing the Initial Stockholder, upon request, with the names and contact information for each prospective purchaser in connection with such sale process and otherwise reasonably cooperating with the Initial Stockholder to facilitate communications with any such prospective purchaser, and (ii) for the avoidance of doubt, providing any such prospective purchaser with all information the Company is otherwise required to provide pursuant to Section 6.1(c) and Section 6.1(d);
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(f)           providing customary representations, warranties, covenants, agreements, indemnities, holdbacks and escrow arrangements relating to the Share Sale, as applicable;
 
(g)          filing any required applications, reports, returns and other documents or instruments with any Governmental Entity;
 
(h)          executing, acknowledging and delivering any required certificates, agreements, consents, assignments, waivers and other documents or instruments; and
 
(i)           using reasonable best efforts to obtain any required third party consents.
 
Section 6.2           Further Assurances. The Company shall take or cause to be taken all such actions as may be reasonably necessary or reasonably desirable in order to expeditiously consummate any Share Sale and any related transactions reasonably requested by the Initial Stockholder.
 
Section 6.3           Expenses. Whether or not a Share Sale is consummated, the Company shall pay for (a) all fees and expenses incurred by the Company in connection with the pursuit of a Share Sale, including the fees and expenses of the Company’s legal advisors, regulatory counsel and accountants, and (b) all fees and expenses of counsel representing the Initial Stockholder.
  
ARTICLE VII

INDEMNIFICATION
 
Section 7.1           General Indemnification.  The Company agrees to indemnify and hold harmless the Initial Stockholder and each of the officers, directors, employees, members, managers, partners and agents or Affiliates of the Initial Stockholder against any and all losses, claims, damages, liabilities and expenses (including reasonable expenses of investigation and reasonable attorneys’ fees and expenses) (collectively, the “Losses”), in each case, based on, arising out of, resulting from or in connection with any claim, action, cause of action, suit, proceeding or investigation, whether civil, criminal, administrative, investigative or other (collectively, “Actions”), based on, arising out of, pertaining to or in connection with (i) the ownership or the operation of the assets or properties, and the operation or conduct of the business of, including contracts entered into by, the Company, whether before, on or after the date hereof (ii) any other activity that the Company or its Subsidiaries engages in and (iii) any untrue statement or alleged untrue statement of a material fact contained in any Filing or any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, other than misstatements or omissions made in reliance on information relating to and furnished by the Initial Stockholder in writing expressly for use in the preparation of such Filing. The indemnity agreement contained in this Section 7.1 shall be applicable whether or not any Action or the facts or transactions giving rise to such Action arose prior to, on or subsequent to the date of this Agreement.
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Section 7.2           Registration Statement Indemnification.
 
(a)          The Company agrees to indemnify and hold harmless, to the fullest extent permitted by law, each Selling Holder, its officers, directors, employees, managers, members, partners and Affiliates, such Selling Holder or such other indemnified Person from and against all Losses caused by, resulting from or relating to any untrue statement (or alleged untrue statement) of a material fact contained in any registration statement, any Issuer Free Writing Prospectus, any prospectus or preliminary prospectus or any amendment thereof or supplement thereto or any omission (or alleged omission) of a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, except insofar as the same are caused by any information furnished in writing to the Company by such Selling Holder expressly for use therein. In connection with an Underwritten Offering and without limiting any of the Company’s other obligations under this Agreement, the Company shall also indemnify such underwriters, their officers, directors, employees and agents and each Person who controls (within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act) such underwriters or such other indemnified Person to the same extent as provided above with respect to the indemnification (and exceptions thereto) of the holders of Registrable Securities being sold. Reimbursements payable pursuant to the indemnification contemplated by this Section 7.2(a) will be made by periodic payments during the course of any investigation or defense, as and when bills are received or expenses incurred.
 
(b)          In connection with any registration statement in which a holder of Registrable Securities is participating, each such Selling Holder will furnish to the Company in writing information regarding such Selling Holder’s ownership of Registrable Securities and its intended method of distribution thereof and, to the extent permitted by law, shall, severally and not jointly, indemnify the Company, its directors, officers, employees and agents and each Person who controls (within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act) the Company or such other indemnified Person against all Losses caused by any untrue statement of material fact contained in the registration statement, any Issuer Free Writing Prospectus, any prospectus or preliminary prospectus or any amendment thereof or supplement thereto or any omission of a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, but only to the extent that such untrue statement or omission is caused by and contained in such information so furnished in writing by such Selling Holder expressly for use therein; provided, however, that each Selling Holder’s obligation to indemnify the Company hereunder shall, to the extent more than one Selling Holder is subject to the same indemnification obligation, be apportioned between each Selling Holder based upon the net amount received by each Selling Holder from the sale of Registrable Securities, as compared to the total net amount received by all of the Selling Holders of Registrable Securities sold pursuant to such registration statement. Notwithstanding the foregoing, no Selling Holder shall be liable to the Company for amounts in excess of the lesser of (i) such apportionment and (ii) the net amount received by such holder in the offering giving rise to such liability.
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Section 7.3           Contribution.
 
(a)          If recovery is not available under the foregoing indemnification provisions for any reason or reasons other than as specified therein, any Person who would otherwise be entitled to indemnification by the terms thereof shall nevertheless be entitled to contribution with respect to any Losses with respect to which such Person would be entitled to such indemnification but for such reason or reasons. In determining the amount of contribution to which the respective Persons are entitled, there shall be considered the Persons’ relative knowledge and access to information concerning the matter with respect to which the claim was asserted, the opportunity to correct and prevent any statement or omission, and other equitable considerations appropriate under the circumstances. It is hereby agreed that it would not necessarily be equitable if the amount of such contribution were determined by pro rata or per capita allocation. No Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not found guilty of such fraudulent misrepresentation. Notwithstanding the foregoing, no Selling Holder or transferee thereof shall be required to make a contribution in excess of the net amount received by such holder from its sale of Registrable Securities in connection with the offering that gave rise to the contribution obligation.
 
Section 7.4           Procedure.
  
(a)          Any Person entitled to indemnification hereunder shall give prompt written notice to the indemnifying party of any claim with respect to which it seeks indemnification; provided, however, the failure to give such notice shall not release the indemnifying party from its obligation, except to the extent that the indemnifying party has been materially prejudiced by such failure to provide such notice on a timely basis.
 
(b)          In any case in which any such action is brought against any indemnified party, and it notifies an indemnifying party of the commencement thereof, the indemnifying party will be entitled to participate therein, and, to the extent that it may wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel reasonably satisfactory to such indemnified party, and after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof, the indemnifying party will not (so long as it shall continue to have the right to defend, contest, litigate and settle the matter in question in accordance with this paragraph) be liable to such indemnified party hereunder for any legal or other expense subsequently incurred by such indemnified party in connection with the defense thereof other than reasonable costs of investigation, supervision and monitoring (unless (i) such indemnified party reasonably objects to such assumption on the grounds that there may be defenses available to it which are different from or in addition to the defenses available to such indemnifying party or (ii) the indemnifying party shall have failed within a reasonable period of time to assume such defense and the indemnified party is or is reasonably likely to be prejudiced by such delay, in either event the indemnified party shall be promptly reimbursed by the indemnifying party for the expenses incurred in connection with retaining separate legal counsel).The indemnifying party shall lose its right to defend, contest, litigate and settle a matter if it shall fail to diligently contest such matter (except to the extent settled in accordance with the next following sentence).
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Section 7.5           Other Matters.
 
(a)          An indemnifying party shall not be liable for any settlement of an Action effected without its consent. No indemnifying party shall, without the prior written consent of the indemnified party, effect any settlement of any pending or threatened Action in respect of which any indemnified party is or could have been a party and indemnity could have been sought hereunder by such indemnified party, unless such settlement includes an unconditional release of such indemnified party from all liability on claims that are the subject matter of such Action.
 
(b)          Any Losses for which an indemnified party is entitled to indemnification or contribution under this Article VII shall be paid by the indemnifying party to the indemnified party as such Losses are incurred.  The indemnity and contribution agreements contained in this Article VII shall remain operative and in full force and effect, regardless of (i) any investigation made by or on behalf of any Indemnitee, the Company, its directors or officers, or any person controlling the Company, and (ii) any termination of this Agreement.
 
(c)          The parties hereto shall, and shall cause their respective Subsidiaries to, cooperate with each other in a reasonable manner with respect to access to unprivileged information and similar matters in connection with any Action.  The provisions of this Article VII are for the benefit of, and are intended to create third party beneficiary rights in favor of, each of the indemnified parties referred to herein.
 
(d)          Not less than three days before the expected filing date of each registration statement pursuant to this Agreement, the Company shall notify each Stockholder who has timely provided the requisite notice hereunder entitling the Stockholder to register Registrable Securities in such registration statement of the information, documents and instruments from such Stockholder that the Company or any underwriter reasonably requests in connection with such registration statement, including, but not limited to a questionnaire, custody agreement, power of attorney, lock-up letter and underwriting agreement (the “Requested Information”). If the Company has not received, on or before the day before the expected filing date, the Requested Information from such Stockholder, the Company may file the Registration Statement without including Registrable Securities of such Stockholder. The failure to so include in any registration statement the Registrable Securities of a Stockholder (with regard to that registration statement) shall not in and of itself result in any liability on the part of the Company to such Stockholder.
 
ARTICLE VIII
 
MISCELLANEOUS
 
Section 8.1           Headings. The headings in this Agreement are for convenience of reference only and shall not control or effect the meaning or construction of any provisions hereof.
 
Section 8.2           Entire Agreement. This Agreement constitutes the entire agreement and understanding of the parties hereto in respect of the subject matter contained herein, and there are no restrictions, promises, representations, warranties, covenants, conditions or undertakings with respect to the subject matter hereof, other than those expressly set forth or referred to herein. This Agreement supersedes all prior agreements and understandings between the parties hereto with respect to the subject matter hereof.
27

Section 8.3           Further Actions; Cooperation. Each of the Stockholders agrees to use its reasonable efforts to take, or cause to be taken, all actions and to do, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable to give effect to the transactions contemplated by this Agreement. Without limiting the generality of the foregoing, each of the Stockholders (i) acknowledges that such Stockholder will, if required, prepare and file with the Commission filings under the Exchange Act, including under Section 13(d) of the Exchange Act, relating to its Beneficial Ownership of the Common Stock and (ii) agrees to use its reasonable efforts to assist and cooperate with the other parties in promptly preparing, reviewing and executing any such filings required to be made under the Exchange Act, including any amendments thereto.
 
Section 8.4           Notices. All notices, requests, consents and other communications hereunder to any party shall be deemed to be sufficient if contained in a written instrument delivered in person or sent by facsimile, nationally recognized overnight courier or first class registered or certified mail, return receipt requested, postage prepaid, addressed to such party at the address set forth below or such other address as may hereafter be designated on the signature pages of this Agreement or in writing by such party to the other parties:
 
If to the Initial Stockholder, to:
 
AAF Holdings LLC
274 W 46th Street
New York, NY 10036
Fax:        
Email:               
Attn:         
 
with a copy (which shall not constitute notice) to:
 
Skadden, Arps, Slate, Meagher & Flom LLP
4 Times Square
New York, NY 10036-6522
Fax: (212) 735-3259
Email:    joseph.coco@skadden.com
michael.zeidel@skadden.com
michael.schwartz@skadden.com
Attn:      Joseph A. Coco, Esq.
Michael J. Zeidel, Esq.
Michael J. Schwartz, Esq.
 
If to the Company, to:
 
Virgin Trains USA Inc.
161 NW 6th Street, Suite 900
Miami, FL 33136
Email:    myles.tobin@gobrightline.com
Attn:      Myles Tobin
28

If to a Stockholder that is not the Initial Stockholder, then to the address set forth in the written agreement of such Stockholder provided for in Section 2.1 hereof.
 
All such notices, requests, consents and other communications shall be deemed to have been given or made if and when received (including by overnight courier) by the parties at the above addresses or sent by email, facsimile, with confirmation received, to the email addresses or facsimile numbers specified above (or at such other address or facsimile number for a party as shall be specified by like notice). Any notice delivered by any party hereto to any other party hereto shall also be delivered to each other party hereto simultaneously with delivery to the first party receiving such notice.
 
Section 8.5           Applicable Law. The substantive laws of the State of New York shall govern the interpretation, validity and performance of the terms of this Agreement, without regard to conflicts of law doctrines.
 
Section 8.6           Severability. The provisions of this Agreement are independent of and separable from each other. The invalidity, illegality or unenforceability of one or more of the provisions of this Agreement in any jurisdiction shall not affect the validity, legality or enforceability of the remainder of this Agreement, including any such provisions, in any other jurisdiction, it being intended that all rights and obligations of the parties hereunder shall be enforceable to the fullest extent permitted by law. The parties hereto shall endeavor in good faith negotiations to replace any invalid, illegal or unenforceable provisions with valid provisions the economic effect of which comes as close as possible to that of the invalid, illegal or unenforceable provision, as applicable.
 
Section 8.7           Successors and Assigns. Except as otherwise provided herein, all the terms and provisions of this Agreement shall be binding upon, shall inure to the benefit of and shall be enforceable by the respective successors and permitted assigns of the parties hereto. No Stockholder may assign any of its rights hereunder to any Person other than a Permitted Transferee. Each Permitted Transferee of any Stockholder shall be subject to all of the terms of this Agreement, and by taking and holding such shares such Person shall be entitled to receive the benefits of and be conclusively deemed to have agreed to be bound by and to comply with all of the terms and provisions of this Agreement; provided, however, no transfer of rights permitted hereunder shall be binding upon or obligate the Company unless and until (i) if required under Section 2.1 hereof, the Company shall have received written notice of such transfer and the joinder of the transferee provided for in Section 2.1 hereof, and (ii) such transferee can establish Beneficial Ownership or ownership of record of a Registrable Amount (whether individually or together with its Affiliates that are Stockholders or transferees of Stockholders and, if applicable, its other Permitted Transferees that are Stockholders or transferees of Stockholders). The Company may not assign any of its rights or obligations hereunder without the prior written consent of each of the Stockholders, and any assignment attempted or effected without obtaining such required consent shall be null and void. Notwithstanding the foregoing, no successor or assignee of the Company shall have any rights granted under this Agreement until such Person shall acknowledge its rights and obligations hereunder by a signed written statement of such Person’s acceptance of such rights and obligations.
29

Section 8.8           Amendments. This Agreement may not be amended, modified or supplemented unless such amendment, modification or supplement is in writing and signed by each of the Stockholders and the Company.
 
Section 8.9           Waiver. The failure of a party hereto at any time or times to require performance of any provision hereof shall in no manner affect its right at a later time to enforce the same. No waiver by a party of any condition or of any breach of any term, covenant, representation or warranty contained in this Agreement shall be effective unless in a writing signed by the party against whom the waiver is to be effective, and no waiver in any one or more instances shall be deemed to be a further or continuing waiver of any such condition or breach in other instances or a waiver of any other condition or breach of any other term, covenant, representation or warranty.
 
Section 8.10         Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original but all of which shall constitute one and the same Agreement.
 
Section 8.11         Submission To Jurisdiction. ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT AND ANY ACTION FOR ENFORCEMENT OF ANY JUDGMENT IN RESPECT THEREOF MAY BE BROUGHT IN THE COURTS OF THE STATE OF NEW YORK LOCATED IN THE BOROUGH OF MANHATTAN OR OF THE UNITED STATES OF AMERICA FOR THE SOUTHERN DISTRICT OF NEW YORK AND, BY EXECUTION AND DELIVERY OF THIS AGREEMENT, EACH PARTY HERETO HEREBY ACCEPTS FOR ITSELF AND IN RESPECT OF ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, THE NON-EXCLUSIVE JURISDICTION OF THE AFORESAID COURTS AND THE APPELLATE COURTS THEREOF. EACH PARTY HERETO IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS OUT OF ANY OF THE AFOREMENTIONED COURTS IN ANY SUCH ACTION OR PROCEEDING BY THE MAILING OF COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, TO SUCH PARTY AT THE ADDRESS FOR NOTICES SET FORTH HEREIN. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY OF THE AFORESAID ACTIONS OR PROCEEDINGS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT BROUGHT IN THE COURTS REFERRED TO ABOVE AND HEREBY FURTHER IRREVOCABLY WAIVES AND AGREES NOT TO PLEAD OR CLAIM IN ANY SUCH COURT THAT ANY SUCH ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.  THE PARTIES HERETO WAIVE THEIR RIGHT TO A JURY TRIAL WITH RESPECT TO DISPUTES HEREUNDER.
 
Section 8.12         Injunctive Relief. Each party hereto acknowledges and agrees that a violation of any of the terms of this Agreement will cause the other parties irreparable injury for which an adequate remedy at law is not available. Therefore, the Stockholders agree that each party shall be entitled to, an injunction, restraining order, specific performance or other equitable relief from any court of competent jurisdiction, restraining any party from committing any violations of the provisions of this Agreement, without the need to post a bond or prove the inadequacy of monetary damages.
30

Section 8.13         Recapitalizations, Exchanges, Etc. Affecting the Shares of Common Stock; New Issuance.  The provisions of this Agreement shall apply, to the full extent set forth herein, with respect to Company Securities and to any and all equity or debt securities of the Company or any successor or assign of the Company (whether by merger, consolidation, sale of assets, or otherwise) which may be issued in respect of, in exchange for, or in substitution of, such Company Securities and shall be appropriately adjusted for any stock dividends, splits, reverse splits, combinations, reclassifications, recapitalizations, reorganizations and the like occurring after the date hereof.
 
Section 8.14         Termination. Upon the mutual consent of all of the parties hereto or, with respect to each Stockholder, at such earlier time as such Stockholder and its Affiliates and Permitted Transferees ceases to Beneficially Own a Registrable Amount, the terms of this Agreement shall terminate, and be of no further force and effect; provided, however, that the following shall survive the termination of this Agreement: (i) the provisions of Section 4.2 (which shall terminate, and be of no further force and effect, with respect to each Stockholder, at such time as such Stockholder and its Affiliates and Permitted Transferees ceases to Beneficially Own a Registrable Amount), Section 4.6, Article VII, Section 8.5, Section 8.11, this Section 8.14 and Section 8.15; (ii) the rights with respect to the breach of any provision hereof by the Company and (iii) any registration rights vested or obligations accrued as of the date of termination of this Agreement to the extent, in the case of registration rights so vested, if such Stockholder ceases to meet the definition of a Stockholder under this Agreement subsequent to the vesting of such registration rights as a result of action taken by the Company.
 
Section 8.15         Third Party Beneficiary. FIG LLC shall be a third party beneficiary to the agreements made hereunder between the Company and the Initial Stockholder and shall have the right to enforce such agreements directly to the extent it deems such enforcement necessary or advisable to protect its rights hereunder.
 
Section 8.16         Rule 144. The Company covenants and agrees that it will file the reports required to be filed by it under the Securities Act and the Exchange Act and the rules and regulations adopted by the Commission thereunder (or, if it is not required to file such reports, it will, upon the request of any holder of Registrable Securities, make publicly available other information so long as necessary to permit sales in compliance with Rule 144 under the Securities Act), and it will take such further reasonable action, to the extent required from time to time to enable such holder to sell Registrable Securities without registration under the Securities Act within the limitation of the exemptions provided by Rule 144 under the Securities Act, as such Rule 144 may be amended from time to time, or any similar rule or regulation hereafter adopted by the Commission. Upon the reasonable request of any holder of Registrable Securities, the Company will deliver to such holder a written statement as to whether it has complied with such information and filing requirements.
 
Section 8.17         Information. The Company covenants and agrees that for so long as the Stockholders, together, have Beneficial Ownership of at least 1% of the Voting Power of the Company, it will provide or cause to be provided to persons affiliated with the Initial Stockholder who are covered by applicable Initial Stockholder confidentiality policies, any and all information about the Company and its operations requested by the Initial Stockholder.
31

 
[Remainder of page left blank intentionally]

32

IN WITNESS WHEREOF, the parties have caused this Agreement to be executed and delivered by their respective officers thereunto duly as of the date first above written.
 
 
 
 
VIRGIN TRAINS USA INC.
 
 
 
 
By:
 
 
 
 
Name:
 
 
Title:
 
 
 
 
AAF HOLDINGS LLC
 
 
 
 
By:
 
 
 
 
Name:
 
 
Title:

 [SIGNATURE PAGE TO STOCKHOLDERS’ AGREEMENT]


EX-10.19 10 s002218x10_ex10-19.htm EXHIBIT 10.19

Exhibit 10.19

SEVENTH AMENDMENT TO THE
RAIL LINE EASEMENT AGREEMENT

THIS SEVENTH AMENDMENT TO THE RAIL LINE EASEMENT AGREEMENT (the “Seventh Amendment”) is made by and among the CITY OF ORLANDO, a municipal corporation created by and existing under the laws of the State of Florida, whose address is P.O. Box 4990, 400 S. Orange Avenue, Orlando, Florida 32802-4990 (the “City”) and THE GREATER ORLANDO AVIATION AUTHORITY, a public and governmental body created as an agency of the City, existing under and by virtue of the laws of the State of Florida, whose mailing address is One Jeff Fuqua Boulevard, Orlando, Florida 32827-4399 (the Authority ), and BRIGHTLINE TRAINS LLC F/K/A ALL ABOARD FLORIDA - OPERATIONS LLC, a Delaware limited liability company authorized to conduct business in Florida, whose mailing address is 2855 LeJeune Road , 4th Floor, Coral Gables, Florida, 33134 (Rail Company”).

W I T N E S S E T H :

WHEREAS, the Parties entered into that certain Rail Line Easement Agreement dated of January 22, 2014, as amended by that certain First Amendment to the Rail Line Easement Agreement dated October 3, 2014, that certain Second Amendment to the Rail Line Easement Agreement dated October 26, 2015, that certain Third Amendment to the Rail Line Easement Agreement dated December 21, 2015, that certain Fourth Amendment to the Rail Line Easement Agreement dated January 27, 2017, that certain Fifth Amendment to the Rail Line Easement Agreement dated December 28, 2017 and that certain Sixth Amendment to the Rail Line Easement Agreement dated June 11, 2018 (collectively, the Easement Agreement’’), which governs the parties rights and obligations related to the development of an inter-city rail project at the Orlando International Airport, that certain Premises Lease and Use Agreement with an effective date of January 22, 2014, as amended by that certain First Amendment to the Premises Lease and Use Agreement dated September 25, 2014, that certain Second Amendment to the Premises Lease and Use Agreement dated January 26, 2016, that certain Third Amendment to the Premises Lease and Use Agreement dated January 30, 2017 and that certain Fourth Amendment to the Premises Lease and Use Agreement dated December 28, 2017 (collectively, the Lease Agreement”), which governs the parties’ rights and obligations related to the development of the Rail Station Building and the Rail Company Premises and that certain Vehicle Maintenance Facility Ground Lease Agreement dated January 22, 2014, as amended by that certain First Amendment to the Vehicle Maintenance Facility Ground Lease Agreement dated October 28, 2015 and that Second Amendment to the Vehicle Maintenance Facility Ground Lease Agreement dated December 23, 2015 (collectively the “VMF Agreement) (the Easement Agreement, Lease Agreement and VMF Agreement shall be collectively referred to as the Escrow Agreements); and

WHEREAS, the Parties entered into that certain Escrow Extension Agreement with an effective date of December 23, 2015, as amended by that certain First Amendment to Escrow Extension Agreement dated January 30, 2017, that Second Amendment to Escrow Extension Agreement dated December 18, 2017, that Third Amendment to Escrow Extension Agreement dated June 11, 2018 and that Fourth Amendment to Escrow Extension Agreement dated June 11, 2018 (collectively, the “Escrow Extension Agreement”); and


 
City Council Meeting: 1-14-19
 
Item: K-6 Documentary: 190114K06
1

WHEREAS, the Original Escrow Extension Agreement, as amended by the First Amendment to Escrow Extension Agreement and the Second Amendment to Escrow Extension Agreement is hereinafter referred to as the Escrow Extension Agreement; and

WHEREAS, the parties desire to amend the Agreement to extend the Escrow Term (as defined in the Agreement).

NOW THEREFORE, for and in consideration of the mutual covenants and agreements herein set forth, and other good and valuable consideration, the receipt, adequacy and sufficiency of which are hereby expressly acknowledged, the parties hereto covenant and agree as follows:

1. Recitals. The foregoing recitals are true and correct and are hereby incorporated as covenants and agreements and are made a part hereof.

2. Definitions. Capitalized terms shall have the meaning ascribed to them in the Amended Agreement.

3. Paragraph 6: Closing Procedures. The first two sentences of Paragraph 6(b) of the Agreement are hereby deleted in their entirety and replaced with the following:

(b) The conditions to be satisfied in order to release the escrow documents are set forth in Exhibit “11” hereto (the “Escrow Conditions”). Closing Agent shall hold all Escrow Documents in escrow from the date hereof until the earlier of the following dates (the ‘‘Escrow Term”): (i) the satisfaction or waiver (any such waiver to be in the sole discretion of the waiving party) of the Escrow Conditions or (ii) June 30, 2019, as such date may be extended pursuant to the terms hereof or as may be amended by the parties in writing (the “Escrow Termination Date”). In return for the above extension, the Rail Company shall fund the Aviation Authority Owner’s Authorized Representative (“OAR”) team in an amount equal to $3,770,156.00 (“OAR Funding”). Rail Company shall pay the OAR Funding to the Aviation Authority on the following payment schedule:


i.
Payment 1 in the amount of $942,539.00 shall be paid prior satisfying the Escrow Conditions;


ii.
Payment 2 in the amount of $942,539.00 shall be paid on the one-year anniversary of the date Rail Company satisfied the Escrow Conditions;


iii.
Payment 3 in the amount of $942,539.00 shall be paid on the two-year anniversary of the date Rail Company satisfied the Escrow Conditions.

 
iv.
Payment 4 in the amount of $942,539.00 shall be paid on the three-year anniversary of the date Rail Company satisfied the Escrow Conditions.

4. Exhibit “B” and Exhibit “C”. Exhibit “B” of the Easement Agreement, entitled “Rail Line Easement Property” is hereby deleted in its entirety and replaced with Exhibit “B’’, attached hereto. All references to the Rail Line Easement Property contained in the Easement Agreement shall hereto forward be interpreted as referring to the real property described on Exhibit “B”, hereto, as if appearing in the original. Exhibit “C” of the Easement Agreement, entitled “Rail Line Slope Easement Property” is hereby deleted in its entirety and replaced with Exhibit “C”, attached hereto. All references to the Rail Line Slope Easement Property contained in the Easement Agreement shall hereto forward be interpreted as referring to the real property described on Exhibit “C”, hereto, as if appearing in the original.

5. Modification. Except as expressly amended and supplemented in the Amended Agreement and in this Seventh Amendment all other terms of the Amended Agreement shall remain in full force and effect as originally executed.

[THIS SPACE LEFT INTENTIONALLY BLANK]
2

IN WITNESS WHEREOF, the parties hereto have each caused this Seventh Amendment to be executed by its authorized representative on the date so indicated below.

 
“GOAA”
GREATER ORLANDO AVIATION
AUTHORITY
ATTEST:
   
 
BY:
/s/ Phillip N. Brown
/s/ Dayci S. Burnette-Snyder

Phillip N. Brown. A.A.E.,
Chief Executive Officer
Dayci S. Burnette-Snyder,
Assistant Secretary
Date: 12/18, 2018
   
     
Two WITNESSES:
APPROVED AS TO FORM AND LEGALITY this
14th day of December, 2018, for the use and
reliance by the GREATER ORLANDO AVIATION
AUTHORITY, only.
 
/s/ Larissa Bou-Vazquez
 
Printed Name: Larissa Bou-Vazquez
     
 
Marchena and Graham, P.A., Counsel.
/s/ Anna M. Farner
     
Printed Name: Anna M. Farner
BY:
/s/ Marchena and Graham, P.A.
   
Marchena and Graham, P.A.

STATE OF FLORIDA
COUNTY OF ORANGE

Before me, the undersigned authority, duly authorized under the laws of the State of Florida to take acknowledgments, this day personally appeared Phillip Brown and Dayci S. Burnette-Snyder respectively Chief Executive Officer and Deputy Director of the Greater Orlando Aviation Authority, who are personally known to me to be the individuals and officers described in and who executed the foregoing instrument on behalf of said Greater Orlando Aviation Authority, and severally acknowledged the execution thereof to be their free act and deed as such officers and that they were duly authorized so to do.

In witness whereof, I have hereunto set my hand and official seal at Orlando, in the county of Orange, State of Florida, this 18 day of December, 2018.

  /s/ Alba L. Bueno
My commission expires: July 19, 2019
Notary Public


3

 
BRIGHTLINE TRAINS LLC F/K/A
ALL ABOARD FLORIDA –
OPERATIONS LLC
   
ATTEST:
   
By:
/s/ Kolleen Cobb  
   
Printed Name:
   
Printed Name:
Kolleen Cobb  
   
Title:
   
Title:
Vice President  

 
Date: December 10th, 2018
   
TWO WITNESSES:
 
   
/s/ Brianna Hernandez    
Printed Name:
Brianna Hernandez    
   
/s/ Mariela Santos    
Printed Name:
Mariela Santos
   

STATE OF FLORIDA
)
 
COUNTY OF MIAMI-DADE
)
 


The foregoing instrument was acknowledged before me this 10th day of December, 2018 by Kolleen Cobb, as Vice President of Brightline Trains LLC f/k/a All Aboard Florida – Operations, a Delaware limited liability company, on behalf on the limited liability company. He/She is personally known to me or produced a valid driver’s license as identification.

  /s/ Brianna Hernandez  
 
Notary Public
 
Print name: 
Brianna Hernandez  

My commission expires:

4


 
CITY OF ORLANDO, FLORIDA, a Florida municipal corporation
   
ATTEST:
 
BY: 
/s/ Denise Aldridge  
By: 
/s/ Regina I. Hill  
Printed Name: 
Denise Aldridge  
Printed Name: 
Regina I. Hill  
Title: 
CITY CLERK  
Title: 
MAYOR PRO TEM  
     
[Official Seal]
Date: JANUARY 14, 2019

TWO WITNESSES:
APPROVED AS TO FORM AND LEGALITY FOR
THE USE AND RELIANCE OF THE CITY OF
ORLANDO, ONLY, THIS 4 DAY OF
JAN, 2019.
 
/s/ Alexis Walker
 
Printed Name:
Alexis Walker  
   
/s/ Denise Holdridge
 
By:
/s/ Ray Pope  
Printed Name: 
DENISE HOLDRIDGE  
Title:
   
 
Printed Name:
Ray Pope  

 
City Council Meeting: 1-14-19
 
Item: K-6 Documentary: 190114K06


5
EX-10.26 11 s002218x10_ex10-26.htm EXHIBIT 10.26

Exhibit 10.26

FIFTH AMENDMENT TO
ESCROW EXTENSION AGREEMENT

THIS FIFTH AMENDMENT TO ESCROW EXTENSION AGREEMENT (the “Fifth Amendment to Extension Agreement”) is made by and among THE GREATER ORLANDO AVIATION AUTHORITY, a public and governmental body created as an agency of the City, existing under and by virtue of the laws of the State of Florida, whose mailing address is One Jeff Fuqua Boulevard, Orlando, Florida 32827-4399 (the “Authority”), and BRIGHTLINE TRAINS LLC F/K/A ALL ABOARD FLORIDA - OPERATIONS LLC, a Delaware limited liability company authorized to conduct business in Florida, whose mailing address is 2855 LeJeune Road, 4th Floor, Coral Gables, Florida, 33134 (“Rail Company”), joined by the CITY OF ORLANDO, a municipal corporation created by and existing under the laws of the State of Florida, whose address is P.O. Box 4990, 400 S. Orange Avenue, Orlando, Florida 32802-4990 (the “City”).

WI TN E S S E TH:

WHEREAS, the Parties entered into that certain Rail Line Easement Agreement dated of January 22, 2014, as amended by that certain First Amendment to the Rail Line Easement Agreement dated October 3, 2014, that certain Second Amendment to the Rail Line Easement Agreement dated October 26, 2015, that certain Third Amendment to the Rail Line Easement Agreement dated December 21, 2015, that certain Fourth Amendment to the Rail Line Easement Agreement dated January 27, 2017, that certain Fifth Amendment to the Rail Line Easement Agreement dated December 28, 2017 and that certain Sixth Amendment to the Rail Line Easement Agreement dated June 11, 2018 (collectively, the “Easement Agreement”), which governs the parties rights and obligations related to the development of an inter-city rail project at the Orlando International Airport, that certain Premises Lease and Use Agreement with an effective date of January 22, 2014, as amended by that certain First Amendment to the Premises Lease and Use Agreement dated September 25, 2014, that certain Second Amendment to the Premises Lease and Use Agreement dated January 26, 2016, that certain Third Amendment to the Premises Lease and Use Agreement dated January 30, 2017 and that certain Fourth Amendment to the Premises Lease and Use Agreement dated December 28, 2017 (collectively, the Lease Agreement”), which governs the parties’ rights and obligations related to the development of the Rail Station Building and the Rail Company Premises and that certain Vehicle Maintenance Facility Ground Lease Agreement dated January 22, 2014, as amended by that certain First Amendment to the Vehicle Maintenance Facility Ground Lease Agreement dated October 28, 2015 and that Second Amendment to the Vehicle Maintenance Facility Ground Lease Agreement dated December 23, 2015 (collectively the “VMF Agreement”) (the Easement Agreement, Lease Agreement and VMF Agreement shall be collectively referred to as the “Escrow Agreements”); and

 
City Council Meeting: 1-14-19
 
Item: K-6 Documentary: 190114K06

1


WHEREAS, the Parties entered into that certain Escrow Extension Agreement with an effective date of December 23, 2015, as amended by that certain First Amendment to Escrow Extension Agreement dated January 30, 2017, that Second Amendment to Escrow Extension Agreement dated December 18, 2017, that Third Amendment to Escrow Extension Agreement dated June 11, 2018 and that Fourth Amendment to Escrow Extension Agreement dated June 11, 2018 (collectively, the “Escrow Extension Agreement”);

WHEREAS, the Escrow Agreements are being held in escrow pursuant to the terms of the Easement Agreement until December 31, 2018 at which time all Escrow Conditions must be met; and

WHEREAS, Rail Company has requested an extension of six (6) months to the Escrow Term until June 30, 2019 to meet all the Escrow Conditions; and

WHEREAS, the Parties agree to amend the Escrow Agreements to extend the Escrow Term until June 30, 2019; and

NOW, THEREFORE, for and inconsideration of the premises and of the mutual covenants hereinafter contained, the parties hereto do hereby agree as follows:

1.
Recitals. The above recitals are true and correct and are hereby incorporated herein by this reference.

2.
Definitions. Capitalized terms shall have the same meaning as set forth in the Escrow Agreements or as defined herein.

3.
Escrow Term Extension. The Authority agrees to extend the Escrow Term until June 30, 2019 (the “Escrow Extension”), subject the Rail Company shall fund the Aviation Authority Owner’s Authorized Representative team in an amount equal to $3,770,156.00 as set forth in the Seventh Amendment to the Easement Agreement executed contemporaneously with this Fifth Amendment to Escrow Extension Agreement.

4.
Monthly Coordination Fee. Beginning on January 1, 2019, on the first day of each month thereafter, Rail Company shall pay the Authority a coordination fee in an amount equal to $57,000 per month (the “Monthly Coordination Fee”). Rail Company shall continue to pay the Monthly Coordination on a monthly basis until the date of termination of escrow.

5.
Modification. Except as expressly amended and supplemented in this Fifth Amendment to Escrow Extension Agreement, all other terms of the Escrow Extension Agreement shall remain in full force and effect as originally executed.


[THIS SPACE LEFT INTENTIONALLY BLANK]
[SIGNATURE LINES ON NEXT PAGE]



IN WITNESS WHEREOF, the parties hereto have each caused this Fifth Amendment to be executed by its authorized representative on the date so indicated below.

 
“GOAA”
GREATER ORLANDO AVIATION
AUTHORITY
ATTEST:
   
 
By:
/s/ Phillip N. Brown
/s/ Dayci S. Burnette-Snyder
 
Phillip N. Brown. A.A.E.,
Chief Executive Officer
Dayci S. Burnette-Snyder,
Assistant Secretary
Date: 12/18, 2018
   
     
Two WITNESSES:
APPROVED AS TO FORM AND LEGALITY this
14th day of December, 2018, for the use and
reliance by the GREATER ORLANDO AVIATION
AUTHORITY, only.
 
/s/ Larissa Bou-Vazquez  
Printed Name: Larissa Bou-Vazquez
     
 
Marchena and Graham, P.A., Counsel.
/s/ Anna M. Farner      
Printed Name: Anna M. Farner
By:
/s/ Marchena and Graham, P.A.
   
Marchena and Graham, P.A.

STATE OF FLORIDA
COUNTY OF ORANGE

Before me, the undersigned authority, duly authorized under the laws of the State of Florida to take acknowledgments, this day personally appeared Phillip Brown and Dayci S. Burnette-Snyder respectively Chief Executive Officer and Assistant Secretary of the Greater Orlando Aviation Authority, who are personally known to me to be the individuals and officers described in and who executed the foregoing instrument on behalf of said Greater Orlando Aviation Authority, and severally acknowledged the execution thereof to be their free act and deed as such officers and that they were duly authorized so to do.

In witness whereof, I have hereunto set my hand and official seal at Orlando, in the County of Orange, State of Florida, this 18 day of December, 2018.

  /s/ Alba L. Bueno
My commission expires: July 19, 2019
Notary Public


3

 
BRIGHTLINE TRAINS LLC F/K/A
ALL ABOARD FLORIDA –
OPERATIONS LLC
   
ATTEST:
   
By:
/s/ Kolleen Cobb  
   
Printed Name:
   
Printed Name:
Kolleen Cobb  
   
Title:
   
Title:
Vice President  

 
Date: December 10th, 2018
   
TWO WITNESSES:
 
   
/s/ Mariela Santos    
Printed Name:
Mariela Santos    
   
/s/ Brianna Hernandez    
Printed Name:
Brianna Hernandez    

STATE OF FLORIDA
)
 
COUNTY OF
MIAMI-DADE
)
 


The foregoing instrument was acknowledged before me this 10th day of December, 2018 by Kolleen Cobb, as Vice President of Brightline Trains LLC f/k/a All Aboard Florida – Operations, a Delaware limited liability company, on behalf on the limited liability company. He/She is personally known to me or produced a valid driver’s license as identification.

  /s/ Brianna Hernandez  
 
Notary Public
 
Print name: 
Brianna Hernandez  
  My commission expires:  

4


 
CITY OF ORLANDO, FLORIDA, a Florida municipal corporation
   
ATTEST:
 
BY: 
/s/ Denise Aldridge  
By: 
/s/ Regina I. Hill  
Printed Name: 
Denise Aldridge  
Printed Name: 
Regina I. Hill  
Title: 
CITY CLERK  
Title: 
MAYOR PRO TEM  
  Date: JANUARY 14, 2019  
[Official Seal]



APPROVED AS TO FORM AND LEGALITY FOR
THE USE AND RELIANCE OF THE CITY OF
ORLANDO, ONLY, THIS 4 DAY OF
JAN, 2019.
 

 


 
   

 
By:
/s/ Ray Pope
 


 
Title:
   
 
Printed Name:
Ray Pope  

 
City Council Meeting: 1-14-19
 
Item: K-6 Documentary: 190114K06


5
EX-10.65 12 s002218x10_ex10-65.htm EXHIBIT 10.65

Exhibit: 10.65

Amendment 5

to the

Vehicle Terms and Conditions

between

Brightline Trains LLC

and

Siemens Industry Inc.

Amendment 5 (“Amendment 5”), dated January 21, 2019 to the Vehicle Terms and Conditions Agreement with an effective date of August 15, 2014, by and between Brightline Trains LLC (f/k/a All Aboard Florida – Operations LLC), a limited liability company duly formed and validly existing under the laws of the State of Delaware, with a principal business address of 161 NW 6th ST, Suite 900, Miami, Florida 33136 (“Brightline” or “Owner”) and Siemens Industry, Inc., a corporation duly formed and validly existing under the laws of the State of Delaware with a principal business address of 7464 French Road, Sacramento, CA 95828 (“SII” or “Contractor”) Each of Brightline and SII may be referred to  herein as a “party” or collectively as the “parties.”

WITNESSETH:

Whereas, Owner and Contractor entered into the Vehicle Terms and Conditions Agreement pursuant to which Owner agreed to purchase from Contractor, and Contractor agreed to sell to Owner, a new fleet of trains, as amended by Amendment No. 1, dated July 17, 2015, as amended by Amendment No. 2, dated May 15, 2017, as amended by Amendment No. 3, dated June 1, 2018, and as Amendment No. 4, dated November 30, 2018 (“VTC”);

Whereas, The parties have agreed to extend the Notice to Proceed (“NTP”) date for the Phase 2 Trains;

Now, therefore be it resolved, in consideration of the foregoing and of the mutual covenants and agreements set forth herein, and for other good and valuable consideration, the parties hereby agree as follows:

1.     Defined Terms. All defined terms expressed in the VTC shall, unless expressed to the contrary herein or the context otherwise requires, continue to have the same meanings where used in this Amendment No. 5.

2.     Amendments. Owner and Contractor hereby amend the VTC, as follows:

a) Paragraph 2(a) of Amendment No. 4 to the VTC is deleted, and the following paragraph 2(a) is substituted in lieu thereof:

The Phase 2 purchase price, before escalation, shall not increase above the price set forth in paragraph 2(a) of Amendment No. 3, so long as Purchaser provides an NTP to Contractor on or before March 31, 2019. For the avoidance of doubt, escalation will apply to the purchase price in accordance with Exhibit 11 which is amended herewith to reflect the change in the planned NTP date.


b) Paragraph 2(b) of Amendment No. 4 to the VTC is deleted in its entirety, and the following paragraph 2(b) is substituted in lieu thereof:

Owner will have a “grace period” of seven months ending on March 31, 2019, to provide Contractor with an NTP. In this case, the Delivery Schedule set forth in Exhibit 19 will be extended for up to a corresponding number of days equal to the number of days from August 30, 2018 to the date the NTP is issued, but in no event will the Delivery Schedule shift out by more than an additional seven months.

On or before issuance of the NTP, Owner shall have the option to eliminate the last (20) coaches in the Delivery Schedule from the Phase 2 Trains purchase. If Owner exercises that option, then the entire purchase for those 20 Coaches shall be deducted from the Phase 2 purchase price, and the parties shall execute an amendment to the Agreement reflecting the reduction in Coaches and price.

In event that an NTP is not issued by Owner on or prior to March 31, 2019, Contractor shall nonetheless, construct 3 Type 1 (Smart) Coaches for Owner,  to be delivered on or before March 31, 2024.

Owner is granted an option to order 2 additional Type 1 (Smart) Coaches for an additional $8.5 million with a 50% down payment on September 31, 2019, 25% at completion of the carshells and the remaining 25% to be paid upon shipment of the 5th coach form the Contactors’ facility. Shipment of the 5th coach would be no later than April 30, 2024.

If Owner decided to exercise a re-start of Phase 2 NTP after March 31, 2019, the Parties shall mutually agree on a revised delivery schedule and pricing schedule. The Phase 2 re-start Order must be received by the Contractor no later than March 14, 2022.

3.     Exhibit 11 (Escalation Formula), as modified in Amendment No. 4, is deleted in its entirety and the revised and restated Exhibit 11, attached hereto, is substituted in lieu thereof and incorporated herein by reference.

4.     Full Force and Effect; Conflicts. This Amendment No. 5 shall be read in conjunction with the VTC, all terms and conditions of which shall continue to have full force and effect, except to the extent as varied by this Amendment No. 5. This Amendment No. 5 is executed in accordance with Section 45 of the VTC. In the event of any conflict or inconsistency between the terms of this Amendment No. 5 and the VTC, as amended, the terms of Amendment No. 5 will govern.

Unrestricted 2

5.     Entire Agreement. This Amendment No. 5 supersedes any previous written or oral agreement between the parties in relation to the matters dealt with in this Amendment and it contains the whole agreement between the parties relating to the subject matter of this Amendment No. 5 as of the date hereof.

6.     Counterparts. This Amendment No. 5 may be executed in multiple counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. In making proof of this Amendment No. 5, it shall not be necessary to produce or account for more than one such counterpart.

[SIGNATURES ON FOLLOWING PAGE]

Unrestricted 3

In witness whereof, the parties hereto have caused this Amendment 5 to be executed by their duly authorized representatives as of the date first written above.

Brightline Trains LLC
 
Siemens Industry, Inc.
       
1/26/2019
 
Signature
   
Signature
     
Patrick Goddard
 
Marc Buncher
Print Name
 
Print Name
   
President
 
CEO
 
Print Title
 
Print Title
 
 
 
 
 
 
 
 
 
 
 
 
Signature 
 
 
 
 
 
 
 
 
Marsha Smith
 
 
 
 
Print Name
 
 
 
 
 
 
 
 
 
CFO
 
 
 
 
Print Title
 

Unrestricted 4

EXHIBIT 11

Escalation Formula

Part 1 – Phase 2 and Option Prices

Phase 2 Pricing

The Phase 2 price, before escalation, as set forth in Amendment No. 3 is valid for an order placement (NTP) through March 31, 2019. The price will be escalated per the Escalation Approach below.

The escalation time period shall be calculated from the mid-point of production of the planned delivery schedule outlined in Exhibit 19 of Amendment No. 3 to the then planned mid-point of production of the schedule at the time of the placement of the Phase 2 NTP. For the avoidance of doubt, the change in mid-point of production, consequently the escalation time period, will not exceed the number of months, or portion thereof, from August 30, 2018 to the date that the NTP is issued.

The escalation shall not apply to the following portions of the purchase price: The $7,608,375.75 previously paid, and the $11,000,000 restart fee, as referenced in paragraph 2(a) of Amendment No. 3.

The escalation sum shall be paid in a lump sum in conjunction with the payment of Milestone 6 as identified in the Third Revised And Restated Exhibit 5.

Option Pricing

The Option Price, as set forth in Part 1 of Exhibit 7 (Prices) of the VTC dated August 15, 2014, shall be adjusted at the time of placement of the order in accordance with the terms and conditions of Section 5.2 of the VTC dated August 15, 2014.

For the Option orders, the escalation time period shall be calculated from the mid-point of production of Phase 1, until the mid-point of production of each Option Order.

Escalation approach

For all adjustments, the percentage change shall be rounded to the nearest hundredth of a percentage point and the line item prices shall be rounded to the nearest dollar. This index will vary depending upon prevailing economic conditions, but will not be lower than .233 percent (%) per month to cover unforeseen cost factors over the entire option period.

The escalation formula shall be calculated as follows:


1.
One hundred (100) % of the Phase 2 Price or the Option Price shall be adjusted due to percentage adjustment in the applicable Producer Price Index (PPI) as described below.

2.
Escalation adjustment index data source: United States Department of Labor, Bureau of Labor Statistics Producer Price Index Industry, Data Series ID: PCU 336510 Industry: Railroad Rolling Stock Manufacturing, Product: Railroad Rolling Stock Manufacturing.

Unrestricted 5


3.
Should PCU 336510, Railroad Rolling Stock Manufacturing, be discontinued, then the following index shall be used: United States Department of Labor, Bureau of Labor Statistics Producer Price Index Industry, Data Series ID: PCUOMFG-OMFG, Industry: Total Manufacturing Industries, Product: Total Manufacturing Industries.


4.
The BLS PPI may be found at http://www.bls.gov/ppi/. Under PPI Databases, click on the “One Screen Data Search’’ for Industry Data, and a new browser window will open (make sure your browser’s pop-up blocker is disabled). Find the appropriate higher-level code number in Block 1. Click on the appropriate code and the code, and lower hierarchal codes should be listed in Block 2. Click on the correct code in Block 2, then on “Add to Your Selection’’ in Block 3. Then click on “GET DATA” in Block 3, and a new window should open with the index time. (“OMFG” is the second from the bottom of the list).


5.
The “escalation time period” shall be as described above and shall be calculated in months, rounded up to the next complete month.


6.
The “index factor” shall be derived by determining the average monthly escalation over the most recent available 12 month period prior to the placement of the order for the Phase 2 Trains or Option Train  and then multiplying the average monthly escalation by the relevant “escalation time period’’.


7.
The “fixed factor” shall be determined by using .233% price escalation per month, compounded for the number of months in the “escalation time period”.


8.
If the “index factor” is determined to be lower than the “fixed factor”, then the “fixed factor” shall be used to determine the escalated prices.


9.
The resulting escalated prices for Phase 2 Trains and Option Train shall be determined by taking the prices and multiplying that by the sum of 1 + the “index factor” or the “fixed factor” whichever is higher.


Unrestricted 6
EX-10.76 13 s002218x10_ex10-76.htm EXHIBIT 10.76

Exhibit 10.76
 
 

MEMBERSHIP INTEREST PURCHASE AGREEMENT
 
Among
 
BRIGHTLINE HOLDINGS LLC,
 
DESERTXPRESS ENTERPRISES, LLC
 
and
 
BENNY’S HOLDCO, LLC
 
Dated as of September 17, 2018
 
 



TABLE OF CONTENTS
 
Page
ARTICLE I THE ACQUISITION
1
   
Section 1.01
The Acquisition
1
     
ARTICLE II CLOSING AND POST-CLOSING PURCHASE PRICE ADJUSTMENT
1
   
Section 2.01
Acquisition Closing
1
     
Section 2.02
Buyer IPO True-Up; Buyer Common Share Repurchase
3
     
Section 2.03
Deposit Amount
4
     
Section 2.04
Supplemental Purchase Price
4
     
Section 2.05
Certain Adjustments
5
     
ARTICLE III REPRESENTATIONS AND WARRANTIES REGARDING THE COMPANY
6
   
Section 3.01
Organization, Standing and Power
6
     
Section 3.02
Capital Structure
6
     
Section 3.03
Authority; Noncontravention
7
     
Section 3.04
Financial Statements
8
     
Section 3.05
Undisclosed Liabilities
9
     
Section 3.06
Absence of Certain Changes or Events
9
     
Section 3.07
Proceedings
9
     
Section 3.08
Contracts
10
     
Section 3.09
Compliance with Laws; Governmental Approvals; Third-Party Consents
10
     
Section 3.10
Benefit Plans
12
     
Section 3.11
Additional Environmental Matters
13
     
Section 3.12
Taxes
14
     
Section 3.13
Real and Personal Property
15
     
Section 3.14
Intellectual Property
17
     
Section 3.15
Transactions with Affiliates
18
     
Section 3.16
Brokers
18
     
Section 3.17
Subsidiaries
18

i

 
Section 3.18
Exclusivity of Representations and Warranties
19
     
ARTICLE IV REPRESENTATIONS AND WARRANTIES REGARDING SELLER
20
   
Section 4.01
Organization
20
     
Section 4.02
Authority; Noncontravention
20
     
Section 4.03
Title to Membership Interests
21
     
Section 4.04
Transactions with Affiliates
21
     
Section 4.05
Exclusivity of Representations and Warranties
21
     
ARTICLE V REPRESENTATIONS AND WARRANTIES REGARDING BUYER
22
   
Section 5.01
Organization
22
     
Section 5.02
Buyer Capitalization
22
     
Section 5.03
Authority; Noncontravention
22
     
Section 5.04
Securities Act
23
     
Section 5.05
Financial Statements
23
     
Section 5.06
Compliance with Laws
24
     
Section 5.07
Brokers; Fees and Expenses
24
     
Section 5.08
Sufficient Funds
24
     
Section 5.09
Exclusivity of Representations and Warranties
24
     
ARTICLE VI COVENANTS
24
   
Section 6.01
Covenants Relating to Conduct Prior to the Closing
24
     
Section 6.02
Access; Consultation
27
     
Section 6.03
Efforts
27
     
Section 6.04
Tax Matters-In General
30
     
Section 6.05
Fees and Expenses
33
     
Section 6.06
Public Announcements
33
     
Section 6.07
Confidentiality
33
     
Section 6.08
Transaction Fees and Expenses
34
     
Section 6.09
Resignation of Directors and Officers
34
     
Section 6.10
No Solicitation
34
     
Section 6.11
Termination of Affiliate Contracts
35
     
Section 6.12
Repayment of Indebtedness
35

ii

 
Section 6.13
Real Estate Matters
36
     
Section 6.14
Termination of Certain Contracts
36
     
Section 6.15
Seller Release
36
     
Section 6.16
Cooperation
37
     
ARTICLE VII CONDITIONS
37
   
Section 7.01
Conditions to Each Party’s Obligation to Effect the Acquisition
37
     
Section 7.02
Conditions to Obligation of Buyer
38
     
Section 7.03
Conditions to Obligation of Seller
39
     
Section 7.04
Frustration of Closing Conditions
39
     
ARTICLE VIII TERMINATION; EFFECT OF TERMINATION
39
   
Section 8.01
Termination
39
     
Section 8.02
Termination; Effect of Termination
40
     
ARTICLE IX INDEMNIFICATION
41
   
Section 9.01
Survival of Covenants, Agreements, Representations and Warranties
41
     
Section 9.02
Indemnification by Seller
41
     
Section 9.03
Indemnification by Buyer
43
     
Section 9.04
Indemnification Procedures
43
     
Section 9.05
Termination of Indemnification
45
     
Section 9.06
Exclusive Remedy Against the Indemnifying Party
46
     
Section 9.07
Limitation of Indemnification
46
     
Section 9.08
Treatment of Share Indemnity Escrow Amount
47
     
Section 9.09
Manner of Payment
48
     
Section 9.10
Consideration Adjustment
48
     
ARTICLE X MISCELLANEOUS
48
   
Section 10.01
Assignment
48
     
Section 10.02
No Third-Party Beneficiaries
49
     
Section 10.03
Notices
49
     
Section 10.04
Headings; Certain Definitions; Interpretation
50
     
Section 10.05
Counterparts
61
     
Section 10.06
Integrated Contract
61

iii

 
Section 10.07
Severability
61
     
Section 10.08
Governing Law
61
     
Section 10.09
Jurisdiction
62
     
Section 10.10
Service of Process
62
     
Section 10.11
Waiver of Jury Trial
62
     
Section 10.12
Enforcement
62
     
Section 10.13
Amendments
62
     
Section 10.14
Further Assurances
62
     
Section 10.15
Transfer of Privilege; Conflict Waiver
63
     
EXHIBIT A FORM OF STOCKHOLDER AGREEMENT
65

iv

GLOSSARY OF DEFINED TERMS

Definition
Location of
Defined Terms
   
Accounting Methodologies
Section 10.04(b)
Acquisition
Section 1.01
Actual Fraud
Section 10.04(b)
affiliate
Section 10.04(b)
Affiliate Contracts
Section 3.15
Agreement
Preamble
Articles
Section 10.04(a)
Balance Sheet Date
Section 3.05(a)
Bankruptcy Exceptions
Section 10.04(b)
Base Share Closing Date Payment
Section 2.01(c)(ii)
Base Share Indemnity Escrow Amount
Section 10.04(b)
Benefit Plan
Section 10.04(b)
BLM
Section 3.03(c)
Business
Section 10.04(b)
business day
Section 10.04(b)
Buyer
Preamble
Buyer Common Share
Section 10.04(b)
Buyer Common Share Repurchase Amount
Section 2.02(c)
Buyer Common Share Repurchase Closing Date
Section 2.02(c)
Buyer Common Share Repurchase Notice
Section 2.02(c)
Buyer Common Share Repurchase Price
Section 10.04(b)
Buyer Common Share Value
Section 10.04(b)
Buyer Equity Valuation
Section 10.04(b)
Buyer Financial Statements
Section 5.05
Buyer Fundamental Representation
Section 10.04(b)
Buyer Indemnitee
Section 9.02(a)
Buyer IPO
Section 10.04(b)
Buyer IPO Price
Section 10.04(b)
Buyer Public Share
Section 10.04(b)
Calculation Time
Section 10.04(b)
Cash Purchase Price
Section 10.04(b)
Change of Control
Section 10.04(b)
Claims
Section 9.05(a)
Closing
Section 2.01(a)
Closing Date
Section 2.01(a)
Closing Date Share Election
Section 2.01(c)
Closing Date Payment
Section 10.04(b)
Closing Debt
Section 10.04(b)
Code
Section 2.01(e)
Commencement of Construction
Section 10.04(b)
Company
Preamble
Company Contracts
Section 3.08(a)

v

 
Definition
Location of
Defined Terms
   
Company Disclosure Letter
Article III
Company Fundamental Representations
Section 10.04(b)
Company Monthly Financial Statements
Section 3.04
Company Properties
Section 3.13(d)
Confidentiality Agreement
Section 10.04(b)
Consent
Section 10.04(b)
Contract
Section 10.04(b)
Deductible
Section 9.07(a)
Deposit Amount
Section 10.04(b)
Deposit Date
Section 2.03
Direct Claim
Section 9.04(b)(i)
Disposed Share Value
Section 10.04(b)
Draft Allocation Schedule
Section 6.04(e)(ii)
Environmental Claims
Section 3.11(b)
Environmental Law
Section 3.11(b)
Environmental Reviews
Section 10.04(b)
ERISA
Section 10.04(b)
ERISA Affiliate
Section 10.04(b)
Exchange Act
Section 10.04(b)
Exercising Permitted Transferee
Section 10.04(b)
Exhibits
Section 10.04(a)
Final Allocation Schedule
Section 6.04(e)(i)
Financial Statements
Section 3.04
GAAP
Section 10.04(b)
Governmental Approvals
Section 10.04(b)
Governmental Entity
Section 10.04(b)
Guarantee
Section 10.04(b)
Hazardous Materials
Section 3.11(b)
Indebtedness
Section 10.04(b)
Indemnitee
Section 10.04(b)
Intellectual Property
Section 10.04(b)
IPO Date
Section 10.04(b)
IPO Outside Date
Section 2.02(a)
Judgment
Section 10.04(b)
Knowledge of the Company
Section 10.04(b)
Law
Section 10.04(b)
Leased Property
Section 3.13(c)
Legal Restraints
Section 7.01(c)
Liabilities
Section 3.05
Lien
Section 10.04(b)
Losses
Section 10.04(b)
Manager
Section 10.04(b)
Maximum Buyer Common Share Repurchase Amount
Section 10.04(b)
Member
Section 10.04(b)
Membership Interests
Section 10.04(b)

vi

 
Definition
Location of
Defined Terms
   
Natural Hazards Disclosure Reports
Section 3.11(b)
Operating Agreement
Section 10.04(b)
Optional Share Closing Date Payment
Section 10.04(b)
Optional Supplemental Share Purchase Price
Section 10.04(b)
Organizational Documents
Section 10.04(b)
Outside Date
Section 8.01(a)(iv)
Owned Property
Section 3.13(b)
Participant
Section 10.04(b)
Permitted Holder
Section 10.04(b)
Permitted Liens
Section 10.04(b)
Permitted Transferee
Section 10.04(b)
person
Section 10.04(b)
Pre-Closing Tax Period
Section 10.04(b)
Pre-Closing Tax Returns
Section 10.04(b)
Proceeding
Section 10.04(b)
Purchase Price
Section 10.04(b)
Real Property Interests
Section 3.13(d)
Real Property Lease
Section 3.13(c)
Release
Section 3.11(b)
Release Date
Section 9.08(a)
RELEASED MATTERS
Section 6.15
RELEASED PARTY
Section 6.15
Required Approvals
Section 7.02(f)
Required BLM Approval
Section 3.03(c)
Required STB Approvals
Section 3.03(c)
Restricted Action
Section 6.01(b)
Scheduled Company Intellectual Property
Section 3.14(a)
SEC
Section 10.04(b)
Sections
Section 10.04(a)
Securities Act
Section 5.04
Seller
Preamble
Seller Fundamental Representations
Section 10.04(b)
Seller Indemnitee
Section 9.03(a)
Seller Monthly Financial Statements
Section 3.04
Seller’s Aggregate IPO Holding
Section 10.04(b)
Share Consideration Target Value
Section 10.04(b)
Share Indemnity Escrow Amount
Section 10.04(b)
Share Indemnity Release Value
Section 10.04(b)
Share Projected Indemnity Amount
Section 10.04(b)
Share Purchase Price
Section 10.04(b)
Share Purchase Price True-Up
Section 10.04(b)
STB
Section 10.04(b)
Stockholder Agreement
Section 10.04(b)
Straddle Period
Section 10.04(b)
subsidiary
Section 10.04(b)

vii

 
Definition
Location of
Defined Terms
   
Supplemental Approval Closing Date
Section 2.04
Supplemental Approval Date
Section 2.04
Supplemental Approval Interest Rate
Section 10.04(b)
Supplemental Approvals
Section 10.04(b)
Supplemental Approvals Outside Date
Section 10.04(b)
Supplemental Cash Purchase Price
Section 10.04(b)
Supplemental Indemnification Shortfall Amount
Section 9.08(d)
Supplemental Pending Claims
Section 9.08(d)
Supplemental Resolved Losses
Section 9.08(d)
Supplemental Share Closing Date Payment
Section 2.04(b)
Supplemental Share Indemnity Escrow Amount
Section 10.04(b)
Supplemental Share Purchase Price
Section 10.04(b)
Takeover Proposal
Section 6.10(a)
tax return
Section 3.12(a)
taxes
Section 3.12(a)
taxing authority
Section 3.12(a)
Terminating Contracts
Section 6.14
Tharaldson Land Purchase
Section 10.04(b)
Tharaldson Land Purchase Agreement
Section 10.04(b)
Third-Party Claim
Section 9.04(a)(i)
Third-Party Consents
Section 10.04(b)
Unpaid Expenses
Section 10.04(b)
Voting Company Debt
Section 3.02(b)
Voting Subsidiary Debt
Section 3.17(b)
Yearly Financial Statements
Section 3.04
 

viii


MEMBERSHIP INTEREST PURCHASE AGREEMENT dated as of September 17, 2018 (this “Agreement”), by and among BRIGHTLINE HOLDINGS LLC, a Delaware limited liability company (“Buyer”), DESERTXPRESS ENTERPRISES, LLC, a Nevada limited liability company (the “Company”), and BENNY’S HOLDCO, LLC, a Nevada limited liability Company (“Seller”).
 
WHEREAS Seller is the record and beneficial owner of 100% of the issued and outstanding Membership Interests of the Company; and
 
WHEREAS Buyer desires to purchase from Seller, and Seller desires to sell to Buyer, all the Membership Interests;
 
NOW, THEREFORE, in consideration of the foregoing and the respective representations, warranties, covenants and agreements set forth herein, the parties agree as follows:
 
ARTICLE I
 
The Acquisition
 
Section 1.01          The Acquisition. On the terms and subject to the conditions of this Agreement, at the Closing Seller shall sell, transfer and deliver to Buyer, and Buyer shall purchase, acquire and accept from Seller, all the Membership Interests, which Membership Interests shall be sold, transferred and delivered with full legal and beneficial title, free and clear of all Liens (other than transfer restrictions under applicable securities Laws) and together with all rights attached thereto, in exchange for the Closing Date Payment (as such payment may be adjusted pursuant to Article II, as applicable), on the terms and subject to the conditions set forth in Articles II and VII. The purchase and sale of the Membership Interests is referred to in this Agreement as the “Acquisition”.
 
ARTICLE II
 
Closing and Post-Closing Purchase Price Adjustment
 
Section 2.01          Acquisition Closing.
 
(a)           The closing of the Acquisition (the “Closing”) shall take place at the offices of Cravath, Swaine & Moore LLP, 825 Eighth Avenue, New York, New York 10019, at 9:00 a.m. New York City time on the second business day following the satisfaction of the conditions set forth in Article VII (other than those conditions that by their nature are to be satisfied at the Closing, but subject to the satisfaction or written waiver of those conditions at such time) (or, to the extent permitted by applicable Law, waived in writing by the party entitled to the benefit thereof), or at such other place, time and date as may be agreed by Seller and Buyer. The date on which the Closing occurs is referred to in this Agreement as the “Closing Date”.
 
(b)          At least three business days prior to the Closing Date, the Company shall provide to Buyer reasonably detailed calculations of (i) the amount of Closing Debt and (ii) the amount of Unpaid Expenses, in each case calculated in accordance with the definition thereof set forth in this Agreement.


(c)           At the Closing:
 
(i)           Buyer shall pay, in cash by wire transfer of immediately available funds, the Cash Purchase Price (less the Deposit Amount (if any) previously paid pursuant to Section 2.03) to the bank account designated by Seller in writing at least three business days prior to the Closing Date;
 
(ii)          Buyer shall issue and deliver to Seller a number of Buyer Common Shares (rounded up to the nearest whole number of limited liability company interests or shares, as applicable) in book-entry form equal to (x) the Base Share Purchase Price minus (y) the Base Share Indemnity Escrow Amount (the “Base Share Closing Date Payment”);
 
provided, however, that if Buyer has not consummated a Buyer IPO on or prior to the Closing, Buyer shall have the option to elect, in lieu of paying the amount referred to in the foregoing clause (i), to issue and deliver to Seller a number of Buyer Common Shares (rounded up to the nearest whole number of limited liability interests) in book entry form equal to the Optional Share Closing Date Payment (such election, if any, the “Closing Date Share Election”);
 
(iii)         Seller shall deliver or cause to be delivered to Buyer such instruments of transfer sufficient to transfer the Membership Interests;
 
(iv)         Buyer shall deliver to Seller, and Seller shall deliver to Buyer, a duly executed copy of the Stockholder Agreement;
 
(v)          the Company and Seller shall deliver to Buyer all certificates, resignations and payoff letters required to be delivered by the Company or Seller on or prior to the Closing Date pursuant to this Agreement; and
 
(vi)         Buyer shall deliver to Seller all certificates required to be delivered by Buyer on or prior to the Closing Date pursuant to this Agreement.
 
(d)           Effective simultaneously with the Closing, (i) Seller shall cease to be a Member of the Company, (ii) Seller shall consent to Buyer becoming admitted as the sole Member of the Company and (iii) Buyer shall be admitted as the sole Member of the Company.
 
(e)           Notwithstanding anything in this Agreement to the contrary, Buyer shall be entitled to deduct and withhold from the portion of the Closing Date Payment, the Deposit Amount, the payments required to be made pursuant to Section 2.04 (if any) and any release of the Share Indemnity Escrow Amount (or any other amount) otherwise payable pursuant to this Agreement to Seller, or for the benefit of Seller, such amounts as Buyer or any of its affiliates is required to deduct and withhold with respect to the making of any such payment under the Internal Revenue Code of 1986, as amended (the “Code”), or any provision of state, local or non-U.S. tax Law. To the extent reasonably practicable, Buyer shall give Seller advance written notice of any intention to deduct or withhold any such amounts and the legal basis therefor and shall afford Seller the opportunity to provide documents and forms necessary to eliminate or reduce such deduction or withholding. To the extent that amounts are so withheld and paid over to the appropriate taxing authority by Buyer, such withheld amounts shall be treated for all purposes of this Agreement as having been paid to Seller in respect of which such deduction and withholding was made.

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Section 2.02           Buyer IPO True-Up; Buyer Common Share Repurchase.
 
(a)           If (i) Buyer has not consummated a Buyer IPO on or prior to the Closing but consummates a Buyer IPO on or prior to the date that is twelve months after the Closing Date (the “IPO Outside Date”) and (ii) as of the IPO Date, Seller’s Aggregate IPO Holding is less than the Share Consideration Target Value, Buyer shall issue and deliver to Seller promptly following the IPO Date (but no later than 10 business days thereafter) a number of Buyer Public Shares (rounded up to the nearest whole number of shares) in book-entry form equal to the Share Purchase Price True-Up.
 
(b)           If (i) Buyer has not consummated a Buyer IPO on or prior to the Closing but consummates a Buyer IPO on or prior to the IPO Outside Date and (ii) as of the IPO Date, Seller’s Aggregate IPO Holding is less than the Share Consideration Target Value, any Share Indemnity Escrow Amount remaining as of the IPO Date shall be adjusted such that such remaining Share Indemnity Escrow Amount shall be a number of Buyer Public Shares equal to the quotient of (i) the product of (x) the Buyer Common Share Value multiplied by (y) the remaining Share Indemnity Escrow Amount as of the IPO Date divided by (ii) the Buyer IPO Price.
 
(c)           If (i) Buyer has not consummated a Buyer IPO on or prior to the Closing but consummates a Buyer IPO at any time thereafter and (ii) Buyer has issued and delivered to Seller (x) the Optional Share Closing Date Payment (in accordance with Section 2.01(c)) or (y) the Optional Supplemental Share Purchase Price (in accordance with Section 2.04)), then Seller shall have the right (on behalf of itself and each Exercising Permitted Transferee), by delivering written notice to Buyer on or prior to the date that is five business days following the IPO Date (such notice, if any, the “Buyer Common Share Repurchase Notice”), to elect to require Buyer to, on the date that is five business days following Seller’s delivery to Buyer of the Buyer Common Share Repurchase Notice, or such other date as may be agreed by Seller and Buyer (the “Buyer Common Share Repurchase Closing Date”), purchase, acquire and accept from Seller (and each Exercising Permitted Transferee) (and Seller (and each such Exercising Permitted Transferee) shall sell, transfer and deliver to Buyer), the aggregate number of Buyer Common Shares (not to exceed, in the aggregate, the Maximum Buyer Common Share Repurchase Amount) as Seller shall specify in the Buyer Common Share Repurchase Notice (such aggregate number of shares, the “Buyer Common Share Repurchase Amount”) (it being understood that Seller shall be required to specify in the Buyer Common Share Repurchase Notice the number of Buyer Common Shares that each of Seller and each Exercising Permitted Transferee desires to individually sell, transfer and deliver to Buyer pursuant to this Section 2.02(c)), and on the Buyer Common Share Repurchase Closing Date:
 
(A)           Buyer shall pay, in cash by wire transfer of immediately available funds, the relevant portion of the Buyer Common Share Repurchase Price to Seller and each Exercising Permitted Transferee to the bank account designated by Seller and each Exercising Permitted Transferee, as applicable, in writing at least three business days prior to the Buyer Common Share Repurchase Closing Date;

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(B)          Seller and each Exercising Permitted Transferee shall deliver or cause to be delivered to Buyer such instruments of transfer sufficient to transfer the Buyer Common Share Repurchase Amount to Buyer; and
 
(C)          Seller and each Exercising Permitted Transferee shall execute and deliver to Buyer customary share transfer documentation reasonably requested by Buyer in connection with the transactions contemplated by this Section 2.02(c) and, without limiting the foregoing, Seller and each Exercising Permitted Transferee shall be required to make customary representations and warranties to Buyer in the definitive share transfer documentation related thereto.
 
Seller shall cause each Exercising Permitted Transferee to comply with this Section 2.02(c) and shall be entitled to enforce this Section 2.02(c) on behalf of each Exercising Permitted Transferee.
 
Section 2.03          Deposit Amount. If (a) the Closing shall not have occurred on or prior to November 30, 2018 (the “Deposit Date”) and (b) neither Seller nor the Company is then in breach (which breach has not been cured by Seller or the Company, as applicable) of any of its representations, warranties, covenants or agreements under this Agreement, then Buyer shall pay on the later of (i) the Deposit Date and (ii) the date such breach is so cured by the Company or Seller, as applicable, the Deposit Amount, in cash by wire transfer of immediately available funds, to the bank account designated by Seller in writing at least three business days prior to the Deposit Date.
 
Section 2.04          Supplemental Purchase Price. If Buyer has not obtained all of the Supplemental Approvals on or prior to the Closing but each of the Supplemental Approvals is thereafter obtained on or prior to the Supplemental Approvals Outside Date (the date on which all Supplemental Approvals have been obtained, if any, the “Supplemental Approval Date”; provided that the Supplemental Approval Date shall be deemed to have occurred for all purposes hereunder if a Change of Control or Commencement of Construction has occurred on or prior to the Supplemental Approvals Outside Date), then on the date that is 10 business days following the Supplemental Approval Date or such other date as may be agreed by Seller and Buyer (the “Supplemental Approval Closing Date”):
 
(a)           Buyer shall pay, in cash by wire transfer of immediately available funds, the Supplemental Cash Purchase Price to the bank account designated by Seller in writing at least three business days prior to the Supplemental Approval Closing Date; and
 
(b)           Buyer shall issue and deliver to Seller a number of Buyer Common Shares (rounded up to the nearest whole number of limited liability company interests or shares, as applicable) in book-entry form equal to (i) the Supplemental Share Purchase Price minus (ii) (x) in the event the Supplemental Approval Closing Date occurs prior to the Release Date, the Supplemental Share Indemnity Escrow Amount, or (y) in the event the Supplemental Approval Closing Date occurs on or after the Release Date, the Supplemental Indemnification Shortfall Amount calculated in accordance with Section 9.08(d) (the “Supplemental Share Closing Date Payment”);

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provided, however, that (A) if Buyer has not consummated a Buyer IPO on or prior to the Supplemental Approval Date, Buyer shall have the option to elect, in lieu of paying the amount referred to in the foregoing clause (a), to issue and deliver to Seller a number of Buyer Common Shares (rounded up to the nearest whole number of limited liability company interests) in book entry form equal to the Optional Supplemental Share Purchase Price and (B) if Buyer has consummated a Buyer IPO prior to the Supplemental Approval Date, the number of Buyer Common Shares to be issued pursuant to Section 2.04(b) (and the number of Buyer Common Shares comprising the Supplemental Share Indemnity Escrow Amount or Supplemental Indemnification Shortfall Amount, as applicable) shall be appropriately adjusted to give effect to the provisions of Section 2.02(a), as if the Buyer Common Shares to be issued (or reserved in escrow, as applicable) pursuant to Section 2.04(b) had been issued on or prior to the IPO Date.
 
Section 2.05          Certain Adjustments.
 
(a)           Notwithstanding anything in this Agreement to the contrary, if, from the date of this Agreement until the earlier of (i) the Closing or (ii) any termination of this Agreement in accordance with Article VIII, the outstanding Buyer Common Shares shall have been changed into a different number of shares or a different class by reason of any reclassification, stock split (including a reverse stock split), recapitalization, split-up, combination, exchange of shares, readjustment, conversion, or other similar transaction, or a stock dividend thereon shall be declared with a record date within such period, then the Share Indemnity Escrow Amount, Base Share Closing Date Payment, Buyer Common Share Value and any other similarly dependent items, as the case may be, shall be appropriately adjusted to provide Seller the same economic effect as contemplated by this Agreement prior to such event.
 
(b)           From and after the Closing, if, the outstanding Buyer Common Shares are changed into a different number of shares or a different class by reason of any reclassification, stock split (including a reverse stock split), recapitalization, split-up, combination, exchange of shares, readjustment, conversion, or other similar transaction, or, in connection with a Buyer IPO, a stock dividend thereon shall be declared with a record date prior to the IPO Date, then (x) for the avoidance of doubt, any shares comprising the remaining Share Indemnity Escrow Amount shall be subject to any such events and (y) all calculations in Section 2.02(a), Section 2.02(b) and Section 2.04 shall be appropriately adjusted to provide Seller the same economic effect as contemplated by this Agreement prior to such event.
 
(c)           Nothing in this Section 2.05 shall be construed to permit any party hereto to take any action that is otherwise prohibited or restricted by any other provision of this Agreement.
 

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ARTICLE III
 
Representations and Warranties Regarding the Company
 
Except as set forth on the disclosure letter delivered by the Company to Buyer prior to the execution of this Agreement and dated the date hereof (the “Company Disclosure Letter”) (it being understood that any disclosure set forth in a section or subsection of such disclosure letter shall apply only to the corresponding section or subsection of this Agreement, except to the extent that it is reasonably apparent from the face of such disclosure that such disclosure is relevant to another section or subsection of this Agreement, in which case such disclosure shall also apply to such other section or subsection), the Company represents and warrants to Buyer as of the date of this Agreement and as of Closing as follows:
 
Section 3.01     Organization, Standing and Power.
 
(a)     The Company (i) is a limited liability company duly organized, validly existing and in good standing under the Laws of the State of Nevada and (ii) has all requisite limited liability company power and authority to enable it to use its name and to own, lease or otherwise hold and operate its properties or assets and to carry on its business as presently conducted. The Company is duly qualified or licensed to conduct business and is in good standing under the laws of each jurisdiction in which the nature of its business or the ownership, leasing or operation of its properties or assets makes such qualification or licensing necessary.
 
(b)     The Company has delivered to Buyer complete and accurate copies of its Organizational Documents and the Organizational Documents of its subsidiaries, in each case, as amended through the date of this Agreement.
 
(c)     Except as provided in Section 3.17, the Company does not own, directly or indirectly, any member’s interest in, membership units of, or other equity interests in, any person.
 
Section 3.02     Capital Structure.
 
(a)     Seller is the record and beneficial owner of 100% of the issued and outstanding Membership Interests. Except for the Membership Interests owned by Seller, no Membership Interests or other equity, membership, member’s or limited liability company interests in the Company are issued, reserved for issuance or outstanding. All outstanding Membership Interests are duly authorized and validly issued, with no obligation to make further payments to the Company for the purchase of Membership Interests or contributions to the Company solely by reason of the ownership of Membership Interests. No outstanding Membership Interests are subject to preemptive rights or were issued in violation of any preemptive rights. None of the issued and outstanding Membership Interests are subject to vesting or forfeiture conditions or a right of repurchase by the Company. There are no declared but unpaid dividends or other distributions in respect of any Membership Interests.
 
(b)     There are no bonds, debentures, notes or other Indebtedness of the Company that have or by their terms may have at any time the right to vote (or which are convertible into, or exchangeable for, securities having the right to vote) on any matters on which the holders of Membership Interests or other equity, membership, member’s or limited liability company interests in the Company may vote (“Voting Company Debt”).
 
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(c)     There are no securities, options, warrants, calls, rights, equity-appreciation rights, restricted equity units, equity-based performance units or Contracts of any kind to which the Company is a party, or by which the Company or any of its properties or assets are bound, obligating the Company to issue, deliver or sell, or cause to be issued, delivered or sold, Membership Interests or other equity, membership, member’s or limited liability company interests in, or securities convertible into, or exchangeable or exercisable for, Membership Interests or other equity, membership, member’s or limited liability company interests in, the Company or obligating the Company to issue, deliver, sell, grant, extend or enter into any such security, option, warrant, call, right, unit or Contract. There are no securities or other similar instruments or obligations of the Company, the value of which is in any way based upon or derived from any Membership Interests or other equity, membership, member’s or limited liability company interests in the Company. There are no outstanding contractual or other obligations of the Company to (A) repurchase, redeem or otherwise acquire any Membership Interests or other equity, membership, member’s or limited liability company interests in the Company or (B) vote or dispose of any Membership Interests or other equity, membership, member’s or limited liability company interests in the Company except as set forth in the Operating Agreement. The Company is not a party to any voting agreement with respect to any Membership Interests or other equity, membership, member’s or limited liability company interests in the Company. There are no irrevocable proxies and no voting agreements with respect to any Membership Interests or other equity interests in the Company other than the Operating Agreement.
 
(d)     Section 3.02(d) of the Company Disclosure Letter sets forth, as of the date of this Agreement, a true and complete list of all outstanding Indebtedness and Guarantees of the Company and its subsidiaries.
 
Section 3.03     Authority; Noncontravention.
 
(a)     The Company has the requisite limited liability company power and authority to execute, deliver and perform this Agreement, to consummate the transactions contemplated hereby and to comply with the provisions hereof. The execution, delivery and performance of this Agreement by the Company, the consummation by the Company of the transactions contemplated hereby and the compliance by the Company with the provisions hereof have been duly authorized by all necessary limited liability company action on the part of the Company, and no other proceedings on the part of the Company are necessary to execute, deliver and perform this Agreement, to consummate the transactions contemplated hereby or to comply with the provisions hereof. No vote or approval of holders of any Membership Interests or other equity, membership, member’s or limited liability company interests in the Company or any of its subsidiaries is required in connection with the execution, delivery and performance of this Agreement by the Company, the consummation by the Company of the transactions contemplated hereby and the compliance by the Company with the provisions hereof. This Agreement has been duly executed and delivered by the Company and, assuming the due authorization, execution and delivery by Buyer and Seller, constitutes a valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, except as enforceability may be limited by the Bankruptcy Exceptions.
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(b)     The execution, delivery and performance of this Agreement by Seller and the Company, the consummation by Seller and the Company of the transactions contemplated hereby and the compliance by Seller and the Company with the provisions hereof do not and will not conflict with, or result in any violation or breach of, or default (with or without notice or lapse of time, or both) under, or give rise to a right of, or result in, termination, cancellation or acceleration of any obligation or to a loss of a benefit under, or result in the creation of any Lien in or upon any of the properties or assets of the Company or any of its subsidiaries under, or give rise to any increased, additional, accelerated or guaranteed rights or entitlements under, any provision of (i) the Company’s or any of its subsidiaries’ Organizational Documents, (ii) any Contract to which the Company or any of its subsidiaries is a party or any of their properties or assets are subject or (iii) subject to the governmental filings and other matters referred to in Section 3.03(c), any Law, Governmental Approval or Judgment, in each case applicable to the Company or any of its subsidiaries or any of their properties or assets.
 
(c)     No Consent of, or filing or submission with, or notification to, any Governmental Entity, is required to be obtained or made by or with respect to the Company or any of its subsidiaries in connection with the execution, delivery and performance of this Agreement by the Company, the consummation by the Company of the transactions contemplated hereby or the compliance by the Company with the provisions hereof, other than (i) those set forth on Section 3.03(c) of the Company Disclosure Letter, (ii) the Consents, filings or submissions as may be required under applicable requirements of the STB solely with respect to the STB’s approval or exemption of a change of control of the Company (the “Required STB Approvals”) and (iii) a decision by the Bureau of Land Management (“BLM”), pursuant to 43 C.F.R 2807.21, approving the assignment of the DesertXpress Right-of Way Grant in connection with the proposed acquisition of control by Buyer of the Company (the “Required BLM Approval”).
 
(d)     No Third-Party Consent is required to be obtained or made by or with respect to the Company or any of its subsidiaries in connection with the execution, delivery and performance of this Agreement by the Company, the consummation by the Company of the transactions contemplated hereby or the compliance by the Company with the provisions hereof.
 
Section 3.04     Financial Statements. The Company has made available to Buyer (i) the unaudited consolidated balance sheets of the Company and its subsidiaries as of December 31, 2016, December 31, 2015, December 31, 2014 and December 31, 2013 and the related unaudited consolidated statements of operations of the Company and its subsidiaries for the fiscal years ended on December 31, 2016, December 31, 2015, December 31, 2014 and December 31, 2013 (collectively, the “Yearly Financial Statements”), (ii) the unaudited consolidated balance sheets of the Company and its subsidiaries as of the end of each calendar month during the period beginning January 1, 2017 and ending September 30, 2017 and the related unaudited consolidated statements of operations of the Company and its subsidiaries for each calendar month during such period (collectively, the “Company Monthly Financial Statements”) and (iii) the unaudited consolidated balance sheets of Seller and its subsidiaries as of the end of each calendar month during the period beginning October 1, 2017 and ending July 31, 2018 and the related unaudited consolidated statements of operations of Seller and its subsidiaries for each calendar month during such period (collectively, the “Seller Monthly Financial Statements” and, together with the Yearly Financial Statements and the Company Monthly Financial Statements, the “Financial Statements”). The Financial Statements (i) are complete and accurate in all material respects, (ii) were derived from and prepared in accordance with the underlying books, records and accounts of the Company and its subsidiaries, (iii) were prepared in accordance with GAAP consistently applied throughout the periods covered thereby (except that the Financial Statements do not contain footnotes that may be required by GAAP, and the Company Monthly Financial Statements and the Seller Monthly Financial Statements are subject to normal and recurring year-end adjustments) and (iv) fairly and accurately present in all material respects the assets, Liabilities (including all reserves) and financial position of the Company and its subsidiaries as of the dates thereof and the results of comprehensive income (loss) of the Company and its subsidiaries for the periods then ended.
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Section 3.05     Undisclosed Liabilities.
 
(a)      Neither the Company nor any of its subsidiaries has any liabilities or obligations of any nature (whether accrued, absolute, contingent or otherwise) (“Liabilities”), except Liabilities (i) reflected or reserved against in the unaudited balance sheet of Seller as of April 30, 2018 (the “Balance Sheet Date”), (ii) incurred after the Balance Sheet Date in the ordinary course of business consistent with past practices, or (iii) as would not, individually or in the aggregate, reasonably be expected to be material to the Company and its subsidiaries (taken as a whole).
 
(b)     There are no off-balance sheet arrangements of any type (including any off-balance sheet arrangement required to be disclosed pursuant to Item 303(a)(4) of Regulation S-K promulgated under the Securities Act) pertaining to the Company or any of its subsidiaries.
 
Section 3.06     Absence of Certain Changes or Events.
 
(a)      Since April 30, 2018, (i) no Governmental Approval or Third-Party Consent required for the operation of the Business has expired or has been terminated, cancelled, revoked, suspended or otherwise lost; (ii) no new or additional conditions, restrictions or limitations have been imposed on any Governmental Approval or Third-Party Consent required for the operation of the Business; and (iii) the Company has not transferred, sold, disposed of, forfeited or lost its interests in or rights to any Company Properties.
 
(b)     Since April 30, 2018, neither the Company nor any of its subsidiaries has taken any Restricted Action.
 
Section 3.07      Proceedings. There are no Proceedings pending or, to the Knowledge of the Company, threatened against the Company or any of its subsidiaries or relating to the Business (including any Proceeding relating to or challenging (a) the issuance or approval of any Governmental Approval or Third-Party Consent required for the Business or (b) the Company’s or any of its subsidiary’s interests in or rights to any Company Properties), at law or in equity, or before or by any Governmental Entity, and neither the Company nor any of its subsidiaries is subject to any outstanding Judgment of any court or other Governmental Entity.
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Section 3.08     Contracts.
 
(a)      Section 3.08(a) of the Company Disclosure Letter sets forth, as of the date of this Agreement, a true and complete list of all Contracts to which the Company or any of its subsidiaries is a party to or bound by, or to which any of their properties or assets are subject (such Contracts, together with any Contract entered into after the date hereof that would have been required to be listed on Section 3.08 of the Company Disclosure Letter if such Contract had been entered into prior to the date hereof, the “Company Contracts”).
 
(b)     Each Company Contract is valid and binding on the Company or a subsidiary of the Company party thereto and, to the Knowledge of the Company, each other party thereto, and is in full force and effect, and (i) none of the Company, or any its subsidiaries is in material violation or default under any Company Contract or has received notice of any asserted material violation or default by the Company or any of its subsidiaries party thereto under any Company Contract, (ii) no event or condition exists which constitutes, or with or without notice or lapse of time or both would constitute, a default on the part of the Company or any of its subsidiaries under any material Contract, (iii) as of the date of this Agreement, no other party to the Company Contracts is, to the Knowledge of the Company, in material default in any respect thereunder and (iv) as of the date of this Agreement, none of the Company or any of its subsidiaries has received written notice from any other party to a Company Contract that such other party intends to terminate, not renew, or renegotiate in any material respect the terms of, any such Company Contract.
 
(c)      The Company has delivered to Buyer, prior to the execution of this Agreement, complete and accurate copies of all Company Contracts in effect as of the date hereof, and no such Company Contract has been modified, amended, waived or terminated since the date of such delivery.
 
Section 3.09     Compliance with Laws; Governmental Approvals; Third-Party Consents.
 
(a)      Since December 31, 2015, the Company and each of its subsidiaries has been and is in compliance in all material respects with all applicable Laws and Judgments, and, since December 31, 2015 to the date of this Agreement, the Company and its subsidiaries have not received any written notice or other written communication that they are in violation of any Law or Judgment or the subject of any investigation by any Governmental Entity with respect to any violation of any applicable Law or Judgment.
 
(b)     Section 3.09(b) of the Company Disclosure Letter sets forth, as of the date of this Agreement, a true and complete list of, and the Company has provided Buyer with true and correct copies of, (i) all Environmental Reviews and Governmental Approvals obtained by or on behalf of the Company or any of its subsidiaries as of the date of this Agreement and (ii) to the extent not covered by the foregoing clause (i), all Governmental Approvals applied for within the twelve months preceding the date of this Agreement. No such Governmental Approvals or Environmental Reviews have been amended, modified or supplemented. There has occurred no material violation of, or default (with or without notice or lapse of time, or both) under, any such Governmental Approval, and all such Governmental Approvals are valid and in full force and effect. There are no (i) pending or, to the Knowledge of the Company, threatened, Proceedings which would reasonably be expected to result in the termination, revocation, cancellation, non-renewal or impairment of any such Governmental Approvals or any terms thereof, or which challenge the validity or outcome of any Environmental Review or (ii) conditions, limitations or other terms of such Governmental Approvals or findings or outcomes of such Environmental Reviews that would reasonably be expected to materially impair the ability of the Company or its subsidiaries to own, lease, develop or operate its properties and assets and to carry on the Business.
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(c)      Section 3.09(c) of the Company Disclosure Letter sets forth all actions that, to the Knowledge of the Company, the Company or any of its subsidiaries must take within one year after the date of this Agreement to ensure that the Governmental Approvals listed in Section 3.09(b) of the Company Disclosure Letter remain in good standing without material impact for the Company and its subsidiaries to own, lease, develop or operate their properties and assets and to carry on the Business and to ensure such Governmental Approvals are final and non-appealable (with all statutory, regulatory and administrative periods related thereto having expired).
 
(d)     Section 3.09(d) of the Company Disclosure Letter sets forth, as of the date of this Agreement, all additional Governmental Approvals (other than those listed in Section 3.09(b) of the Company Disclosure Letter) that neither the Company nor any of its subsidiaries has yet obtained as of the date of this Agreement and, to the Knowledge of the Company, must be obtained in order for the Company and its subsidiaries to construct, operate, own, maintain and otherwise carry on the Business.
 
(e)      Section 3.09(e) of the Company Disclosure Letter sets forth, as of the date of this Agreement, a true and complete list of, and the Company has provided Buyer with true and correct copies of, each Third-Party Consent (i) obtained by or on behalf of the Company or any of its subsidiaries in connection with the conduct of the Business and which is in effect as of the date of this Agreement and (ii) to the extent not covered by the foregoing clause (i), requested within the twelve months preceding the date of this Agreement. No such Third-Party Consents have been amended, modified or supplemented. There has occurred no material violation of, or default (with or without notice or lapse of time, or both) under, any such Third-Party Consent, and all such Third-Party Consents are valid and in full force and effect. There are no (i) pending or, to the Knowledge of the Company, threatened, Proceedings which would reasonably be expected to result in the termination, revocation, cancellation, non-renewal or impairment of any such Third-Party Consents or any terms thereof or (ii) conditions, limitations or other terms of such Third-Party Consents that would reasonably be expected to materially impair the ability of the Company or its subsidiaries to own, lease, develop or operate its properties and assets and to carry on the Business.
 
(f)       Section 3.09(f) of the Company Disclosure Letter sets forth all actions that, to the Knowledge of the Company, the Company or any of its subsidiaries must take within one year after the date of this Agreement to ensure that the Third-Party Consents listed in Section 3.09(e) of the Company Disclosure Letter remain in good standing without material impact for the Company and its subsidiaries to own, lease, develop or operate their properties and assets and to carry on the Business and to ensure such Third-Party Consents are final and non-appealable (with all statutory, regulatory and administrative periods related thereto having expired).
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(g)      Section 3.09(g) of the Company Disclosure Letter sets forth, as of the date of this Agreement, all additional Third-Party Consents (other than those set forth on Section 3.09(e) of the Company Disclosure Letter) that neither the Company nor any of its subsidiaries has yet obtained as of the date of this Agreement and, to the Knowledge of the Company, the Company or its subsidiaries must obtain in order for the Company and its subsidiaries to construct, operate, own, maintain and otherwise carry on the Business.
 
(h)     To the Knowledge of the Company, each of the Company and its subsidiaries has completed all Environmental Reviews necessary for the operation of the Business.
 
Section 3.10     Benefit Plans.
 
(a)      None of the Company nor any of its subsidiaries employs or retains, or has since December 31, 2015 employed or retained, any individual as an employee, individual independent contractor or other individual service provider. None of the Company nor any of its subsidiaries is a party to, is bound by or has any obligation under, any collective bargaining agreement or any other labor-related agreement with any labor union or any labor organization. There does not exist now, nor do any circumstances exist that reasonably could be expected to result in, any liability or obligation of the Company or any of its subsidiaries with respect to any Participant.
 
(b)     None of the Company, its subsidiaries nor any of their respective ERISA Affiliates maintains, sponsors or contributes to or is a party to, or is required to maintain, sponsor, contribute to or be a party to, any Benefit Plan. There does not exist now, nor do any circumstances exist that reasonably could be expected to result in, any liability of the Company or any of its subsidiaries with respect to any (i) employee benefit plan, policy, program or arrangement now maintained or required to be maintained, or previously maintained or required to be maintained, by the Company, any of its subsidiaries or any of their respective ERISA Affiliates (or to which any such entity ever contributed or was required to contribute) or (ii) any compensation agreement or other similar arrangement to which the Company, any of its subsidiaries or any ERISA Affiliate is a party.
 
(c)      None of the Company nor any of its subsidiaries has or is reasonably likely to incur any liability or obligation arising out of (i) the misclassification of individuals hired to provide services to the Company and its subsidiaries and treating such individuals as consultants or independent contractors and not as employees, including for purposes for participation of such individuals in any Benefit Plans or (ii) any arrangement with any Person involving the (A) leasing of employees or (B) co-employment of individuals, in the case of this clause (ii), for purposes of providing services to the Company and its subsidiaries, including any liability or obligation under or on account of (x) any Benefit Plan or any benefit plan, program, Contract or arrangement of such Person or (y) the failure to comply with applicable Laws with respect to any such individuals.
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Section 3.11         Additional Environmental Matters.
(a)          To the Knowledge of the Company, each of the Company and its subsidiaries are, and since December 31, 2015 have been, in compliance in all material respects with all Environmental Laws, and neither the Company nor any of its subsidiaries have received any (i) communication alleging that the Company or any of its subsidiaries is in violation of, or may have material Liability under, any Environmental Law or (ii) currently outstanding written request by any Governmental Entity for information pursuant to any Environmental Law; (b) there are no material Environmental Claims pending or, to the Knowledge of the Company, threatened against the Company or any of its subsidiaries; (c) to the Knowledge of the Company, there has been no Release of, or exposure to, any Hazardous Material, and there are no other facts or conditions, that would reasonably be expected to form the basis of any material Environmental Claim against the Company or any of its subsidiaries; (d) to the Knowledge of the Company, there are no underground or aboveground storage tanks or known or suspected asbestos-containing materials on, at, under or about any property owned, operated or leased by the Company or any of its subsidiaries; (e) neither the Company nor any of its subsidiaries have retained or assumed, either contractually or by operation of Law, any Liabilities that would reasonably be expected to form the basis of any material Environmental Claim against the Company or any of its subsidiaries; and (f) the Company has delivered to Buyer complete and accurate copies of all Phase I and Phase II environmental assessments, remedial reports, environmental compliance audits, Natural Hazard Disclosure Reports and other material environmental reports and correspondence relating to the Business, the Company Properties or any real properties or interest in real properties formerly owned, leased or otherwise possessed by the Company and its subsidiaries.
(b)          For all purposes of this Agreement, (i) “Environmental Claims” means any and all administrative, regulatory or judicial Proceedings, Judgments, demands, directives, Liens or notices of noncompliance or violation by or from any person alleging Liability of any kind or nature (including Liability or responsibility for the costs of enforcement Proceedings, cleanup, governmental response, removal or remediation, natural resource damages, property damages, personal injuries, medical monitoring, penalties, contribution, indemnification and injunctive relief) arising out of, based on or resulting from (A) the presence or Release of, or exposure to, any Hazardous Material at any location or (B) the failure to comply with any Environmental Law; (ii) “Environmental Law” means any Law, Governmental Approval or Judgment enacted, entered, promulgated, enforced or issued by or with any Governmental Entity relating to pollution, the environment, the climate, natural resources, health and safety, noise, the protection of wetlands, wildlife, biota or endangered or threatened species or the management of waste, wastewater or storm water; (iii) “Hazardous Materials” means (a) any petroleum or petroleum products, by-products, fractions, additives or derivatives, (b) any methane gas, natural gas, natural gas liquid, liquefied natural gas, synthetic gas usable for fuel, radioactive materials or wastes, asbestos, polychlorinated biphenyls, chlorofluorocarbons and other ozone-depleting substances and (c) any other chemical, material, substance or waste that is regulated or can form the basis in liability under any Environmental Law; (iv) “Release” means any actual or threatened release, spill, emission, leaking, dumping, injection, pouring, deposit, disposal, discharge, dispersal, leaching or migration into or through the environment or within any building, structure, facility or fixture; and (v) “Natural Hazards Disclosure Reports” means any reports disclosing whether a real property lies within the following natural hazard areas or zones: (a) a special flood hazard area designated by the Federal Emergency Management Agency (California Civil Code Section 1103(c)(1)); (b) an area of potential flooding (California Government Code Section 8589.4); (c) a very high fire hazard severity zone (California Government Code Section 51178 et seq.); (d) a wild land area that may contain substantial forest fire risks and hazards California Public Resources Code Section 4135; (e) earthquake fault zone (California Public Resources Code Section 2622); or (f) a seismic hazard zone (California Public Resources Code Section 2696).
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Section 3.12         Taxes.
(a)          As used in this Agreement, (1) “taxes” means all taxes, levies, imposts, assessments, duties, tariffs, withholdings, fees or similar charges of any kind whatsoever, in each case in the nature of a tax, imposed by any Governmental Authority or other taxing authority, whether domestic or non-U.S. (including income, excise, property, sales use, transfer conveyance, payroll or other employment related tax or contribution, unemployment insurance premiums, license, registration, ad valorem, value added, social security, franchise, stamp taxes, taxes based upon or measured by capital stock, net worth or gross receipts and other taxes), together with all interest, fines, penalties and additions attributable to or imposed with respect to such amounts, whether disputed or not; (2) “taxing authority” means any governmental or quasi-governmental body (including any subdivision, agency or commission thereof) exercising regulatory authority in respect of taxes; and (3) “tax return” means any return, declaration, report, form, schedule, notice, claim for refund, estimate, information return or statement, including any related or supporting information with respect thereto, and including any amendment thereof, filed or required to be filed with any taxing authority.
(b)          Neither the Company nor any of its subsidiaries is currently classified as, or has made an election under U.S. Treasury Regulations Section 301.7701-3 to be classified as, an association taxable as a corporation for U.S. Federal income tax purposes.
(c)          The Company and each of its subsidiaries has prepared (or caused to be prepared) and timely filed (taking into account valid extensions of time within which to file) all tax returns required to be filed by any of them, and all such filed tax returns (taking into account all amendments thereto) are complete and accurate in all material respects. Neither the Company nor any of its subsidiaries has requested any extension of time within which to file any tax return that has not yet been filed.
(d)          All taxes owed by the Company and each of its subsidiaries that are due (whether or not shown as due on a tax return) have been duly and timely paid in accordance with all applicable Laws. The Company and each of its subsidiaries has accrued on its books and records, in accordance with GAAP, all taxes that are not yet due and payable.
(e)          There are no Liens for taxes upon the properties or assets of the Company or any of its subsidiaries, except for statutory Liens for taxes not yet due and payable.
(f)          The Company and each of its subsidiaries has not received notice of any pending audits, examinations, investigations, proposed adjustments, claims or other proceedings in respect of any taxes of the Company or any of its subsidiaries. Each assessed deficiency resulting from any audit or examination by any taxing authority has been timely paid and there is no assessed deficiency, refund litigation, proposed adjustment or matter in controversy with respect to any taxes due and owing by the Company or any of its subsidiaries.
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(g)          Neither the Company nor any of its subsidiaries has currently in effect or pending written requests, agreements, Consents or waivers of any statute of limitations in respect of taxes or any agreement to any extension of time with respect to an assessment or deficiency for taxes (other than pursuant to extension of time to file tax returns obtained in the ordinary course of business).
(h)          Neither the Company nor any of its subsidiaries is (i) liable with respect to taxes of any other person as a transferee or successor, by Contract or otherwise, or (ii) a party to or bound by any tax sharing agreement, tax indemnity obligation or similar agreement, arrangement or practice (whether express or implied) with respect to taxes (including any closing agreement or other agreement relating to taxes with any taxing authority).
(i)          Neither the Company nor any of its subsidiaries will be required to include in any taxable period ending after the Closing Date (i) taxable income attributable to income that accrued in a taxable period prior to the Closing Date but not recognized in such prior taxable period as a result of the installment method of accounting, the completed contract method of accounting, the long-term contract method of accounting, the cash method of accounting or Section 481 of the Code (or any comparable provision of any Law), or for any other reason (including as a result of prepaid amounts or deferred revenue received on or prior to the Closing Date) or (ii) income deferred under Section 108(i) of the Code in a taxable period beginning prior to the Closing Date.
(j)          Each of the Company and its subsidiaries has complied in all material respects with all applicable Laws relating to the collection, payment and withholding and remittances of taxes.
(k)          No claim has ever been made by a taxing authority in a jurisdiction where the Company or any of its subsidiaries does not file tax returns that the Company or any of its subsidiaries is or may be subject to taxes assessed by such jurisdiction.
(l)          Neither the Company nor any of its subsidiaries has engaged in any “listed transaction” within the meaning of U.S. Treasury Regulation Section 1.6011-4(b)(2).
(m)          Section 3.12(m) of the Company Disclosure Letter sets forth a list of all tax returns required to be filed by the Company or any of its subsidiaries for which the applicable taxable period began before and ends after the Closing Date.
Section 3.13         Real and Personal Property.
(a)          Each of the Company and its subsidiaries has good and marketable title to, or valid leasehold interests in, all of its real and personal property and assets, free and clear of all Liens, other than Permitted Liens. The Company and its subsidiaries own, lease or otherwise possess a valid legal interest in all Company Properties necessary and sufficient for the conduct of the Business.
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(b)          Section 3.13(b) of the Company Disclosure Letter sets forth a true and complete list, as of the date of this Agreement, of all land, buildings, facilities, locations, offices and other real property interests owned in fee simple by the Company or any of its subsidiaries (each, an “Owned Property”), including, for each such Owned Property, a legal description (with acreage and square footage), the name of the record owner, and the permitted use thereof. With respect to the Owned Properties, (i) none of the Company or its subsidiaries have leased or otherwise granted anyone the right to use or occupy any Owned Property or any portion thereof, (ii) there are no outstanding contracts, options, rights of first offer or rights of first refusal in favor of any third parties to purchase any Owned Property or any portion thereof or interest therein and (iii) there is no condemnation or other proceeding in eminent domain, pending or, to the Knowledge of the Company, threatened, affecting any parcel of Owned Property or any portion thereof or interest therein.
(c)          Section 3.13(c) of the Company Disclosure Letter sets forth a true and complete list, as of the date of this Agreement, of each lease, sublease, license or other occupancy agreement in respect of any real property to which the Company or any of its subsidiaries is a party as lessee, sublessee, licensee or occupant (each such lease, sublease, license or other occupancy agreement, together with any amendments thereto, and any lease, sublease, license or other occupancy agreement entered into after the date hereof that would have been required to be listed on Section 3.13(c) of the Company Disclosure Letter, a “Real Property Lease” and the real property demised under or subject to each Real Property Lease, a “Leased Property”). With respect to the Leased Properties, (i) each Real Property Lease is legal, valid, binding and in full force and effect and is enforceable by the Company or one of its subsidiaries (as applicable) against the other party or parties thereto in accordance with its terms, subject to the Bankruptcy Exceptions, (ii) the Company or one of its subsidiaries (as applicable) has performed all material obligations required to be performed by it under each Real Property Lease and is not (with or without notice or lapse of time, or both) in breach or default in any material respect thereunder, (iii) to the Knowledge of the Company, no other party to any Real Property Lease is (with or without notice or lapse of time, or both) in breach or default in any material respect thereunder, (iv) the delivery and execution of this Agreement and the consummation of the transactions contemplated hereunder do not require the consent of the landlord or any other person under any such Real Property Lease, (v) none of the Company or its subsidiaries have subleased, licensed or otherwise granted anyone the right to use or occupy any Leased Property or any portion thereof or have collaterally assigned or granted any other security interest in any such leasehold estate or any interest therein and (vi) there is no condemnation or other proceeding in eminent domain pending or, to the Knowledge of the Company, threatened, affecting any portion of a Leased Property. Complete and accurate copies of each Real Property Lease have been delivered to Buyer and no such Real Property Lease has been modified, amended, waived or terminated since the date of such delivery.
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(d)          Section 3.13(d) of the Company Disclosure Letter sets forth a true and complete list, as of the date of this Agreement, of each material easement, access right, encroachment agreement, right of way, crossing agreement and other similar real property right to which the Company or any of its subsidiaries benefits from or is a party (the “Real Property Interests”, and the Owned Properties, Leased Properties and Real Property Interests, collectively, shall hereinafter be known as the “Company Properties”). With respect to the Real Property Interests, (i) such Real Property Interest is legal, valid, binding and in full force and effect and is enforceable by the Company or one of its subsidiaries (as applicable) against the other party or parties thereto in accordance with its terms, subject to the Bankruptcy Exceptions, (ii) the Company or one of its subsidiaries (as applicable) has performed all material obligations required to be performed by it under each Real Property Interest and is not (with or without notice or lapse of time, or both) in breach or default in any material respect thereunder, (iii) to the Knowledge of the Company, no other party to any Real Property Interest is (with or without notice or lapse of time, or both) in breach or default in any material respect thereunder, (iv) the delivery and execution of this Agreement and the consummation of the transactions contemplated hereunder do not require the consent of the land owner or any other person under any such Real Property Interest, (v) none of the Company or its subsidiaries have leased, licensed or otherwise granted anyone the right to use or occupy any Real Property Interest or any portion thereof or have collaterally assigned or granted any other security interest in any such Real Property Interest or any interest therein and (vi) there is no condemnation or other proceeding in eminent domain pending or, to the Knowledge of the Company, threatened, affecting any portion of a Real Property Interest.
(e)          Except for the Company Properties, none of the Company or any of its subsidiaries occupy, are legally obligated for, have an interest in, or otherwise use, any land, buildings, facilities, locations or offices, and nor do they have any rights or obligations to acquire such interests.
(f)          None of Seller, the Manager, any Member or any other affiliate of Seller (other than the Company and its subsidiaries) owns or has any interest in any of the assets, properties or rights utilized by the Company or any of its subsidiaries in the operation of the Business as presently conducted.
Section 3.14         Intellectual Property.
(a)          Section 3.14(a) of the Company Disclosure Letter sets forth a true and complete list, as of the date of this Agreement, of all registrations and applications for registrations of Intellectual Property owned by the Company or any of its subsidiaries (the “Scheduled Company Intellectual Property”).
(b)          (i) The Company or one of its subsidiaries exclusively owns all right, title and interest in and to the Scheduled Company Intellectual Property, free and clear of all Liens; (ii) all necessary filings, registrations, recordations and payments necessary to protect and maintain the Company’s or one of its subsidiaries’ interest in the Scheduled Company Intellectual Property have been made; (iii) there are no Proceedings (including for opposition, cancellation, revocation or rectification) pending or, to the Knowledge of the Company, threatened against the Company or any of its subsidiaries by any person with respect to the ownership, validity, enforceability, effectiveness, registration or use of the Scheduled Company Intellectual Property; (iv) neither the Company nor any of its subsidiaries is subject to any outstanding Judgment involving the Scheduled Company Intellectual Property; and (v) the Scheduled Company Intellectual Property is subsisting, valid and enforceable.
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(c)          Since December 31, 2015, the activities of the Company and its subsidiaries and, to the Knowledge of the Company, of any licensee of Intellectual Property licensed by the Company or any of its subsidiaries have not infringed, misappropriated or otherwise conflicted with the Intellectual Property of any third-party. To the Knowledge of the Company, no third-party has infringed or misappropriated since December 31, 2015, or is infringing or misappropriating, any material Scheduled Company Intellectual Property. During the period from December 31, 2015 to the date hereof, neither the Company nor any of its subsidiaries has initiated or threatened in writing any claim, and after the date hereof neither the Company nor any of its subsidiaries will have initiated or threatened in writing any material claim, in each case against any person alleging that such person infringes any Company Intellectual Property. During the period from December 31, 2015 to the date hereof, no person has initiated or threatened in writing any claim, and after the date hereof no person will have initiated or threatened in writing any material claim, in each case against the Company or any of its subsidiaries alleging that the Company or any of its subsidiaries infringes Intellectual Property of any third-party.
Section 3.15         Transactions with Affiliates. There are no Contracts currently in effect or pursuant to which the parties thereto have current or future rights or obligations between, among or involving the Company or any of its subsidiaries, on the one hand, and Seller, the Manager, any Member or any other affiliate of Seller (other than the Company and its subsidiaries) or any Participant, on the other hand (such Contracts, “Affiliate Contracts”). No payments (including dividends, distributions, loans, service or trade payments, salary, bonuses, payments under any management, consulting, monitoring or financial advisory agreement, advances or otherwise) have been made to or received from the Company or any of its subsidiaries, on the one hand, and Seller or any of its affiliates (other than the Company and its subsidiaries) or any Participant, on the other hand. No affiliate of the Company or any of its subsidiaries (including Seller) owns, leases or holds any assets (including any Governmental Approvals and Third-Party Consents) used by the Company and its subsidiaries or which would reasonably be expected to be used in the Business.
Section 3.16         Brokers. No brokers or finders have acted for any of Seller, the Company or any other affiliate of any of Seller in connection with this Agreement or the transactions contemplated hereby and no person may be entitled to any brokerage fee, finder’s fee or commission in respect thereof.
Section 3.17         Subsidiaries.
(a)          Section 3.17 of the Company Disclosure Letter identifies each subsidiary of the Company, as of the date of this Agreement, together with the jurisdiction of its organization and the number of shares of each class of its capital stock (or other equity, membership or limited liability company interest) owned by the Company, any of its subsidiaries, or any other person, all of which have been duly authorized, validly issued and are fully paid and nonassessable, and none of which are subject to or have been issued in violation of any purchase option, call option, subscription right or forfeiture conditions or any similar right under the Organizational Documents of such subsidiary or any Contract to which such subsidiary is party or otherwise bound. The subsidiaries of the Company do not have any other capital stock (or other equity, membership or limited liability company interest) authorized, issued or outstanding, and there are no securities, options, warrants, calls, rights, equity-appreciation rights, restricted equity units, equity-based performance units or Contracts of any kind to which any subsidiary of the Company is a party, or by which any subsidiary of the Company or any of its properties or assets are bound, obligating any subsidiary of the Company to issue, deliver or sell, or cause to be issued, delivered or sold, capital stock (or other equity, membership or limited liability company interests) in, or securities convertible into, or exchangeable or exercisable for, capital stock (or other equity, membership or limited liability company interests) in, any subsidiary of the Company or obligating any subsidiary of the Company to issue, deliver, sell, grant, extend or enter into any such security, option, warrant, call, right, unit or Contract. There are no outstanding contractual or other obligations of any subsidiary of the Company to (A) repurchase, redeem or otherwise acquire any capital stock (or other equity, membership or limited liability company interests) in such subsidiary or (B) vote or dispose of any capital stock (or other equity, membership or limited liability company interests) in such subsidiary. No subsidiary of the Company is a party to any voting agreement with respect to any capital stock (or other equity, membership or limited liability company interests) in such subsidiary. There are no irrevocable proxies and no voting agreements with respect any capital stock (or other equity, membership or limited liability company interests) in any subsidiary of the Company.
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(b)          There are no bonds, debentures, notes or other Indebtedness of any subsidiary of the Company that have or by their terms may have at any time the right to vote (or which are convertible into, or exchangeable for, securities having the right to vote) on any matters on which the holders of capital stock (or other equity, membership or limited liability company interests) in such subsidiary may vote (“Voting Subsidiary Debt”). There are no securities or other similar instruments or obligations of any subsidiary of the Company, the value of which is in any way based upon or derived from any capital stock (or other equity, membership or limited liability company interests) in any subsidiary of the Company.
(c)          Each subsidiary identified on Section 3.17 of the Company Disclosure Letter (i) is duly organized, validly existing and in good standing under the Laws of the jurisdiction of its incorporation or organization and (ii) has all requisite corporate, or other legal entity, as the case may be, power and authority to enable it to use its name and to own, lease or otherwise hold and operate its properties or assets and to carry on its business as presently conducted. Each subsidiary identified on Section 3.17 of the Company Disclosure Letter is duly qualified or licensed to conduct business and is in good standing under the laws of each jurisdiction in which the nature of its business or the ownership, leasing or operation of its properties or assets makes such qualification or licensing necessary.
(d)          Each subsidiary identified on Section 3.17 of the Company Disclosure Letter is, directly or indirectly, wholly owned by the Company, free and clear of any Liens. There are no declared but unpaid dividends or other distributions in respect of any share of capital stock (or other equity or voting interest) in any of the subsidiaries of the Company.
Section 3.18         Exclusivity of Representations and Warranties. Neither the Company nor any of its affiliates is making any representation or warranty of any kind or nature whatsoever, oral or written, express or implied (including, but not limited to, any relating the financial condition, results of operations, assets or liabilities of the Company), except as expressly set forth in this Article III, Article IV and the Company Disclosure Letter, and the Company hereby disclaims any such other representations and warranties. The Company acknowledges and agrees that except for the representations and warranties made by Buyer in Article V and in the Buyer Disclosure Letter, neither Buyer nor any of its affiliates makes any other representation or warranty of any kind or nature whatsoever, oral or written, express or implied, with respect to Buyer or its affiliates.
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ARTICLE IV
Representations and Warranties Regarding Seller
Except as set forth on the Company Disclosure Letter, Seller represents and warrants to Buyer as of the date of this Agreement and as of the Closing as follows:
Section 4.01          Organization. Seller is a limited liability company duly organized, validly existing and in good standing under the Laws of the state of Nevada and has all requisite power and authority to carry on its business as presently conducted.
Section 4.02         Authority; Noncontravention.
(a)          Seller has the requisite capacity and authority to execute, deliver and perform this Agreement and the Stockholder Agreement, to consummate the transactions contemplated hereby and thereby and to comply with the provisions hereof and thereof. The execution, delivery and performance of this Agreement and the Stockholder Agreement by Seller, the consummation by Seller of the transactions contemplated hereby and thereby and the compliance by Seller with the provisions hereof and thereof have been duly authorized by all necessary limited liability company action on the part of Seller, and no other limited liability company proceedings on the part of Seller are necessary to execute, deliver and perform this Agreement or the Stockholder Agreement, to consummate the transactions contemplated hereby and thereby and to comply with the provisions hereof and thereof. Seller has duly executed and delivered this Agreement and, subject to the terms and conditions of this Agreement, will duly execute and deliver the Stockholder Agreement at the Closing, and, assuming due authorization, execution and delivery by Buyer and the Company, constitutes (or, in the case of the Stockholder Agreement, will constitute) a valid and binding obligation of Seller, enforceable against Seller in accordance with its terms, except as enforceability may be limited by the Bankruptcy Exceptions.
(b)          The execution, delivery and performance of this Agreement and the Stockholder Agreement by Seller, the consummation by Seller of the transactions contemplated hereby and thereby and the compliance by Seller with the provisions hereof and thereof do not and will not conflict with, or result in any violation or breach of, or default (with or without notice or lapse of time, or both) under, or give rise to a right of, or result in, termination, cancellation or acceleration of any obligation or to a loss of a benefit under, or result in the creation of any Lien in or upon any of the properties or assets of Seller under, or give rise to any increased, additional, accelerated or guaranteed rights or entitlements under, any provision of (i) the Organizational Documents of Seller, (ii) any Contract to which Seller is a party or any of its properties or assets is subject or (iii) subject to the governmental filings and other matters referred to in Section 4.02(c), any Law or Judgment, in each case applicable to Seller or any of its properties or assets.
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(c)          No Consent of, or filing or submission with, any Governmental Entity is required to be obtained or made by or with respect to Seller in connection with the execution, delivery and performance of this Agreement or the Stockholder Agreement by Seller, the consummation by Seller of the transactions contemplated hereby and thereby or the compliance by Seller with the provisions hereof and thereof, other than (i) the Required STB Approvals and (ii) the Required BLM Approval.
(d)          No Consent of, or filing or submission with, or notification to, any person (that is not a Governmental Entity) is required to be obtained or made by or with respect to Seller in connection with the execution, delivery and performance of this Agreement or the Stockholder Agreement by Seller, the consummation by Seller of the transactions contemplated hereby and thereby or the compliance by Seller with the provisions hereof and thereof.
Section 4.03         Title to Membership Interests. Seller (i) holds and has good and valid title to all of the outstanding Membership Units, free and clear of all Liens, proxies, voting trusts or agreements, understandings or arrangements (except for any such Liens or proxies arising hereunder and except for the Operating Agreement) and (ii) is the sole record and beneficial owner thereof. Without limiting the foregoing, Seller is not a party to any Contract pursuant to which any person (other than Buyer) has a right to acquire the Membership Units. Assuming Buyer has the requisite power and authority to be the lawful owner of such Membership Interests, upon delivery to Buyer at the Closing of an instrument sufficient to transfer such Membership Interests, and upon Seller’s receipt of the amount payable to Seller pursuant to Sections 2.01(c)(i) and 2.01(c)(ii), good and valid title to such Membership Interests will pass to Buyer, free and clear of all Liens, proxies, voting trusts or agreements, understandings or arrangements.
Section 4.04         Transactions with Affiliates. None of Seller or any of its affiliates (other than the Company and its subsidiaries) owns or has any interest in any of the assets, properties or rights utilized by the Company or any of its subsidiaries or otherwise related to the Business.
Section 4.05         Exclusivity of Representations and Warranties. Neither Seller nor any of its affiliates is making any representation or warranty of any kind or nature whatsoever, oral or written, express or implied (including, but not limited to, any relating to the financial condition, results of operations, assets or liabilities of the Company), except as expressly set forth in Article III, this Article IV and the Company Disclosure Letter, and Seller hereby disclaims any such other representations and warranties. Seller acknowledges and agrees that except for the representations and warranties made by Buyer in Article V and in the Buyer Disclosure Letter, neither Buyer nor any of its affiliates makes any other representation or warranty of any kind or nature whatsoever, oral or written, express or implied, with respect to Buyer or its affiliates.
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ARTICLE V 

Representations and Warranties Regarding Buyer
 
Buyer represents and warrants to Seller as of the date of this Agreement and as of Closing as follows:
 
Section 5.01          Organization. Buyer is, as of the date of this Agreement, a limited liability company and will be, as of the Closing, a limited liability company or a corporation, in each case, duly organized, validly existing and in good standing under the Laws of the state of Delaware and has all requisite power and authority to carry on its business as presently conducted.
 
Section 5.02          Buyer Capitalization.
 
(a)           All of the issued and outstanding Buyer Common Shares have been duly authorized and validly issued. The Buyer Common Shares to be issued in connection with the Acquisition, when issued in accordance with this Agreement, will be duly authorized and validly issued and, if the Buyer Common Shares issued in connection with the Acquisition are Buyer Public Shares, such shares will be fully paid and nonassessable. Except as set forth in Section 5.02(a) of the Buyer Disclosure Letter, there are outstanding no securities, options, warrants, calls, rights, stock appreciation rights, restricted stock units, performance-based restricted stock units or Contracts of any kind to which Buyer is a party, or by which Buyer or any of its properties or assets are bound, obligating Buyer to issue, deliver or sell, or cause to be issued, delivered or sold, Buyer Common Shares or other equity interests in, or securities convertible into, or exchangeable or exercisable for, Buyer Common Shares or other equity interests in, Buyer or obligating Buyer to issue, deliver, sell, grant, extend or enter into any such security, option, warrant, call, right, unit or Contract. Except as required by the terms of any stock options, stock appreciation rights or restricted stock units (whether time-based or performance-based), there are no outstanding contractual or other obligations of Buyer to repurchase, redeem or otherwise acquire Buyer Common Shares or other equity interests in Buyer.
 
(b)           Except as set forth in this Section 5.02, there are no bonds, debentures, notes or other Indebtedness of Buyer that have or by their terms may have at any time the right to vote (or which are convertible into, or exchangeable for, securities having the right to vote) on any matters on which the holders of Buyer Common Shares or other equity interests in Buyer may vote. Except as set forth in this Section 5.02, there are no securities or other similar instruments or obligations of Buyer, the value of which is in any way based upon or derived from any Buyer Common Shares or other equity interests in Buyer.
 
Section 5.03          Authority; Noncontravention.
 
(a)           Buyer has the requisite limited liability company or corporate power, as applicable, and authority to execute, deliver and perform this Agreement and the Stockholder Agreement, to consummate the transactions contemplated hereby and thereby and to comply with the provisions hereof and thereof. The execution, delivery and performance of this Agreement and the Stockholder Agreement by Buyer, the consummation by Buyer of the transactions contemplated hereby and thereby and the compliance by Buyer with the provisions hereof and thereof have been duly authorized by all necessary limited liability company action on the part of Buyer, and no other limited liability company proceedings on the part of Buyer are necessary to execute, deliver and perform this Agreement or the Stockholder Agreement, to consummate the transactions contemplated hereby and thereby or to comply with the provisions hereof and thereof. Buyer has duly executed and delivered this Agreement and, subject to the terms and conditions of this Agreement, will duly execute and deliver the Stockholder Agreement, and, assuming the due authorization, execution and delivery by the Company and Seller, constitutes (or, in the case of the Stockholder Agreement, will constitute) a valid and binding obligation of Buyer, enforceable against Buyer in accordance with its terms, except as enforceability may be limited by the Bankruptcy Exceptions.
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(b)           The execution, delivery and performance of this Agreement and the Stockholder Agreement by Buyer and the consummation by Buyer of the transactions contemplated hereby and thereby and compliance by Buyer with the provisions hereof and thereof do not and will not conflict with, or result in any violation or breach of, or default (with or without notice or lapse of time, or both) under, or give rise to a right of, or result in, termination, cancellation or acceleration of any obligation or to a loss of a benefit under, or result in the creation of any Lien in or upon any of the properties or assets of Buyer under, or give rise to any increased, additional, accelerated or guaranteed rights or entitlements under, any provision of (i) its Organizational Documents, (ii) any Contract to which Buyer is party or any of its properties or assets is subject or (iii) subject to the governmental filings and other matters referred to in Section 5.03(c), any Law or Judgment, in each case applicable to Buyer or any of its properties or assets.
 
(c)           No Consent of, or filing or submission with, any Governmental Entity is required to be obtained or made by or with respect to Buyer in connection with the execution, delivery and performance of this Agreement or the Stockholder Agreement by Buyer, the consummation by Buyer of the transactions contemplated hereby and thereby or the compliance by Buyer with the provisions hereof and thereof, other than (i) the Required STB Approvals and (ii) the Required BLM Approval.
 
Section 5.04          Securities Act. The Membership Interests purchased by Buyer in the Acquisition are being acquired for investment only and not with a view to any public distribution thereof, and Buyer shall not offer to sell or otherwise dispose of such Membership Interests so acquired by it, in violation of any of the registration requirements of the Securities Act of 1933, as amended (the “Securities Act”).
 
Section 5.05          Financial Statements. Buyer has made available to Seller the audited combined balance sheets of Buyer as of December 31, 2017 and December 31, 2016, and the related audited combined statements of operations and comprehensive loss, invested equity and cash flows of Buyer for the fiscal years ended on December 31, 2017 and December 31, 2016 (collectively, the “Buyer Financial Statements”). The Buyer Financial Statements (i) are complete and accurate in all material respects, (ii) were derived from and prepared in accordance with the underlying books, records and accounts of Buyer, (iii) were prepared in accordance with GAAP consistently applied throughout the periods covered thereby and (iv) fairly and accurately present in all material respects the assets, Liabilities (including all reserves) and financial position of Buyer as of the dates thereof and the results of operations, changes in member’s equity and changes in cash flows of Buyer for the periods then ended.
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Section 5.06          Compliance with Laws. Since December 31, 2015, Buyer and each of its subsidiaries has been and is in compliance in all material respects with all applicable Laws, and, since December 31, 2015 to the date of this Agreement, Buyer and its subsidiaries have not received any written notice or other written communication that they are in violation in any material respect of any Law or the subject of any investigation by any Governmental Entity with respect to any material violation of any applicable Law.
 
Section 5.07          Brokers; Fees and Expenses. The only brokers or finders that have acted for Buyer or its affiliates in connection with this Agreement or the transactions contemplated hereby or that may be entitled to any brokerage fee, finder’s fee or commission in respect thereof are persons whose fees or commissions will be paid by Buyer.
 
Section 5.08          Sufficient Funds. By no later than the Deposit Date, Buyer shall have, or shall have access to, sufficient cash, available lines of credit or other sources of immediately available funds to make payment of the Deposit Amount in accordance with Section 2.03. At the Closing, Buyer shall have, or shall have access to, sufficient cash, available lines of credit or other sources of immediately available funds to make payment of the Cash Purchase Price in accordance with Section 2.01(c)(i) (if and to the extent required to be made pursuant to Section 2.01(c)) and to consummate the transactions contemplated hereby. Buyer shall have, or shall have access to, sufficient cash, available lines of credit or other sources of immediately available funds to make payment of the Supplemental Cash Purchase Price at the time such payment is due in accordance with Section 2.04 (if and to the extent required to be made in accordance with Section 2.04).
 
Section 5.09          Exclusivity of Representations and Warranties. Neither Buyer nor any of its affiliates is making any representation or warranty of any kind or nature whatsoever, oral or written, express or implied, except as expressly set forth in this Article V or the Buyer Disclosure Letter, and Buyer hereby disclaims any such other representations and warranties. Buyer acknowledges and agrees that except for the representations and warranties made by the Company and Seller in Articles III and IV and in the Company Disclosure Letter, none of the Company, Seller or any of their respective affiliates makes any other representation or warranty of any kind or nature whatsoever, oral or written, express or implied with respect to the Company, Seller or their respective affiliates.
 
ARTICLE VI
 
Covenants
 
Section 6.01          Covenants Relating to Conduct Prior to the Closing.
 
(a)           Except as set forth in Section 6.01(a) of the Company Disclosure Letter, as required by this Agreement or with the prior written consent of Buyer, from the date of this Agreement to the Closing, Seller and the Company shall conduct the Business in the ordinary course, in a manner consistent with past practice and in compliance in all material respects with all applicable Laws and Judgments.
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(b)           Except as set forth in Section 6.01(b) of the Company Disclosure Letter, as required by this Agreement or with the prior written consent of Buyer, from the date of this Agreement to the Closing, Seller (to the extent relating to the Business) and the Company shall not, and shall not permit any of their subsidiaries to, take any of the following actions (each, a “Restricted Action”):
 
(i)            amend its or any of its subsidiaries’ Organizational Documents;
 
(ii)           (A) declare, set aside or pay any non-cash dividend on, or other distribution (whether in stock or property) in respect of, any Membership Interests or other equity, membership, member’s or limited liability company interests in the Company, (B) repurchase, redeem or otherwise acquire any Membership Interests or other equity, membership, member’s or limited liability company interests in the Company, (C) repurchase, redeem or otherwise acquire any capital stock (or other equity, membership, member’s or limited liability company interests) in any subsidiary of the Company or (D) split, combine, subdivide, consolidate or reclassify any Membership Interests or other equity, membership, member’s or limited liability company interests in the Company;
 
(iii)          (A) hire or retain any employee, individual independent contractor or other individual service provider, (B) increase or accelerate the payment or vesting of any compensation or benefit with respect to any Participant or (C) adopt, establish or enter into any employee benefit plan or arrangement that could be a Benefit Plan if adopted, established or entered into prior to the date hereof;
 
(iv)          issue, deliver, sell, pledge (or subject to a Lien), grant, extend or enter into (A) any securities, options, warrants, calls, rights, equity-appreciation rights, restricted equity units, equity-based performance units or Contracts of any kind to which the Company or any of its subsidiaries is a party, or by which the Company or any of its subsidiaries or any of their properties or assets are bound, obligating the Company or any of its subsidiaries to issue, deliver or sell, or cause to be issued, delivered or sold, Membership Interests or other equity, membership, member’s or limited liability company interests in, or securities convertible into, or exchangeable or exercisable for, Membership Interests or other equity, membership, member’s or limited liability company interests in, the Company or any of its subsidiaries or obligating the Company or any of its subsidiaries to issue, grant, extend or enter into any such security, option, warrant, call, right, unit or Contract, (B) any Voting Company Debt or Voting Subsidiary Debt or (C) any securities or other similar instruments or obligations of the Company or any of its subsidiaries, the value of which is in any way based upon or derived from any Membership Interests or other equity, membership, member’s or limited liability company interests in the Company or any of its subsidiaries;
 
(v)           incur any Indebtedness or grant any Guarantee in respect thereof;
 
(vi)           permit any of its properties or assets to become subject to any Lien (other than any Permitted Lien);
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(vii)         (A) make any changes in any method of accounting or accounting practice or policies other than those required by GAAP or applicable Law or (B) change its fiscal year;
 
(viii)        acquire (including by merger or consolidation) any assets, person or business;
 
(ix)           sell, transfer, lease, license, cancel or abandon or otherwise dispose of any assets;
 
(x)            enter into, modify, amend or terminate any Contract;
 
(xi)           modify, amend, accelerate, terminate, cancel, grant any waiver or release or assign any material rights or claims under any Real Property Lease or Real Property Interest;
 
(xii)          make or incur any capital expenditure;
 
(xiii)         pay, loan or advance any amount to, or sell, transfer, lease, license or otherwise dispose of any assets to, or enter into any Contract with, Seller or any of its affiliates;
 
(xiv)         make, revoke or change any tax election, adopt or change any tax accounting method or period, file any amended tax return, enter into any closing agreement or settlement, settle any tax claim or assessment, surrender any right to claim a refund of taxes, consent to any extension or waiver of the statute of limitations period applicable to any tax claim or assessment or take any other action or omit to take action, if any such election, adoption, change, amendment, agreement, settlement, surrender, consent or other action or omission could have the effect of increasing the tax liability of Buyer or any of its affiliates (including, after the Closing, the Company or any of its subsidiaries);
 
(xv)         adopt or enter into a plan of complete or partial liquidation, dissolution, restructuring, recapitalization or other reorganization;
 
(xvi)        settle or compromise any Proceeding brought by or against the Company or any of its subsidiaries or otherwise related to the Business; or
 
(xvii)       agree, whether in writing or otherwise, to do any of the foregoing.
 
(c)           From the date of this Agreement to the Closing, the Company and Seller shall (i) take all actions reasonably necessary, including making all filings with and payments to Governmental Entities or other persons in a timely manner, to maintain in effect all Governmental Approvals set forth on Section 3.09(b) of the Company Disclosure Letter and the Third-Party Consents set forth on Section 3.09(e) of the Company Disclosure Letter and (ii) in connection with the foregoing, (A) Seller and the Company shall consult with Buyer prior to making any such filing and Buyer shall have the right to review reasonably in advance any such filing made with, or written materials submitted to, any Governmental Entity or other person relating to such Governmental Approvals or Third-Party Consents and the Company shall consider any comments from Buyer in good faith, (B) Seller shall promptly inform Buyer of any communication (or other correspondence or memoranda) received from, or given to, any Governmental Entity or other person relating to such Governmental Approvals or Third-Party Consents, (C) Seller shall deliver complete and accurate copies to Buyer of all filings, submissions, correspondence and other written communications (and memoranda setting forth the substance thereof) between Seller, the Company and their respective affiliates and their respective representatives, on the one hand, and any person (including any Governmental Entity or members of any Governmental Entity’s staff), on the other hand, with respect to such Governmental Approvals or Third-Party Consents, and (D) Seller shall consider in good faith the views of Buyer in connection with the foregoing.
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(d)           From the date of this Agreement to the Closing: (i) the Company and Seller shall promptly, upon obtaining knowledge of the following, advise Buyer orally and in writing of any breach of the representations and warranties contained in Article III or Article IV, respectively, and of any other fact or event that would cause or constitute a breach of the covenants in this Agreement made by the Company or Seller, as applicable, in each case, which would result in any condition set forth in Article VII not being satisfied; (ii) Buyer shall promptly, upon obtaining knowledge of the following, advise the Company and Seller orally and in writing of any breach of the representations and warranties contained in Article V and of any other fact or event that would cause or constitute a breach of the covenants in this Agreement made by Buyer, in each case, which would result in any condition set forth in Article VII not being satisfied; provided, however, that no such notification shall affect the representations, warranties, covenants, agreements, undertakings, obligations or conditions to the obligations of the parties under this Agreement.
 
Section 6.02          Access; Consultation. From the date hereof to the Closing, Seller and the Company shall grant or furnish Buyer and its representatives, employees, counsel and accountants reasonable access, during normal business hours and upon reasonable notice, to the personnel, properties, books, records, Contracts, Governmental Approvals, Third-Party Consents, documents and information of Seller and the Company and their subsidiaries.
 
Section 6.03          Efforts.
 
(a)           Each of the parties shall use reasonable best efforts (unless, with respect to any action, another standard of performance is expressly provided for herein) to take, or cause to be taken, all actions, and do, or cause to be done, and assist and cooperate with the other parties in doing, all things reasonably appropriate to consummate and make effective, as soon as reasonably possible, the transactions contemplated hereby.
 
(b)           In connection with and without limiting Section 6.03(a), each of Seller and the Company shall (i) take all action to ensure that no state takeover statute or similar Law is or becomes applicable to this Agreement or the transactions contemplated hereby and (ii) if any state takeover statute or similar Law becomes applicable to this Agreement or the transactions contemplated hereby, take all action to ensure that the transactions contemplated hereby may be consummated as promptly as practicable on the terms contemplated herein.
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(c)          In connection with and without limiting Section 6.03(a), but subject to Section 6.03(f), each of the parties shall use reasonable best efforts to obtain all Required Approvals and any other Consents required in connection with the transactions contemplated hereby; provided, however, that (i) none of the Company, Seller or Buyer shall be required to make any payments to any third-party or concede anything of value or grant any concession to obtain such Required Approvals or Consents (other than, solely in the case of Buyer, (x) any standard filing fees and (y) any fees and expenses payable to contractors, engineers and other service providers, and any representatives of the foregoing, incurred by Buyer in the ordinary course of business) and (ii) in any event, none of Seller, the Company nor any of their affiliates (including, for the avoidance of doubt, the Company and its subsidiaries) shall be entitled to agree to make any payment that would be made after the Closing or concede anything of value or grant any concession that would reasonably be expected to adversely affect the Company or any of its subsidiaries or Buyer or any of its subsidiaries after the Closing, except with Buyer’s prior written consent.
 
(d)          In connection with and without limiting the generality of Section 6.03(a) or 6.03(c), but subject to Section 6.03(f), each of Buyer, the Company and Seller shall (as applicable):
 
(i)         as promptly as practicable make all filings and submissions in connection with the Required Approvals; provided that, without limiting the generality of the foregoing, Buyer shall make the initial filing with respect to the Required STB Approvals no later than five business days after the date hereof;
 
(ii)        as promptly as practicable make all filings and submissions in connection with any other Consents required in connection with the transactions contemplated hereby;
 
(iii)       use reasonable best efforts to furnish to the other all assistance, cooperation and information necessary to make any filings or submissions and to obtain the Required Approvals and any other Consents required in connection with the transactions contemplated hereby;
 
(iv)       use reasonable best efforts to respond as promptly as reasonably practicable to any inquiries or requests received from any Governmental Entity for additional information or documentary material in connection with any Required Approvals and any other Consents required in connection with the transactions contemplated hereby;
 
(v)         use reasonable best efforts to take all actions necessary to cause the expiration or termination of any applicable waiting periods and the receipt of any Required Approvals and any other Consents required in connection with the transactions contemplated hereby as soon as practicable after the date of this Agreement and not extend any such waiting period or enter into any agreement with any Governmental Entities not to consummate any of the transactions contemplated hereby, except with the prior written consent of the other, which consent will not be unreasonably withheld, delayed or conditioned; and

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(vi)        unless prohibited by applicable Law or by the applicable Governmental Entity, (A) to the extent reasonably practicable, not participate in or attend any meeting, or engage in any substantive conversation with, any Governmental Entity or other person in respect of the Required Approvals or the transactions contemplated hereby without the other, (B) to the extent reasonably practicable, give the other reasonable prior notice of any such meeting or conversation, (C) in the event one party is prohibited by applicable Law or by the applicable Governmental Entity from participating in or attending any such meeting or engaging in any such conversation, keep such party reasonably apprised with respect thereto, (D) cooperate in the filing of any substantive memoranda, white papers, filings, correspondence or other written communications explaining or defending this Agreement and the transactions contemplated hereby, articulating any regulatory or competitive argument or responding to requests or objections made by any Governmental Entity or any other person, and (E) deliver complete and accurate copies to the other of all filings, submissions, correspondence and other written communications (and memoranda setting forth the substance thereof) between it and its affiliates and their respective representatives, on the one hand, and any person (including any Governmental Entity or members of any Governmental Entity’s staff), on the other hand, with respect to this Agreement and the transactions contemplated hereby, subject to redaction of competitively sensitive information, valuation material or information subject to attorney-client privilege, and consider in good faith the views of the other in connection with such communications. Notwithstanding anything to the contrary in the foregoing, Buyer shall have the right to determine and direct the strategy and process (including all timing, substantive matters and decisions to propose, negotiate, commit to or effect any action) by which the parties will seek to cause the expiration or termination of any applicable waiting periods and the receipt of any Required Approvals and other Consents required in connection with the transactions contemplated hereby (including all elements of any Proceeding and any communications with Governmental Entities); provided that, Buyer will consult with the Company on a regular basis regarding such strategy and process.
 
(e)          Subject to Section 6.03(f), if any Supplemental Approvals have not been obtained on or prior to the Closing, from and after the Closing until the Supplemental Approvals Outside Date, Buyer shall use reasonable best efforts to obtain each of the Supplemental Approvals that had not been obtained on or prior to the Closing and Seller shall, and shall cause its affiliates and representatives to, reasonably cooperate with Buyer in connection with the foregoing; provided, however, that none of the Company, Seller or Buyer shall be required to make any payments to any third-party or concede anything of value or grant any concession to obtain any such Supplemental Approval (other than any standard filing fees). In connection with and without limiting the generality of the foregoing, but subject to Section 6.03(f), the parties agree that Section 6.03(d) shall apply with respect to the parties’ respective efforts to obtain the Supplemental Approvals pursuant to this Section 6.03(e), mutatis mutandis.
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(f)          Notwithstanding the foregoing or any other provision of this Agreement to the contrary, in no event shall any party hereto be obligated to, and none of the Company, its subsidiaries, Seller or any of their respective affiliates shall, without Buyer’s prior written consent, be permitted to, (i) (A) agree to, or proffer to, divest or hold separate, or enter into any licensing or similar arrangement with respect to, any assets (whether tangible or intangible) or any portion of any business of Buyer or any of its subsidiaries or of the Company or any of its subsidiaries or (B) agree to, or proffer to, a prohibition or limitation in any respect on the ownership or operation by the Company, any of the Company’s subsidiaries, Buyer or any of Buyer’s subsidiaries of any asset (whether tangible or intangible) or any portion of any business of the Company, any of the Company’s subsidiaries, Buyer or any of Buyer’s subsidiaries; or (ii) litigate or participate in any Proceeding, whether judicial or administrative, (A) challenging or seeking to restrain or prohibit the consummation of the transactions contemplated by this Agreement, (B) seeking to prohibit or limit in any respect the ownership or operation by the Company, any of the Company’s subsidiaries, Buyer or any of Buyer’s subsidiaries of any asset (whether tangible or intangible) or any portion of any business of the Company, any of the Company’s subsidiaries, Buyer or any of Buyer’s subsidiaries or to require any such person to divest or hold separate, or enter into any licensing or similar arrangement with respect to, any asset (whether tangible or intangible) or any portion of any business of the Company, any of the Company’s subsidiaries, Buyer or any of Buyer’s subsidiaries, as a result of the transactions contemplated by this Agreement, (C) seeking to impose limitations on the ability of Buyer or any of its subsidiaries to acquire or hold, or exercise full rights of ownership of, any Membership Interests, including the right to vote the Membership Interests on all matters properly presented to the applicable members of the Company or (D) seeking to prohibit Buyer or any of its subsidiaries from effectively controlling in any respect all or a portion of the business of the Company or any of its subsidiaries.
 
Section 6.04        Tax Matters-In General.
 
(a)          Seller and Buyer anticipate that the sale of the Membership Interests will be treated, for U.S. federal income tax purposes, (i) if Buyer is classified as a partnership or as disregarded as an entity separate from its owner for U.S. federal income tax purposes as of immediately before the Closing, as a sale of an undivided interest in the assets of the Company (to the extent of the Cash Purchase Price plus any Company liabilities treated as consideration under Section 707 of the Code) and a contribution of the remaining undivided interest in the assets and liabilities of the Company to which Sections 721 and 752 of the Code apply; and (ii) if Buyer has, in connection with a Buyer IPO, become taxable as a corporation for U.S. federal income tax purposes as of the Closing Date, as a transfer of the assets and liabilities of the Company to which (in combination with all other actual or deemed transfers to the Buyer taken in connection with such Buyer IPO, including those resulting from Buyer’s incorporation for U.S. federal income tax purposes) Section 351 of the Code applies, assuming the sale of Membership Interests has occurred within a period of time consistent with the requirements of Section 351 of the Code and the Treasury Regulations thereunder following the effectiveness of Buyer’s incorporation for U.S. federal income tax purposes. Seller and Buyer shall cooperate in good faith to ensure, to the extent possible and reasonably practicable, that if Buyer becomes taxable as a corporation for U.S. federal income tax purposes before the Closing, the sale of the Membership Interests will be governed by Section 351 of the Code; provided that Buyer shall not be required to waive any condition to Buyer’s obligation to complete the Acquisition or to take or agree to any steps that would, in Buyer’s reasonable judgment, result in a material incremental cost to Buyer with respect to, or otherwise delay, frustrate or hinder the consummation of, the Buyer IPO. Unless otherwise required by applicable Law, Buyer and Seller intend to report such sale for U.S. federal income tax purposes in all respects consistently with such treatment and not take a position inconsistent with the foregoing in any tax return or otherwise with any taxing authority unless required by a final determination (as defined in Section 1313(a) of the Code).

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(b)          At its sole cost and expense, Seller shall prepare, or cause to be prepared, all Pre-Closing Tax Returns other than a Pre-Closing Tax Return for a Straddle Period. Such Pre-Closing Tax Returns shall be prepared on a basis consistent with existing procedures for preparing such tax returns, except as otherwise required by applicable Law or agreed to in writing by the parties.
 
(i)         In the case of any Pre-Closing Tax Return subject to this Section 6.04(b), Seller shall deliver any such tax return to Buyer for review and comment at least 30 days before it is due (taking into account extensions). Seller shall consider in good faith Buyer’s reasonable comments, and, to the extent necessary, deliver an amended tax return to Buyer. Seller (or, if such Pre-Closing Tax Return is required to be filed after the Closing Date, Buyer) shall (x) timely file, or caused to be filed, such tax return (as amended, as applicable) with the relevant taxing authority and (y) timely pay, or cause to be paid, to the relevant taxing authority the amount shown as due on such tax return.
 
(c)          At its sole cost and expense, Buyer shall prepare, or cause to be prepared, all Pre-Closing Tax Returns for any Straddle Period. In the case of any such Pre-Closing Tax Return, Buyer shall, to the extent practicable, deliver any such tax return to Seller for review and comment at least 30 days before it is due (taking into account extensions). Buyer shall consider in good faith Seller’s reasonable comments, and, to the extent necessary, deliver an amended tax return to Seller. Buyer shall (x) timely file, or caused to be filed, such tax return (as amended, as applicable) with the relevant taxing authority and (y) timely pay, or cause to be paid, to the relevant taxing authority the amount shown as due on such tax return.
 
(d)          Buyer and Seller shall reasonably cooperate, and shall cause their affiliates, officers, employees, contractors, consultants, agents, auditors and representatives to reasonably cooperate, in preparing and filing all tax returns, including by maintaining and making available to each other all records necessary in connection with taxes and in resolving all disputes and audits with respect to all taxable periods relating to taxes.
 
(e)          (i) Buyer and Seller shall allocate the Purchase Price (as adjusted pursuant to Section 9.10), the liabilities of the Company and its subsidiaries and other relevant items among the assets of the Company and its subsidiaries in accordance with a schedule (the “Final Allocation Schedule”). The Final Allocation Schedule will apply for all tax purposes and the parties shall not take any contrary tax position on any tax return or future audit, except as required by Law or as a result of a final determination by a taxing authority.
 
(ii)        Seller shall prepare a draft purchase price allocation schedule in a manner consistent with Section 1060 of the Code and the applicable U.S. Treasury Regulations (the “Draft Allocation Schedule”) and shall deliver the Draft Allocation Schedule to Buyer within 30 days after the Closing Date.
 
(iii)       Buyer shall deliver comments to the Draft Allocation Schedule to Seller within 60 days after receipt. Seller shall incorporate reasonable Buyer’s comments and deliver an amended Draft Allocation Schedule to Buyer within 10 days after receipt.
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(f)          All tax sharing agreements, arrangements and practices between the Company or any of its subsidiaries, on the one hand, and Seller or any of its affiliates, on the other hand, shall be terminated before the Closing. After the Closing, neither the Company or any of its subsidiaries nor Seller or any of its affiliates shall have any rights or obligations under any such tax sharing agreement, arrangement or practice.
 
(g)          All transfer, gains, documentary, sales, use, registration, value-added, recording, gross receipts, conveyance, excise, license, stamp and other similar taxes and related fees (including interest, penalties and additions thereto) arising out of, in connection with or attributable to the transactions effectuated pursuant to this Agreement shall be borne by Seller.
 
(h)          Seller shall deliver to Buyer at or prior to the Closing a certificate, in form and substance satisfactory to Buyer, duly executed and acknowledged, certifying that the purchase of Membership Interests pursuant to the terms of this Agreement are exempt from withholding pursuant to the Foreign Investment in Real Property Tax Act.
 
(i)          Seller or the Company shall promptly notify Buyer of any proceeding or audit pending against or with respect to the Company or any of its subsidiaries in respect of any tax or tax return. After the Closing Date, Buyer shall control the defense of any such proceeding or audit at its own expense; provided that with respect to any such proceeding or audit relating to a Pre-Closing Tax Period, (i) Buyer shall provide Seller with a timely and reasonably detailed account of each stage of such audit or proceeding, (ii) Buyer shall consult with Seller and offer Seller an opportunity to comment before taking any significant action or submitting any written materials in connection with such audit or proceeding, (iii) Buyer shall defend such audit or proceeding diligently and in good faith as if it were the only party in interest, (iv) Seller shall be entitled, at its own expense, to participate in such audit or proceeding and attend any meetings or conferences with the relevant Governmental Entity, and (v) Buyer shall not settle or compromise any issue without the prior written consent of Seller, which consent shall not be unreasonably withheld, conditioned or delayed. In the event of any conflict between this Section 6.04(i) and Section 9.04(a)(ii), this Section 6.04(i) shall control.
 
(j)          Buyer shall pay to Seller any refund or rebate received (whether by payment, credit, offset or otherwise) by it or any of its affiliates (including the Company and any of its subsidiaries after the Closing) in respect of any Taxes for which Sellers are liable under this Agreement within 10 days after receipt of such refund or rebate, net of any reasonable out-of-pocket costs incurred by Buyer in obtaining such refund or rebate.
 
(k)          Neither Buyer nor any of its affiliates (including the Company and any of its subsidiaries after the Closing) shall (i) make (or cause to be made) or change or (cause to be changed) any tax election of the Company or any of its subsidiaries that has retroactive effect to any Pre-Closing Tax Period, (ii) file any private letter ruling or similar request with respect to taxes or tax returns of the Company or any of its subsidiaries for any Pre-Closing Tax Period, or (iii) initiate (or cause to be initiated) any voluntary disclosure or similar process with respect to the Company or any of its subsidiaries for any Pre-Closing Tax Period, in each case without the prior written consent of Seller, which consent shall not be unreasonably withheld, conditioned or delayed. 
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(l)          Seller and Buyer shall cooperate in good faith to develop an economically equivalent alternative to the transaction described in Section 2.02(c) that places each party in no worse tax position than it would have been in had the Buyer IPO occurred before the Closing Date and the consideration paid at Closing consisted of 50% cash and 50% Buyer Common Shares in a transaction governed by Section 351 of the Code; provided that Buyer shall not be required to agree to any such alternative that would, in Buyer’s reasonable judgment, result in a material incremental cost to Buyer with respect to, or would otherwise delay, frustrate or hinder the consummation of, the Buyer IPO. Additionally, if, as a result of any transfer or payment with respect to the transaction described in Section 2.02(c) or any alternative transaction agreed to by Seller and Buyer under this Section 6.04(l), Buyer is treated as recognizing any gain under Section 351(b) of the Code or otherwise in connection with the incorporation of Buyer, such gain (if any) shall be allocated 100% to Seller.
 
Section 6.05        Fees and Expenses. Except as otherwise expressly set forth in this Agreement (including with respect to Unpaid Expenses), all fees and expenses incurred in connection with this Agreement, the Acquisition and the other transactions contemplated hereby shall be paid by the party incurring such fees or expenses, whether or not the Acquisition and the other transactions contemplated hereby are consummated. Notwithstanding the foregoing, to the extent the Company or any of its subsidiaries has incurred any Unpaid Expenses which (i) remain unpaid as of the Closing and (ii) were included in the calculation of “Unpaid Expenses” for purposes of the Closing Date Payment, Buyer shall, or shall cause the Company or one of its subsidiaries to, pay such Unpaid Expenses as promptly as reasonably practicable following the Closing.
 
Section 6.06        Public Announcements. The initial press release by each of the parties to be issued on the date hereof or promptly after the execution of this Agreement with respect to the transactions contemplated hereby shall be in the form agreed to by Buyer and Seller. No public release or announcement concerning the transactions contemplated hereby shall be issued by any party without the prior written consent of Buyer and Seller (which consent shall not be unreasonably withheld, delayed or conditioned), except as such release or announcement may be required by applicable Law or the rules or regulations of any applicable securities exchange or listing authority, in which case the party required to make such release or announcement shall allow Buyer and Seller reasonable time to comment on such release or announcement in advance of such issuance. Notwithstanding the forgoing, this Section 6.06 shall not apply to any press release or other public statement made by the parties (a) which is consistent with the initial press release and the terms of this Agreement and does not contain any information relating to the parties or this Agreement that has not been previously announced or made public in accordance with the terms of this Agreement or (b) is made in the ordinary course of business and does not relate specifically to the signing of this Agreement or the transactions contemplated by this Agreement.
 
Section 6.07        Confidentiality. From and after the Closing, Seller shall, and shall use reasonable best efforts to cause its affiliates, officers, directors, employees, agents and representatives to, keep confidential and not disclose to any other person, or use for their own benefit or the benefit of any other person, any information regarding the Company or any of its subsidiaries and the terms of this Agreement (including the Closing Date Payment). The obligations of Seller under this Section 6.07 shall not apply to information which: (i) is or becomes generally available to the public without breach of obligations under this Section 6.07 or (ii) is required in the opinion of legal counsel to Seller to be disclosed by applicable Law or any Judgment; provided, however, that in any such case, Seller must notify Buyer in writing as early as practicable prior to disclosure to allow Buyer to take appropriate measures to preserve the confidentiality of such information (and, if requested by Buyer, Seller shall reasonably cooperate, at Buyer’s expense, with any such effort by Buyer to preserve the confidentiality of such information).
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Section 6.08        Transaction Fees and Expenses. Seller shall be liable for and hereby agrees to pay any and all fees, costs and expenses of any financial, legal, accounting or other advisor and any other person retained by or on behalf of any of Seller or any of its affiliates (including the Company and its subsidiaries) in connection with the transactions contemplated hereby, regardless of whether such fees, costs or expenses are incurred or become payable on, prior to or after the Closing Date, except to the extent such fees, costs and expenses are reflected in the calculation of the Unpaid Expenses and therefore included in the calculation of the Closing Date Payment.
 
Section 6.09        Resignation of Directors and Officers. The Company shall (i) cause all managers, directors (or members of any other applicable governing body) and officers of the Company and each of its subsidiaries to deliver to Buyer prior to the Closing duly executed resignations and duly executed releases from all claims that such persons may have against the Company or any of its subsidiaries, in each case in form and substance reasonably satisfactory to Buyer (such resignations and releases to be effective upon the Closing) and (ii) take all such other actions as are necessary to accomplish such resignations and releases.
 
Section 6.10        No Solicitation.
 
(a)          From and after the date hereof, the Company, its subsidiaries and Seller shall not, and shall cause their respective affiliates, officers, directors, employees, agents and representatives not to, directly or indirectly (i) solicit, initiate, induce or encourage, or take any other action to facilitate, any Takeover Proposal or any inquiry or proposal that could reasonably be expected to lead to a Takeover Proposal, (ii) enter into, continue or otherwise participate in any discussions or negotiations regarding, or furnish to any person (other than Buyer) any information with respect to, or otherwise cooperate in any way with, any Takeover Proposal or any inquiry or proposal that could reasonably be expected to lead to a Takeover Proposal or (iii) approve, endorse, recommend, execute or enter into any letter of intent, memorandum of understanding, agreement in principle, joint venture agreement, partnership agreement or merger, acquisition or similar agreement constituting, contemplating or otherwise relating to any Takeover Proposal or any inquiry or proposal that could reasonably be expected to lead to a Takeover Proposal. The term “Takeover Proposal” means any inquiry, proposal or offer from any person (other than Buyer) relating to (A) any direct or indirect acquisition, in one transaction or a series of transactions, including any merger, consolidation, tender offer, exchange offer, public offering, stock acquisition, asset acquisition, binding share exchange, business combination, recapitalization, liquidation, dissolution, joint venture or similar transaction, of (1) assets or businesses of the Company and its subsidiaries or (2) Membership Interests or other equity, membership or limited liability company interests in the Company or any of its subsidiaries, in each case other than the transactions contemplated hereby, or (B) any other transaction or series of transactions that could reasonably be expected to (x) impair in any material respect the ability of the Company or Seller to perform their obligations under this Agreement or (y) prevent or materially impede, interfere with, hinder or delay the consummation of any of the transactions contemplated hereby. Seller and the Company shall promptly request that any materials provided to any person in connection with a Takeover Proposal (other than Buyer) shall be returned to the Company or destroyed.
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(b)          From and after the date hereof, the Company and Seller shall promptly (but in any event within 24 hours) advise Buyer orally and in writing of any Takeover Proposal or any inquiry or proposal that could reasonably be expected to lead to a Takeover Proposal, the terms and conditions of such Takeover Proposal, inquiry or proposal and the identity of the person making such Takeover Proposal, inquiry or proposal. The Company and Seller shall keep Buyer informed on a current basis in all material respects of the status and details (including material amendments or proposed amendments) of any such Takeover Proposal, inquiry or proposal.
 
Section 6.11        Termination of Affiliate Contracts. The Company and, to the extent applicable, Seller, shall, and shall cause each of their affiliates to, terminate each Affiliate Contract on or prior to the Closing Date. Seller and the Company will, and will cause their affiliates to, provide Buyer with a reasonable opportunity to review and comment on any documents, agreements, instruments, resolutions, consents and filings related to such terminations and all such documents, agreements, instruments, resolutions, consents and filings will be in form and substance reasonably acceptable to Buyer. With effect from the Closing, none of the Company or any of its subsidiaries, on the one hand, nor Seller or any of its affiliates (other than the Company and its subsidiaries), on the other hand, shall have any obligation or liability to the other in respect of any such terminated Affiliate Contract.
 
Section 6.12        Repayment of Indebtedness.
 
(a)          At or prior to the Closing, the Company and its subsidiaries shall have (i) repaid and discharged all Indebtedness owed by the Company and its subsidiaries (other than Indebtedness owed to the Company or one of its subsidiaries) and all ancillary obligations thereto (including all interest accrued thereon and all fees, charges or premiums (including call or put premiums, optional or otherwise) associated therewith), (ii) caused all commitments related to such Indebtedness to be terminated and (iii) caused all Liens in or upon any of the assets or properties of the Company or any of its subsidiaries arising from or in connection with such Indebtedness to be forever satisfied, released and discharged, and filed all documents necessary or desirable to effectuate, or reflect in public record, such satisfaction, release and discharge. At least four business days prior to the Closing, the Company shall have provided Buyer with executed payoff letters, in form and substance reasonably acceptable to Buyer, in respect of all Indebtedness to be repaid at or prior to the Closing and executed lien release documents, in form and substance reasonably acceptable to Buyer, with respect to all Liens in or upon the assets or properties of the Company or any of its subsidiaries to be released or terminated at or prior to the Closing.
 
(b)          Prior to the Closing, the Company shall cause any Indebtedness owing from any holder of Membership Interests or any member or manager of Seller to the Company or any of its subsidiaries to be repaid in full (including the outstanding principal amount and any accrued and unpaid interest thereon) and all ancillary obligations thereto to be terminated. At least four business days prior to the Closing, the Company shall have provided Buyer with executed documentation, in form and substance reasonably acceptable to Buyer, in respect of all Indebtedness owing from any holder of Membership Interests or any member or manager of Seller to the Company to be repaid prior to the Closing, which documentation shall evidence the repayment of such Indebtedness.
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Section 6.13        Real Estate Matters. Prior to the Closing, Seller shall cause the Owned Property to be free and clear of all Liens except for Permitted Liens and provide Buyer with a recorded copy of each deed of reconveyance releasing all deeds of trust, mortgages or other security agreements encumbering the Owned Property as of the date hereof.
 
Section 6.14        Termination of Certain Contracts. Prior to the Closing, the Company shall, and shall cause its subsidiaries to, terminate each Contract set forth on Section 6.14 of the Company Disclosure Letter (collectively, the “Terminating Contracts”). The Company shall provide Buyer with a reasonable opportunity to review and comment on any documents, agreements, instruments, resolutions, consents and filings related to such terminations and all such documents, agreements, instruments, resolutions, consents and filings will (i) be in form and substance reasonably acceptable to Buyer and (ii) provide that with effect from the applicable termination (which termination, for the avoidance of doubt, shall be required to be effective prior to the Closing), none of the Company nor any of its subsidiaries shall have any further obligation or liability in respect of any such Terminating Contract. In connection with the foregoing, Buyer agrees that it will reimburse Seller for one-half of any termination fee required to be paid by Seller or any of its affiliates to the counterparty to the applicable Terminating Contract; provided that Buyer’s obligation to reimburse Seller pursuant to this Section 6.14 shall not exceed, in the aggregate, the dollar amount set forth on Section 6.14 of the Company Disclosure Letter.
 
Section 6.15       SELLER RELEASE. EFFECTIVE AS OF THE CLOSING, SELLER DOES FOR ITSELF, AND ITS RESPECTIVE AFFILIATES, PARTNERS, SUCCESSORS AND ASSIGNS, IF ANY, RELEASE AND ABSOLUTELY FOREVER DISCHARGE THE COMPANY AND ITS SUBSIDIARIES AND THEIR RESPECTIVE OFFICERS, MANAGERS, DIRECTORS, MEMBERS OF ANY APPLICABLE GOVERNING BODY, SECURITYHOLDERS, AFFILIATES, EMPLOYEES, ADVISORS, REPRESENTATIVES AND AGENTS (EACH, A “RELEASED PARTY”) FROM AND AGAINST ALL RELEASED MATTERS. “RELEASED MATTERS” MEANS ANY AND ALL CLAIMS, DEMANDS, DAMAGES, DEBTS, LIABILITIES, OBLIGATIONS, COSTS, EXPENSES (INCLUDING ATTORNEYS’ AND ACCOUNTANTS’ FEES AND EXPENSES), LOSSES, ACTIONS AND CAUSES OF ACTION OF ANY NATURE WHATSOEVER, WHETHER NOW KNOWN OR UNKNOWN, SUSPECTED OR UNSUSPECTED, THAT SELLER NOW HAS, OR AT ANY TIME PREVIOUSLY HAD, OR SHALL OR MAY HAVE IN THE FUTURE, AS A SECURITYHOLDER (WHETHER DIRECT OR INDIRECT), INCLUDING AS A HOLDER OF THE EXCHANGEABLE SHARES, OFFICER, MANAGER, DIRECTOR, MEMBER OF ANY APPLICABLE GOVERNING BODY, CONTRACTOR, CONSULTANT OR EMPLOYEE OF THE COMPANY OR ANY OF ITS SUBSIDIARIES, ARISING BY VIRTUE OF OR IN ANY MATTER RELATED TO ANY ACTIONS OR INACTIONS WITH RESPECT TO THE COMPANY OR ANY OF ITS SUBSIDIARIES OR THEIR RESPECTIVE AFFAIRS ON OR BEFORE THE CLOSING DATE; PROVIDED THAT RELEASED MATTERS SHALL NOT INCLUDE ANY RIGHT OF SELLER CONTAINED IN THIS AGREEMENT. IT IS THE INTENTION OF SELLER IN EXECUTING THIS RELEASE, AND IN GIVING AND RECEIVING THE CONSIDERATION CALLED FOR HEREIN, THAT THE RELEASE CONTAINED IN THIS SECTION 6.15 SHALL BE EFFECTIVE AS A FULL AND FINAL ACCORD AND SATISFACTION AND GENERAL RELEASE OF AND FROM ALL RELEASED MATTERS AND THE FINAL RESOLUTION BY SELLER AND THE RELEASED PARTIES OF ALL RELEASED MATTERS INCLUDING ACCRUED BUT UNPAID DISTRIBUTIONS AND PAYMENTS IN CONNECTION WITH A LIQUIDATION OR CHANGE OF CONTROL TRANSACTION. NOTWITHSTANDING ANYTHING HEREIN OR OTHERWISE TO THE CONTRARY, THE RELEASE CONTAINED IN THIS SECTION 6.15 WILL NOT BE EFFECTIVE SO AS TO BENEFIT A PARTICULAR RELEASED PARTY IN CONNECTION WITH ANY MATTER OR EVENT THAT WOULD OTHERWISE CONSTITUTE A RELEASED MATTER, BUT INVOLVED FRAUD, WILLFUL CONCEALMENT OR THE BREACH OF ANY APPLICABLE LAW ON THE PART OF SUCH RELEASED PARTY. SELLER HEREBY REPRESENTS TO THE COMPANY AND BUYER THAT SELLER HAS NOT VOLUNTARILY OR INVOLUNTARILY ASSIGNED OR TRANSFERRED OR PURPORTED TO ASSIGN OR TRANSFER TO ANY PERSON ANY RELEASED MATTERS AND THAT NO PERSON OTHER THAN SELLER HAS ANY INTEREST IN ANY RELEASED MATTER BY LAW OR CONTRACT BY VIRTUE OF ANY ACTION OR INACTION BY SELLER. THE INVALIDITY OR UNENFORCEABILITY OF ANY PART OF THIS SECTION 6.15 SHALL NOT AFFECT THE VALIDITY OR ENFORCEABILITY OF THE REMAINDER OF THIS SECTION 6.15 WHICH SHALL REMAIN IN FULL FORCE AND EFFECT.
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Section 6.16        Cooperation. If Buyer has not consummated a Buyer IPO on or prior to the Closing Date, Seller shall use commercially reasonable efforts to cooperate with any action reasonably requested by Buyer from and after the Closing to effect a Buyer IPO (including any corporate reorganization of Buyer or any of its subsidiaries or other reasonable activities, the expenses of which are reimbursed by Buyer).
 
ARTICLE VII
 
Conditions

Section 7.01        Conditions to Each Party’s Obligation to Effect the Acquisition. The respective obligation of each party to complete the Acquisition is subject to the satisfaction (or, if permitted by applicable Law, written waiver) at the Closing of the following conditions:
 
(a)          The Required STB Approvals shall have been obtained and/or shall have become effective (as applicable).
 
(b)          The Required BLM Approval shall have been obtained.
 
(c)          No Law or preliminary, temporary or permanent Judgment enacted, entered, promulgated, enforced or issued by any Governmental Entity or other legal restraint or prohibition (collectively, “Legal Restraints”) shall be in effect that prevents, makes illegal or prohibits the consummation of the Acquisition.
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Section 7.02       Conditions to Obligation of Buyer. The obligation of Buyer to complete the Acquisition is also subject to the satisfaction (or, if permitted by applicable Law, written waiver by Buyer) as of the Closing of the following conditions:
 
(a)          (i)           (A) The Company Fundamental Representations shall be true and correct in all respects as of the date hereof and as of the Closing Date as though made on and as of the Closing Date and (B) each other representation and warranty of the Company shall be true and correct in all material respects as of the date hereof and as of the Closing Date as though made on and as of the Closing Date, except in the case of clauses (A) and (B) to the extent such representations and warranties expressly relate to an earlier date, in which case the same shall continue on the Closing Date to be true and correct as of such earlier date.
 
(ii)           (A) The Seller Fundamental Representations shall be true and correct in all respects as of the date hereof and as of the Closing Date as though made on and as of the Closing Date, and (B) each other representation and warranty of Seller shall be true and correct in all material respects as of the date hereof and as of the Closing Date as though made on and as of the Closing Date, except in the case of clauses (A) and (B), to the extent such representations and warranties expressly relate to an earlier date, in which case the same shall continue on the Closing Date to be true and correct as of such earlier date.
 
(b)          (i) The Company shall have performed or complied with in all material respects all covenants and agreements required by this Agreement to be performed or complied with by the Company at or prior to the Closing.
 
(ii) Seller shall have performed or complied with in all material respects all covenants and agreements required by this Agreement to be performed or complied with by Seller at or prior to the Closing.
 
(c)          (i) The Company shall have delivered to Buyer a certificate, dated as of the Closing Date, stating that the conditions specified in Sections 7.02(a)(i) and 7.02(b)(i) have been satisfied.
 
(ii) Seller shall have delivered to Buyer a certificate, dated as of the Closing Date, stating that the conditions specified in Sections 7.02(a)(ii) and 7.02(b)(ii) have been satisfied.
 
(d)          No Legal Restraint shall be in effect that imposes any conditions on the consummation of the transactions contemplated hereby.
 
(e)          No Proceeding by or before a Governmental Entity shall be pending that seeks to prevent or prohibit the consummation of any of the transactions contemplated hereby or to impose any conditions on the consummation of the transactions contemplated hereby.

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(f)          The Consents set forth under Category 1 of Section 7.02(f) of the Company Disclosure Letter shall have been obtained (such Consents, together with the Required STB Approvals and the Required BLM Approval, the “Required Approvals”).
 
(g)          The Tharaldson Land Purchase shall not have failed to close as a result of (i) a failure of any condition to Closing (as defined in the Tharaldson Land Purchase Agreement) set forth in Section 3.4(a), 3.4(b), 3.4(c), 3.4(d) or 3.4(e) of the Tharaldson Land Purchase Agreement or (ii) Buyer having exercised its termination right set forth in Section 8.2 of the Tharaldson Land Purchase Agreement.
 
Section 7.03       Conditions to Obligation of Seller. The obligation of Seller to complete the Acquisition is also subject to the satisfaction (or, if permitted by applicable Law, written waiver by Seller) as of the Closing of the following conditions:
 
(a)          (i) the representations and warranties of Buyer set forth in Section 5.02 (Buyer Capitalization) and Section 5.08 (Sufficient Funds) shall be true and correct in all respects as of the date hereof and as of the Closing Date as though made on and as of the Closing Date and (ii) each other representation and warranty of Buyer set forth in Article V hereof shall be true and correct in all material respects as of the date hereof and as of the Closing Date as though made on and as of the Closing Date, except in the case of clauses (i) and (ii) to the extent such representations and warranties expressly relate to an earlier date, in which case the same shall continue on the Closing Date to be true and correct as of such earlier date.
 
(b)          Buyer shall have performed or complied with in all material respects all covenants and agreements required by this Agreement to be performed or complied with by Buyer at or prior to the Closing.
 
(c)          Buyer shall have delivered to Seller a certificate, dated as of the Closing Date, stating that the conditions specified in Sections 7.03(a) and 7.03(b) have been satisfied.
 
Section 7.04 Frustration of Closing Conditions. Neither Buyer nor Seller may rely on the failure of any condition set forth in this Article VII to be satisfied if such failure was caused by the failure of such party (or, in the case of Seller, the Company) to act in good faith or to use reasonable best efforts to cause the Closing to occur, as required by Section 6.03.
 
ARTICLE VIII
 
Termination; Effect of Termination
Section 8.01        Termination.
 
(a)          Notwithstanding anything to the contrary in this Agreement, this Agreement may be terminated and the Acquisition and the other transactions contemplated hereby may be abandoned at any time prior to the Closing:
 
(i)         by mutual written consent of Seller and Buyer;

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(ii)        by Seller, if Buyer (x) fails to comply with Section 2.03 or (y) shall have breached any of its representations or warranties or failed to perform or comply with any of its covenants or agreements (other than Section 2.03), in each case contained in this Agreement, which breach or failure (A) would give rise to the failure of a condition set forth in Section 7.03(a) or 7.03(b), and (B) has not been or is incapable of being cured by Buyer within 30 days after its receipt of written notice thereof from Seller;
 
(iii)       by Buyer (A) if the Company or Seller shall have breached any of its representations or warranties or failed to perform or comply with any of its covenants or agreements, in each case contained in this Agreement, which breach or failure (1) would give rise to the failure of a condition set forth in Section 7.02(a) or 7.02(b) and (2) has not been or is incapable of being cured by the Company or Seller, as applicable, within 30 days after Seller’s receipt of written notice thereof from Buyer; or (B) if any Legal Restraint having the effect set forth in Section 7.02(d) shall be in effect and shall have become final and nonappealable; and
 
(iv)        by Seller, on the one hand, or Buyer, on the other hand, (A) if any Legal Restraint having the effect set forth in Section 7.01(c) shall be in effect and shall have become final and nonappealable or (B) on or after March 1, 2019 (the “Outside Date”), if the Acquisition shall not have been consummated for any reason; provided, however, that if on the Outside Date any of the conditions set forth in Section 7.01(a), 7.01(b), 7.01(c), 7.02(d), 7.02(e) or 7.02(f) shall not have been satisfied or waived but all other conditions set forth in Article VII shall have been satisfied or waived (other than those conditions that by their nature are to be satisfied at or immediately prior to the Closing, but provided that such conditions shall then be capable of being satisfied if the Closing were to take place on such date), then the Outside Date shall be automatically extended to May 30, 2019, and such date shall become the Outside Date for purposes of this Agreement; and provided, further, that the right to terminate this Agreement under this Section 8.01(a)(iv)(B) shall not be available to Seller or Buyer, as applicable, if the failure of any of the conditions set forth in Section 7.01(a), 7.01(b), 7.01(c), 7.02(d), 7.02(e) or 7.02(f) to have been satisfied or the failure of the Acquisition to have been consummated, as applicable, was caused by the failure of, in the case of Seller, Seller or the Company, or, in the case of Buyer, Buyer, to comply with its obligations under Section 6.03.
 
(b)          In the event of termination by Seller or Buyer pursuant to this Section 8.01, written notice thereof shall forthwith be given to the other and the transactions contemplated hereby shall be abandoned, without further action by any party.

Section 8.02        Termination; Effect of Termination.
 
(a)          If this Agreement is terminated and the transactions contemplated hereby are abandoned as described in Section 8.01, this Agreement shall become null and void and of no further force and effect, except for the provisions of Sections 3.16, 5.07, 6.06, 6.07 and this 8.02 and Article X. Notwithstanding the immediately preceding sentence, nothing in this Article VIII shall (i) impair the right of any party to compel specific performance by any other party of its obligations under this Agreement or (ii) release any party from any Liability for any willful and intentional breach by such party of the terms, conditions and other provisions of this Agreement or any Actual Fraud by or on behalf of such party.

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(b)         If (i) this Agreement is terminated and the transactions contemplated hereby are abandoned pursuant to Section 8.01(a)(iii)(A), then Seller shall, within two business days after such termination, repay to Buyer the Deposit Amount if the Deposit Amount shall have been previously paid to Seller pursuant to Section 2.03 prior to such termination and (ii) this Agreement is terminated by Seller for any reason other than a termination pursuant to Section 8.01(a)(iii)(A), then Seller shall be entitled to retain the Deposit Amount if the Deposit Amount shall have been previously paid to Seller pursuant to Section 2.03 prior to such termination. For the avoidance of doubt, subject to Section 8.02(a), such repayment or retention of the Deposit Amount contemplated by the immediately foregoing sentence shall not constitute liquidated damages or any party’s sole remedy in the event of a breach by any other party of any of the terms, conditions or other provisions of this Agreement.
 
ARTICLE IX
 
Indemnification
 
Section 9.01       Survival of Covenants, Agreements, Representations and Warranties. For purposes of this Article IX (and notwithstanding anything to the contrary contained in this Agreement or otherwise), the representations, warranties, covenants and agreements contained in this Agreement shall be deemed to survive the Closing and to remain in full force and effect, regardless of any investigation made by or on behalf of any party, until the indemnification obligation therefor terminates in accordance with Section 9.05.
 
Section 9.02        Indemnification by Seller.
 
(a)          Subject to Section 9.07, Seller agrees to indemnify and hold harmless each of Buyer and its affiliates (including the Company and its subsidiaries) and the officers, directors, employees, agents and representatives of Buyer and its affiliates (each, a “Buyer Indemnitee”) from and against any and all Losses (other than Losses relating to taxes, for which indemnification provisions are set forth in Section 9.02(b)) asserted against, imposed upon or incurred by such Buyer Indemnitee that arise out of, are related to or in connection with:
 
(i)         any inaccuracy or breach of (A) any Company Fundamental Representation or Seller Fundamental Representation or (B) any representation or warranty of the Company or Seller contained in this Agreement, other than any Company Fundamental Representation or Seller Fundamental Representation (it being agreed that, in the case of clauses (A) and (B), solely for purposes of determining the existence of any such inaccuracy or breach or the amount of any Loss with respect thereto, all such representations and warranties that are qualified as to “materiality” shall be deemed to be not so qualified);
 
(ii)        any failure by the Company or Seller to perform or comply with any covenant or agreement of the Company or Seller in this Agreement;
 
(iii)       any Proceedings, demands, assessments, Judgments, damages, awards, costs and expenses in connection with the transactions contemplated by this Agreement or any subsequent corporate reorganization or business combination of the Company or any of its subsidiaries brought by any current or former holder of securities of Seller or former holder of Membership Interests, option holder or former option holder or holder of other securities or any former holder of other securities of the Company or any of its subsidiaries (whether or not a party to this Agreement);
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(iv)        any Closing Debt or Unpaid Expenses not reflected in the calculations delivered pursuant to Section 2.01(b); and
 
(v)         any and all Proceedings, demands, assessments, Judgments, damages, awards, costs and expenses (including reasonable third-party fees and expenses) incident to any of the foregoing or incurred in connection with the enforcement of the rights of any Buyer Indemnitee with respect to the foregoing clauses (i) through (iv).
 
(b)          Seller agrees to indemnify and hold harmless each Buyer Indemnitee from and against any and all Losses asserted against, imposed upon or incurred by such Buyer Indemnitee that arise out of, are related to or in connection with: (A) all Liability for taxes of the Company or any of its subsidiaries for any Pre-Closing Tax Period; (B) taxes (as a result of any applicable tax Law) of any person other than the Company and its subsidiaries for which the Company or any of its subsidiaries becomes liable (x) as a result of being or having been, at any time before the Closing, part of any consolidated, combined, affiliated aggregate, unitary or similar group, (y) as a transferee or successor for tax purposes before the Closing or (z) as a result of a Contract entered into before the Closing; (C) any inaccuracy or breach of any representation or warranty set forth in Section 3.12 (it being agreed that for solely purposes of determining the existence of any such inaccuracy or breach or the amount of any Loss with respect thereto, such representations and warranties that are qualified as to “materiality” shall be deemed to be not so qualified); (D) the failure by the Company or Seller to perform or comply with any covenant or agreement of the Company or any of its subsidiaries or Seller in this Agreement relating to taxes; and (E) all Liability for taxes allocated to Seller under Section 6.04.

(i)          In the case of a portion of any Straddle Period included in any Pre-Closing Tax Period: (A) taxes imposed on a periodic basis (such as real, personal and intangible property taxes) for any Pre-Closing Tax Period shall be equal to the amount of such taxes for the entire Straddle Period multiplied by a fraction, the numerator of which is the number of days during the Straddle Period that are in the Pre-Closing Tax Period and the denominator of which is the total number of days in the Straddle Period; (B) taxes (other than taxes described in clause (A)) for any Pre-Closing Tax Period shall be computed (1) as if such taxable period ended as of the close of business on the Closing Date and (2) in the case of any such taxes attributable to the ownership of any equity interest in a partnership, other “flowthrough” entity or “controlled foreign corporation” (within the meaning of Section 957(a) of the Code or any comparable applicable Law), as if the taxable period of that entity ended as of the close of business on the Closing Date.
 
(c)          The parties acknowledge and agree that the rights of any Buyer Indemnitee to indemnification pursuant to this Section 9.02 with respect to a representation, warranty, covenant or agreement of the Company or Seller are an essential part of the economic terms of, and the allocation of risks contained in, this Agreement, and that any Buyer Indemnitee’s rights to indemnification therefor shall in no way be limited, eliminated or otherwise affected by the fact that such Buyer Indemnitee, or any of its directors, officers, employees or advisors, was at any time prior to the Closing or the execution of this Agreement aware (or should have become aware) that any such representation or warranty was inaccurate or had been breached or that any such covenant or agreement had not been performed or complied with.
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Section 9.03        Indemnification by Buyer.
 
(a)          Subject to Section 9.07, Buyer agrees to indemnify and hold harmless Seller and its affiliates and the officers, directors, employees, agents and representatives of Seller and its affiliates (each, a “Seller Indemnitee”) from and against any and all Losses asserted against, imposed upon or incurred by such Seller Indemnitee that arise out of, are related to or in connection with:
 
(i)         any inaccuracy or breach of (A) any Buyer Fundamental Representation or (B) any representation or warranty of Buyer, other than any Buyer Fundamental Representation (it being agreed that, in the cases of clauses (A) and (B), solely for purposes of determining the existence of any such inaccuracy or breach or the amount of any Loss with respect thereto, all such representations and warranties that are qualified as to “materiality” shall be deemed to be not so qualified);
 
(ii)        the failure by Buyer to perform or comply with any covenant or agreement of Buyer in this Agreement; and
 
(iii)       any and all Proceedings, demands, causes of action, assessments, Judgments, damages, awards, costs and expenses (including reasonable third-party fees and expenses) incident to any of the foregoing or incurred in connection with the enforcement of the rights of any Seller Indemnitee with respect to the foregoing clauses (i) or (ii).
 
(b)          The parties acknowledge and agree that the rights of any Seller Indemnitee to indemnification pursuant to this Section 9.03 with respect to a representation, warranty, covenant or agreement of Buyer are an essential part of the economic terms of, and the allocation of risks contained in, this Agreement, and that any Seller Indemnitee’s rights to indemnification therefor shall in no way be limited, eliminated or otherwise affected by the fact that such Seller Indemnitee, or any of its directors, officers, employees or advisors, was at any time prior to the Closing or the execution of this Agreement aware (or should have become aware) that any such representation or warranty was inaccurate or had been breached or that any such covenant or agreement had not been performed or complied with.
 
Section 9.04        Indemnification Procedures.
 
(a)          Procedures for Third-Party Claims.
 
(i)         If a claim by a third-party is made against an Indemnitee arising out of a matter for which the Indemnitee is entitled to be indemnified pursuant to Section 9.02 or 9.03 (a “Third-Party Claim”), the Indemnitee shall promptly notify the indemnifying party in writing of such Third-Party Claim. The failure of the Indemnitee to promptly notify the indemnifying party hereunder shall not relieve the indemnifying party of its obligations hereunder except to the extent that the indemnifying party is actually prejudiced by such failure. 
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(ii)        If a Third-Party Claim is made against an Indemnitee, the indemnifying party shall be entitled to participate in the defense thereof and, subject to the limitations contained in this Section 9.04(a), to assume and control the defense thereof of such Third-Party Claim if it so chooses with counsel selected by the indemnifying party and not reasonably objected to by the Indemnitee. Should the indemnifying party so elect to assume and control the defense of a Third-Party Claim, the indemnifying party shall not be liable to the Indemnitee for legal expenses subsequently incurred by the Indemnitee in connection with the defense thereof, unless (A) the employment of such counsel has been specifically authorized in writing by the indemnifying party, (B) the Indemnitee shall have been advised by counsel that the assumption and control of such defense by the indemnifying party would be inappropriate due to an actual or potential conflict of interest or (C) the Indemnitee shall have been advised by counsel that one or more defenses are available to the Indemnitee that are not available to the indemnifying party (provided that the indemnifying party shall not be liable for the fees and expenses of more than one firm of counsel for all Indemnitees, other than one local counsel in each relevant jurisdiction). If the indemnifying party assumes such defense, the Indemnitee shall have the right to participate in the defense thereof and to employ at its own expense counsel not reasonably objected to by the indemnifying party, separate from the counsel employed by the indemnifying party, it being understood that the indemnifying party shall control such defense and shall be empowered to make any settlement with respect to such Third-Party Claim, subject to the remaining terms of this Section 9.04(a). The indemnifying party shall be liable for the reasonable fees and expenses of counsel employed by the Indemnitee for any period during which the indemnifying party has not assumed the defense thereof. If the indemnifying party chooses to defend or prosecute any Third-Party Claim, all the parties shall cooperate and shall cause their affiliates to cooperate in the defense or prosecution thereof. Whether or not the indemnifying party assumes the defense of a Third-Party Claim, the Indemnitee shall not admit any liability with respect to, or settle, compromise or discharge, such Third-Party Claim without the indemnifying party’s prior written consent (such consent not to be unreasonably withheld or delayed), except if (x) the Indemnitee is reasonably expected to be liable for Losses in excess of amounts reasonably expected to be received from the indemnifying party or (y) such settlement or compromise is in respect of a proceeding that seeks an injunction or equitable relief against the Indemnitee. If the indemnifying party assumes the defense of a Third-Party Claim, the Indemnitee shall agree to any settlement, compromise or discharge of such Third-Party Claim that the indemnifying party may recommend and that by its terms obligates the indemnifying party to pay the full amount of the liability in connection with such Third-Party Claim and which releases the Indemnitee completely in connection with such Third-Party Claim, which does not contain any admission of wrongdoing or misconduct by the Indemnitee and which does not involve any non-monetary relief (other than customary confidentiality terms). Notwithstanding the foregoing, the indemnifying party shall not be entitled to assume and control the defense of any Third-Party Claim (and shall be liable for the reasonable fees and expenses of counsel incurred by the Indemnitee in defending such Third-Party Claim) if (w) the Third-Party Claim seeks an order, injunction or other equitable relief or relief for other than money damages against the Indemnitee that the Indemnitee reasonably determines, after conferring with its outside counsel, cannot be separated from any related claim for money damages, (x) in the event the Third-Party Claim were to be unfavorably decided, the Indemnitee would be reasonably likely to be liable for Losses in excess of amounts reasonably expected to be received from the indemnifying party, (y) the Third-Party Claim relates to the titling, ownership or enforceability of any Company Property or (z) the Third-Party Claim relates to any Governmental Approval or is otherwise brought by a Governmental Entity or relates to any Third-Party Consent. If such equitable relief or other relief portion of the Third-Party Claim can be so separated from that for money damages, the indemnifying party shall be entitled to assume and control the defense of the portion relating to money damages.
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(b)          Procedures for Direct Claims.
 
(i)         In the event any Indemnitee should have a claim against the indemnifying party under this Agreement that does not involve a Third-Party Claim being asserted against or sought to be collected from such Indemnitee (a “Direct Claim”), the Indemnitee shall promptly notify the indemnifying party in writing of such Direct Claim. The failure of the Indemnitee to promptly notify the indemnifying party hereunder shall not relieve the indemnifying party of its obligations hereunder except to the extent that the indemnifying party is actually prejudiced by such failure. If the indemnifying party does not notify the Indemnitee within 30 calendar days following its receipt of such notice that the indemnifying party disputes its Liability to the Indemnitee, such Direct Claim specified by the Indemnitee in such notice shall be conclusively deemed a Liability of the indemnifying party.
 
(ii)        If the indemnifying party timely disputes a Direct Claim, the Indemnitee and the indemnifying party shall attempt to resolve in good faith such dispute within the 30-day period after the indemnifying party delivers written notice to the Indemnitee of such dispute. If such dispute is not so resolved within such 30-day period, then either party may initiate a Proceeding with respect to the subject matter of such dispute in accordance with, and subject to the limitations of, Article X.
 
Section 9.05        Termination of Indemnification. Except with respect to Actual Fraud by or on behalf of the Company, Seller or Buyer:
 
(a)          The obligations to indemnify and hold harmless any Indemnitee pursuant to Section 9.02(a)(i)(B) (and Section 9.02(a)(v) as it relates to Section 9.02(a)(i)(B)) or Section 9.03(a)(i)(B) (and Section 9.03(a)(iii) as it relates to Section 9.03(a)(i)(B)) shall terminate on the date that is eighteen (18) months after the Closing Date; provided, however, that the obligations to indemnify and hold harmless any Indemnitee shall not terminate with respect to any and all Third-Party Claims and Direct Claims (together, “Claims”) that such Indemnitee has, before the expiration of such period, previously asserted against the indemnifying party by delivering a notice to the indemnifying party in accordance with this Agreement, which obligations shall survive until all such Claims are finally resolved.
 
(b)          The obligations to indemnify and hold harmless any Indemnitee pursuant to Section 9.02(b) shall terminate 60 days after the expiration of the relevant statute of limitations with respect to the tax Liabilities, taking into account extensions thereof; provided, however, that the obligations to indemnify and hold harmless any Indemnitee shall not terminate with respect to any and all Claims that such Indemnitee has, before the expiration of such period, previously asserted against the indemnifying party by delivering a notice to the indemnifying party in accordance with this Agreement, which obligations shall survive until all such Claims are finally resolved.

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(c) The obligations to indemnify and hold harmless any Indemnitee pursuant to Sections 9.02(a)(i)(A), 9.02(a)(ii), 9.02(a)(iii), 9.02(a)(iv) and 9.02(a)(v) (as it relates to the foregoing), 9.03(a)(i)(A), 9.03(a)(ii) and 9.03(a)(iii) (as it relates to the foregoing) shall not terminate.
 
Section 9.06        Exclusive Remedy Against the Indemnifying Party. Except with respect to Actual Fraud by or on behalf of the Company, Seller or Buyer, an Indemnitee’s right to indemnification under this Article IX constitutes such Indemnitee’s sole and exclusive monetary remedy for Losses from the indemnifying party with respect to any inaccuracy or breach of any representation or warranty in this Agreement or any failure to perform or comply with any covenant or agreement in this Agreement.
 
Section 9.07        Limitation of Indemnification.
 
(a)         Neither Seller nor Buyer shall be liable for any Losses indemnifiable pursuant to Section 9.02(a)(i)(B) (or Section 9.02(a)(v) as it relates to Section 9.02(a)(i)(B)) or Section 9.03(a)(i)(B) (or Section 9.03(a)(iii) as it relates to Section 9.03(a)(i)(B)), respectively, unless the aggregate amount of all such Losses exceeds on a cumulative basis $1,000,000 (the “Deductible”), in which case the Indemnitees shall only be entitled to indemnification for all such Losses in excess of the Deductible. In addition, no individual claim by any Indemnitees pursuant to Section 9.02(a)(i)(B) (or Section 9.02(a)(v) as it relates to Section 9.02(a)(i)(B)) or Section 9.03(a)(i)(B) (or Section 9.03(a)(iii) as it relates to Section 9.03(a)(i)(B)) shall be asserted unless and until the aggregate amount of Losses that would be payable pursuant to such claim exceeds an amount equal to $25,000 (it being understood that any such individual claims for amounts less than $25,000 shall be ignored in determining whether the Deductible has been exceeded and thereafter). Subject to the proviso in the first sentence to Section 9.07(c) and Section 9.08(d), the Seller’s and Buyer’s aggregate Liability under Section 9.02(a)(i)(B) (and Section 9.02(a)(v) as it relates to Section 9.02(a)(i)(B)) and Section 9.03(a)(i)(B) (and Section 9.03(a)(iii) as it relates to Section 9.03(a)(i)(B)), respectively, shall in no event exceed the Share Indemnity Escrow Amount.
 
(b)          (i) Seller shall not be liable for any Losses indemnifiable pursuant to Section 9.02(a)(i)(A) or Section 9.02(a)(ii) (or Section 9.02(a)(v) as it relates to Section 9.02(a)(i)(A) or Section 9.02(a)(ii)) for amounts in the aggregate in excess of the Closing Date Payment and (ii) Buyer shall not be liable for any Losses indemnifiable pursuant to Section 9.03(a)(i)(A) (or Section 9.03(a)(iii) as it relates to Section 9.03(a)(i)(A)) for amounts in the aggregate in excess of $60,000,000.
 
(c)          Subject to Section 9.08(d), Buyer’s sole recourse for Losses indemnifiable pursuant to Section 9.02(a)(i)(B) (or Section 9.02(a)(v) as it relates to Section 9.02(a)(i)(B)) is the Share Indemnity Escrow Amount; provided, however, that to the extent that any Buyer Common Shares comprising any portion of the Share Indemnity Escrow Amount shall have been previously utilized in accordance with the immediately following sentence to satisfy any indemnification obligations pursuant to Section 9.02(a) (other than any claim pursuant to Section 9.02(a)(i)(B) (or Section 9.02(a)(v) as it relates to Section 9.02(a)(i)(B)), and, as a result thereof, the remaining amount of Buyer Common Shares comprising the Share Indemnity Escrow Amount is at any time thereafter insufficient to satisfy any indemnification claim brought pursuant to Section 9.02(a)(i)(B) (or Section 9.02(a)(v) as it relates to Section 9.02(a)(i)(B)), then Buyer shall be entitled to recover directly from Seller an amount of Losses not exceeding the aggregate value (measured based on the Buyer Common Share Value) of all Buyer Common Shares comprising the Share Indemnity Escrow Amount that were previously utilized to satisfy indemnification obligations pursuant to Section 9.02(a) (other than any claim pursuant to Section 9.02(a)(i)(B) (or Section 9.02(a)(v) as it relates to Section 9.02(a)(i)(B)). With respect to all other Losses indemnifiable pursuant to Section 9.02, so long as the Share Indemnity Escrow Amount has not been reduced to zero, Buyer shall reduce the Share Indemnity Escrow Amount for such Losses prior to seeking to recover any Losses directly from Seller.
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(d)          The limitations set forth in this Section 9.07 shall not be applicable to any Losses that arise out of, or relate to or are in connection with Actual Fraud by or on behalf of the Company, Seller or Buyer.
 
Section 9.08        Treatment of Share Indemnity Escrow Amount.
 
(a)          Promptly following the date that is eighteen (18) months after the Closing Date (the “Release Date”) Buyer shall issue and deliver to Seller a number of Buyer Common Shares (rounded up to the nearest whole number of limited liability company interests or shares, as applicable) in book-entry form equal to (x) the remaining Share Indemnity Escrow Amount as of the Release Date, if any, minus (y) the Share Projected Indemnity Amount as of the Release Date, if any.
 
(b)          Promptly following the final resolution of any timely asserted Claim that was unresolved on the Release Date, Buyer will notify Seller of the Share Projected Indemnity Amount as of such date, if any, and Buyer shall issue and deliver to Seller a number of Buyer Common Shares (rounded up to the nearest whole number of limited liability company interests or shares, as applicable) in book-entry form equal to (x) the remaining Share Indemnity Escrow Amount as of such date, if any, minus (y) the Share Projected Indemnity Amount as of such date, if any, and shall be subject to the terms and conditions of this Agreement.
 
(c)          In the event Seller disputes Buyer’s determination of the Share Projected Indemnity Amount, Buyer and Seller shall attempt to resolve in good faith such dispute within the 30-day period after Seller delivers written notice to Buyer of such dispute. If such dispute is not so resolved within such 30-day period, then either party may initiate a Proceeding with respect to the subject matter of such dispute in accordance with, and subject to the limitations of, Article X.
 
(d)          Notwithstanding anything in this Agreement to the contrary, in the event that (i) the Supplemental Approval Closing Date occurs on or after the Release Date and (ii) there are any Claims that were timely asserted by Buyer prior to the Release Date and as of the Supplemental Approval Closing Date either (x) have been finally determined to have resulted in Losses suffered by a Buyer Indemnitee (which Losses would have been indemnifiable pursuant to this Article IX had the Supplemental Approval Closing Date occurred prior to the Release Date), but Seller has not previously indemnified such Buyer Indemnitee for such Losses (any such Losses, the “Supplemental Resolved Losses”) or (y) have not been finally resolved by such date (but which, if resolved in favor of the applicable Buyer Indemnitee, would result in Losses which would have been indemnifiable pursuant to this Article IX had the Supplemental Approval Closing Date occurred prior to the Release Date) (any such Claims, “Supplemental Pending Claims”), then Buyer shall be entitled to reduce the Supplemental Share Closing Date Payment by an aggregate amount of Buyer Common Shares equal to the quotient of (A) the sum of (I) the amount of all Supplemental Resolved Losses and (II) without duplication of any then-existing Share Projected Indemnity Amount as of such date, the maximum aggregate amount that is reasonably determined by Buyer in good faith to be necessary to satisfy all Supplemental Pending Claims, including an amount with respect to fees and expenses reasonably projected by Buyer in good faith to be the maximum aggregate amount necessary to cover costs and expenses related to enforcement of such Supplemental Pending Claims (provided that the amount of this clause (A) shall not exceed $5,000,000), divided by (B) the Buyer Common Share Value (such quotient, the “Supplemental Indemnification Shortfall Amount”). In the event there is any Supplemental Indemnification Shortfall Amount, the provisions of Section 9.08(b) and 9.08(c) (and any related definitions referenced therein) shall apply with respect to the resolution of any Supplemental Pending Claims, mutatis mutandis.
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Section 9.09        Manner of Payment. Within five business days after the amount of any Losses for which an Indemnitee is indemnified pursuant to this Article IX is finally determined, the indemnifying party shall pay to such Indemnitee such amount in cash by wire transfer of immediately available funds to an account designated in writing by such Indemnitee at least two business days prior to the payment date; provided that in the case the indemnifying party is Seller (and subject to Section 9.07(c) and Section 9.08(d)), so long as the Share Indemnity Escrow Amount is greater than zero and Seller does not elect to pay cash as permitted in the next sentence, the Share Indemnity Escrow Amount shall be reduced by an amount (rounded to the nearest whole cent) equal to the amount of any such Losses (it being understood that for purposes of determining the number of Buyer Common Shares necessary to satisfy Seller’s indemnification obligations in respect of any such Losses, each Buyer Common Share shall be valued at the Buyer Common Share Value without any adjustment and irrespective of any fluctuation in the value of the Buyer Common Shares following the Closing). If Seller is the indemnifying party, then Seller may elect to pay cash in lieu of Buyer Common Shares in the Share Indemnity Escrow Amount by giving Buyer notice of this election at least three business days prior to the payment date.
 
Section 9.10        Consideration Adjustment. For all tax purposes, Buyer and Seller agree to treat any indemnity payment under this Agreement, any payment made by Buyer pursuant to Section 2.04 and the Share Purchase Price True-Up as an adjustment to the Purchase Price unless a final determination (which shall include the execution of an IRS Form 870-AD or successor form) provides otherwise.
 
ARTICLE X
 
Miscellaneous
 
Section 10.01      Assignment. Neither this Agreement nor any of the rights or obligations of the parties hereunder may be assigned by any of the parties (including by operation of Law or otherwise) without the prior written consent of the other parties, except that Buyer may, without the prior written consent of the Company or Seller, assign any of its rights hereunder (a) to any of its subsidiaries or (b) to any person that, directly or indirectly, acquires Buyer or all or substantially all of its assets, but, in each case, no such assignment shall relieve Buyer of any of its obligations hereunder to the extent that any such assignee does not perform. Subject to the immediately preceding sentence, this Agreement shall be binding upon, and inure to the benefit of and be enforceable by, the parties and their respective successors and permitted assigns. Any attempted assignment in violation of this Section 10.01 shall be void.
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Section 10.02      No Third-Party Beneficiaries. Except as provided in Article IX, this Agreement is for the sole benefit of the parties and their respective successors and permitted assigns and nothing herein expressed or implied shall give or be construed to give to any person, other than the parties and such successors and permitted assigns, any legal or equitable rights, remedies, obligations or benefits hereunder.
 
Section 10.03     Notices. All notices, requests, permissions, waivers and other communications hereunder shall be in writing and shall be deemed to have been duly given (a) three business days following sending by registered or certified mail, postage prepaid, (b) when sent, if sent by email (with written confirmation of receipt), (c) when delivered, if delivered personally to the intended recipient, and (d) one business day following sending by overnight delivery via a national courier service and, in each case, addressed to a party at the following address for such party:
 
 
if to Buyer,
       
   
Florida East Coast Industries
   
161 NE 6th Street, Suite 900
   
Miami, FL 33136
   
Attention:
Patrick Goddard
   
Email:
Patrick.Goddard@feci.com
       
   
Florida East Coast Industries
   
117 NE 1st Ave., 11th Floor
   
Miami, FL 33132
   
Attention:
Kolleen Cobb
   
Email:
Kolleen.Cobb@feci.com
       
 
with a copy to:
       
   
Cravath, Swaine & Moore LLP
   
Worldwide Plaza
   
825 Eighth Avenue
   
New York, NY 10019-7475
   
Attention:
Damien R. Zoubek, Esq.
     
O. Keith Hallam, III, Esq.
   
Email:
dzoubek@cravath.com
     
khallam@cravath.com
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if to the Company,
       
   
Marnell Companies
   
222 Via Marnell Way
   
Las Vegas, Nevada 89119
   
Attention:
Anthony A. Marnell II
   
Email:
tmarnell2@marnellcompanies.com
       
 
with a copy to:
       
   
Holland & Hart LLP
   
9555 Hillwood Drive
   
2nd Floor
   
Las Vegas, NV 89134
   
Attention:
Gregory Gilbert, Esq.
   
Email:
GSGilbert@hollandhart.com
       
 
if to Seller,
       
   
Marnell Companies
   
222 Via Marnell Way
   
Las Vegas, Nevada 89119
   
Attention:
Anthony A. Marnell II
   
Email:
tmarnell2@marnellcompanies.com
       
 
with a copy to:
       
   
Holland & Hart LLP
   
9555 Hillwood Drive
2nd Floor
   
Las Vegas, NV 89134
   
Attention:
Gregory Gilbert, Esq.
   
Email:
GSGilbert@hollandhart.com
 
or to such other address(es) as shall be furnished in writing by any such party to the other parties in accordance with the provisions of this Section 10.03.
 
Section 10.04      Headings; Certain Definitions; Interpretation.
 
(a)          The descriptive headings of the several Articles and Sections of this Agreement, the Exhibits and Table of Contents to this Agreement and the Company Disclosure Letter are inserted for convenience only, do not constitute a part of this Agreement and shall not affect in any way the meaning or interpretation of this Agreement. All references herein to “Articles”, “Sections” or “Exhibits” shall be deemed to be references to Articles or Sections hereof or Exhibits hereto unless otherwise indicated. 
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(b)          For all purposes hereof:
 
Accounting Methodologies” means GAAP as applied in the Financial Statements, it being understood that any amounts required hereunder to be calculated in accordance with the Accounting Methodologies shall be prepared and calculated in accordance with GAAP notwithstanding any deviations from GAAP in the Financial Statements.
 
Actual Fraud” means an intentional and knowing misrepresentation of the truth or intentional and knowing concealment of a known fact (committed with actual knowledge) that constitutes common law fraud under the Laws of the State of New York.
 
affiliate” means, with respect to any person, any other person controlling, controlled by or under common control with such first person.
 
Bankruptcy Exceptions” means applicable bankruptcy, insolvency, reorganization, moratorium and other Laws of general application affecting the enforcement of creditors’ rights generally and general principles of equity.
 
Base Share Indemnity Escrow Amount” means a number of Buyer Common Shares (rounded to the nearest whole number of limited liability company interests or shares, as applicable) equal to the quotient of (a) (x) if all of the Supplemental Approvals have been obtained on or prior to the Closing, $10,000,000, or (y) if any of the Supplemental Approvals have not been obtained on or prior to the Closing, $5,000,000, divided by (b) the Buyer Common Share Value.
 
Base Share Purchase Price” means a number of Buyer Common Shares (rounded up to the nearest whole number of limited liability company interests or shares, as applicable) equal to the quotient of (a) (i) if all of the Supplemental Approvals have been obtained on or prior to the Closing, $60,000,000, or (ii) if any of the Supplemental Approvals have not been obtained on or prior to the Closing, $30,000,000, divided by (b) the Buyer Common Share Value.
 
Benefit Plan” means (a) all “employee benefit plans” (within the meaning of Section 3(3) of ERISA) and (b) all other compensation or employee benefit plans, policies, programs, agreements or arrangements (in each case under clauses (a) and (b), whether or not subject to ERISA and whether written or oral), including cash or equity or equity-based, employment, retention, change of control, health, medical, dental, disability, accident, life insurance, vacation, paid time off, severance, retirement, pension, savings, termination and other employee benefit plans, programs, policies, agreements or arrangements that, in each case under clauses (a) and (b), are sponsored, maintained, contributed to or have been entered into or are required to be sponsored, maintained, contributed to or entered into by the Company, its subsidiaries or any of their respective ERISA Affiliates for the benefit of any Participant, or with respect to which the Company or any of its subsidiaries has any current or contingent liability.
 
Business” means the business of developing and constructing the XpressWest high-speed, electrified passenger rail system along a contiguous corridor between Las Vegas, Nevada and Victorville, California, including all associated stations, track, switches, infrastructure and other improvements and including the ownership and operations of all associated vehicles and equipment, as contemplated by the specifications of such system described in the Company’s Request for Proposals—Implementation Team, dated December 23, 2009 and the Final Environmental Impact Statement and Final Section 4(f) Evaluation for the Proposed DesertXpress High-Speed Passenger Train issued by the U.S. Federal Railroad Administration, Department of Transportation in March 2011, and which includes (a) passenger stations in Las Vegas, Nevada and Victorville, California; (b) support facilities along the route described above, including the (i) Operation, Maintenance and Storage Facility in Victorville, California, (ii) Baker Maintenance of Way in Baker, California and (iii) Wigwam Maintenance and Storage Facility in Las Vegas, Nevada; and (c) the Frias Substation in Las Vegas, Nevada.
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business day” means a day, other than a Saturday or a Sunday, on which commercial banks are not required or authorized to close in each of New York City and Las Vegas, Nevada.
 
Buyer Common Shares” means the limited liability company interests of Buyer; provided that, unless context requires otherwise, if Buyer consummates a Buyer IPO, all references herein to Buyer Common Shares shall be deemed to be references to Buyer Public Shares.
 
Buyer Common Share Repurchase Price” means an amount in dollars (rounded to the nearest whole cent) equal to (a) the Buyer Common Share Repurchase Amount, multiplied by (b) the Buyer Common Share Value.
 
Buyer Common Share Value” means an amount, determined as of the Closing, equal to the quotient of (a) the Buyer Equity Valuation divided by (b) the number of Buyer Common Shares issued and outstanding at the Closing (after giving effect to the issuance of (i) the Base Share Closing Date Payment, (ii) if Buyer makes the Closing Date Share Election, the Optional Share Closing Date Payment and (iii) the Base Share Indemnity Escrow Amount); provided that if Buyer consummates a Buyer IPO at or prior to the Closing, the Buyer Common Share Value shall be the Buyer IPO Price.
 
Buyer Equity Valuation” means $3,000,000,000.
 
Buyer Fundamental Representation” means the representations and warranties set forth in Sections 5.01, 5.03, 5.04 and 5.08.
 
Buyer IPO” means an initial sale by Buyer of common shares to the public in an offering pursuant to an effective registration statement (other than a registration statement on Form S-4 or S-8 or any similar or successor form) filed under the Securities Act, after which such common shares are listed on one or more nationally recognized exchanges or quoted on one or more automated quotation systems, including the New York Stock Exchange or the Nasdaq Global Select Market.
 
Buyer IPO Price” means the initial public offering price (not reduced by any underwriter discounts, commissions or fees) of a Buyer Public Share in the Buyer IPO.
 
Buyer Public Share” shall mean a publicly traded common share of Buyer after a Buyer IPO. 
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Calculation Time” means 12:01 a.m. (New York City time) on the Closing Date.
 
Cash Purchase Price” means an amount in cash equal to (a) (i) if all of the Supplemental Approvals have been obtained on or prior to the Closing, $60,000,000, or (ii) if any of the Supplemental Approvals have not been obtained on or prior to the Closing, $30,000,000, minus (b) Closing Debt minus (c) Unpaid Expenses.
 
Change of Control” means the occurrence of any of the following events: (i) the acquisition of ownership, directly or indirectly, beneficially or of record, by any person or group (within the meaning of the Exchange Act and the rules of the SEC thereunder), other than any Permitted Holder, of equity interests of the Company or Buyer representing more than 50% of either the aggregate ordinary voting power or the aggregate equity value represented by the issued and outstanding equity interests of the Company or Buyer, as applicable; or (ii) the sale, lease, exclusive license or other disposition (x) by the Company of all or substantially all of the Company’s assets or properties or (y) by Buyer of all or substantially all of Buyer’s assets or properties, in each case, other than any such sale, lease, exclusive license or other disposition to an affiliate of Buyer.
 
Closing Date Payment” means an amount (rounded to the nearest whole cent) equal to (a) if Buyer does not make the Closing Date Share Election, (i) the Cash Purchase Price plus (ii) an amount (rounded to the nearest whole cent) equal to the product of (x) the Base Share Closing Date Payment, multiplied by (y) the Buyer Common Share Value, or (b) if Buyer makes the Closing Date Share Election, an amount (rounded to the nearest whole cent) equal to the product of (i) the sum of (x) the Base Share Closing Date Payment and (y) the Optional Share Closing Date Payment, multiplied by (ii) the Buyer Common Share Value.
 
Closing Debt” means an amount equal to the aggregate amount of Indebtedness and Guarantees of the Company and its subsidiaries as of the Calculation Time (plus the amount of any Indebtedness or Guarantees incurred between the Calculation Time and the Closing) and calculated in accordance with the Accounting Methodologies.
 
Commencement of Construction” means the entry into binding construction agreements by the Company or any of its affiliates for the physical construction of all or substantially all of a passenger rail system along a contiguous corridor between Las Vegas, Nevada and Victorville, California (including with respect to any associated stations, track, switches, infrastructure and other improvements along this route), but excluding any design, surveying or other ancillary services in anticipation of such construction.
 
Company Fundamental Representations” means the representations and warranties set forth in Sections 3.01, 3.02, 3.03, 3.15, 3.16 and 3.17.
 
Confidentiality Agreement” means the Confidentiality and Non-Disclosure Agreement, dated June 14, 2018, by and between the Company and Brightline Investment Holdings, LLC, an affiliate of Buyer, as amended.

Consent” means any consent, approval, waiver, license, permit, franchise, exemption, certificate, filing, notice, concession, right, grant, administrative decision or finding, certification, memorandum of understanding, right-of-way, easement, encroachment, authorization or order.
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Contract” means any loan or credit agreement, bond, debenture, note, mortgage, indenture, Guarantee, lease, sublease, purchase order or other contract, commitment, agreement, instrument, arrangement, understanding, obligation, undertaking, permit, concession, franchise or license, whether oral or written.
 
Deposit Amount” means $2,000,000.
 
Disposed Share Value” means an amount in dollars equal to the product of (a) the Buyer Common Share Value multiplied by (b) the number of Buyer Common Shares received by Seller pursuant to Section 2.01(c), Section 2.04 (if any) and Section 9.08 that are sold, disposed of or otherwise transferred by Seller from and after the Closing and through and including the IPO Date.
 
Environmental Reviews” means all assessments, studies and reviews required under Environmental Law for each of the Company and its subsidiaries to own, lease, develop or operate its properties and assets or to carry on the Business, including any environmental impact statement required under the National Environmental Policy Act and the California Environmental Quality Act and any regulations thereunder.
 
ERISA” means the Employee Retirement Income Security Act of 1974, as amended, and the rules and regulations promulgated thereunder.
 
ERISA Affiliate” means, with respect to any Person, any trade or business, whether or not incorporated, that together with such Person is a single employer for purpose of Section 414(b), (c), (m) or (o) of the Code.
 
Exchange Act” means the United States Securities Exchange Act of 1934.
 
Exercising Permitted Transferee” means, as of any date of determination, any Permitted Transferee that (a) holds any Buyer Common Shares that were previously transferred to such Permitted Transferee in accordance with Article II of the Stockholder Agreement and (b) is identified by Seller in the Buyer Common Share Repurchase Notice as electing to sell, transfer and deliver to Buyer all or any portion of such Buyer Common Shares in accordance with Section 2.02(c).
 
GAAP” means generally accepted accounting principles of the United States.
 
Governmental Approvals” means all federal, state, provincial and local, domestic and foreign, Consents, Judgments and other approvals by or agreements with any Governmental Entity or relevant tribal authority necessary for each of the Company and its subsidiaries to own, lease, develop or operate its properties and assets and to carry on the Business, including all such Governmental Approvals required under Environmental Law and all such Governmental Approvals by or with the Federal Railroad Administration, Bureau of Land Management, STB, Federal Highway Administration, the California State Transportation Agency, California Department of Transportation, California Business, Transportation and Housing Agency, State and Regional Water Quality Control Board for California, California Department of Fish and Game, Nevada Division of Forestry, Nevada Department of Transportation, Nevada High Speed Rail Authority, Nevada Division of Environmental Protection, Mojave Desert Air Quality Management District, Clark County Department of Air Quality and Environmental Management, U.S. Army Corps of Engineers, U.S. Fish and Wildlife Service, U.S. Department of the Interior, Federal Aviation Administration, Federal Emergency Management Agency, National Park Service, Advisory Council on Historic Preservation, State Historic Preservation Officers and Environmental Protection Agency and any similar agencies.
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 “Governmental Entity” means any federal, state, provincial or local, domestic or foreign, government or court of competent jurisdiction, administrative agency or commission or other governmental or regulatory authority, instrumentality or agency.
 
Guarantee” means, with respect to any person, any obligation, contingent or otherwise, of such person guaranteeing any Indebtedness of any other person in any manner, whether directly or indirectly, and including any obligation of such first person, direct or indirect, (i) to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness or to purchase (or to advance or supply funds for the purchase of) any security for the payment of such Indebtedness, (ii) to purchase property, securities or services for the purpose of assuring the owner of such Indebtedness of the payment of such Indebtedness or (iii) to maintain working capital, equity capital or other financial statement condition or liquidity of such other person so as to enable such other person to pay such Indebtedness; provided, however, that endorsements for collection or deposit made in the ordinary course of business consistent with past practice shall not be Guarantees.
 
Indebtedness” means, with respect to any person, (i) all obligations of such person for borrowed money or with respect to deposits or advances of any kind, (ii) all obligations of such person evidenced by bonds, debentures, notes or similar instruments, (iii) all obligations of such person upon which interest charges are customarily paid, other than trade credit incurred in the ordinary course of business consistent with past practice, (iv) all obligations of such person under conditional sale or other title retention agreements relating to property or assets purchased by such person, (v) all obligations of such person issued or assumed as the deferred purchase price of property or services, (vi) all indebtedness of others secured by (or for which the holder of such indebtedness has an existing right, contingent or otherwise, to be secured by) any Lien on property owned or acquired by such person, whether or not the obligations secured thereby have been assumed, (vii) all Guarantees by such person, (viii) all capital lease obligations of such person, (ix) all obligations of such person in respect of interest rate protection agreements, foreign currency exchange agreements or other interest or exchange rate hedging arrangements and (x) all obligations of such person as an account party in respect of letters of credit and bankers’ acceptances.
 
Indemnitee” means a Buyer Indemnitee or a Seller Indemnitee, as applicable.
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Intellectual Property” means all intellectual property and other similar proprietary rights in any jurisdiction, including such rights in and to: (i) any patent (including all reissues, divisionals, continuations, continuations-in-part, reexaminations, supplemental examinations, inter partes reviews, post-grant oppositions, substitutions and extensions thereof), patent application, patent disclosure or other patent right; (ii) any trademark, service mark, trade name, business name, brand name, slogan, logo, trade dress or other indicia of origin, including any registration or any application for registration therefor, together with all goodwill associated therewith; (iii) any copyright, work of authorship (whether or not copyrightable), design or database rights (including in all website content and software), including any registration or any application for registration therefor; (iv) trade secrets (as defined in the Uniform Trade Secrets Act and under corresponding foreign statutory and common law) and/or nonpublic know-how, including, for example, inventions, discoveries, improvements, concepts, ideas, methods, processes, designs, schematics, drawings, technical data, specifications, research and development information, technology, databases, data collections, business plans and other technical information, and other rights in know-how and confidential or proprietary information and (iv) URLs and domain names (including any top level domain names and global top level domain names) and registrations and applications for registration therefor, and social media identifiers, handles and tags.
 
IPO Date” means the closing date of a Buyer IPO.
 
Judgment” means any judgment, order, writ, injunction, legally binding agreement with a Governmental Entity, stipulation or decree.
 
Knowledge of the Company” means the actual knowledge of the individuals listed on Section 10.04(b) of the Company Disclosure Letter after having made reasonable inquiry of those employees of the Company and its subsidiaries primarily responsible for such matters, but without further investigation by such persons.
 
Law” means any statute, law, ordinance, legally-binding rule, regulation or any legally binding administrative or judicial decisions, interpretations, or policies issued by any Governmental Entity in connection with any of the foregoing.
 
Lien” means any pledge, claim, lien, charge, mortgage, deed of trust, security interest, option, lease, easement, covenant, condition, right of way, right of first refusal or offer, or other encumbrance of any kind or nature whatsoever.
 
Losses” of any person shall mean any and all Proceedings, assessments, losses, damages, Liabilities, taxes, costs and expenses asserted against, imposed upon or incurred by such person, including interest, penalties, attorneys’ fees and expenses, third-party expert and consultant fees and expenses, fines, Judgments, awards and financial responsibility for investigation, removal and cleanup costs, natural resource damages, and government oversight costs, in each case on a pre-tax basis.
Manager” has the meaning assigned to such term in the Operating Agreement.
 
Maximum Buyer Common Share Repurchase Amount” means a number of Buyer Common Shares (to the extent such Buyer Common Shares are owned by Seller or any Exercising Permitted Transferee as of the Buyer Common Share Repurchase Closing Date) equal to (a) the Optional Share Closing Date Payment (to the extent previously issued and delivered to Seller in accordance with Section 2.01(c)), plus (b) the Optional Supplemental Share Purchase Price (to the extent previously issued and delivered to Seller in accordance with Section 2.04), minus (c) the number of Buyer Common Shares that are sold, disposed of or otherwise transferred by Seller (other than to a Permitted Transferee in accordance with Article II of the Stockholder Agreement) from and after the Closing and through and including the IPO Date (but only to the extent such number of Buyer Common Shares referred to in this clause (c) exceeds the sum of (i) the Base Share Closing Date Payment, (ii) if any Buyer Common Shares have previously been issued pursuant to Section 2.04(b), the Supplemental Share Closing Date Payment, and (iii) the number of Buyer Common Shares received by Seller pursuant to Section 9.08).
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Member” has the meaning assigned to such term in the Operating Agreement.
 
Membership Interests” has the meaning assigned to such term in the Operating Agreement.
 
Operating Agreement” means the Fourth Amended and Restated Operating Agreement of the Company, dated as of October 13, 2017.
 
Optional Share Closing Date Payment” means a number of Buyer Common Shares (rounded up to the nearest whole number of limited liability interests) equal to the quotient of (a) (i) (x) if all of the Supplemental Approvals have been obtained on or prior to the Closing, $60,000,000, or (y) if any of the Supplemental Approvals have not been obtained on or prior to the Closing, $30,000,000, minus (ii) the Deposit Amount (if previously paid pursuant to Section 2.03), minus (iii) Closing Debt, minus (iv) Unpaid Expenses, divided by (b) the Buyer Common Share Value.
 
Optional Supplemental Share Purchase Price” means a number of Buyer Common Shares equal to the Supplemental Share Purchase Price.
 
Organizational Documents” means any charter, certificate, articles or deed of incorporation, articles of organization, certificate of formation, articles of association, bylaws, operating agreement or similar formation or governing documents and instruments, including, for the avoidance of doubt, in the case of the Company, the Company’s articles of organization and the Operating Agreement.
 
Participant” means any current or former director, employee, individual independent contractor or other individual service provider of the Company or any of its subsidiaries.
 
Permitted Holder” means Fortress Investment Group LLC and any affiliate thereof, and investment funds or partnerships managed by any of the foregoing.
 
Permitted Liens” means (a) mechanics’, materialmen’s, carriers’, repairers’ and other similar Liens arising or incurred in the ordinary course of business consistent with past practice for amounts that are not yet due or are being contested in good faith by appropriate Proceedings, and for which adequate reserves have been made in accordance with GAAP, (b) Liens for taxes, assessments or other governmental charges not yet due and payable as of the Closing Date or which are being contested in good faith by appropriate Proceedings, and for which adequate reserves have been made in accordance with GAAP, (c) encumbrances, restrictions, easements, covenants, conditions, rights of way and similar matters of record affecting title to real property that, individually or in the aggregate, would not reasonably be expected to impair the conduct of the Business and (d) zoning, building codes and other land use Laws regulating the use or occupancy of real property or the activities conducted thereon which are imposed by any Governmental Entity having jurisdiction over such real property and which are not violated by the conduct of the Business.
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 “Permitted Transferee” has the meaning assigned to such term in the Stockholder Agreement.
 
person” means any individual, firm, corporation, partnership, limited liability company, trust, joint venture, Governmental Entity or other entity.
 
Pre-Closing Tax Period” means any taxable period that ends on or before the Closing Date or the portion of any Straddle Period ending on the Closing Date.
 
Pre-Closing Tax Returns” means any tax returns of the Company and each of its subsidiaries for any period ending on or before the Closing Date or any Straddle Period.
 
Proceeding” means any action, complaint, threat, order, directive, citation, notice, suit, charge, hearing, proceeding, claim or counterclaim or legal, administrative, arbitration or other alternative dispute resolution proceeding or investigation.
 
Purchase Price” means, subject to adjustment pursuant to Section 2.04, an amount in dollars equal to (a) the Cash Purchase Price plus (b) (x) if all of the Supplemental Approvals have been obtained on or prior to the Closing, $60,000,000, or (y) if any of the Supplemental Approvals have not been obtained on or prior to the Closing, $30,000,000.
 
SEC” means the United States Securities and Exchange Commission.
 
Seller Fundamental Representations” means the representations and warranties set forth in Sections 4.01, 4.02, 4.03 and 4.04.
 
Seller’s Aggregate IPO Holding” means an amount in dollars equal to the product of (x) the Buyer IPO Price multiplied by (y) the number of Buyer Public Shares held by Seller upon the closing of (and after giving effect to) a Buyer IPO (it being understood that, for purposes of this definition, (i) any Buyer Common Shares issued as part of the Optional Share Closing Date Payment or the Optional Supplemental Share Purchase Price and (ii) any Buyer Common Shares that continue to be included in the Share Indemnity Escrow Amount shall, in each case, not be considered held by Seller).
 
Share Consideration Target Value” means, as of any date of determination, an amount in dollars equal to (a) (i) the Base Share Closing Date Payment (plus, if any Buyer Common Shares have previously been issued pursuant to Section 2.04(b), the Supplemental Share Closing Date Payment), multiplied by (ii) the Buyer Common Share Value, plus (b) the Share Indemnity Release Value, minus (c) the Disposed Share Value. 
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Share Indemnity Escrow Amount” means the Base Share Indemnity Escrow Amount (plus, from and after the Supplemental Approval Closing Date (if the Supplemental Approval Closing Date occurs prior to the Release Date), the Supplemental Share Indemnity Escrow Amount). The Share Indemnity Escrow Amount is subject to adjustment pursuant to Sections 2.02(b), 2.05, 9.08 and 9.09.
 
Share Indemnity Release Value” means an amount in dollars equal to the product of (a) the Buyer Common Share Value multiplied by (b) the number of Buyer Common Shares, if any, that have been released to Seller pursuant to Section 9.08 prior to the IPO Date.
 
Share Projected Indemnity Amount” means, as of any date, the number of Buyer Common Shares (rounded to the nearest whole number of limited liability company interests or shares, as applicable) equal to the quotient of (i) the maximum aggregate amount that is reasonably determined by Buyer in good faith to be necessary to satisfy all Claims that have been timely asserted in accordance with this Agreement, but not finally resolved by that date, including an amount with respect to fees and expenses reasonably projected by Buyer in good faith to be the maximum aggregate amount necessary to cover costs and expenses related to the enforcement of such Claims divided by (ii) the Buyer Common Share Value.
 
Share Purchase Price True-Up” means a number of Buyer Public Shares (rounded to the nearest whole number of shares) equal to
 
(A + B-C-D)÷ E

where “A” is an amount in dollars equal to the product of (i) the Base Share Closing Date Payment (plus, if any Buyer Common Shares have previously been issued pursuant to Section 2.04(b), the Supplemental Share Closing Date Payment), multiplied by (ii) the Buyer Common Share Value; “B” is the Share Indemnity Release Value; “C” is the Disposed Share Value; “D” is Seller’s Aggregate IPO Holding; and “E” is the Buyer IPO Price.
 
STB” means the Surface Transportation Board.
 
Stockholder Agreement” means the stockholder agreement to be entered into at the Closing by and among Buyer and Seller, substantially in the form of Exhibit A attached hereto.
 
Straddle Period” means any taxable period that includes (but does not end on) the Closing Date.
 
subsidiary” means, with respect to any person, any other person, an amount of the voting securities or other voting ownership or voting partnership interests of which sufficient to elect at least a majority of its board of directors or other governing body (or, if there are no such voting interests, 50% or more of the equity interests of which) is owned, directly or indirectly, by such first person or by another subsidiary of such first person.
 
Supplemental Approvals” means each of the Consents set forth under Category 2 of Section 7.02(f) of the Company Disclosure Letter.

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Supplemental Approval Interest Rate” means a rate of four percent (4.0%) per annum (provided that under no circumstances will such rate be less than the short-term Applicable Federal Rate, as defined in Section 1274(d) of the Code).

Supplemental Approvals Outside Date” means the date that is ten years after the Closing Date.
 
Supplemental Cash Purchase Price” means the sum of (a) $30,000,000 and (b) interest accrued on such amount from the Closing Date to but excluding the Supplemental Approval Closing Date, at the Supplemental Approval Interest Rate.

Supplemental Share Indemnity Escrow Amount” means a number of Buyer Common Shares (rounded to the nearest whole number of limited liability company interests or shares, as applicable) equal to the quotient of (a) $5,000,000 divided by (b) the Buyer Common Share Value.
 
Supplemental Share Purchase Price” means a number of Buyer Common Shares (rounded up to the nearest whole number of limited liability company interests or shares, as applicable) equal to the quotient of (a) the sum of (i) $30,000,000 and (ii) interest accrued on such amount from the Closing Date to but excluding the Supplemental Approval Closing Date, at the Supplemental Approval Interest Rate, divided by (b) the Buyer Common Share Value.
 
Tharaldson Land Purchase” means the transactions contemplated by the Real Estate Purchase and Sale Agreement by and among Tharaldson Ethanol Plant I, LLC, TMII South Tech, LLC, C.Y. & R.I. Heritage Inn of Palmdale, Inc., C.Y. Heritage Inn of Dayton, Inc., and 4424 Polaris Avenue, LLC, collectively as seller, and Buyer, as purchaser, dated as of the date hereof (the “Tharaldson Land Purchase Agreement”).
 
Third-Party Consents” means all Consents and other approvals by or agreements with any person (other than any Governmental Entity) necessary for each of the Company and its subsidiaries to own, lease, develop or operate its properties and assets and to carry on the Business.
 
Unpaid Expenses” means, to the extent not paid and discharged by the Company and/or Seller prior to or at the Closing, an amount equal to (i) all fees, costs and expenses (including fees, costs and expenses of legal counsel, investment bankers, brokers or other representatives, advisors and consultants; appraisal fees, costs and expenses; and travel, lodging, entertainment and associated expenses) incurred by or on behalf of the Company or any of its subsidiaries on or prior to Closing in connection with this Agreement, the Acquisition and the other transactions contemplated hereby, including all fees, costs and expenses of Holland & Hart LLP plus (ii) all accrued management fees and any other fees, expenses or other amounts payable to Seller, the Manager, any Member or any of other affiliate of Seller in connection with this Agreement and the transactions contemplated hereby (including any amounts payable upon termination of any Contracts, agreements or arrangements with any of Seller or any of their affiliates in connection with this Agreement or the transactions contemplated hereby).
 
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(c)       For all purposes hereof, the terms “include”, “includes” and “including” shall be deemed to be followed by the words “without limitation”. The words “hereof”, “hereto”, “hereby”, “herein” and “hereunder” and words of similar import when used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement. The word “will” shall be construed to have the same meaning as the word “shall”. The word “or” is not exclusive. The word “extent” in the phrase “to the extent” means the degree to which a subject or other thing extends, and such phrase shall not mean simply “if”. The phrase “date hereof” or “date of this Agreement” shall be deemed to refer to September 17, 2018. Whenever the words “made available to Buyer” or similar words are used in this Agreement with respect to any documents or other information, such words shall mean that such documents or information were available to Buyer at least one business day prior to the date of this Agreement in the electronic dataroom maintained on behalf of the Company (as evidenced by a DVD or CD-ROMs imprinted with all such documents or information and delivered by the Company to Buyer promptly following the date hereof). The definitions contained in this Agreement are applicable to the singular as well as the plural forms of such terms and to the masculine as well as the feminine and neuter genders of such terms. Any applicable Law defined or referred to herein means such applicable Law as from time to time amended, modified or supplemented. Any reference to any statute herein shall also be deemed to refer to all rules and regulations promulgated thereunder. References to a person are also to its successors and permitted assigns.
 
Section 10.05     Counterparts. This Agreement may be executed in one or more counterparts, all of which shall be considered one and the same agreement, and shall become effective when one or more counterparts have been signed by each of the parties and delivered, in person or by facsimile, or by electronic image scan, receipt acknowledged, to the other parties.
 
Section 10.06     Integrated Contract. This Agreement, including the Company Disclosure Letter and Buyer Disclosure Letter, any written amendments to the foregoing satisfying the requirements of Section 10.13 hereof and the Confidentiality Agreement constitute the entire agreement between the parties with respect to the subject matter hereof and thereof and supersede any previous agreements and understandings between the parties with respect to such matters. Any term used in the Company Disclosure Letter or Buyer Disclosure Letter but not otherwise defined therein shall be defined as set forth in this Agreement.
 
Section 10.07     Severability. The invalidity, illegality or unenforceability of any portion of this Agreement shall not affect the validity, force or effect of the remaining portions of this Agreement. If it is ever held that any restriction hereunder is too broad to permit enforcement of such restriction to its fullest extent, each party agrees that a court of competent jurisdiction may enforce such restriction to the maximum extent permitted by Law, and each party hereby consents and agrees that such scope may be judicially modified accordingly in any Proceeding brought to enforce such restriction.
 
Section 10.08     Governing Law. This Agreement and disputes relating hereto (whether for breach of contract, tortious conduct or otherwise) shall be governed and construed in accordance with the Laws of the State of New York, without reference to its conflicts of law principles.
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Section 10.09     Jurisdiction. Each party irrevocably agrees that any Proceeding against it arising out of or in connection with this Agreement or the transactions contemplated hereby or disputes relating hereto (whether for breach of contract, tortious conduct or otherwise) shall be brought exclusively in (a) any New York State Court sitting in the County of New York or (b) the United States District Court for the Southern District of New York, and irrevocably accepts and submits to the exclusive jurisdiction and venue of the aforesaid courts in personam with respect to any such Proceeding. Each of Buyer, Seller and the Company irrevocably and unconditionally waives any objection to the laying of venue of any Proceeding arising out of or in connection with this Agreement or the transactions contemplated hereby or disputes relating hereto (whether for breach of contract, tortious conduct or otherwise) in (x) any New York State Court sitting in the County of New York or (y) the United States District Court for the Southern District of New York and irrevocably and unconditionally waives and agrees not to plead or claim in any such court that any such Proceeding brought in any such court has been brought in an inconvenient forum.
 
Section 10.10     Service of Process. Each party agrees that service of any process, summons, notice or document by U.S. registered mail to such party’s respective address set forth in Section 10.03 shall be effective service of process for any Proceeding in New York with respect to any matters for which it has submitted to jurisdiction pursuant to Section 10.09.
 
Section 10.11     Waiver of Jury Trial. Each party hereby waives, to the fullest extent permitted by applicable Law, any right it may have to a trial by jury in respect of any Proceeding arising out of or in connection with this Agreement or the transactions contemplated hereby or disputes relating hereto (whether for breach of contract, tortious conduct or otherwise). Each party (a) certifies that no representative, agent or attorney of any other party has represented, expressly or otherwise, that such other party would not, in the event of any Proceeding, seek to enforce the foregoing waiver and (b) acknowledges that it and the other parties have been induced to enter into this Agreement by, among other things, the mutual waivers and certifications in this Section 10.11.
 
Section 10.12     Enforcement. The parties agree that irreparable damage would occur and that the parties would not have any adequate remedy at Law in the event that any of the provisions of this Agreement were not performed in accordance with their specific terms or were otherwise breached. It is accordingly agreed that the parties shall be entitled to seek an injunction or injunctions to prevent breaches of this Agreement and to enforce specifically the provisions of this Agreement in (i) any New York State Court sitting in the County of New York or (ii) the United States District Court for the Southern District of New York, without any requirement to post a bond, this being in addition to any other remedy to which the parties are entitled at Law or in equity.

Section 10.13     Amendments. This Agreement may be amended, modified, superseded or canceled only by an instrument in writing signed by Seller and Buyer and any of the provisions hereof may be waived only by an instrument in writing signed by or on behalf of the party waiving compliance.
 
Section 10.14     Further Assurances. Each of Seller, the Company and Buyer agrees to execute and deliver, upon the written request of any other party, any and all such further instruments and documents as are reasonably appropriate for the purpose of obtaining the full benefits of this Agreement.

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Section 10.15     Transfer of Privilege; Conflict Waiver.
 
(a)          Buyer: (i) acknowledges that Holland & Hart LLP has represented Seller and the Company in connection with the transactions provided for herein and that, effective upon the Closing, the Company shall, without the necessity of further documentation of transfer, be deemed to have irrevocably assigned and transferred to Seller immediately prior to the Closing, on behalf of the Company, all of the Company’s right to, title to and interest in all communications with, and work product of, Holland & Hart LLP as they relate to this Agreement and the transactions contemplated hereby, the documents related hereto and the preparation and negotiation thereof, together with all written or other materials consisting of, containing, summarizing or embodying such communications and work product, and (ii) agree that the intent and effect of this provision is to grant Seller control over the exercise of the attorney-client privilege held by the Company in respect of this Agreement and the transactions contemplated hereby (but not any other matters), the related documents and the transactions effected by each and the preparation and negotiation thereof, together with all written or other materials consisting of, containing, summarizing or embodying such communications and work product, and (iii) agree that after the Closing, the Company will not knowingly waive the attorney-client privilege belonging to the Company, if any, relating to any matter relating to this Agreement and the transactions contemplated hereunder, all related documents and the transactions effected by each and the preparation and negotiation thereof occurring before the Closing or disclose the content of communications or work product related to such privilege to any person with the intention of or knowingly waiving the attorney-client privilege to which the communications or work product is subject, without the express written consent of Seller.
 
(b)          The parties further intend that Seller may, should it so choose, to have the benefit of representation by Holland & Hart LLP in connection with post-Closing matters concerning this Agreement, any documents contemplated hereunder and the transactions contemplated hereunder and thereunder. Accordingly, each party agrees that this Agreement will (i) constitute consultation with respect to the potential conflict of interest that Holland & Hart LLP may have as a result of its representation of the Company both historically and in connection with this Agreement and the transactions contemplated hereunder, (ii) confirm that each party understands the risks associated with potential conflicts of interest and that the parties have alternatives to waiving the potential conflict (including refusing to waive the potential conflict or declining to engage in the matter giving rise to the potential conflict), and (iii) that the parties still wish to consent to Holland & Hart LLP’s representation, if requested, of Seller in connection with matters relating to this Agreement and/or the transactions contemplated hereunder, and waive any conflicts of interest which may exist as a result of such representation, including in connection with any litigation or adversarial proceeding arising among the parties, or any of them, regarding this Agreement and the transactions contemplated hereunder. The parties acknowledge that this waiver in no way limits Holland & Hart LLP’s obligations under applicable rules of professional conduct, but that Holland & Hart LLP shall be entitled to fully rely upon this waiver to the extent permitted by the applicable rules of professional conduct.

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IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to be duly executed as of the date first written above.
 
 
BRIGHTLINE HOLDINGS LLC
         
   
By:
/s/ Kolleen Cobb
     
Name:
Kolleen Cobb
     
Title:
Vice President
         
 
DESERTXPRESS ENTERPRISES, LLC
       
   
By:
BENNY’S HOLDCO, LLC
       
   
Its:
Manager
         
   
By:
/s/ Anthony A. Marnell II
     
Name:
Anthony A. Marnell II
     
Title:
Manager
         
 
BENNY’S HOLDCO, LLC
         
   
By:
DX, LLC
       
   
Its:
Manager
         
   
By:
/s/ Anthony A. Marnell II
     
Name:
Anthony A. Marnell II
     
Title:
Manager
 
[Signature Page to Membership Interest Purchase Agreement]


 
EXHIBIT A
 
FORM OF STOCKHOLDER AGREEMENT

 

 
STOCKHOLDER AGREEMENT
 
Dated as of []
 
by and between
 
BRIGHTLINE HOLDINGS LLC
 
and
 
BENNY’S HOLDCO, LLC
 



 

 
TABLE OF CONTENTS
 

 
      Page
       
 
ARTICLE I
   
     
 
Governance
 
  
1.1
Composition of the Board of Directors
 
1
1.2
Termination of Board Designation Rights
 
3
1.3
Stockholder Information Rights
 
3
 
ARTICLE II
   
       
 
Transfers; Tag-Along; Drag-Along; Put Right
   
2.1
Transfer Restrictions
 
4
2.2
Tag Along; Drag Along; Put Right
 
6
 
ARTICLE III
   
       
 
Definitions
   
       
3.1
Defined Terms
 
10
3.2
Interpretation
 
14
 
ARTICLE IV
   
       
 
Miscellaneous
   
4.1
Term
 
14
4.2
Notices
 
15
4.3
Amendment
 
16
4.4
Assignment
 
16
4.5
Severability
 
17
4.6
Counterparts
 
17
4.7
Entire Agreement
 
17
4.8
Governing Law
 
17
4.9
Jurisdiction
 
17
4.10
Service of Process
 
18
4.11
Waiver of Jury Trial
 
18
4.12
Enforcement
 
18
4.13
Third Party Beneficiaries
 
18
4.14
Permitted Transferee Representative
 
18
4.15
Confidentiality
 
19
4.16
Cooperation
 
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This STOCKHOLDER AGREEMENT, dated as of [●] (this “Agreement”), is by and between BRIGHTLINE HOLDINGS LLC, a Delaware [limited liability company][corporation]1 (“Buyer”), and BENNY’S HOLDCO, LLC, a Nevada limited liability company (the “Stockholder”).
 
W I T N E S S E T H:
 
WHEREAS, on September 17, 2018, Buyer and the Stockholder entered into a Membership Interest Purchase Agreement (as it may be amended from time to time, the “Purchase Agreement”), pursuant to which, among other things, Buyer will issue, on the date hereof, Buyer Common Shares to the Stockholder in an amount equal to the Base Share Closing Date Payment and, if Buyer makes the Closing Date Share Election, the Optional Share Closing Date Payment; and
 
WHEREAS, each of the parties wishes to set forth in this Agreement certain terms and conditions regarding, among other things, the Stockholder’s ownership of Buyer Common Shares;
 
NOW, THEREFORE, in consideration of the premises, and of the representations, warranties, covenants and agreements set forth herein, and intending to be legally bound, the parties agree as follows:
 
ARTICLE I
 
Governance
 
1.1          Composition of the Board of Directors.
 
(a)          Upon the occurrence of the Stockholder Investor Rights Initiation Event, Buyer shall cause one (1) Stockholder Designee to be appointed to the Board.
 
(b)          During the Stockholder Investor Rights Period, subject to the other provisions of this Section 1.1, at each annual or special meeting of the stockholders of Buyer at which directors are to be elected to the Board, Buyer shall nominate and use its reasonable best efforts (which shall, subject to applicable Law and Judgment, include including in any proxy statement used by Buyer to solicit the vote of its stockholders in connection with any such meeting the recommendation of the Board that stockholders of Buyer vote in favor of the slate of directors) to cause the election to the Board of a slate of directors that includes one (1) Stockholder Designee. 


1 To be updated based on type of entity at Closing.
 

(c)          The Stockholder shall notify Buyer of the identity of any proposed Stockholder Designee, in writing, at or before the time such information is reasonably requested by the Board or any applicable committee of the Board responsible for governance and board nominating matters (the “Governance and Nominating Committee”) to permit a reasonable time for the Board to review such proposed Stockholder Designee and for inclusion in a proxy statement for a meeting of stockholders, and shall furnish all information about such proposed Stockholder Designee as shall be reasonably requested by the Board or the Governance and Nominating Committee in connection therewith (including, at a minimum, any information regarding such proposed Stockholder Designee to the extent required by applicable Law or Judgment, including applicable securities Laws). Notwithstanding the provisions of this Article I, the Stockholder shall not be entitled to designate a particular Stockholder Designee (or, for the avoidance of doubt, any particular Stockholder Director) to the Board pursuant to this Article I if such Stockholder Designee is not reasonably acceptable to the Board and the Governance and Nominating Committee (it being understood that each of Anthony A. Marnell II and Anthony A. Marnell III is, as of the date of this Agreement, reasonably acceptable to the Board and the Governance and Nominating Committee).

(d)          Subject to Section 1.1(c), so long as no Stockholder Investor Rights Termination Event has occurred, in the event of (i) the death, disability, removal or resignation of the Stockholder Director, the Board shall promptly appoint as a replacement Stockholder Director the Stockholder Designee designated by the Stockholder to fill the resulting vacancy and to serve for the term that such Stockholder Director would have served but for such Stockholder Director’s death, disability, removal or resignation, or (ii) the failure of a Stockholder Designee to be elected to the Board at any annual or special meeting of the stockholders of Buyer during the Stockholder Investor Rights Period and at which such Stockholder Designee stood for election but was nevertheless not elected (such Stockholder Designee, a “Stockholder Specified Designee”), the Board shall promptly appoint another Stockholder Designee designated by the Stockholder to serve in lieu of such Stockholder Specified Designee as the Stockholder Director during the term that such Stockholder Specified Designee would have served had such Stockholder Specified Designee been elected at such meeting of the stockholders of Buyer, and, in each case of clause (i) and clause (ii), such individual shall then be deemed the Stockholder Director for all purposes hereunder.
 
(e)          Buyer shall at all times provide each Stockholder Director (in his or her capacity as a member of the Board) with the same rights to indemnification, advancement of expenses and exculpation that it provides to the other members of the Board.
 
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(f)          For the avoidance of doubt, subject to applicable Law and Judgment, for so long as a Stockholder Director is a member of the Board, Buyer and its subsidiaries will prepare and provide, or cause to be prepared and provided, to such Stockholder Director (in his or her capacity as such) any materials or other information prepared for or given to any other member of the Board (excluding any such materials or other information prepared for and given solely to the [Chief Executive Officer] and no other member of the Board), as and when prepared for or given to any such other member, or any other materials or other information relating to the management, operations and finances of Buyer and its subsidiaries as and when generally provided to directors of Buyer; provided, however, that the Stockholder Director shall not be entitled to attend or participate in, and shall, to the extent applicable, waive notice and recuse himself or herself from, such meetings as a party thereto, and shall not be entitled to receive any information, in each case to the extent related to the Stockholder or the Purchase Agreement, any ancillary transaction documents related thereto or any of the transactions contemplated thereby or otherwise related to any other commercial relationship between the Stockholder or any of its affiliates, on the one hand, and Buyer or any of its affiliates, on the other hand. Each Stockholder Director shall be bound by and subject to the same confidentiality obligations as each other director of Buyer.
 
1.2          Termination of Board Designation Rights. Promptly upon the occurrence of a Stockholder Investor Rights Termination Event, all obligations of Buyer with respect to, and all rights of, the Stockholder and the Stockholder Director or Stockholder Designee pursuant to this Article I (other than rights to indemnification, advancement of expenses and exculpation) shall terminate and the Stockholder shall cause the Stockholder Director to immediately resign from the Board. In furtherance of the foregoing, each Stockholder Designee shall, prior to (and as a condition to) his or her appointment or election to the Board, and the Stockholder shall cause each Stockholder Designee to, execute an irrevocable resignation as director which will automatically become effective upon a Stockholder Investor Rights Termination Event.
 
1.3          Stockholder Information Rights.
 
(a)          Quarterly Financial Statements. Buyer shall deliver to the Stockholder, within 90 calendar days after the end of each fiscal quarter of OpCo (other than the last fiscal quarter of any fiscal year of OpCo):
 
(i)           an unaudited balance sheet as at the end of such fiscal quarter; and
 
(ii)          an unaudited income statement for such fiscal quarter;
 
in each case for OpCo and its subsidiaries (on a consolidated basis), excluding footnotes thereto, all prepared in accordance with GAAP (applicable to non-public companies) consistently applied throughout the periods covered thereby, subject to changes resulting from normal year-end adjustments.

(b)          Annual Financial Statements. Buyer shall deliver to the Stockholder, within 120 calendar days after the end of each fiscal year of OpCo:
 
(i)           an audited balance sheet as at the end of such fiscal year; and
 
(ii)          an audited income statement and statement of cash flows for such fiscal year;
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in each case for OpCo and its subsidiaries (on a consolidated basis), including any footnotes thereto, prepared in accordance with GAAP (applicable to non-public companies) consistently applied throughout the periods covered thereby (except as otherwise disclosed in the footnotes thereto).

(c)          Other Information. Buyer will consider and respond in good faith to reasonable requests made by the Stockholder for other information related to the Stockholder’s investment in Buyer; provided, however, that Buyer shall not be required to provide any such information if (i) Buyer determines in good faith that such information is competitively sensitive; (ii) such information relates to the Purchase Agreement, any ancillary transaction documents related thereto or any of the transactions contemplated thereby or otherwise relates to any commercial relationship between the Stockholder or any of its affiliates, on the one hand, and Buyer or any of its affiliates, on the other hand; or (iii) Buyer determines in good faith that providing such information would reasonably be expected to (A) jeopardize an attorney-client privilege or cause a loss of attorney work product protection or (B) violate any applicable Law or Judgment or any Contract with a third party.
 
(d)          Termination. The provisions of this Section 1.3 shall terminate upon the earlier to occur of (i) the consummation of a Buyer IPO and (ii) the Stockholder Disposition Event.
 
(e)          Limitation on Other Rights. The rights of the Stockholder under this Section 1.3 are in lieu of any other rights to information that may be available under the Delaware Act (including pursuant to Section 18-305 of the Delaware Act) or common law in its capacity as a member of Buyer, to the extent applicable.
 
ARTICLE II
 
Transfers; Tag-Along; Drag-Along; Put Right
2.1          Transfer Restrictions.

(a)          Other than Permitted Transfers, subject to Sections 2.1(c) and 2.1(d), the Stockholder shall not, directly or indirectly, Transfer any Buyer Common Shares until the date following the later of (i) consummation of the Buyer IPO and (ii) the last day of any lock-up period agreed to by the Stockholder in connection with such Buyer IPO (such later date, the “Restricted Period Termination Date”).
 
(b)          Permitted Transfers” means, in each case so long as such Transfer is in accordance with applicable Laws and Judgments and the provisions of Buyer’s Organizational Documents:

(i)            a Transfer of Buyer Common Shares to a Permitted Transferee, so long as such Permitted Transferee, to the extent it has not already done so, executes a customary joinder to this Agreement, in form and substance reasonably acceptable to Buyer, in which such Transferee makes customary representations and warranties and agrees to be subject to all covenants and agreements of the Stockholder under this Agreement; provided that if at any time the Transferee ceases to be an affiliate of such Transferor, such Transferee shall, and such Transferor shall procure that such Transferee shall, immediately Transfer back the Transferred Buyer Common Shares to such Transferor as if such Transfer had not taken place ab initio, and Buyer shall no longer, and shall instruct its transfer agent and other third parties to no longer, record or recognize such Transfer on the share register of Buyer;

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 (ii)         the application of (A) Section 2.02(c) of the Purchase Agreement or (B) Section 9.09 of the Purchase Agreement;
 
 (iii)        a Transfer of Buyer Common Shares pursuant to Section 2.2(a); and
 
 (iv)         any other Transfer of Buyer Common Shares with Buyer’s prior written consent, such consent not to be unreasonably withheld, conditioned or delayed.

(c)           If, as of the date following the first anniversary of this Agreement, (i) Buyer has not consummated a Buyer IPO and (ii) the Stockholder Disposition Event has not occurred prior to such date, then the Stockholder shall have the right (on behalf of itself and the Permitted Transferees) to deliver, on one occasion, a written notice to Buyer on or prior to the date that is five (5) business days after the first anniversary of this Agreement (such notice, a “Third Party Transfer Election”), electing to terminate the restrictions on Transfer set forth in Section 2.1(a) for a period of 90 days following the delivery of such Third Party Transfer Election and to require Buyer to, for such 90 day period, use commercially reasonable efforts to provide such assistance as is reasonably requested by the Stockholder (on behalf of itself and the Permitted Transferees) in connection with any proposed Transfer by the Stockholder or any Permitted Transferee of Buyer Common Shares then held by the Stockholder or such Permitted Transferee to any proposed Transferee, including reasonably cooperating with the due diligence of the proposed Transferee by making available to such proposed Transferee (subject to customary confidentiality obligations by such proposed Transferee) (A) the financial statements referred to in Sections 1.3(a) and 1.3(b) and (B) such other customary due diligence information reasonably requested by the Stockholder (on behalf of itself and the applicable Permitted Transferees) or such proposed Transferee.
 
(d)           If, as of any of (i) the Release Date, (ii) each date contemplated in Section 9.08(b) of the Purchase Agreement or (iii) the Supplemental Approval Trigger Date (each such date, a “Third Party Transfer Trigger Date”), (A) Buyer has not consummated a Buyer IPO and (B) the Stockholder Disposition Event has not occurred prior to such date, then the Stockholder shall have the right (on behalf of itself and the Permitted Transferees) to deliver, on one occasion in respect of each Third Party Transfer Trigger Date, a Third Party Transfer Election to Buyer on or prior to the date that is five (5) business days after any such Third Party Transfer Trigger Date, electing to terminate the restrictions on Transfer set forth in Section 2.1(a) for a period of 90 days following the delivery of such Third Party Transfer Election and to require Buyer to, for such 90 day period, use commercially reasonable efforts to provide such assistance as is reasonably requested by the Stockholder (on behalf of itself and the Permitted Transferees) in connection with any proposed Transfer by the Stockholder or any Permitted Transferee of Buyer Common Shares then held by the Stockholder or such Permitted Transferee to any proposed Transferee, including reasonably cooperating with the due diligence of the proposed Transferee by making available to such proposed Transferee (subject to customary confidentiality obligations by such proposed Transferee) (x) the financial statements referred to in Sections 1.3(a) and 1.3(b) and (y) such other customary due diligence information reasonably requested by the Stockholder (on behalf of itself and the applicable Permitted Transferees) or such proposed Transferee.
 
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(e)          Notwithstanding anything to the contrary contained herein, including the occurrence of the Restricted Period Termination Date or any Third Party Transfer Election, the Stockholder shall not, directly or indirectly, Transfer any Buyer Common Shares other than in accordance with applicable Law and Judgment and Buyer’s Organizational Documents. Until the consummation of a Buyer IPO, Buyer shall not, and shall cause its members not to, amend or otherwise modify its Organizational Documents in any manner that would result in any restrictions on Transfer therein becoming more restrictive than any restrictions on Transfer set forth in Buyer’s Organizational Documents as of the date of the Purchase Agreement.
 
(f)          Any Transfer or attempted Transfer of Buyer Common Shares in violation of this Section 2.1 shall, to the fullest extent permitted by applicable Law and Judgment, be null and void ab initio, and Buyer shall not, and shall instruct its transfer agent and other third parties not to, record or recognize any such purported transaction on the share register or other books and records of Buyer. Any share certificate or other instrument evidencing the Buyer Common Shares issued to the Stockholder on the Closing Date shall bear a legend detailing the restrictions on transfer set forth in this Agreement.

2.2           Tag Along; Drag Along; Put Right.

(a)           Tag Along Rights. Notwithstanding anything in Section 2.1 to the contrary, if any Fortress Stockholder or group of Fortress Stockholders proposes to effect a Change of Control Sale prior to the consummation of the Buyer IPO, the Stockholder may, at its option, elect to exercise its rights under this Section 2.2(a).

(i)           In the event of a proposed Change of Control Sale, Buyer shall deliver to the Stockholder: (A) a written notice of the terms and conditions of such Change of Control Sale (a “Change of Control Notice”) and offer the Stockholder (and any Permitted Transferee that then owns any Buyer Common Shares) the opportunity to participate in such Change of Control Sale on the same terms and conditions, subject to the same agreements and for the same consideration, as the applicable Fortress Stockholders participating in such Change of Control Sale and (B) the purchase agreement (or similar instrument of transfer), including all attachments and schedules, that is the subject of such Change of Control Sale.
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(ii)           From the date of the delivery of all of the information described in Section 2.2(a)(i), until the date that is 10 business days thereafter (the “Tag Along Election Period”), the Stockholder (and any Permitted Transferee that then owns any Buyer Common Shares) shall have the right, exercisable by written notice delivered by the Stockholder (such participating Stockholder and such other participating Permitted Transferees that then own any Buyer Common Shares, a “Tag Along Stockholder”) to Buyer within such Tag Along Election Period, to request that the applicable Fortress Stockholders include in the Change of Control Sale the number of Buyer Common Shares as is specified in such notice; provided, however, that if the aggregate number of Buyer Common Shares proposed to be Transferred by the applicable Fortress Stockholders, the Tag Along Stockholders and any other holder of Buyer Common Shares in the Change of Control Sale exceeds the number of Buyer Common Shares that can be Transferred on the terms and conditions set forth in the Change of Control Notice, then only the Tag Along Portion of Buyer Common Shares held by the applicable Fortress Stockholders and the Tag Along Stockholders shall be Transferred pursuant to the applicable Change of Control Sale. All out-of-pocket costs and expenses incurred by the Tag Along Stockholders in connection with a Change of Control Sale described in this Section 2.2(a) shall be paid by the Tag Along Stockholders. In connection with any Change of Control Sale described in this Section 2.2(a), the closing of the Transfer of Buyer Common Shares held by the applicable Fortress Stockholders and the closing of the Transfer of Buyer Common Shares held by each Tag Along Stockholder shall each occur on the same date.

 
(iii)           Notwithstanding the foregoing, the Fortress Stockholders may at any time prior to consummation of a Change of Control Sale described in this Section 2.2(a) terminate the proposed Transfer and the related tag along rights of any Tag Along Stockholder with respect to such proposed Transfer. Buyer shall cause the Fortress Stockholders to comply with the provisions of this Section 2.2(a).
 
(b)           Drag Along. Notwithstanding anything in Section 2.1 to the contrary, if Buyer or any Fortress Stockholder or group of Fortress Stockholders proposes to effect a Change of Control Sale prior to the consummation of a Buyer IPO, Buyer or such Fortress Stockholders may, at their option, require the Stockholder (and any Permitted Transferee that then owns any Buyer Common Shares) to Transfer in such Change of Control Sale all of the Buyer Common Shares then owned by the Stockholder (and such other Permitted Transferees that then own any Buyer Common Shares) (collectively, the “Drag Along Stockholders”) on the same terms and conditions, subject to the same agreements and for the same consideration, as the applicable Fortress Stockholders participating in such Change of Control Sale, pursuant to the terms of this Section 2.2(b).
 
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 (i)           In the event Buyer or any Fortress Stockholders elect to exercise their rights pursuant to this Section 2.2(b), Buyer shall provide to the Stockholder a Change of Control Notice not later than the 10th business day prior to the closing of the proposed Change of Control Sale.
 
(ii)           Upon receipt of a Change of Control Notice, the Drag Along Stockholders shall be required to participate in the Change of Control Sale, on the terms and conditions set forth in the Change of Control Notice (subject to this Section 2.2(b)(ii) and Section 2.2(b)(iii)) and, if any such Change of Control Sale involves a merger, consolidation or sale of all or substantially all assets of Buyer and its subsidiaries, the Drag Along Stockholders shall be required to vote in favor of or consent in writing to such merger, consolidation or sale of all or substantially all assets (and, without limiting the foregoing, each Drag Along Stockholder shall (to the extent applicable) waive any dissenters’ rights, appraisal rights or similar rights in connection therewith). In connection with the foregoing, each Drag Along Stockholder shall be required to join and become a party to each agreement that is approved by Buyer or any Fortress Stockholder or group of Fortress Stockholders, as applicable (or to which any Fortress Stockholder is a party), in connection with a Change of Control Sale, including any such agreement that provides for representations and warranties, indemnification obligations (including escrows, hold backs or other similar arrangements to support such indemnification obligations), releases, covenants or other obligations, in each case, of the holders of Buyer Common Shares party thereto; provided that (x) except in the case of the following clause (y), the indemnification obligations of each Drag Along Stockholder in connection with a Change of Control Sale shall be the same as those made by the Fortress Stockholders and apportioned based on such Drag Along Stockholder’s pro rata portion of the aggregate consideration received by the holders of Buyer Common Shares in such transaction, (y) with respect to breaches of Fundamental Representations made by any Drag Along Stockholder in connection with a Change of Control Sale, such Drag Along Stockholder shall be solely liable, and (z) the aggregate amount of liability for any Drag Along Stockholder shall not in any case exceed the total consideration received by such Drag Along Stockholder in the Change of Control Sale. The Stockholder (i) hereby appoints Buyer or any designee thereof as its representative in connection with any agreement contemplated by this Section 2.2(b) (including the right to resolve any potential indemnification claims or other disputes on behalf of the Fortress Stockholders and the Drag Along Stockholders) and (ii) hereby irrevocably grants to, and appoints, Buyer or any designee thereof, as the Stockholder’s proxy and attorney in fact (with full power of substitution), for and in the name, place and stead of each Drag Along Stockholder, to vote the Buyer Common Shares held by each Drag Along Stockholder, or to grant a consent or approval in respect of such Buyer Common Shares, in connection with any meeting of Buyer or any action by written consent in lieu of a meeting of Buyer with respect to a Change of Control Sale. The Stockholder hereby affirms that such irrevocable proxy is given to secure the performance of the duties of the Stockholder under this Agreement, and is coupled with an interest and irrevocable. All out of pocket costs and expenses incurred by any Drag Along Stockholder in connection with a Change of Control Sale described in this Section 2.2(b) shall be paid by such Drag Along Stockholder. In connection with any Change of Control Sale described in this Section 2.2(b), the closing of the Transfer of Buyer Common Shares held by the applicable Fortress Stockholders and the closing of the Transfer of Buyer Common Shares held by each Drag Along Stockholder shall each occur on the same date.
 
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(iii)           Notwithstanding the foregoing, Buyer and the applicable Fortress Stockholders may at any time prior to consummation of a Change of Control Sale described in this Section 2.2(b) terminate the proposed Transfer and any concomitant drag along obligations of any Drag Along Stockholders with respect to such proposed Transfer.

(c)           Put Right.
 
(i)           If, as of the date that is 90 days after the date on which the Stockholder delivers a Third Party Transfer Election pursuant to Sections 2.1(c) or 2.1(d) (any such date, a “Put Trigger Date”), (A) Buyer has not consummated a Buyer IPO and (B) the Stockholder or any Permitted Transferee continue to hold Buyer Common Shares, then the Stockholder shall have the right (on behalf of itself and the Permitted Transferees) to deliver, on one occasion in respect of each Put Trigger Date, a written notice to Buyer on or prior to the date that is 30 days after any such Put Trigger Date, electing to require Buyer to purchase all the Buyer Common Shares then held by the Stockholder or any Permitted Transferee within 90 days of delivery of the written notice to Buyer of such election (any such date, a “Put Closing Date”), at a price per Buyer Common Share equal to the Buyer Common Share Value (this amount, the “Put Amount”). The Stockholder and each Permitted Transferee, as applicable, shall execute and deliver to Buyer customary share transfer documentation reasonably requested by Buyer in connection with any Transfer of Buyer Common Shares contemplated by this Section 2.2(c) and, without limiting the foregoing, the Stockholder and each such Permitted Transferee shall be required to make Fundamental Representations to Buyer in the definitive share transfer documentation related to any such Transfer.
 
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 (ii)           Notwithstanding anything herein to the contrary, if, following the Closing and prior to the applicable Put Closing Date, there has been a material and sustained disruption of, or material and sustained adverse change in, conditions in the financial, banking or capital markets that, in Buyer’s reasonable judgment, would materially impair Buyer’s ability to obtain the financing necessary to pay the Put Amount to the Stockholder or any Permitted Transferee, as applicable, on commercially reasonable terms, then Buyer may, upon delivery of written notice to the Stockholder and such Permitted Transferees, extend such Put Closing Date until such time at which such financing becomes available on commercially reasonable terms (this time period, the “Put Closing Extension Period”). Buyer shall use reasonable best efforts to obtain this financing at the earliest reasonable opportunity. During any Put Closing Extension Period, interest on the Put Amount will accrue at a rate of four percent (4.0%) per annum; provided that under no circumstances will such interest rate be less than the short-term Applicable Federal Rate, as defined in Section 1274(d) of the Internal Revenue Code (the “AFR”), and Buyer and the Stockholder shall periodically review this interest rate (and no less than annually) until the Put Amount is fully paid to ensure this interest rate continues to exceed the AFR. Buyer’s internal records of applicable interest rates will be determinative in the absence of manifest error.
 
(d)           Notwithstanding anything in this Agreement to the contrary, this Section 2.2 shall terminate immediately upon the consummation of a Buyer IPO.
 
ARTICLE III
 
Definitions
 
3.1           Defined Terms. Terms that are not otherwise defined in this Agreement shall have the meaning ascribed to them in the Purchase Agreement. As used in this Agreement, the following terms shall have the following meanings:
 
AFR” has the meaning set forth in Section 2.2(c)(ii).
 
Agreement” has the meaning set forth in the preamble.
 
Beneficially Own” or “Beneficial Ownership” has the meaning assigned to such term in Rule 13d-3 under the Securities Exchange Act of 1934, as amended, and a person’s beneficial ownership of securities shall be calculated in accordance with the provisions of such Rule (in each case, irrespective of whether or not such Rule is actually applicable in such circumstance).
 
Board” means Buyer’s board of directors, board of managers or other governing body (as applicable).       
 
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Buyer” has the meaning set forth in the preamble.
 
Change of Control Notice” has the meaning set forth in Section 2.2(a).
 
Change of Control Sale” means any transaction or series of related transactions in which any Fortress Stockholder or group of Fortress Stockholders proposes to Transfer (whether by merger, consolidation or sale or other Transfer of Buyer Common Shares or otherwise) 50% or more of the then outstanding Buyer Common Shares to any person (other than another Fortress Stockholder or other affiliate of Holdings).
 
Delaware Act” means the Delaware Limited Liability Company Act (6 Del. C. Section 18-101, et seq.), as amended from time to time.
 
Drag Along Stockholder” has the meaning set forth in Section 2.2(b).
 
Fortress” means [●].2
 
Fortress Stockholder” means Holdings and any affiliate of Fortress (other than Buyer and its subsidiaries) that Beneficially Owns Buyer Common Shares at any time.
 
Fundamental Representations” means certain customary “fundamental representations” to be made by the holders of Buyer Common Shares in connection with a Change of Control Sale or a Transfer to Buyer as contemplated by Section 2.2(c), as applicable, including representations with respect to ownership and authority to Transfer, free of liens, claims and encumbrances, the Buyer Common Shares proposed to be Transferred by such holder of Buyer Common Shares, no conflicts and absence of approvals with respect to the Buyer Common Shares proposed to be Transferred by such holder of Buyer Common Shares, the due authorization, execution, delivery and enforceability of the definitive documents entered into by such holder of Buyer Common Shares in connection with such Transfer, no brokers and compliance with applicable Laws and Judgments.
 
Governance and Nominating Committee” has the meaning set forth in Section 1.1(c).
 
Holdings” means AAF Holdings LLC, a Delaware limited liability company.
 
OpCo” means Brightline Trains LLC.
 
Permitted Transferee” means each of DX, LLC, Transmax LLC, TXE II, LLC, Rogich Communications Group, Inc. and any affiliate of the foregoing.
 
Permitted Transfers” has the meaning set forth in Section 2.1(b).
 

2 Note to Draft: To reference applicable Fortress fund that controls Buyer.
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Purchase Agreement” has the meaning set forth in the recitals.
 
Put Amount” has the meaning set forth in Section 2.2(c)(i).
 
Put Closing Date” has the meaning set forth in Section 2.2(c)(i).
 
Put Closing Extension Period” has the meaning set forth in Section 2.2(c)(ii).
 
Put Trigger Date” has the meaning set forth in Section 2.2(c)(i).
 
Restricted Period Termination Date” has the meaning set forth in Section 2.1(a).
 
Stockholder” has the meaning set forth in the preamble.
 
Stockholder Designee” means an individual designated in writing by the Stockholder for nomination for election or for appointment to the Board.
 
Stockholder Director” means a Stockholder Designee who has been elected or appointed to the Board.
 
Stockholder Disposition Event” means the date upon which the Stockholder and its Permitted Transferees cease to collectively hold a number of Buyer Common Shares in excess of 35% of the aggregate number of Buyer Common Shares previously issued and delivered to the Stockholder pursuant to Sections 2.01, 2.02 and 2.04 of the Purchase Agreement; provided that (i) the Buyer Common Share Repurchase Amount shall be disregarded for purposes of this definition from and after the Buyer Common Share Repurchase Closing Date and (ii) a previously occurring Stockholder Disposition Event will be deemed not to have occurred for purposes of Article II of this Agreement if, as a result of an issuance of Buyer Common Shares to the Stockholder pursuant to Section 2.02 or 2.04 of the Purchase Agreement, the Stockholder and its Permitted Transferees collectively hold a number of Buyer Common Shares in excess of 35% of the aggregate number of Buyer Common Shares previously issued and delivered to the Stockholder pursuant to Sections 2.01, 2.02 and 2.04 of the Purchase Agreement.
 
Stockholder Investor Rights Initiation Event” means the date upon which the Buyer IPO is consummated; provided that the Stockholder Investor Rights Initiation Event will be deemed not to have occurred if the Stockholder has Transferred any Buyer Common Shares (other than a Permitted Transfer) prior to such date.
 
Stockholder Investor Rights Period” means the period beginning on the occurrence of the Stockholder Investor Rights Initiation Event and ending upon the earlier to occur of (i) a Stockholder Investor Rights Termination Event or (ii) the date immediately following the conclusion of the second annual stockholder meeting of Buyer following a Buyer IPO.
 
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Stockholder Investor Rights Termination Event” shall be deemed to occur, as of the end of any business day following the occurrence of the Stockholder Investor Rights Initiation Event, upon the earlier of (i) the Stockholder Disposition Event or (ii) a material breach of this Agreement by the Stockholder or any Permitted Transferee, if such material breach has not been or is incapable of being cured within five (5) days after the receipt by the Stockholder or Permitted Transferee (as applicable) of written notice thereof.
 
Stockholder Specified Designee” has the meaning set forth in Section 1.1(d).
 
Supplemental Approval Trigger Date” means the Supplemental Approval Closing Date; provided that such date is more than twelve months following the date of this Agreement.
 
Tag Along Portion” means, with respect to any person, the product of: (i) the aggregate number of Buyer Common Shares proposed to be Transferred in a Change of Control Sale contemplated pursuant to Section 2.2(a), multiplied by (ii) a fraction, the numerator of which is the number of Buyer Common Shares held by such person and the denominator of which is the aggregate number of Buyer Common Shares then held by the Fortress Stockholders, the Tag Along Stockholders and any other holders of Buyer Common Shares, in each case participating in such Change of Control Sale.
 
Tag Along Stockholder” has the meaning set forth in Section 2.2(a)(ii).
 
Tharaldson Land Purchase Agreement” means the Real Estate Purchase and Sale Agreement by and among Tharaldson Ethanol Plant I, LLC, TMII South Tech, LLC, C.Y. & R.I. Heritage Inn of Palmdale, Inc., C.Y. Heritage Inn of Dayton, Inc., and 4424 Polaris Avenue, LLC, collectively as seller, and Buyer, as purchaser, dated as of September 17, 2018.
 
Third Party Transfer Election” has the meaning set forth in Section 2.1(c).
 
Third Party Transfer Trigger Date” has the meaning set forth in Section 2.1(d).
 
Transfer” means (i) any direct or indirect offer, sale, lease, assignment, encumbrance, pledge, grant of a security interest, hypothecation, disposition or other transfer (by operation of Law or otherwise), either voluntary or involuntary, or entry into any contract, option or other arrangement or understanding with respect to any offer, sale, lease, assignment, encumbrance, pledge, hypothecation, disposition or other transfer (by operation of Law or otherwise), of any capital stock or interest in any capital stock or (ii) in respect of any capital stock or interest in any capital stock, the entry into any swap or any other agreement, transaction or series of transactions that hedges or transfers, in whole or in part, directly or indirectly, the economic consequence of ownership of such capital stock or interest in capital stock, whether any such swap, agreement, transaction or series of transactions is to be settled by delivery of securities, in cash or otherwise. “Transferor” means a person that Transfers or proposes to Transfer; and “Transferee” means a person to whom a Transfer is made or is proposed to be made.
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3.2           Interpretation. The descriptive headings of the several Articles and Sections of this Agreement and the Table of Contents to this Agreement are inserted for convenience only, do not constitute a part of this Agreement and shall not affect in any way the meaning or interpretation of this Agreement. All references herein to “Articles” or “Sections” shall be deemed to be references to Articles or Sections hereof unless otherwise indicated. For all purposes hereof, the terms “include”, “includes” and “including” shall be deemed to be followed by the words “without limitation”. The words “hereof”, “hereto”, “hereby”, “herein” and “hereunder” and words of similar import when used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement. The word “will” shall be construed to have the same meaning as the word “shall”. The word “or” is not exclusive. The word “extent” in the phrase “to the extent” means the degree to which a subject or other thing extends, and such phrase shall not mean simply “if”. The phrase “date hereof” or “date of this Agreement” shall be deemed to refer to [●]. The definitions contained in this Agreement are applicable to the singular as well as the plural forms of such terms and to the masculine as well as the feminine and neuter genders of such terms. Any applicable Law defined or referred to herein means such applicable Law as from time to time amended, modified or supplemented. Any reference to any statute herein shall also be deemed to refer to all rules and regulations promulgated thereunder. References to a person are also to its successors and permitted assigns. With respect to Buyer Common Shares, such term shall include any shares of Buyer Common Shares or other securities of Buyer received by the Stockholder or any Permitted Transferee as a result of any stock split, stock dividend or distribution, or other subdivision, reorganization, reclassification or similar capital transaction.
 
ARTICLE IV
 
Miscellaneous
 
4.1          Term. This Agreement shall be effective as of the date hereof and shall automatically terminate upon a Stockholder Investor Rights Termination Event. If this Agreement is terminated pursuant to this Section 4.1, this Agreement shall become void and of no further force and effect, except for the provisions set forth in Section 1.2, Section 3.2 and this Article IV.
 
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4.2          Notices. All notices, requests, permissions, waivers and other communications hereunder shall be in writing and shall be deemed to have been duly given (a) three business days following sending by registered or certified mail, postage prepaid, (b) when sent, if sent by email (with written confirmation of receipt), (c) when delivered, if delivered personally to the intended recipient, and (d) one business day following sending by overnight delivery via a national courier service and, in each case, addressed to a party at the following address for such party:
 
if to Buyer,
 
Florida East Coast Industries
161 NE 6th Street, Suite 900
Miami, FL 33136
Attention:         Patrick Goddard
Email:               Patrick.Goddard@feci.com
 
Florida East Coast Industries
117 NE 1st Ave., 11th Floor
Miami, FL 33132
Attention:         Kolleen Cobb
Email:               Kolleen.Cobb@feci.com
 
with a copy to:
 
Cravath, Swaine & Moore LLP
Worldwide Plaza
825 Eighth Avenue
New York, NY 10019-7475
Attention:         Damien R. Zoubek, Esq.
O. Keith Hallam, III, Esq.
Email:               dzoubek@cravath.com
khallam@cravath.com
 
if to Holdings,
 
Fortress Investment Group
1345 Avenue of the Americas
New York, NY 10105
Attention:         Ken Nicholson
Email:               knicholson@fortress.com
 
with a copy to:
 
Cravath, Swaine & Moore LLP
Worldwide Plaza
 825 Eighth Avenue
 New York, NY 10019-7475
Attention:         Damien R. Zoubek, Esq.
O. Keith Hallam, III, Esq.
Email:               dzoubek@cravath.com
khallam@cravath.com
 
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if to the Stockholder,
 
Marnell Companies
222 Via Marnell Way
Las Vegas, Nevada 89119
Attention:         Anthony A. Marnell II
Email:               tmarnell2@marnellcompanies.com
 
with a copy to:
 
Holland & Hart LLP
9555 Hillwood Drive
2nd Floor
Las Vegas, NV 89134
Attention:          Gregory Gilbert, Esq.          
Email:                GSGilbert@hollandhart.com

or to such other address(es) as shall be furnished in writing by any such party to the other parties in accordance with the provisions of this Section 4.2.
 
4.3          Amendment. Subject to Section 4.14, this Agreement may be amended, modified, superseded or canceled only by an instrument in writing signed by the Stockholder and Buyer and any of the provisions hereof may be waived only by an instrument in writing signed by or on behalf of the party waiving compliance.
 
4.4          Assignment. Neither this Agreement nor any of the rights or obligations of the parties hereunder may be assigned by any of the parties (including by operation of Law or otherwise) without the prior written consent of the other party; provided that (a) the Stockholder may assign its rights and obligations under this Agreement in connection with a Transfer to a Permitted Transferee made in compliance with the terms of this Agreement (it being understood, however, that in the event of any Transfer other than pursuant to Section 2.1(b)(i), such Transferee in such Transfer shall not be entitled to any of the benefits of this Agreement) and (b) the Stockholder may assign its rights and obligations set forth in Section 4.14 as the designated representative of any and all of the Permitted Transferee to DX, LLC without the prior written consent of Buyer (provided that the Stockholder shall give Buyer prior written notice of any such assignment). Subject to the immediately preceding sentence, this Agreement shall be binding upon, and inure to the benefit of and be enforceable by, the parties and their respective successors and permitted assigns. Any attempted assignment in violation of this Section 4.4 shall be void.

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4.5          Severability. The invalidity, illegality or unenforceability of any portion of this Agreement shall not affect the validity, force or effect of the remaining portions of this Agreement. If it is ever held that any restriction hereunder is too broad to permit enforcement of such restriction to its fullest extent, each party agrees that a court of competent jurisdiction may enforce such restriction to the maximum extent permitted by Law, and each party hereby consents and agrees that such scope may be judicially modified accordingly in any Proceeding brought to enforce such restriction.
 
4.6          Counterparts. This Agreement may be executed in one or more counterparts, all of which shall be considered one and the same agreement, and shall become effective when one or more counterparts have been signed by each of the parties and delivered, in person or by facsimile, or by electronic image scan, receipt acknowledged, to the other parties.
 
4.7          Entire Agreement. This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes any previous agreements and understandings between the parties with respect to such matters. No party shall take, or cause to be taken, including by entering into agreements or other arrangements with provisions or obligations that conflict, or purport to conflict, with the terms of this Agreement or any of the transactions contemplated hereby, any action with either an intent or effect of impairing any such other person’s rights under this Agreement.
 
4.8          Governing Law. This Agreement and disputes relating hereto (whether for breach of contract, tortious conduct or otherwise) shall be governed and construed in accordance with the Laws of the State of Delaware, without reference to its conflicts of law principles.
 
4.9          Jurisdiction. Each party (a) submits to the personal jurisdiction of the Delaware Court of Chancery in and for New Castle County, or in the event (but only in the event) that such Delaware Court of Chancery does not have subject matter jurisdiction over such dispute, the United States District Court for the District of Delaware, or in the event (but only in the event) that such United States District Court also does not have jurisdiction over such dispute, any Delaware State court sitting in New Castle County, in the event any dispute (whether in contract, tort or otherwise) arises out of this Agreement or the transactions contemplated hereby, (b) agrees that it shall not attempt to deny or defeat such personal jurisdiction by motion or other request for leave from any such court and (c) agrees that it shall not bring any claim, action or proceeding relating to this Agreement or the transactions contemplated hereby in any court other than the Delaware Court of Chancery in and for New Castle County, or in the event (but only in the event) that such Delaware Court of Chancery does not have subject matter jurisdiction over such claim, action or proceeding, the United States District Court for the District of Delaware, or in the event (but only in the event) that such United States District Court also does not have jurisdiction over such claim, action or proceeding, any Delaware State court sitting in New Castle County.
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4.10          Service of Process. Each party agrees that service of any process, summons, notice or document by U.S. registered mail to such party’s respective address set forth in Section 4.2 shall be effective service of process for any Proceeding with respect to any matters for which it has submitted to jurisdiction pursuant to Section 4.9.
 
4.11          Waiver of Jury Trial. Each party hereby waives, to the fullest extent permitted by applicable Law and Judgment, any right it may have to a trial by jury in respect of any Proceeding arising out of or in connection with this Agreement or the transactions contemplated hereby or disputes relating hereto (whether for breach of contract, tortious conduct or otherwise). Each party (a) certifies that no representative, agent or attorney of any other party has represented, expressly or otherwise, that such other party would not, in the event of any Proceeding, seek to enforce the foregoing waiver and (b) acknowledges that it and the other parties have been induced to enter into this Agreement by, among other things, the mutual waivers and certifications in this Section 4.11.
 
4.12          Enforcement. The parties agree that irreparable damage would occur and that the parties would not have any adequate remedy at Law in the event that any of the provisions of this Agreement were not performed in accordance with their specific terms or were otherwise breached. It is accordingly agreed that the parties shall be entitled to seek an injunction or injunctions to prevent breaches of this Agreement and to enforce specifically the provisions of this Agreement in the courts referred to in Section 4.9, this being in addition to any other remedy to which the parties are entitled at Law or in equity.
 
4.13          Third Party Beneficiaries. Nothing contained in this Agreement, expressed or implied, is intended to confer upon any person other than the parties hereto any benefits, rights, or remedies.
 
4.14          Permitted Transferee Representative. The parties hereto acknowledge and agree that the Stockholder shall be the designated representative of any and all Permitted Transferees with full authority to make all representations and warranties and agree to all covenants on behalf of and in the name of the Permitted Transferees, and to make all decisions and determinations, and to take all actions (including giving consents and waivers or agreeing to any amendments to this Agreement or to the termination hereof) required or permitted hereunder on behalf of the Permitted Transferees, and any such action, decision or determination so made or taken shall be deemed the action, decision or determination of each such Permitted Transferee, and any notice, document, certificate or information required to be given, whether in writing or otherwise, to any Permitted Transferee shall be deemed so given if given to the Stockholder and Buyer shall be fully protected against liability in relying on the actions of the Stockholder as being authorized by the Permitted Transferees. The Stockholder shall ensure the due, prompt and faithful performance and discharge by, and compliance with, all of the obligations, covenants, terms, conditions and undertakings of the Permitted Transferees under this Agreement in accordance with the terms hereof.

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4.15          Confidentiality. The Stockholder shall, and shall use reasonable best efforts to cause its affiliates, officers, directors, employees, agents and representatives to, keep confidential and not disclose to any other person, or use for their own benefit or the benefit of any other person, any information regarding Buyer or any of its affiliates obtained pursuant to this Agreement or in its capacity as an equityholder of Buyer or the terms of this Agreement. The obligations of the Stockholder under this Section 4.15 shall not apply to information which: (i) is or becomes generally available to the public without breach of obligations under this Section 4.15 or (ii) is required in the opinion of legal counsel to the Stockholder to be disclosed by applicable Law or any Judgment; provided, however, that in any such case, the Stockholder must notify Buyer in writing as early as practicable prior to disclosure to allow Buyer to take appropriate measures to preserve the confidentiality of such information (and, if requested by Buyer, the Stockholder shall reasonably cooperate, at Buyer’s expense, with any such effort by Buyer to preserve the confidentiality of such information).
 
4.16          Cooperation. If Buyer has not consummated a Buyer IPO on or prior to the Closing Date, the Stockholder and each Permitted Transferee that then holds any Buyer Common Shares shall use commercially reasonable efforts to cooperate with any action reasonably requested by Buyer from and after the Closing to effect a Buyer IPO (including any corporate reorganization of Buyer or any of its subsidiaries or other reasonable activities, the expenses of which are reimbursed by Buyer).
 
[The remainder of this page left intentionally blank.]
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IN WITNESS WHEREOF, this Agreement has been duly executed and delivered by the duly authorized officers of the parties as of the date first herein above written.
 
 
BRIGHTLINE HOLDINGS LLC
     
 
By:
 
   
Name:
   
Title:
     
 
BENNY’S HOLDCO, LLC
   
 
By:
DX, LLC
     
 
Its:
Manager
     
 
By:
 
   
Name:
   
Title:
 
[Signature Page to Stockholder Agreement]
EX-10.77 14 s002218x10_ex10-77.htm EXHIBIT 10.77
 

Exhibit 10.77

Execution Version

REAL ESTATE PURCHASE AND SALE AGREEMENT
CITYVIEW PROPERTY, CLARK COUNTY, NEVADA
 
By and Among
 
THARALDSON ETHANOL PLANT I, LLC, TMII SOUTH TECH, LLC, C.Y.
& R.I. HERITAGE INN OF PALMDALE, INC., C.Y. HERITAGE INN OF
DAYTON, INC., and 4424 POLARIS AVENUE, LLC
 
and
 
BRIGHTLINE HOLDINGS, LLC.


 
REAL ESTATE PURCHASE AND SALE AGREEMENT
CITYVIEW PROPERTY, CLARK COUNTY, NEVADA
 
This REAL ESTATE PURCHASE AND SALE AGREEMENT (“Purchase Agreement”) dated as of September 17, 2018 (the Effective Date”), is by and among Tharaldson Ethanol Plant I, LLC, a Nevada limited liability company (“TEP”), TMII South Tech, LLC, a Nevada limited liability company (“TMII”), C.Y. & R.I. Heritage Inn of Palmdale, Inc., a Nevada corporation (Heritage Inn Palmdale”), C.Y. Heritage Inn of Dayton, Inc., a Nevada corporation (“Heritage Inn Dayton”), and 4424 Polaris Avenue, LLC, a Nevada limited liability company (“4424 Polarisand, together with TEP, TMII, Heritage Inn Palmdale and Heritage Inn Dayton, the Seller”) and Brightline Holdings, LLC., a Delaware limited liability company (“Purchaser”).
 
RECITALS
 
A.         TEP owns in fee those certain parcels of land located near I-15 and Flamingo Road in Clark County, Nevada bearing Clark County Assessor Parcel Numbers (APNs) 162-20-112-002, 162-20-112-003 and 162-20-214-004, which are more particularly described on Exhibit 1-A” (collectively, the TEP Owned Land”).
 
B.          Heritage Inn Palmdale, Heritage Inn Dayton and TMII, as joint tenants, own in fee those certain parcels of land located near I-15 and Flamingo Road in Clark County, Nevada bearing Clark County APNs 162-20-214-003, 162-20-214-005 and 162-20-214-001, which are more particularly described on Exhibit “1-B” (collectively, the Heritage Land”).
 
C.         4424 Polaris owns in fee that certain parcel of land located near I-15 and Flamingo Road in Clark County, Nevada bearing Clark County APN 162-20-214-002, which is more particularly described on Exhibit “1-C (the 4424 Polaris Landand, together with the TEP Owned Land and the Heritage Land, the Owned Land”).
 
D.         TEP has a valid leasehold interest in approximately 1.1 acres of land located near I-15 and Flamingo Road in Clark County, Nevada bearing Clark County APN 162-20-112-001, which is more particularly described on Exhibit “1-D(the Leased Landand, together with the Owned Land, the Land”), pursuant to that certain Lease Agreement, dated as of April 5, 2000, by and between Katherine Anne Ferguson Trust, as successor in interest to The Ferguson Family Trust, Paul Ferguson, Trustee, as lessor (the Lessor), and Focus 2000 Inc., as lessee, as assigned by that certain Assignment, dated on or about July 12, 2001, to Marnell Properties, LLC, as successor lessee, as assigned by that certain Assignment of Lease and Termination of Sublease dated as of July 2012 to TEP (as assigned, the Ground Lease).
 
E.          Seller has agreed to sell to Purchaser and Purchaser has agreed to purchase from Seller the Property (as defined herein), on the terms and subject to the conditions set forth in the Purchase Agreement.

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F.           The parties hereto intend that, subject to the terms and conditions contained in this Purchase Agreement, Seller shall reserve all rights in the Property and all rents and revenues generated thereby until the Closing.
 
AGREEMENT
 
NOW, THEREFORE, in consideration of the foregoing Recitals, payment for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Purchaser and the Seller agree as follows:
 
1.           Incorporation of Recitals. The Recitals set forth above are incorporated into and made a part of this Purchase Agreement.
 
2.           Definitions. The following terms, whenever used in this Purchase Agreement, shall have only the meanings set forth below.

2.1.        Business Daymeans a day that is not a Saturday, Sunday or legal holiday in the States of Nevada, California or Florida.
 
2.2.        The terms Closing”, and Closing Datemean the date that the parties hereto close on the purchase and sale of the Property. In no event shall Closing occur later than March 1, 2019; unless the outside date in the XpressWest Purchase Agreement is automatically extended until May 30, 2019, in which event the Closing shall occur no later than May 30, 2019 (the Outside Date”).
 
2.3.        Commitmentmeans a standard Nevada form Commitment for Title Insurance issued by the Title Company in the amount of the Purchase Price, covering the Property.
 
2.4.        Consentmeans any consent, approval, waiver, license, permit, franchise, exemption, certificate, filing, notice, concession, right, grant, administrative decision or finding, certification, memorandum of understanding, right-of-way, easement, encroachment, authorization or order.
 
2.5.        Contractmeans any service contract, maintenance contract, operating contract, management contract, parking contract or similar agreement affecting the Land and effective as of the Effective Date, each as set forth on Exhibit 2 attached hereto, or which are executed after the Effective Date and approved in writing by Purchaser in its sole discretion.
 
2.6.        Disposed Share Valuemeans an amount in dollars equal to the product of (a) the Purchaser Common Share Value multiplied by (b) the number of Purchaser Common Shares received by Seller pursuant to Section 3.6(b) that are sold, disposed of or otherwise transferred by Seller from and after the Closing and through and including the IPO Date.
 
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2.7.        Exception Documentsmeans copies of all documents identified as exceptions to coverage in the Commitment.
 
2.8.         Environmental Lawsmeans any Law, Governmental Approval or Judgment enacted, entered, promulgated, enforced or issued by or with any Governmental Entity relating to pollution, the environment, the climate, natural resources, health and safety, noise,the protection of wetlands, wildlife, biota or endangered or threatened species or the management of waste, wastewater or storm water.
 
2.9.          Governmental Approvalsmeans all federal, state, and local, Consents, Judgments and other approvals by or agreements with any Governmental Entity necessary for Seller to own, lease, develop or operate the Property, including, without limitation, all such Governmental Approvals required under Environmental Laws.
 
2.10.       Governmental Entitymeans any federal, state, or local, government or court of competent jurisdiction, administrative agency or commission or other governmental or regulatory authority, instrumentality or agency.
 
2.11.       Hazardous Materialsmeans (a) any petroleum or petroleum products, by-products, fractions, additives or derivatives, (b) any methane gas, natural gas, natural gas liquid, liquefied natural gas, synthetic gas usable for fuel, radioactive materials or wastes,asbestos, polychlorinated biphenyls, chlorofluorocarbons and other ozone-depleting substances and (c) any other chemical, material, substance or waste that is regulated or can form the basis in liability under any Environmental Law.
 
2.12.       Immediately Available Fundsmeans funds deposited by federal funds wire transfer.
 
2.13.       Inspection Periodshall mean the period commencing on the Effective Date and expiring November 30, 2018.
 
2.14.       Intangible Propertymeans, to the extent assignable, intangible property used or necessary in conjunction with the ownership, maintenance and operation of the Property including all licenses, permits, approvals, authorizations and other entitlements attributable to the Property, including zoning, and all books, records, reports, test results, environmental assessments and other documents and materials related to the Property.
 
2.15.       IPO Datemeans the closing date of the Purchaser IPO.
 
2.16.       Judgmentmeans any judgment, order, writ, injunction, legally binding agreement with a Governmental Entity, stipulation or decree.

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2.17.       Law means any statute, law, ordinance, legally-binding rule, regulation or any legally binding administrative or judicial decisions, interpretations, or policies issued by any Governmental Entity in connection with any of the foregoing.
 
2.18.       Lease means any of Seller’s interests as lessor in the leases set forth on Exhibit 3 attached hereto or which are executed after the Effective Date and approved in writing by Purchaser in its sole discretion.
 
2.19.       Proceeding means any actions, complaint, threat, order, directive, citation, notice, suit, charge, hearing, proceeding, claim or counterclaim or legal, administrative, arbitration or other alternative dispute resolution proceeding or investigation.
 
2.20.       Property means the following described real and personal property owned by the Seller:
 
  (a)          Land, Improvements, Personal Property and Appurtenances. The Land together with (i) all buildings, structures and other improvements erected on or attached to the Land as of the Effective Date or hereafter located thereon (the Improvements); (ii) any and all furnishings, fixtures, equipment and other personal property located in, on, about, or used in connection with, the Land or the Improvements (but only to the extent such items are owned by the Seller, are in the Seller’s possession or control, and are transferable) (collectively, the Personal Property); and (iii) all easements, rights of way, privileges, licenses, tenements, hereditaments, appurtenances and other rights and benefits belonging to or running with the Land, or related to the Land and belonging to the Seller, including but not limited to, water rights and water service agreements, all adjacent streets and alleys, and any strips or gores between such real property and adjacent property (the “Appurtenances”);
 
(b)          Leases and Contracts. All Assumed Contracts and Assigned Leases (each as defined below).
 
(c)        Licenses and Permits. To the extent assignable, all of the Seller’s interest in any Consents, Governmental Approvals, or entitlements, including those obtained by Purchaser prior to the Closing (“Licenses and Permits”).
 
(d)          Leasehold Estate. Seller’s leasehold interest in the Ground Lease.

2.21.       Purchaser Common Sharesmeans the limited liability company interests of Purchaser; provided that, unless context requires otherwise, if Purchaser consummates a Purchaser IPO, all references herein to Purchaser Common Shares shall be deemed to be references to Purchaser Public Shares.
 
2.22.       Purchaser Common Share Valuemeans an amount, determined as of the Closing, equal to the quotient of (a) the Purchaser Equity Valuation divided by (b) the number of Purchaser Common Shares issued and outstanding at the Closing; provided that if Purchaser consummates a Purchaser IPO at or prior to the Closing, the Purchaser Common Share Value shall be the Purchaser IPO Price.

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2.23.       Purchaser Equity Valuationmeans $3,000,000,000.
 
2.24.       Purchaser IPOmeans an initial sale by Purchaser of common shares to the public in an offering pursuant to an effective registration statement (other than a registration statement on Form S-4 or S-8 or any similar or successor form) filed under the Securities Act, after which such common shares are listed on one or more nationally recognized exchanges or quoted on one or more automated quotation systems, including the New York Stock Exchange or the Nasdaq Global Select Market.
 
2.25.       Purchaser IPO Pricemeans the initial public offering price (not reduced by any underwriter discounts, commissions or fees) of a Purchaser Public Share in the Purchaser IPO.
 
2.26.       “Purchaser’s Notice Address” means:
 
Brightline Holdings LLC
c/o Florida East Coast Industries, LLC
ATTN: Kolleen Cobb
2855 Le Jeune Rd, 4th Floor
Coral Gables, FL 33134
Telephone No.:(305) 520-2344
E-Mail: kolleen.cobb@feci.com
 
with a copy to:
 
Brownstein Hyatt Farber Schreck, LLP
Attn: Rebecca Miltenberger
100 North City Parkway, Suite 1600
 Las Vegas, NV 89106
Telephone No.: (702)464-7052
E-Mail: rmiltenberger@bhfs.com
 
2.27.       Purchaser Public Shareshall mean a publicly traded common share of Purchaser after a Purchaser IPO.
 
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2.28.       “Seller’s Notice Address” means:

 c/o Tharaldson Investments
4255 Dean Martin Drive, Suite J
Las Vegas, NV 89103
Attn: Don Cape
Telephone No.: (702) 385-4988 ext. 2
E-Mail: dcape@diversifiedgrp.com
 
with a copy to:
 
Holland & Hart LLP
Attn: Tom L. DeVine
555 17th Street, Suite 3200
 Denver, CO 80202
Telephone No.: (303)295-8110
Email: tldevine@hollandandhart.com
 
2.29.       Seller’s Actual Knowledgemeans matters of which Seller’s Representative is actually aware, without undertaking any investigation or inquiry.
 
2.30.       Seller’s Aggregate IPO Holdingmeans an amount in dollars equal to the product of (x) the Purchaser IPO Price multiplied by (y) the number of Purchaser Public Shares held by Seller upon the closing of (and after giving effect to) a Purchaser IPO.
 
2.31.       Seller’s Deliverablesshall mean all plans, specifications, property condition reports, environmental assessments, geotechnical studies, soils reports, title reports, surveys, the Leases, the Contracts, the Ground Lease, Licenses and Permits and other information relating to the ownership and operation of the Property which Purchaser may reasonably request and which are in Seller’s possession or under Seller’s control.
 
2.32.       Seller’s Representativeshall mean Don Cape, c/o Tharaldson Investments, 4225 Dean Martin Drive, Suite J, Las Vegas, Nevada 89103.
 
2.33.       Share Consideration Target Valuemeans an amount in dollars equal to (a) $10,000,000 minus (b) the Disposed Share Value.
 
2.34.       Share Purchase Pricemeans a number of Purchaser Common Shares (rounded up to the nearest whole number of limited liability company interests or shares, as applicable) equal to the quotient of (a) $10,000,000 divided by (b) the Purchaser Common Share Value.
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2.35.       Share Purchase Price True-Upmeans a number of Purchaser Public Shares (rounded up to the nearest whole number of shares) equal to the quotient of (a) (i)$10,000,000 minus (ii) the Disposed Share Value minus (iii) Seller’s Aggregate IPO Holding divided by (b) the Purchaser IPO Price.
 
2.36.       Title Companymeans First American Title Insurance Company, located at 2500 N. Buffalo Drive, Suite 100, Las Vegas, Nevada 89130.
 
2.37.       XpressWest Purchase Agreementmeans that certain Membership Interest Purchase Agreement among Purchaser, DesertXpress Enterprises, LLC and Benny’s Holdco,LLC, dated as of September 17, 2018.
 
3.            Purchase Price; Earnest Money
 
3.1.         Purchase Price. The aggregate purchase price (the Purchase Price”) shall be comprised of (a) $140,000,000 in Immediately Available Funds (the Cash Purchase Price”), and (b) the Share Purchase Price.
 
(a)          Purchaser IPO True-Up. If (i) Purchaser has not consummated a Purchaser IPO on or prior to the Closing but consummates a Purchaser IPO on or prior to the date that is twelve months after the Closing Date (the “IPO Outside Date”) and (ii) as of the IPO Date, Seller’s Aggregate IPO Holding is less than the Share Consideration Target Value, Purchaser shall issue and deliver to Seller promptly following the IPO Date a number of Purchaser Public Shares (rounded up to the nearest whole number of shares) in book-entry form equal to the Share Purchase Price True-Up.
 
(b)          Earnest Money Deposit. Purchaser shall deliver to the Title Company not later than three (3) Business Days following the Effective Date the sum of $2,000,000 (together with any interest earned thereon, the Initial Earnest Money Deposit”). Not later than twenty (20) Business Days following the Effective Date, Purchaser shall deliver to the Title Company an additional sum of $5,000,000 (together with any interest earned thereon, the Additional Earnest Money Depositand, together with the Initial Earnest Money Deposit, the Earnest Money Deposit”). The Earnest Money Deposit shall be held in Escrow by the Title Company in accordance with the terms of this Purchase Agreement in an interest-bearing account with a federally insured financial institution. The Earnest Money Deposit will be credited against the Purchase Price at Closing. The Earnest Money Deposit shall be fully refundable to Purchaser prior to the expiration of the Inspection Period. The Purchase Price shall be paid by Purchaser at Closing in Immediately Available Funds to the Title Company for the account of Seller. If Purchaser has not elected to terminate this Purchase Agreement prior to the expiration of the Inspection Period, the Earnest Money Deposit will become non-refundable, unless (i) the Closing does not occur because of the failure of any of the conditions set forth in Section 3.4(a) through (e), inclusive, or (ii) Purchaser otherwise elects to terminate this Purchase Agreement pursuant to Section 8.02, in which case the Earnest Money Deposit will remain fully refundable to Purchaser.
 
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3.2.         Escrow.
 
(a)          Title Company is authorized and agrees by acceptance thereof to deposit the Earnest Money Deposit as required by Section 3.1(b) above. In the event of doubt as to Title Company’s duties or liabilities under the provisions of this Purchase Agreement, Title Company may, in its sole discretion, continue to hold the subject matter of this Escrow until the parties mutually agree to disbursement thereof, or until a Judgment of a court of competent jurisdiction shall determine the rights of the parties thereto, or Title Company may deposit same with the clerk of the court having jurisdiction of the dispute, and upon notifying all parties concerned of such action, all liability on the part of Title Company shall fully terminate, except to the extent of accounting for any items theretofore delivered out of Escrow. In the event of any suit between Purchaser and Seller wherein Title Company is made a party by virtue of acting as escrow agent hereunder, or in the event of any suit wherein Title Company interpleads the subject matter of this Escrow, Title Company shall be entitled to recover reasonable attorney’s fees and costs incurred, said fees and costs to be charged and assessed as court costs in favor of the prevailing party. Seller and Purchaser hereby designate Title Company as the “Reporting Person” for the transaction pursuant to Section 6045(e) of the Internal Revenue Code.
 
(b)          Promptly following mutual execution of this Purchase Agreement, Purchaser and Seller shall cause an escrow (“Escrow”) to be opened with Title Company (the Opening of Escrow”) by delivery to Title Company of a fully executed copy of this Purchase Agreement. Title Company shall promptly deliver to Purchaser and Seller written notice of the date of the Opening of Escrow by executing the joinder attached hereto. This Purchase Agreement shall constitute escrow instructions to Title Company as well as the agreement of the parties. Title Company is hereby appointed and designated to act as escrow agent and instructed to deliver, pursuant to the terms of this Purchase Agreement, the documents and funds to be deposited into Escrow as herein provided. The parties hereto shall execute such additional escrow instructions (not inconsistent with this Purchase Agreement as determined by counsel for Purchaser and Seller) as Title Company shall deem reasonably necessary. In the event of any inconsistency between the provisions of this Purchase Agreement and such additional escrow instructions, the provisions of this Purchase Agreement shall govern.
 
3.3.          Closing Date. Closing shall occur thirty (30) days following the later of the (a) expiration of the Inspection Period, or (b) satisfaction of the Conditions to Closing, but in any event, no later than the Outside Date. Closing will be held at the offices of the Title Company or as otherwise agreed by Purchaser and Seller. At Closing, Seller shall transfer (a) by recordable grant, bargain and sale deed, substantially in the form of Exhibit 4 attached hereto (the Deed”), fee simple title to the Owned Property, and (b) by recordable assignment of ground lease, substantially in the form of Exhibit 5 attached hereto (the Ground Lease Assignment”) leasehold title to the Leased Property, each free and clear of all encumbrances except those listed in the final Commitment (“Permitted Exceptions”). Purchaser and Seller agree to provide the Title Company with their taxpayer identification numbers and such other information reasonably required by Title Company.
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3.4.         Conditions to Closing. The obligations of Purchaser under this Purchase Agreement are subject to the following conditions (collectively, Purchaser’s Closing Conditions”), which conditions are for the sole benefit of Purchaser and may be waived by Purchaser, in whole or in part, by written notice of waiver delivered to Seller:

(a)          The Property and all portions thereof being free from material damage or destruction by fire, earthquake, flooding or other force of nature after the Effective Date, which prevents the use of the Property for Purchaser’s intended purpose. For purposes of this Section 3.4(a), “material” shall mean damage or destruction of 50% or more of the Property.

(b)          Seller’s performance of its covenants and other obligations under this Purchase Agreement, including, without limitation, delivery of all Closing documents and instruments required hereby.

(c)          The truth and accuracy as of the Effective Date, and as of the date of Closing, of each and every warranty and representation made herein by Seller.

(d)          Seller shall have caused the Title Company to irrevocably commit to deliver to Purchaser the Title Policy.

(e)          No Proceeding shall have been commenced by or against Seller under the federal bankruptcy code or any state law for the relief of debtors or for the enforcement of the rights of creditors.

(f)          The closing of the transaction contemplated by the Xpress West Purchase Agreement shall have occurred prior to or substantially concurrently with the Closing.

If any of Purchaser’s Closing Conditions have not been fulfilled on or before the Outside Date, Purchaser may: (i) waive the Purchaser’s Closing Condition and proceed to Closing in accordance with this Purchase Agreement, without adjustment or abatement of the Purchase Price; or (ii) terminate this Purchase Agreement by written notice to Seller and Title Company, in which event (A) the Earnest Money Deposit shall be returned to Purchaser without further instruction from Seller, (B) all other documents, instruments and funds delivered to Escrow shall be returned to the party that delivered the same, (C) to the extent that the failure of any applicable Purchaser’s Closing Conditions is caused by a Seller default, Seller shall pay for all of the cancellation charges of Title Company, if any, and Purchaser shall be entitled to its Reimbursable Expenses, and (D) neither party shall have any further liability or obligation hereunder except as to those obligations which provide that they survive termination of this Purchase Agreement. Notwithstanding anything herein to the contrary, in the event that all Purchaser Closing Conditions except for that condition set forth in Section 3.4(f) are satisfied on or before the Outside Date, and provided Seller is not otherwise in default hereunder, Purchaser may terminate this Purchase Agreement by written notice to Seller and Title company in which event (1) the Earnest Money Deposit shall be delivered to Seller; (2) all other documents, instruments and funds delivered to Escrow shall be returned to the party that delivered the same; (3) Purchaser shall pay for all of the cancellation charges of Title Company, if any; and (4) neither party shall have any further liability or obligation hereunder except as to those obligations which provide that they survive the termination of this Purchase Agreement.
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3.5.         Seller’s Deposits. On or before one (1) Business Day prior to the Closing Date, Seller shall deliver to Title Company the following items, each dated as of the Closing Date and duly executed and acknowledged, if applicable, by Seller (collectively, the Seller’s Deposits”):

(a)         The Deed, together with the State of Nevada Declaration of Value form setting forth the Purchase Price as the fair market value of the Property (the Declaration of Value”).

(b)         Two (2) original counterparts of the Stockholder Agreement in the form of Exhibit 6 attached hereto (the Shareholder Agreement”).

  (c)          Two (2) original counterparts of the Ground Lease Assignment.

(d)         Two (2) original counterparts of the Assignment and Assumption Agreement in the form of Exhibit 7 attached hereto (the Assignment and Assumption Agreement”).

(e)         A FIRPTA Affidavit for each entity comprising Seller substantially in the form of Exhibit 8 attached hereto.

(f)          The Assignment and Bill of Sale substantially in the form of Exhibit 9 attached hereto.

(g)         An owner’s affidavit in form sufficient and acceptable to Title Company so as to allow Title Company to eliminate the standard printed exceptions, including the parties in possession, mechanic’s lien, and gap exceptions from the Title Policy and running to the benefit of Purchaser and Title Company, stating that there are no outstanding unrecorded options or contracts for sale of the Property to anyone other than Purchaser, that the Property is unencumbered and that no construction or repairs have been made, nor any work done to or on the Property which has not been fully paid.
 
  (h)          The Closing Statement.

(i)          A letter to each tenant under an Assigned Lease, in substantially the form of Exhibit 10 attached hereto, advising such tenant of the sale of the Property and directing that after the Closing Date all rent and any other amounts due from such tenant and all future correspondence relating to such Assigned Lease, as the case may be, shall be sent to Purchaser.
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(j)          The Landlord Consent and Estoppel confirming the terms set forth in the Ground Lease and that Seller is not in default thereunder, in substantially the form of Exhibit 11 attached hereto (the Landlord Consent”), duly executed by Lessor, and dated no earlier than thirty (30) days prior to the Closing Date;

(k)         An estoppel certificate from each tenant under an Assigned Lease confirming the terms set forth in such Assigned Lease and that there is no default thereunder, in substantially the form of Exhibit 12 attached hereto (collectively, the Tenant Estoppel Certificates”), duly executed by such tenant and dated no earlier than January 1, 2019;

(l)         Any other items or documents referred to in this Purchase Agreement or affecting the conveyance and sale of the Property that may be reasonably requested by Purchaser or Title Company or that may be necessary to carry out the purpose and intent of this Purchase Agreement.

3.6.          Purchaser’s Deposits. On or before one (1) Business Day prior to the Closing Date, Purchaser shall deliver to Title Company each of the following items, dated as of the Closing Date, if applicable, and duly executed by Purchaser, if applicable (collectively, the “Purchaser’s Deposits”):

(a)         The balance of the Cash Purchase Price together with Purchaser’s portion of the prorations pursuant to the terms of this Purchase Agreement;

(b)        Purchaser shall issue and deliver to Seller a number of Purchaser Common Shares (rounded up to the nearest whole number of limited liability company interests or shares, as applicable) in book-entry form equal to the Share Purchase Price.

  (c)         Two (2) counterparts to the Stockholder Agreement.

  (d)         One (1) original counterpart to the Declaration of Value.

  (e)         Two (2) original counterparts of the Ground Lease Assignment.

  (f)          Two (2) original counterparts of the Assignment and Assumption Agreement.

  (g)         The Closing Statement.

  (h)         Any other items or documents referred to in this Purchase Agreement or affecting the conveyance and sale of the Property that may be reasonably requested by Seller or Title Company or that may be necessary to carry out the purpose and intent of this Purchase Agreement.
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3.7.          Approval of Closing Documents. All Closing documents to be furnished by Seller or Purchaser pursuant hereto the form of which is not attached to this Purchase Agreement shall be in form and substance reasonably satisfactory to both Seller and Purchaser.

3.8.          Actions by Title Company. Provided that Title Company shall not have received on or before the Closing Date written notice from Purchaser or Seller of the failure of any condition to the Closing or of the termination of this Purchase Agreement, when Purchaser and Seller have deposited into Escrow the documents and funds required by this Purchase Agreement and authorized Title Company to close the transaction, Title Company shall, in the order and manner herein below indicated, take the following actions:
 
(a)           Recording. Cause the Deed, the Declaration of Value, the Assignment of Ground Lease and any other documents which the parties hereto may mutually direct to be recorded in the Land Records and obtain conformed copies thereof for distribution to Purchaser and Seller. Title Company shall record such documents in the following order, (i) first, the Deed, together with the Declaration of Value, (ii) second, the Ground Lease Assignment, and (iii) third, any other documents which the parties direct to be recorded in accordance herewith; and

(b)           Funds. Disburse all funds as follows:

(i)       pursuant to the Closing Statement, retain for Title Company’s own account all escrow fees and costs, the fees and expenses incurred in connection with the issuance of the Title Policy and disburse to any other persons entitled thereto the amount of any other Closing Expenses;

(ii)       disburse to Seller an amount equal to the Cash Purchase Price less or plus the net debit or credit to Seller by reason of the prorations pursuant to the terms of this Purchase Agreement; and

(iii)      disburse to the party who deposited the same any remaining funds in the possession of Title Company after payments pursuant to this Section have been completed.

(c)          Delivery of Documents. Deliver: (a) to Seller (i) one original of all documents deposited into Escrow by Purchaser, (ii) one copy of all documents deposited into Escrow by Seller (other than any documents being recorded), and (iii) one conformed copy of each document recorded pursuant to the terms hereof; and (b) to Purchaser, (i) one original of all documents deposited into Escrow by Seller (other than any other documents being recorded), (ii) one conformed copy of each document recorded pursuant to the terms hereof, and (iii) one original of the Deed, Declaration of Value and Assignment of Ground Lease following recording; and
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   (d)          Title Policy. Issue to Purchaser the Title Policy.

3.9.        Deliveries Outside of Escrow. At the Closing, Seller shall deliver to Purchaser sole and exclusive possession of the Property. Further, at the Closing, Seller shall deliver to Purchaser the Intangible Property to the extent in the actual possession of Seller.

4.           Seller’s Deliveries to Purchaser.

4.1.       Items Delivered.

(a)          General Items. Within five (5) Business Days after the Effective Date, the Seller shall deliver to Purchaser the Seller’s Deliverables for the Property.

(b)          Additional Deliveries. Throughout the Inspection Period, the Seller shall also deliver to Purchaser any amendments, modifications, renewals or updates of the Seller’s Deliverables which are then available to the Seller and copies of such other items then available to the Seller relating to the Property as reasonably requested by Purchaser.

4.2.         Limited Warranty; “As- Is” Sale. The Seller warrants and represents to Purchaser that all copies of documents, instruments, reports, correspondence and other writings delivered by the Seller to Purchaser pursuant to this Purchase Agreement are true, correct and complete copies of the originals. As-Is Sale. Except for the express representations and warranties of Seller set forth herein, Purchaser acknowledges and agrees that Purchaser has not been induced by and has not relied upon any written or oral representations, warranties or statements, whether express or implied, made by Seller, or any affiliate, agent, employee, or other representative of any of Seller or upon any information provided by or on behalf of Seller with respect to the Property, or any other matter affecting or relating to the transactions contemplated hereby. Purchaser acknowledges and agrees that, except as expressly set forth herein, Seller makes no representations or warranties whatsoever, whether express or implied or arising by operation of law, with respect to the Property. PURCHASER AGREES THAT THE PROPERTY WILL BE SOLD AND CONVEYED TO (AND ACCEPTED BY) PURCHASER AT THE CLOSING IN ITS THEN EXISTING CONDITION, AS IS, WHERE IS, WITH ALL FAULTS, AND WITHOUT ANY WRITTEN OR ORAL REPRESENTATIONS OR WARRANTIES WHATSOEVER, WHETHER EXPRESS OR IMPLIED OR ARISING BY OPERATION OF LAW, other than any representations, warranties and covenants of Seller expressly set forth in this Purchase Agreement. Without limiting the generality of the foregoing, except for the representations and warranties of Seller contained in this Purchase Agreement, the transactions contemplated by this Purchase Agreement are without statutory, express or implied warranty, representation, agreement, statement or expression of opinion of or with respect to the Property or any aspect thereof, including, without limitation, (i) any and all statutory, express or implied representations or warranties related to the suitability for a particular purpose and (ii) any statutory, express or implied representations or warranties created by any affirmation of fact or promise, by any description of the Property or by operation of law. Purchaser acknowledges that Purchaser has knowledge and expertise in financial and business matters that enable Purchaser to evaluate the merits and risks of the transactions contemplated by this Purchase Agreement.
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               4.3.         Confidentiality. All items delivered by the Seller to Purchaser pursuant to Section 4.1 of this Purchase Agreement are being delivered to Purchaser solely for Purchaser’s use in connection with the Purchase. Accordingly, Purchaser shall not (a) release any such delivered items or disclose any of the information contained therein, or (b) release any other items or disclose any other information concerning the Property or this Purchase Agreement (except as hereinafter provided), to any other person or entity, prior to the Closing without the prior written consent of the Seller. Notwithstanding the foregoing, the Seller’s prior written consent shall not be required for the release of such items or the disclosure of such information (i) to Purchaser’s employees, attorneys, accountants, architects, engineers and other consultants and representatives for their use in connection with this transaction, (ii)to the extent required by legal process or court order, (iii) if such items or information are available in public records or otherwise generally available to the public, (iv) to any agency of the federal, state or local government or (v) to the Title Company. Purchaser shall, not more than five (5) Business Days after the termination of this Purchase Agreement, return all such original items and all copies thereof, which Purchaser has received, to the Seller.
 
5.            Title, Survey and Contracts.

5.1.        Commitment. Not more than five (5) Business Days after the Effective Date the Seller shall deliver to Purchaser a copy of a Commitment for the Property dated “as of not more than fifteen (15) days prior to the Effective Date and copies of or electronic links to all recorded Exception Documents.

5.2.         Survey. After the Effective Date, Purchaser may, at its sole cost and expense, engage a surveyor or engineer licensed in the State of Nevada to prepare an ALTA/NSPS survey of the Property (the Survey) utilizing the Commitment.

5.3.        Title Objections. On or before October 31, 2018 (“Title Objection Date”), Purchaser shall notify the Seller in writing of any title exceptions or matters identified in the Commitment, the Exception Documents, or the Survey of which Purchaser disapproves (“Title Objection Notice”). Purchaser’s failure to give a Title Objection Notice with respect to any title exception or matter prior to the Title Objection Date shall be deemed to constitute Purchaser’s waiver of its right to disapprove such title exception or matter and its approval thereof. On or before five (5) days after the date of the Title Objection Notice, Seller shall notify Purchaser in writing of any disapproved title exceptions or matters which the Seller is unable or unwilling to cause to be (a) removed or (b) upon Purchaser’s written approval, insured against, prior to or at Closing (“Seller’s Title Objection Response”). The Seller’s failure to provide Purchaser with the Seller’s Title Objection Response within the time period set forth above shall be deemed to be the Seller’s election not to cure any Title Objections raised by Purchaser. Notwithstanding the foregoing or anything herein to the contrary, at or before the Closing, Seller shall cause all financing encumbrances and other monetary liens, if any, to be removed as exceptions to or affecting title to the Property, except liens for taxes not then due and payable, and Seller shall cure any disapproved items it has elected to cure hereunder, and if Seller fails to do so, Purchaser, at its option, by written notice to Seller and Title Company at any time on or before the Closing, may elect to (i) terminate this Purchase Agreement and receive a refund of the Earnest Money Deposit (without any instruction from Seller), and, notwithstanding anything herein to the contrary, Seller shall, within ten (10) days of demand therefor, reimburse Purchaser for its actual, out of pocket expenses incurred by Purchaser in connection with the preparation and negotiation of this Purchase Agreement and the transactions contemplated hereby and related thereto, including (A) expenses related to due diligence and seeking entitlements or other governmental approvals, and (B) fees of Purchaser’s attorneys, lobbyists and consultants (subsection (A) and (B), collectively, Reimbursable Expenses”); (ii) accept title subject to any disapproved matters; or (iii) declare Seller in default of this Purchase Agreement and pursue any other remedies allowed hereunder or at law or in equity.
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5.4.        Modifications to Title Commitment and Survey. If Title Company subsequently issues any amendment to the Commitment after the Title Objection Date or the expiration of the Inspection Period disclosing any additional exceptions, changes in the legal description, or additional requirements of Purchaser, or if any revision to the Survey discloses any additional matters affecting the Property, then Purchaser shall be entitled to disapprove any such matter by delivering notice to Seller and Title Company on or before five (5) Business Days after Title Company has delivered to Purchaser the amendment to the Commitment together with copies of the underlying documents referenced therein (or Purchaser has received the revision to the Survey, as applicable). If Purchaser fails to deliver a notice disapproving of any matter set forth in the amended Commitment or Survey (or any subsequent amendment thereto) within the relevant time period prescribed above, Purchaser shall be conclusively deemed to have approved such matter as of the last day of that time period and such matter shall be deemed to be a Permitted Exception. Seller shall have five (5) Business Days after notice of any disapproval is given by Purchaser within which to give written notice to Purchaser and Title Company as to whether Seller elects to cure any such disapproved matter. Failure to notify Purchaser in writing within such period of its election to cure shall be deemed Seller’s election not to cure. Purchaser shall have five (5) Business Days following either receipt of Seller’s notice electing not to cure or the expiration of Seller’s five (5) Business Day notice period provided in this Section in which to elect either to waive its disapproval of any matter Seller does not elect to cure or to terminate this Purchase Agreement and receive a refund of the Earnest Money Deposit without any instruction from Seller. The Closing Date, including the Outside Date, shall be extended as necessary to accommodate the foregoing time periods. If Seller elects to cure but fails to do so, Seller shall be in default and Purchaser shall be entitled to those remedies provided in Section 5.3 above.
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5.5.         Assumed Contracts and Assigned Leases. On or before the expiration of the Inspection Period, Purchaser shall advise Seller of any Contract Purchaser desires to assume (collectively, the Assumed Contracts”) and of any Lease Purchaser desires to assume (collectively, the Assigned Leases). Any Contract or Lease which Purchaser does not designate as an Assumed Contract or Assigned Lease shall be terminated by Seller, at Seller’s cost and expense, prior to the Closing Date. Seller shall use commercially reasonable efforts to obtain, prior to the Closing, any approvals or consents required under any Assumed Contracts or Assigned Leases in order to transfer such Assumed Contracts or Assigned Lease to Purchaser at the Closing.

6.            Entry, Inspection and Testing.

6.1.       General. At any time during the Inspection Period, but only after forty-eight (48) hours’ prior notice to Seller (which may be given via e-mail), Purchaser, or its agents, may enter upon the Property at reasonable times to perform inspections and tests deemed necessary by Purchaser, in its sole discretion. Notwithstanding the foregoing, Purchaser and its agents shall have no right to make soils borings, drill testing or monitoring wells or otherwise to penetrate the surface of the Property, except with Seller’s prior written consent, which consent shall not be unreasonably withheld or delayed, and, if such consent is given, except on the terms and conditions provided for in Section 6.2 of this Purchase Agreement. Purchaser, and its agents, shall exercise due care in entering upon, inspecting and testing the Property and shall perform all such entry, inspection and testing in a professional manner so as to minimize any damage to or disruption of the Property. Purchaser shall obtain, or cause Purchaser’s agents to obtain, at the sole cost and expense of Purchaser, any licenses or permits required by federal, state or local law in order to perform such inspections and tests. Purchaser shall promptly repair any damage to the Property resulting from such entry, inspection or testing and shall return the Property as nearly as practical to the Property’s condition prior to such entry, inspection or testing.

6.2.       Subsurface Testing.

(a)         Manner of Testing. Prior to drilling into or otherwise penetrating the surface of the Property, Purchaser shall establish the location of all underground utility lines and facilities directly through each utility company or by other means acceptable to Seller. Purchaser shall keep all equipment and installations used by Purchaser in connection with such activities, including the well caps to any testing or monitoring wells, locked or otherwise secured during all times when Purchaser does not require access to such equipment and installations. Purchaser shall promptly provide Seller with diagrams showing the locations of all soils borings made by Purchaser, and with “as-built” drawings of any testing or monitoring wells installed by Purchaser.
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(b)         Removal of Material, Equipment. Purchaser shall remove from the Property and properly dispose of all soils, groundwater and other materials extracted by Purchaser in connection with such drilling, testing or monitoring activities prior to the end of the Business Day after such testing is concluded, all in accordance with Environmental Laws and all permits, licenses and requirements of and from Governmental Authorities. Notwithstanding anything herein to the contrary, Purchaser shall not be responsible for any remediation or other removal of any soils, groundwater and other materials. On or prior to the expiration of the Inspection Period, Purchaser shall remove from the Property all equipment and installations used by Purchaser, shall properly fill compact and level all ditches, depressions and excavations caused solely by Purchaser’s testing, and remove and dispose of all debris resulting therefrom; and shall otherwise cause the affected portions of the Property to be returned as nearly as possible to their original gradient and condition, all in accordance with Environmental Laws and all other governmental requirements.
 
(c)         Insurance Requirements. Prior to drilling into or otherwise penetrating the surface of the Property, Purchaser, at its sole cost and expense, shall obtain and maintain in effect, and shall cause its agents, contractors, subcontractors and other authorized representatives to obtain and maintain in effect, the following forms of insurance coverage:

(i) Workers compensation and employer’s liability insurance issued for protection of all employees engaged in such activities.

(ii) Commercial (or comprehensive) general liability insurance with a minimum combined bodily injury and property damage limit of not less than $2,000,000 per occurrence. Such insurance shall include the following coverages with respect to such activities: (A) products and completed operations; (B) blanket contractual liability; (C) premises and operations; and (D) broad form property damage. Such insurance shall be primary and noncontributing with any insurance that may be carried by Seller or its tenants, and shall name Seller as an additional insured.

(iii) Automotive liability for bodily injury with a limit of not less than $1,000,000 per occurrence.

The insurance certificates required hereby shall provide that the coverage therein evidenced shall not be terminated, amended or cancelled, except by written notice to Seller at least thirty (30) days prior to the effective date thereof, regardless of whether such termination, amendment or cancellation is initiated by Purchaser or the insurance carrier. All insurance required of Purchaser hereunder shall be issued by insurance carriers authorized to transact business in the State of Nevada and rated at least B+ Class V by Best’s Insurance Reports
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(d) Non-Disturbance of Tenants. At all times during the Inspection Period, neither Purchaser nor its employees, contractors or agents, shall interfere with the use of the Property by the tenants occupying the Property pursuant to the Leases.

7.             Representations and Warranties.

7.1.         Representations and Warranties of Seller. The Seller represents and warrants to and covenants with Purchaser that the following matters are true and correct as of the Purchase Effective Date and will also be true and correct as of the Closing Date:

(a)         Good Standing. Each of the entities comprising Seller is duly organized, validly existing and in good standing under the Laws of the state of its formation.

(b)         Authorization and Validity. This Purchase Agreement is, and all the documents executed by Seller which are to be delivered to Purchaser at the Closing will be, duly authorized, executed, and delivered by Seller, and will be legal, valid, and binding obligations of Seller enforceable against Seller in accordance with their respective terms, except to the extent that such enforcement may be limited by applicable bankruptcy, insolvency, moratorium and other equitable principles relating to or limiting the right of contracting parties generally. This Purchase Agreement does not violate any provisions of any agreement to which any of the entities comprising the Seller is a party or to which any of them is subject.

(c)         No Bankruptcy Proceedings. None of the entities comprising Seller has (i) made a general assignment for the benefit of creditors, (ii) filed any voluntary petition in bankruptcy or suffered the filing of any involuntary petition by the creditors of such entity, (iii) suffered the appointment of a receiver to take possession of all or substantially all of any of such entity’s assets, or (iv) suffered the attachment or other judicial seizure of all or substantially all of any of such entity’s assets.

(d)         Non-Foreign Person. None of the entities comprising Seller is a “foreign person” as defined in Section 1445 of the Internal Revenue Code of 1986, as amended (the “Code”), and any related regulations.

(e)         No Breach. Neither the execution of this Purchase Agreement nor the consummation of the transactions contemplated herein will constitute a breach under any contract or agreement to which any of the entities comprising Seller is a party or by which any of the Seller entities is bound or affected which affects the Property or any part thereof.

(f)          Litigation and Other Proceedings. There are no Judgments unsatisfied against any of the entities comprising Seller or the Property or consent decrees or injunctions to which any of the Seller entities or the Property is subject, and there is no Proceeding pending or, to Seller’s Actual Knowledge, threatened against or relating to any of the entities comprising Seller or Seller’s ownership, operation of or title to the Property, nor does Seller know or have reasonable grounds to know of any basis for any such action or of any governmental investigation relative to Seller or the Property. None of the entities comprising Seller is in the hands of a receiver.
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(g)         Hazardous Materials. None of the entities comprising Seller has received any written notice of any violation of Law governing the use, storage, treatment, transportation, manufacture, handling, production, or disposal of Hazardous Materials relating to the Property and there have been no actions commenced or, to Seller’s Actual Knowledge threatened by any party relating to the Property for noncompliance therewith.

(h)         CityView Contracts. The Contracts delivered to Purchaser are true, correct and complete copies thereof. Except for the Contracts and the Leases, there are no other contracts, agreements or leases affecting or related to all or any portion of the Property. Seller shall terminate any contract which is not an Assumed Contract by notice to the tenant or third party thereto and which shall be delivered to each tenant or third party, with a copy to Purchaser, prior to Closing such that such termination is effective on or before the Closing.

(i)          Agreements. Seller has not and will not for so long as this Purchase Agreement is in effect enter into any other grants, conveyances, easements, leases, licenses, permits or other agreements affecting title to the Property, without Purchaser’s prior written consent, which may be withheld in Purchaser’s sole discretion.

(j)          Compliance with Laws. To Seller’s Actual Knowledge, the Property is in full compliance with all Laws, and all applicable restrictive covenants (collectively, “Regulations”), including any Environmental Laws and Regulations relating to safety, health, building, fire or zoning (including all zoning, subdivision and “lot split” regulations, if applicable, and all zoning conditions and stipulations). Seller has not received notice of any violation of any applicable Regulation.

(k)        Title. Seller has good and marketable fee simple title to the Owned Property and valid leasehold title to the Leased Property, and shall convey the Property to Purchaser free and clear of any and all liens and encumbrances whatsoever except the Permitted Exceptions.

(l)          Leases; Purchase Rights. Except for this Purchase Agreement, the Ground Lease, the Leases and other matters disclosed by the Commitment, there are no unrecorded contracts, leases, easements or other agreements, or claim of any third party, affecting the use, title, occupancy or development of, or otherwise related to, the Property. No third party has any right of first refusal, option or other right to acquire all or any part of the Property.
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(m)        The Leases and Ground Lease. The Ground Lease and each Lease delivered to Purchaser are true, correct and complete copies thereof. There is no breach or violation of or default by Seller or, by any other party, under any of the Leases or the Ground Lease, whether or not such breach, violation or default has been waived. No event has occurred with respect to Seller or, any other party thereto, which, with notice or lapse of time or both, would constitute a breach, violation or default of, or give rise to a right of termination, modification, or acceleration under, any of the Leases or the Ground Lease. Each of the Leases and the Ground Lease are in full force and effect, and without amendment or assignment except to the extent delivered to Purchaser by Seller or disclosed on the Commitment, all rentals and other amounts owed under each of the Leases and the Ground Lease have been paid in full as of the date hereof, and Seller has received no written notice of any defaults, offsets or requests or demands for maintenance, repairs or replacements which have not been cured as of the date hereof.

(n)          Licenses and Permits. All Licenses and Permits necessary for Seller to use and operate the Property as currently used or operated by Seller, if any, have been issued and are in full force and effect.

(o)         Monetary Encumbrances. Except for any non-delinquent real property taxes and special assessments disclosed on the Commitment, there shall be no monetary encumbrances, debts, liabilities or obligations of Seller with respect to the Property outstanding as of the Closing Date. Any labor and materials used in any construction on or preparation of the Property have been paid for, and there are no disputes with regard thereto.

(p)         Condemnation. There are no pending condemnation, eminent domain, or similar Proceedings pending or, threatened in writing, with regard to the Property. There is no existing, proposed or contemplated plan to widen, modify or realign any street or highway adjoining the Property relating to the Property or any portion thereof.

(q)          Exclusivity. From and after the Effective Date, Seller agrees that Purchaser shall have the exclusive right to acquire the Property in accordance with the terms, conditions and provisions of this Purchase Agreement.

(r)           Use of Property. From and after the Effective Date, without the written consent of Purchaser, which consent may be withheld in Purchaser’s sole and absolute discretion, Seller agrees that it shall not:

(i)            Violate or allow the violation of any Law or Regulation with respect to the Property;

(ii)           Fail to do or cause to be done, all things within its control to preserve intact and unimpaired any and all rights-of-way, easements, grants, appurtenances, privileges and licenses in favor of or benefiting any part of the Property;
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  (iii)         Fail to pay, as and when due, all payments on any encumbrances or assessments presently affecting the Property and any and all taxes, assessments and levies in respect of the Property through the Closing Date;

  (iv)         Subject the Property to any lien or encumbrance other than Permitted Exceptions;

  (v)          Fail to maintain its existing insurance coverage of all types relating to the Property;

  (vi)         Enter into any new Contract or Lease, or terminate, breach, amend or modify any of the Contracts, the Leases or the Ground Lease, or waive any of Seller’s rights in respect of any Contract, Lease or the Ground Lease; and

  (vii)        Accept from any of the tenants of the Leases payment of rent or other charges more than one (1) month in advance unless such amounts were received by Seller prior to the date hereof.

7.2.        Representations and Warranties of Purchaser. Purchaser represents and warrants to, and covenants with, Seller that the following matters are true and correct as of the Effective Date and will also be true and correct as of the Closing:

(a)         Good Standing. Purchaser is, as of the Effective Date, a limited liability company and will be, as of the Closing, a limited liability company or a corporation, in each case, duly organized, validly existing and in good standing under the Laws of the State of Delaware and in each jurisdiction required for the conduct of its business.

(b)         Authorization and Validity. This Purchase Agreement is, and all the documents executed by Purchaser which are to be delivered to Seller at the Closing will be, duly authorized, executed, and delivered by Purchaser, and is and will be legal, valid, and binding obligations of Purchaser enforceable against Purchaser in accordance with their respective terms, except to the extent that such enforcement may be limited by applicable bankruptcy, insolvency, moratorium and other equitable principles relating to or limiting the rights of contracting parties generally, and does not and will not violate any provisions of any agreement to which Purchaser is a party or to which it is subject.

(c)          No Bankruptcy Proceedings. Purchaser has not (i) made a general assignment for the benefit of creditors, (ii) filed any voluntary petition in bankruptcy or suffered the filing of any involuntary petition by Purchaser’s creditors, (iii) suffered the appointment of a receiver to take possession of all or substantially all of Purchaser’s assets, or (iv) suffered the attachment or other judicial seizure of all or substantially all of Purchaser’s assets.
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(d)          No Breach. Neither the execution of this Purchase Agreement nor the consummation of the transactions contemplated herein will constitute a breach under any contract or agreement to which Purchaser is a party or by which Purchaser is bound.

8.            Termination.

8.1.         Purchaser’s Termination. Purchaser may terminate this Purchase Agreement by timely delivery to Seller of a written notice to terminate as provided in this Purchase Agreement on or before the expiration of the Inspection Period in which event this Purchase Agreement shall terminate, the Earnest Money Deposit shall be returned to Purchaser, and, except as otherwise specified in this Purchase Agreement, neither Seller nor Purchaser shall have any further obligation to each other. Upon such termination Purchaser shall promptly return to Seller the Seller’s Deliverables.

8.2.         Purchaser’s Remedies. In the event that the Closing fails to occur as a result of the default of Seller in the performance of its obligations under this Purchase Agreement or the breach of Seller’s representations or warranties hereunder, then, upon notice to Seller and Title Company, Purchaser, at its election, shall have the right to: (a) terminate this Purchase Agreement, receive a return of the Earnest Money Deposit (without further instruction from Seller) and, notwithstanding anything herein to the contrary, Seller shall, within ten (10) days of demand therefor, reimburse Purchaser for its Reimbursable Expenses; or (b) seek the specific performance of this Purchase Agreement within one hundred twenty (120) days following the scheduled Closing Date.

8.3.         Seller’s Sole Remedy. Prior to entering into this Purchase Agreement, Purchaser and Seller have considered the damages that would be suffered by Seller in the event of a default by Purchaser of its obligation to purchase the Property. Given all the factors which directly affect the value and marketability of the Property, the parties realize that it would be extremely difficult and impracticable, if not impossible, to ascertain with any degree of certainty the amount of damages which would be suffered by Seller in the event of Purchaser’s failure to perform its obligations under this Purchase Agreement to purchase the Property. The parties hereby agree that a reasonable amount of liquidated damages is an amount equal to the Earnest Money Deposit, and in the event Purchaser fails to perform its obligations under this Purchase Agreement to purchase the Property, Seller shall, as its sole remedy, be entitled to terminate this Purchase Agreement and obtain such sum as liquidated damages. Notwithstanding the foregoing or anything herein to the contrary, Seller’s rights or remedies shall not be limited with respect to: (a) any indemnification obligations of Purchaser contained in this Purchase Agreement and (b) those other rights and obligations that, by their terms, survive the termination of this Purchase Agreement.
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9.             INDEMNITIES.
 
9.1.         INSPECTION; CONFIDENTIALITY. PURCHASER AGREES TO DEFEND, INDEMNIFY AND HOLD HARMLESS THE SELLER FROM AND AGAINST ALL CLAIMS, DAMAGES, LOSSES, COSTS, EXPENSES AND LIABILITIES, INCLUDING, BUT NOT LIMITED TO ALL ATTORNEYS’ FEES AND COURT COSTS AND EXPERT WITNESS FEES PAID OR INCURRED BY SELLER, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE FOLLOWING UNLESS CAUSED BY THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF SELLER OR ITS EMPLOYEES, AGENTS OR TENANTS: (A) PURCHASER’S EMPLOYEES’ AND AGENTS’, ENTRY UPON OR INSPECTION OR TESTING OF THE PROPERTY (OTHER THAN THE PROPERTY’S LOSS OF VALUE OR MARKETABILITY DUE TO THE DISCOVERY OF DEFECTS) AND (B) PURCHASER’S FAILURE TO PERFORM ANY OF ITS OBLIGATIONS RESPECTING CONFIDENTIALITY UNDER SECTION 4.3 OF THIS PURCHASE AGREEMENT. NOTWITHSTANDING THE FOREGOING, IN NO EVENT SHALL PURCHASER BE LIABLE TO SELLER FOR DISCOVERING, RELEASING, DISTURBING OR MOVING ANY HAZARDOUS OR REGULATED SUBSTANCE CAUSED TO BE ON, UNDER, OR ABOUT, THE PROPERTY.

9.2.         BROKERAGE COMMISSIONS.          NEITHER SELLER NOR PURCHASER HAS ENGAGED A BROKER FOR THIS TRANSACTION NOR HAVE THEY AGREED TO THE PAYMENT OF ANY COMMISSION, FINDERS FEE, REFERRAL FEE OR THE LIKE. EACH OF SELLER AND PURCHASER HEREBY AGREES TO DEFEND, INDEMNIFY, AND HOLD HARMLESS THE OTHER AGAINST ANY SUCH CLAIMS FOR COMMISSIONS OR FEES RELATIVE TO THIS PURCHASE AGREEMENT, OR THE SALE OF THE PROPERTY, AND ANY COURT COSTS, ATTORNEYS’ FEES OR OTHER COSTS OR EXPENSES ARISING THEREFROM, AND ALLEGED TO BE DUE BY AUTHORIZATION OF THE INDEMNIFYING PARTY.

9.3.         MEANING.          FOR PURPOSES OF THIS SECTION 9, ALL REFERENCES TO “SELLER” OR “PURCHASER” WHEN SUCH PARTY IS BEING INDEMNIFIED AGAINST A CLAIM, BUT NOT AS TO SUCH PARTY WHEN IT IS INDEMNIFYING THE OTHER PARTY AGAINST A CLAIM, SHALL INCLUDE: (i) SUCH PARTY’S PARENT, SUBSIDIARY AND AFFILIATES, (ii) SUCH PARTY’S MEMBERS, PARTNERS, SHAREHOLDERS, DIRECTORS, OFFICERS, EMPLOYEES AND AGENTS, AND (iii) THE HEIRS, SUCCESSORS, PERSONAL REPRESENTATIVES AND ASSIGNS OF SUCH PARTY AND SUCH PARTY’S MEMBERS, PARTNERS, SHAREHOLDERS, DIRECTORS, OFFICERS, EMPLOYEES AND AGENTS.

9.4.         EFFECTIVENESS. THE PROVISIONS OF THIS SECTION 9 SHALL BE EFFECTIVE UPON FULL EXECUTION OF THIS PURCHASE AGREEMENT AND SHALL SURVIVE CLOSING OR THE TERMINATION OF THIS PURCHASE AGREEMENT.
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10.          Fees and Charges. If Purchaser terminates or fails to Close due to no fault of Seller, Purchaser shall be obligated to pay all fees and charges owing to Title Company in connection with or in any way related to this Purchase Agreement or the transaction contemplated hereby, if any, and the Seller shall have no obligation or liability whatsoever in connection therewith.

11.          Closing Statement and Prorations.
 
11.1.      Closing Statement. No later than three (3) Business Days prior to the Closing Date, Title Company shall deliver to each of the parties for its review and approval a preliminary closing statement (the Preliminary Closing Statement) setting forth the prorations and Closing expenses allocable to each of the parties pursuant to the terms hereof. Based on each of the party’s reasonable comments, if any, regarding the Preliminary Closing Statement, Title Company shall revise the Preliminary Closing Statement and each of the parties shall, subject to its reasonable approval, deliver a final closing statement to Title Company (the Closing Statement”).

11.2.       Prorations. Rentals, revenues, and other income, if any, from the Property, general and special real estate and other ad valorem taxes, assessments, utility costs, and other expenses affecting the Property for the year of Closing shall be prorated as of the Closing Date based upon the most recent ascertainable amounts of each such item. For purposes of calculating prorations, Purchaser shall be deemed to be title holder of the Property, and therefore responsible for the expenses, after 12:01 a.m. local time on the Closing Date. The parties shall adjust any such income and expenses that were prorated on an estimated basis on the Closing Date, when and as the actual amount of such item becomes known. The party to whom credit is due shall effect any such adjustment not later than thirty (30) days following final determination of the amount of such item and demand. Seller shall pay all liens and assessments, special or otherwise, imposed against the Property, which are delinquent or are due and payable as of the Closing Date. The provisions of this Section 11 shall survive the Closing.

12.          Title Insurance. Title Company shall issue, on the date of Closing, an ALTA 2006 extended coverage owner’s policy of title insurance (“Title Policy”) in the amount of the Purchase Price, insuring Purchaser that fee simple title to the Owned Property and leasehold title to the Leased Property is vested in Purchaser subject only to the Permitted Exceptions, and containing such endorsements requested by Purchaser, all in form acceptable to Purchaser. Seller shall pay the cost of the portion of the title insurance premium attributable to an ALTA 2006 standard coverage owner’s policy of title insurance and the cost to remove any disapproved title exception or matter agreed to by Seller pursuant to the terms hereof. Buyer shall pay the cost of the portion of the title insurance premium attributable to the extended title coverage, any endorsements to the Title Policy requested by Buyer, and any lender’s title policy.
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13.          Transfer Taxes; Escrow Fees and Costs. Real property transfer taxes, escrow fees, recording fees and any other expenses of Escrow, shall be borne by Seller. Seller and Purchaser shall pay the fees of its own attorneys, accountant and other professionals. Purchaser acknowledges that the Property may be reassessed upon change of ownership which may result in a tax increase or decrease, which increase, if any, shall be the sole responsibility of Purchaser and which decrease, if any, shall accrue to the benefit of Purchaser with no credit or adjustment to Seller.

14.          Brokerage Commissions. The Seller shall not be required to pay to any broker a commission in connection with this Purchase Agreement.

15.          Casualty. If, prior to the Closing, the Property is damaged by fire, flood or other casualty, Seller, promptly upon learning of same, shall give written notice to Purchaser. Thereafter, if such damage is substantial, Purchaser shall have a period of fifteen (15) days within which to elect, by written notice to Seller and Title Company, to terminate this Purchase Agreement. Upon such termination, the Earnest Money Deposit shall be returned to Purchaser without instruction from Seller, and this Purchase Agreement shall become null and void. If no such election is timely made, Purchaser shall be deemed to have waived its rights under this Section 15; provided, however, that Purchaser shall be entitled to all of the proceeds of any insurance or casualty award related to the Property, and Seller shall execute and deliver all documents reasonably requested of Seller in order to effectuate same. The rights and obligations of the parties set forth in this Section 15 shall survive the Closing.

16.         Condemnation. If, prior to Closing, the Property or any part thereof is subject to an eminent domain or condemnation proceeding, Seller, promptly upon learning of same, shall give written notice to Purchaser. Thereafter, if more than 5% of the Property is subject to such an eminent domain or condemnation proceeding, Purchaser shall have a period of fifteen (15) days within which to elect, by written notice to Seller and Escrow Agent, to terminate this Purchase Agreement. Upon such termination, the Earnest Money Deposit shall be returned to Purchaser without instruction from Seller, and this Purchase Agreement shall become null and void. If no such election is timely made, Purchaser shall be deemed to have waived its rights under this Section 16; provided, however, that Purchaser shall be entitled to all of the proceeds of any condemnation award related to the Property, and Seller shall execute and deliver all documents reasonably requested of Seller in order to effectuate same. The rights and obligations of the parties set forth in this Section 16 shall survive the Closing.
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17.           Miscellaneous,

17.1.      Successors and Assigns. This Purchase Agreement shall be binding upon and inure to the benefit of the successors and assigns of the parties. Notwithstanding the foregoing, Purchaser may not transfer, assign or encumber Purchaser’s rights under this Purchase Agreement without the Seller’s prior written approval, except as otherwise provided in this Section. In the event of any assignment by Purchaser with the Seller’s approval, the assignee shall be and become the person or entity having the right or obligation to (a) deliver or receive notices and documents, (b) give approvals, (c) waive conditions, (d) make demands, (e) receive refunds, and (f) if the Purchase is exercised, be the grantee under the deed, and the party to whom the FIRPTA Certificate is delivered, all as may be permitted or required by this Purchase Agreement and not then already accomplished by Purchaser. In addition, the assignee shall be deemed to have assumed all obligations and liabilities of Purchaser under this Purchase Agreement. Notwithstanding the foregoing, no assignment pursuant to this Section shall relieve Purchaser of any of its obligations or liabilities under this Purchase Agreement. Any such assignment must be signed by such assignee and must contain the assignee’s assumption of Purchaser’s liabilities and obligations hereunder. Purchaser shall deliver to the Seller a complete copy of any such assignment not more than five (5) days after the effective date of such assignment. The Seller shall not be bound by any such assignment unless and until the Seller has received such copy thereof. Notwithstanding anything to the contrary contained in this Section, Purchaser may, by written notice given to the Seller not later than three (3) Business Days prior to the Closing, assign its rights under this Purchase Agreement to a wholly owned subsidiary or Affiliate of Purchaser; provided, however, such assignment shall not relieve Purchaser of any of its obligations or liabilities under this Purchase Agreement. As used herein, Affiliate shall mean any entity controlled by, or in common control with, Purchaser.

17.2.      Entire Agreement. This Purchase Agreement and all exhibits hereto including all exhibits to the Purchase Agreement contain the entire agreement between the parties concerning the Purchase, and supersedes all prior written or oral agreements between the parties to this Purchase Agreement. No addition to or modification of any term or provision hereof shall be effective unless in writing, signed by both the Seller and Purchaser.

17.3.      Time of Essence. The Seller and Purchaser hereby acknowledge and agree that time is strictly of the essence with respect to each term and condition of this Purchase Agreement and that the failure to timely perform any of the terms and conditions by either party shall constitute a breach and default under this Purchase Agreement by the party failing to so perform.

17.4.       Partial Invalidity. If any portion of this Purchase Agreement shall be declared by any court of competent jurisdiction to be invalid, illegal or unenforceable, that portion shall be deemed severed from this Purchase Agreement and the remaining parts shall remain in full force as fully as though the invalid, illegal or unenforceable portion had never been part of this Purchase Agreement.
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               17.5.       Governing Law; Venue; Waiver of Jury Trial.
 
  (a)          The parties intend and agree that this Purchase Agreement shall be governed by and construed in accordance with the Laws of the State of Nevada. Each of the parties hereto hereby irrevocably and unconditionally submits, for itself and its property, to the exclusive jurisdiction of any Nevada state court, or federal court of the United States of America, in each case, sitting in Clark County, Nevada, and any appellate court from any thereof, in any Proceeding arising out of or relating to this Purchase Agreement or the agreements delivered in connection herewith or the transactions contemplated hereby or thereby or for recognition or enforcement of any Judgment relating thereto, and each of the parties hereto hereby irrevocably and unconditionally (a) agrees not to commence any such Proceeding except in such courts, (b) agrees that any claim in respect of any such Proceeding may be heard and determined in such Nevada state court or, to the extent permitted by Law, in such federal court, in each case sitting in Clark County, Nevada, (c) waives, to the fullest extent it may legally and effectively do so, any objection which it may now or hereafter have to the laying of venue of any such Proceeding in any such Clark County, Nevada State or federal court, (d) waives, to the fullest extent permitted by Law, the defense of an inconvenient forum to the maintenance of such Proceeding in any such Clark County, Nevada state or Federal court, and (e) to the extent such party is not otherwise subject to service of process in the State of Nevada, appoints Corporation Service Company (CSC) as such party’s agent in the State of Nevada for acceptance of legal process and agrees that service made on any such agent shall have the same legal force and effect as if served upon such party personally within such state. Each of the parties hereto agrees that a final Judgment in any such Proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the Judgment or in any other manner provided by Law.

(b)          EACH PARTY HERETO ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE IT HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT AND ANY OF THE AGREEMENTS DELIVERED IN CONNECTION HEREWITH OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY. EACH PARTY HERETO CERTIFIES AND ACKNOWLEDGES THAT (a) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTIES HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTIES WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE EITHER OF SUCH WAIVERS, (b) IT UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF SUCH WAIVERS, (c) IT MAKES SUCH WAIVERS VOLUNTARILY, AND (d) IT HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION. THIS SECTION SHALL SURVIVE ANY TERMINATION OF THIS AGREEMENT PRIOR TO THE CLOSING AND SHALL ALSO SURVIVE THE RECORDATION OF THE DEED AND SHALL NOT BE DEEMED MERGED INTO THE DEED UPON ITS RECORDATION.
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(c)          Neither Seller nor Purchaser shall avail itself of any remedy granted to it hereunder based upon an alleged default of the other party hereunder unless and until written notice of the alleged default, in reasonable detail, has been delivered to the defaulting party by the non-defaulting party and the alleged default has not been cured on or before 5:00 p.m. (Pacific time) on the fifth (5th) Business Day next following delivery of said notice of default, except as otherwise specifically set forth in this Purchase Agreement. Notwithstanding the foregoing, there shall be no cure period for a party’s failure to close on the Closing Date or make its required deposits (i.e., the Seller’s Deposits and the Purchaser’s Deposits, respectively) to Escrow prior to the Closing Date as set forth in this Purchase Agreement.

17.6.         Attorneys’ Fees. If any lawsuit is filed which relates to or arises out of this Purchase Agreement, the prevailing party shall be entitled to recover from each other party such attorneys’ fees and expert witness fees as the court may award in addition to such other costs and expenses of suit as may be allowed by Law.

17.7.          No Third Parties Benefited. No person other than the Seller and Purchaser, and their permitted successors and assigns, shall have any right of action under this Purchase Agreement.

17.8.          Waivers. No waiver by either party of any provision shall be deemed a waiver of any other provision or of any subsequent breach by either party of the same or any other provision.

17.9.          Captions. The captions and Section numbers of this Purchase Agreement are for convenience and in no way define or limit the scope or intent of the Sections of this Purchase Agreement.

17.10.        Counterparts. To facilitate execution, this Purchase Agreement may be executed in as many counterparts as may be convenient or required. It shall not be necessary that the signature of, or on behalf of, each party, or that the signature of all persons required to bind any party, appear on each counterpart. All counterparts shall collectively constitute a single instrument. It shall not be necessary in making proof of this instrument to produce or account for more than a single counterpart containing the respective signatures of, or on behalf of, each of the parties hereto. Any signature page to any counterpart may be detached from such counterpart without impairing the legal effect of the signatures thereon and thereafter attached to another counterpart identical thereto except having attached to it additional signature pages.

17.11.        Payments. Any payments required or permitted to be made by Purchaser to Seller under this Purchase Agreement shall be in the form of a federal funds wire transfer only.
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17.12.        Time Zone. Every reference in this Purchase Agreement to a time of day shall be deemed to be a reference to the time of day in Las Vegas, Nevada.

17.13.        No Presumption. All the parties hereto and their attorneys have had full opportunity to review and participate in the drafting of the final form of this Purchase Agreement, the Purchase Agreement and all documents attached as exhibits to either. Accordingly, such documents shall be construed without regard to any presumption or other rule of construction whereby any ambiguities within this Purchase Agreement would be construed or interpreted against the party causing the document to be drafted.

17.14.        Notices. Any notices or other communication required or permitted under this Purchase Agreement shall be in writing, and shall be personally delivered, or sent by certified or registered United States mail, postage prepaid, return receipt requested, or sent by reputable national overnight courier delivery service with confirmation of delivery to the address of the party set forth in Section 2 of this Purchase Agreement. Such notice or communication shall be deemed given when delivered in person, when the notice is received or, in the case of mailed notice, forty-eight (48) hours following deposit in the United States mail. Notice of change of address shall be given by written notice in the manner detailed in this Section.

17.15.        Survival and Benefit. All agreements, indemnifications and obligations of the parties which are intended to be performed in whole or in part after the Closing shall survive the Closing and the same shall inure to the benefit of, and be binding upon, the respective successors and permitted assigns of the parties. Notwithstanding the foregoing, the representations and warranties of the parties hereto set forth in this Purchase Agreement shall survive the Closing for a period of twelve (12) months only; provided, however, a party shall not have any liability or obligation with respect to any of its representations or warranties contained herein unless on or prior to a date which is not later than twelve (12) months following the Closing the other party shall have notified such party in writing setting forth specifically the representation or warranty allegedly breached, and a description of the alleged breach in reasonable detail. All liabilities and obligations of each party hereto under any representation or warranty shall lapse and be of no further force or effect with respect to any matters not contained in a written notice delivered as contemplated above on or prior to twelve (12) months following the Closing.

[Signature Pages Follow.]
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IN WITNESS WHEREOF, Purchaser and Seller have executed this Purchase Agreement as of the date first set forth above.

 
PURCHASER:
   
 
BRIGHTLINE HOLDINGS, LLC.,
 
a Delaware limited liability company
 
By:
   
/s/ Kolleen Cobb
 
Name:
Kolleen Cobb
 
Title:
 
Vice President

[Signatures Continue on Following Page]

 
THARALDSON ETHANOL PLANT I, LLC,
 
a Nevada limited liability company
   
 
By:
/s/ Gary Tharaldson
 
Name:
Gary Tharaldson
 
Its:
Manager
     
 
TMII SOUTH TECH, LLC,
 
a Nevada limited liability company
   
 
By:
/s/ Gary Tharaldson
 
Name:
Gary Tharaldson
 
Its:
Manager
     
 
C.Y. HERITAGE INN OF DAYTON, INC.,
 
a Nevada corporation
   
 
By:
/s/ Gary Tharaldson
 
Name:
Gary Tharaldson
 
Its:
President
     
 
4424 POLARIS AVENUE, LLC
 
a Nevada limited liability company
   
 
By:
/s/ Gary Tharaldson 
 
Name:
Gary Tharaldson
 
Its:
President-Manager
     
 
C.Y. & R.I. HERITAGE INN OF PALMDALE, INC.
 
a Nevada corporation
   
 
By:
/s/ Gary Tharaldson
 
Name:
Gary Tharaldson
 
Its:
President
31

 TITLE COMPANY ACKNOWLEDGEMENT
 
The undersigned Title Company hereby accepts the foregoing Real Estate Purchase and Sale Agreement and agrees to act as Title Company under this Agreement in strict accordance with its terms. The Opening of Escrow occurred on September 17, 2018.

First American Title Insurance Company
 
By:
/s/ Troy Lochhead
Name:
Troy Lochhead
Title:
VP Nevada Escrow Operations Manager


Exhibit 1-A-1

 
Exhibit “1-A”
 Legal Description of the TEP Owned Land
 
THIS LEGAL DESCRIBES A PORTION OF LOT 1 AS SHOWN BY FINAL MAP OF CITY VIEW, A COMMERCIAL SUBDIVISION, THEREOF ON FILE RECORDED FEBRUARY 13, 2014 AS INSTRUMENT NO.01881 OF OFFICIAL RECORDS, BOOK 146 OF PLATS, PAGE 46 IN THE CLARK COUNTY RECORDER’S OFFICE, CLARK COUNTY, NEVADA, LYING WITHIN THE NORTHWEST QUARTER (NW1/4) OF SECTION 20, TOWNSHIP 21 SOUTH, RANGE 61 EAST, M.D.M., CLARK COUNTY, NEVADA DESCRIBES AS FOLLOWS:
 
LEGAL DESCRIPTION
 
PARCEL 1:
 
COMMENCING AT THE SOUTHWEST CORNER OF THE SOUTHEAST QUARTER (SE 1/4) OF THE NORTHWEST QUARTER (NW 1/4) OF SAID SECTION 20, SAID POINT ALSO BEING THE CENTERLINE INTERSECTION OF HARMON AVENUE (PUBLIC STREET - VARYING WIDTH) AND POLARIS STREET (PUBLIC STREET - 60.00 FEET WIDE), THENCE NORTH 60°03’40’ WEST ALONG THE WEST LINE OF SAID SOUTHEAST QUARTER (SE 1/4), SAID WEST LINE ALSO BEING THE CENTERLINE OF SAID POLARIS STREET 1329.40 FEET TO THE SOUTHWEST CORNER OF THE NORTHEAST QUARTER (NE 1/4) OF THE NORTHWEST QUARTER (NW 1/4) OF SAID SECTION 20; THENCE ALONG THE WEST LINE OF SAID NORTHEAST QUARTER (NE 1/4) NORTH 00°3’34” WEST, 613.67 FEET TO THE POINT OF BEGINNING BEING A POINT ON THE NORTHERLY RIGHT-OF-WAY LINE OF SAID POLARIS STREET AS SHOWN AND DEDICATED ON SAID FINAL MAP OF CITY VIEW, A COMMERCIAL SUBDIVISION, BOOK 146 OF PLATS, PAGE 46, SAID POINT BEING THE BEGINNING OF A NON-TANGENT CURVE HAVING A 50.00 FOOT RADIUS, A RADIAL LINE TO SAID POINT BEARS NORTH 00°03’34” WEST; THENCE DEPARTING SAID WEST LINE ALONG THE NORTHERLY AND WESTERLY RIGHT-OF-WAY LINES OF SAID POLARIS AVENUE, SAID NORTHERLY AND WESTERLY RIGHT-OF-WAY LINES BEING COINCIDENT WITH A WESTERLY LINE OF SAID LOT 1 OF FINAL MAP OF CITY VIEW, A COMMERCIAL SUBDIVISION, BOOK 146 OF PLATS, PAGE 46, THE FOLLOWING THREE (3) COURSES: 1) CURVING TO THE LEFT ALONG THE ARC OF SAID CURVE, CONCAVE SOUTHEASTERLY, THROUGH A CENTRAL ANGLE OF 136°11’13”, AN ARC LENGTH OF 118,85 FEET TO THE BEGINNING OF A TANGENT REVERSE CURVE HAVING A RADIUS OF 15.00 FEET, A RADIAL LINE THROUGH SAID POINT BEARS SOUTH 43°45’13” WEST; 2) THENCE CURVING TO THE RIGHT ALONG THE ARC OF SAID CURVE, CONCAVE SOUTHWESTERLY, THROUGH A CENTRAL ANGLE OF 46°11’13”, AN ARC LENGTH OF
Exhibit 1-A-1

 
12.09 FEET; 3) THENCE SOUTH 00°03’34” EAST, 276.38 FEET TO THE NORTHEASTERLY CORNER OF LOT 2 AS SHOWN BY PARCEL MAP THEREOF ON FILE RECORDED JUNE 6, 1980 IN BOOK 1237 OF OFFICIAL RECORDS AS INSTRUMENT NO. 1196782, FILE 31 OF PARCEL MAPS, PAGE 55 IN THE CLARK COUNTY RECORDER’S. CLARK COUNTY, NEVADA; THENCE ALONG NORTHERLY LINE OF SAID LOT 2, SAID NORTHERLY LINE BEING COINCIDENT WITH A SOUTHERLY LINE OF SAID LOT 1 OF FINAL MAP OF CITY VIEW, A COMMERCIAL SUBDIVISION, BOOK 146 OF PLATS, PAGE 46, NORTH 89º20’15” WEST, 199.40 FEET TO THE NORTHWESTERLY CORNER OF SAID LOT 2 BEING A POINT ON THE EASTERLY LINE OF THAT PARCEL OF LAND AS DESCRIBED IN THAT CERTAIN CLARK COUNTY TREASURER TRUSTEE DEED THEREOF ON FILE RECORDED JANUARY 30, 1995 IN BOOK 19950130 OF OFFICIAL RECORDS AS INSTRUMENT NO. 00472 IN THE CLARK COUNTY RECORDER’S OFFICE, CLARK COUNTY, NEVADA; THENCE ALONG SAID EASTERLY LINE, SAID EASTERLY LINE BEING COINCIDENT WITH THE WESTERLY LINE OF SAID LOT 1 OF FINAL MAP OF CITY VIEW, A COMMERCIAL SUBDIVISION, BOOK 146 OF PLATS, PAGE 46, NORTH 27°59’07” EAST, 487.89 FEET TO A POINT ON THE AFOREMENTIONED WEST OF THE NORTHEAST QUARTER (NE 1/4) OF THE NORTHWEST QUARTER (NW 1/4) OF SAID SECTION 20; THENCE DEPARTING SAID EASTERLY LINE ALONG SAID EAST LINE SOUTH 00°03’34 EAST, 59.82 FEET TO THE POINT OF BEGINNING.
 
CONTAINING 37.485 SQUARE FEET / 0.86 ACRES.
 
PARCEL 2:
 
COMMENCING AT THE SOUTHWEST CORNER OF THE SOUTHEAST QUARTER (SE 1/4) OF THE NORTHWEST QUARTER (NW 1/4) OF SAID SECTION 20 SAID POINT ALSO BEING THE CENTERLINE INTERSECTION OF HARMON AVENUE (PUBLIC STREET - VARYING WIDTH) AND POLARIS STREET (PUBLIC STREET - 60.00 FEET WIDE); THENCE ALONG THE SOUTH LINE OF SAID SOUTHEAST QUARTER (SE 1/4), SAID SOUTH LINE ALSO BEING THE CENTERLINE OF SAID HARMON AVENUE, SOUTH 89o04’32” WEST, 645.58 FEET TO THE SOUTHWEST CORNER OF THE SOUTHEAST QUARTER (SE 1/4) OF THE SOUTHEAST QUARTER (SE 1/4) OF THE NORTHWEST QUARTER (NW 1/4) OF SAID SECTION 20, SAID SOUTHWEST CORNER ALSO BEING THE CENTERLINE INTERSECTION OF HARMON AVENUE (PUBLIC STREET - VARYING WIDTH) AND ALDEBARAN AVENUE
 
Exhibit 1-A-2

 
(PUBLIC STREET - VARYING WIDTH); THENCE DEPARTING SAID SOUTH LINE NORTH 00°30’44” EAST ALONG THE WEST LINE OF THE SOUTHEAST QUARTER (SE 1/4) OF THE SOUTHEAST QUARTER (SE 1/4) OF THE NORTHWEST QUARTER (NW 1/4) OF SAID SECTION 20, SAID WEST LINE ALSO BEING THE CENTERLINE OF SAID ALDEBARAN AVENUE, 455.34 FEET TO A POINT ON THE WESTERLY EXTENSION OF A SOUTHERLY LINE OF SAID LOT 1 OF FINAL MAP OF CITY VIEW, A COMMERCIAL SUBDIVISION; THENCE ALONG SAID WESTERLY EXTENSION SOUTH 89o28’06” EAST, 30.00 FEET TO A POINT ON THE EASTERLY LINE OF ALDEBARAN AVENUE, SAID EASTERLY RIGHT-OF-WAY LINE ALSO BEING A WESTERLY LINE OF SAID LOT 1 OF FINAL MAP OF CITY VIEW, A COMMERCIAL SUBDIVISION AND THE BEGINNING OF A NON-TANGENT CURVE HAVING A RADIUS OF 14.50 FEET, A RADIAL LINE TO SAID POINT BEARS NORTH 89°29’16” WEST; THENCE ALONG SAID EASTERLY RIGHT-OF-WAY LINE AND WESTERLY LINE THE FOLLOWING THREE (3) COURSES: 1) CURVING TO THE RIGHT ALONG THE ARC OF SAID CURVE, CONCAVE SOUTHEASTERLY, THROUGH A CENTRAL ANGLE OF 42c07’35”, AN ARC LENGTH OF 10.66 FEET TO THE BEGINNING OF A TANGENT REVERSE CURVE HAVING A RADIUS OF 45.50 FEET, A RADIAL LINE THROUGH SAID POINT BEARS NORTH 47°21’41” WEST; 2) THENCE CURVING TO THE LEFT ALONG THE ARC OF SAID CURVE. CONCAVE WESTERLY, THROUGH A CENTRAL ANGLE OF 90°52’36”, AN ARC LENGTH OF 72.17 FEET TO AN ANGLE POINT THEREIN TO WHICH A RADIAL LINE BEARS NORTH 41°45’43” EAST; 3) THENCE NORTH 00°30’44” EAST 45.57 FEET TO THE POINT OF BEGINNING; THENCE DEPARTING SAID EASTERLY RIGHT-OF-WAY LINE SOUTH 89°28’32” EAST, 147.00 FEET; THENCE PARALLEL WITH THE AFOREMENTIONED WEST LINE OF THE SOUTHEAST QUARTER (SE 1/4) OF THE SOUTHEAST QUARTER (SE 1/4) OF THE NORTHWEST QUARTER (NW 1/4) OF SAID SECTION 20 SOUTH 00°30’44” WEST, 120.05 FEET TO THE BEGINNING OF A NON-TANGENT CURVE HAVING A RADIUS OF 120.00 FEET, A RADIAL LINE TO SAID POINT BEARS SOUTH 00°31’54 WEST, SAID POINT BEING THE CORNER COMMON TO LOTS 6 AND 7 AS SHOWN BY FINAL MAP OF INTERSTATE INDUSTRIAL PARK THEREOF ON FILE RECORDED MAY 7,1984 IN BOOK 1917 OF OFFICIAL RECORDS AS INSTRUMENT NO. 1876748, BOOK 31 OF PLATS, PAGE 61 IN THE CLARK COUNTY RECORDER’S OFFICE, CLARK COUNTY, NEVADA; THENCE ALONG THE NORTH LINES OF SAID LOT 7 AND LOTS 8 AND 9 OF SAID FINAL MAP OF INTERSTATE INDUSTRIAL PARK, BOOK 31 OF PLATS, PAGE 61, SAID NORTHERLY LINE BEING COINCIDENT WITH A SOUTHERLY LINE OF SAID LOT 1 OF FINAL MAP OF CITY VIEW, A COMMERCIAL SUBDIVISION, BOOK 146 OF PLATS, PAGE 46, THE FOLLOWING THREE (3) COURSES;1) CURVING TO THE LEFT ALONG THE ARC OF SAID CURVE, CONCAVE
Exhibit 1-A-3

 
NORTHWESTERLY, THROUGH A CENTRAL ANGLE OF 14°23’58” AN ARC LENGTH OF 30.16 FEET TO THE BEGINNING OF A TANGENT REVERSE CURVE TO THE RIGHT HAVING A RADIUS OF 120.00 FEET, A RADIAL LINE THROUGH SAID POINT BEARS SOUTH 13°52’04” EAST; 2) THENCE CURVING TO THE RIGHT ALONG THE ARC OF SAID CURVE, CONCAVE SOUTHEASTERLY, THROUGH A CENTRAL ANGLE OF 14°47’09”, AN ARC LENGTH OF 30.97 FEET; 3) THENCE SOUTH 89°04’55” EAST, 352.61 FEET TO A POINT ON THE WESTERLY RIGHT-OF-WAY LINE OF DEAN MARTIN DRIVE (PUBLIC STREET - VARYING WIDTH - FORMERLY INDUSTRIAL ROAD) AS SHOWN ON AND DEDICATED BY SAID FINAL MAP OF INTERSTATE INDUSTRIAL PARK, BOOK 31 OF PLATS, PAGE 61; THENCE ALONG SAID WESTERLY RIGHT-OF-WAY LINE, SAID WESTERLY RIGHT-OF-WAY LINE BEING COINCIDENT WITH THE EASTERLY LINE OF SAID LOT 1 OF FINAL MAP OF CITY VIEW, A COMMERCIAL SUBDIVISION, BOOK 146 OF PLATS, PAGE 46 THE FOLLOWING THREE (3) COURSES: 1) NORTH 01°05’22” EAST, 203.05 FEET TO AN ANGLE POINT THEREIN BEING A POINT ON THE NORTH LINE OF THE SOUTHEAST QUARTER (SE 1/4) OF THE SOUTHEAST QUARTER (SE 1/4) OF THE NORTHWEST QUARTER (NW 1/4) OF SAID SECTION 20; 2) THENCE ALONG SAID NORTH LINE SOUTH 89°12’47” EAST, 7.25 FEET TO AN ANGLE POINT IN SAID WESTERLY RIGHT-OF-WAY LINE; 3) THENCE ALONG SAID WESTERLY RIGHT-OF-WAY LINE NORTH 02°21’56” WEST, 1.00 FEET TO AN ANGLE POINT THEREIN BEING A POINT ON THE NORTH LINE OF THE SOUTHERLY 1.00 FEET OF THE NORTHWEST QUARTER (NW 1/4) OF THE SOUTHEAST QUARTER (SE 1/4) OF THE NORTHWEST QUARTER (NW 1/4) OF SAID SECTION 20; THENCE ALONG SAID NORTHERLY LINE AND WESTERLY EXTENSION THEREOF NORTH 89°12’47” WEST, 599.35 FEET TO A POINT ON THE WEST LINE OF THE NORTHWEST QUARTER (NW 1/4) OF THE SOUTHEAST QUARTER (SE 1/4) OF THE NORTHWEST QUARTER (NW 1/4) OF SAID SECTION 20, SAID POINT BEING AN ANGLE POINT IN THE EASTERLY RIGHT-OF-WAY LINE OF AFOREMENTIONED ALDEBARAN AVENUE (PUBLIC STREET - VARYING WIDTH); THENCE ALONG SAID EASTERLY RIGHT-OF-WAY LINE, SAIC EASTERLY RIGHT-OF-WAY LINE BEING COINCIDENT WITH A WESTERLY LINE OF SAID LOT 1 OF FINAL MAP OF CITY VIEW, A COMMERCIAL SUBDIVISION, BOOK 146 OF PLATS PAGE 46, THE FOLLOWING THREE (3) COURSES: 1) THENCE ALONG SAID WEST LINE SOUTH 00°30’44” WEST, 1.00 FEET TO THE NORTHWEST CORNER OF THE SOUTHEAST QUARTER (SE 1/4) OF THE SOUTHEAST QUARTER (SE 1/4) OF THE NORTHWEST QUARTER (NW 1/4) OF SAID SECTION 20; 2) THENCE ALONG THE NORTH LINE OF THE SOUTHEAST QUARTER (SE 1/4) OF THE SOUTHEAST QUARTER (SE 1/4) OF THE
 
Exhibit 1-A-4

 
NORTHWEST QUARTER (NW 1/4) OF SAID SECTION 20 SOUTH 89°12’47” EAST, 30.00 FEET; THENCE SOUTH 00°30’44” WEST, 90.68 FEET TO THE POINT OF BEGINNING.
 
CONTAINING 98.011 SQUARE FEET / 2.25 ACRES.
 
PARCEL 3:
 
COMMENCING AT THE SOUTHWEST CORNER OF THE SOUTHEAST QUARTER (SE 1/4) OF THE NORTHWEST QUARTER (NW 1/4) OF SAID SECTION 20, SAID POINT ALSO BEING THE CENTERLINE INTERSECTION OF HARMON AVENUE (PUBLIC STREET - VARYING WIDTH) AND POLARIS STREET (PUBLIC STREET - 60.00 FEET WIDE), THENCE NORTH 00°03’40” WEST ALONG THE WEST LINE OF SAID SOUTHEAST QUARTER (SE 1/4), SAID WEST LINE ALSO BEING THE CENTERLINE OF SAID POLARIS STREET, 860.13 FEET TO A POINT ON THE NORTH LINE OF THE SOUTH 860.00 FEET OF SAID SOUTHEAST QUARTER (SE 1/4); THENCE DEPARTING SAID WEST LINE AND CENTERLINE ALONG SAID NORTH LINE SOUTH 89°04’32” EAST, 30.00 FEET TO A POINT ON THE EAST RIGHT-OF-WAY LINE OF SAID POLARIS STREET AND THE POINT OF BEGINNING; THENCE ALONG THE EASTERLY RIGHT-OF-WAY LINE OF SAID POLARIS STREET, SAID EASTERLY RIGHT-OF-WAY LINE BEING COINCIDENT WITH A WESTERLY LINE OF SAID LOT 1 OF FINAL MAP OF CITY VIEW, A COMMERCIAL SUBDIVISION, BOOK 146 OF PLATS, PAGE 46, THE FOLLOWING FOUR (4) COURSES; 1) NORTH 00°03’40 WEST, 469.79 FEET TO AN ANGLE POINT THEREIN; 2) THENCE NORTH 00°03’34” WEST, 516.77 FEET TO THE BEGINNING OF A TANGENT CURVE TO THE RIGHT HAVING A RADIUS OF 15.00 FEET; 3) THENCE CURVING TO THE RIGHT ALONG THE ARC OF SAID CURVE, CONCAVE SOUTHEASTERLY, THROUGH A CENTRAL ANGLE OF 46°11’13”, AN ARC LENGTH OF 12.09 FEET TO THE BEGINNING OF A TANGENT REVERSE CURVE HAVING A RADIUS OF 50.00 FEET, A RADIAL LINE THROUGH SAID POINT BEARS NORTH 43°52’21” WEST; 4) THENCE CURVING TO THE LEFT ALONG THE ARC OF SAID CURVE, CONCAVE SOUTHWESTERLY, THROUGH A CENTRAL ANGLE OF 99°18’42, AN ARC LENGTH OF 86.67 FEET TO A POINT ON THE EAST LINE OF THE WEST 30.00 FEET OF THE NORTHEAST QUARTER (NE 1/4) OF THE NORTHWEST QUARTER (NW 1/4) OF SAID SECTION 20; THENCE ALONG SAID EAST LINE NORTH 00°03’34” WEST, 30.56 FEET; THENCE DEPARTING SAID EAST LINE SOUTH 89°25’56” EAST, 199.95 FEET TO A POINT ON THE SOUTHERLY EXTENSION OF THE WESTERLY LINE OF THAT PARCEL OF LAND AS DESCRIBED IN THAT CERTAIN GRANT, BARGAIN, SALE DEED TO COUNTY OF CLARK
Exhibit 1-A-5

 
THEREOF RECORDED SEPTEMBER 15,1994 IN BOOK 19940915 OF OFFICIAL RECORDS AS INSTRUMENT NO. 00286 IN THE CLARK COUNTY RECORDER’S OFFICE, CLARK COUNTY, NEVADA; THENCE ALONG SAID SOUTHERLY EXTENSION, PARALLEL WITH THE WEST LINE OF SAID NORTHEAST QUARTER (NE 1/4) NORTH 00°03’34” WEST, 30.00 FEET TO THE SOUTHWEST CORNER OF SAID PARCEL OF LAND OF RIGHT-OF-WAY OF HOTEL RIO DRIVE AS DESCRIBED IN SAID GRANT, BARGAIN, SALE DEED TO COUNTY OF CLARK, BOOK 19940915 OF OFFICIAL RECORDS, INSTRUMENT NO. 00286, SAID SOUTHWEST CORNER BEING A POINT ON SOUTHERLY RIGHT-OF-WAY LINE OF SAID HOTEL RIO DRIVE, SOUTH SOUTHERLY RIGHT-OF-WAY LINE BEING COINCIDENT WITH THE NORTHERLY LINE OF SAID LOT 1 OF FINAL MAP OF CfTY VIEW, A COMMERCIAL SUBDIVISION, BOOK 146 OF PLATS, PAGE 46; THENCE ALONG SAID SOUTHERLY RIGHT-WAY LINE AND NORTHERLY LINE THE FOLLOWING FIVE (5) COURSES: 1) SOUTH 89°28’46 EAST, 21.25 FEET TO THE BEGINNING OF A NON-TANGENT CURVE HAVING A RADIUS OF 375.50 FEET, A RADIAL LINE TO SAID POINT BEARS SOUTH 40°40’04” WEST; 2) THENCE CURVING TO THE LEFT ALONG THE ARC OF SAID CURVE, CONCAVE NORTHEASTERLY, THROUGH A CENTRAL ANGLE OF 53°24’08”, AN ARC LENGTH OF 349.98 FEET; 3) THENCE NORTH 77°15’56” EAST, 4.79 FEET TO THE BEGINNING OF A TANGENT CURVE TO THE RIGHT HAVING A RADIUS OF 19.00 FEET; 4) THENCE CURVING TO THE RIGHT ALONG THE ARC OF SAID CURVE, CONCAVE SOUTHERLY, THROUGH A CENTRAL ANGLE OF 83°23’10”, AN ARC LENGTH OF 27.65 FEET TO A POINT TO WHICH A RADIAL LINE BEARS NORTH 70°39’06” EAST; 5) THENCE ALONG THE EASTERLY EXTENSION OF SAID RADIAL LINE NORTH 70°39’06” EAST, 6.00 FEET TO A POINT ON THE WESTERLY RIGHT-OF-WAY LINE OF DEAN MARTIN DRIVE (PUBLIC STREET - VARYING WIDTH - FORMERLY INDUSTRIAL ROAD) AS DESCRIBED IN THAT CERTAIN QUITCLAIM DEED TO COUNTY OF CLARK RECORDED OCTOBER 24, 1995 IN BOOK 19951024 OF OFFICIAL RECORDS AS INSTRUMENT NO. 01570 IN THE CLARK COUNTY RECORDER’S OFFICE, CLARK COUNTY, NEVADA, SAID WESTERLY RIGHT-OF-WAY LINE ALSO BEING THE MOST EASTERLY LINE OF SAID LOT 1 OF FINAL MAP OF CITY VIEW, A COMMERCIAL SUBDIVISION, BOOK 146 OF PLATS, PAGE 46, SAID POINT BEING THE BEGINNING OF A NON-TANGENT CURVE HAVING A RADIUS OF 535.00 FEET, A RADIAL LINE TO SAID POINT BEARS SOUTH 70°39’06” WEST; THENCE ALONG SAID WESTERLY RIGHT-OF-WAY LINE AND MOST EASTERLY LINE CURVING TO THE LEFT ALONG THE ARC OF SAID CURVE CONCAVE NORTHEASTERLY, THROUGH A CENTRAL ANGLE OF 12°58’10”, AN ARC LENGTH OF 121.10 FEET TO A POINT ON THE EAST LINE OF THE SOUTHWEST QUARTER (SW 1/4) OF THE NORTHEAST QUARTER (NE 1/4) OF THE NORTHWEST
 
Exhibit 1-A-6

 
QUARTER (NW 1/4) OF SAID SECTION 20, A RADIAL LINE TO SAID POINT BEARS SOUTH 57°40’56” WEST; THENCE ALONG THE EAST LINE OF SAID SOUTHWEST QUARTER (SW 1/4) OF THE NORTHEAST QUARTER (NE 1/4) OF THE NORTHWEST QUARTER (NW 1/4) OF SAID SECTION 20, SOUTH 00°31’06” WEST, 468.01 FEET TO THE NORTHEAST CORNER OF THAT PARCEL OF LAND AS DESCRIBED IN THAT CERTAIN GRANT DEED TO CLARK COUNTY, NEVADA RECORDED FEBRUARY 23, 1971 IN BOOK 103 OF OFFICIAL RECORDS AS INSTRUMENT NO. 82199 IN THE CLARK COUNTY RECORDER’S OFFICE, CLARK COUNTY, NEVADA, SAID POINT BEING AN ANGLE POINT IN A SOUTHERLY LINE OF SAID LOT 1 OF FINAL MAP OF CITY VIEW, A COMMERCIAL SUBDIVISION, BOOK 146 OF PLATS, PAGE 46; THENCE DEPARTING SAID EAST LINE ALONG THE NORTHERLY AND EASTERLY LINES OF SAID PARCEL AND SAID SOUTHERLY LINE OF LOT 1 THE FOLLOWING THREE (3) COURSES: 1) NORTH 69°34’31” WEST, 30.00 FEET TO A POINT ON THE WEST LINE OF THE EAST 30.00 FEET OF SAID SOUTHWEST QUARTER (SW1/4) OF THE NORTHEAST QUARTER (NE1/4) OF THE NORTHWEST QUARTER (NW1/4) OF SAID SECTION 20; 2) THENCE ALONG SAID WEST LINE SOUTH 00°31’06” WEST, 2.42 FEET TO AN ANGLE POINT THEREIN; 3) THENCE SOUTH 00°30’44” WEST, 472.03 FEET TO A POINT ON THE NORTH LINE OF THE SOUTH 860.00 FEET OF THE SOUTHEAST QUARTER (SE1/4) OF THE NORTHWEST QUARTER (NW1/4) OF SAID SECTION 20; THENCE DEPARTING SAID WEST LINE ALONG SAID NORTH LINE NORTH 89°04’32 WEST, 594.19 FEET TO THE POINT OF BEGINNING.
 
CONTAINING 661,771 SQUARE FEET /15.19 ACRES .
 
BASIS OF BEARINGS
 
NORTH 01°05’2” EAST, BEING THE EAST LINE OF THE SOUTHEAST QUARTER (SE 1/4) OF THE NORTHWEST QUARTER (NW 1/4) OF SECTION 20, TOWNSHIP 21 SOUTH, RANGE 61 EAST, M.D.M., AS SHOWN BY FINAL MAP OF INTERSTATE INDUSTRIAL PARK THEREOF ON FILE RECORDED MAY 7, 1984 IN BOOK 1917 OF OFFICIAL RECORDS AS INSTRUMENT NO. 1876748, BOOK 31 OF PLATS, PAGE 61 IN THE CLARK COUNTY RECORDER’S OFFICE. CLARK COUNTY, NEVADA.
 
Exhibit 1-A-7

 
Exhibit “1-B”
Legal Description of the Palmdale Land
 
Legal Description (Survey Area 1)
 
THIS LEGAL DESCRIBES A PORTION OF LOT 1 AS SHOWN BY FINAL MAP OF CITY VIEW, A COMMERCIAL SUBDIVISION, THEREOF ON FILE RECOROED February 13, 2014 AS INSTRUMENT NO. 01881 OF OFFICIAL RECORDS, BOOK 146 OF PLATS, PAGE 46 IN THE CLARK COUNTY RECORDER’S OFFICE, CLARK COUNTY, NEVADA, LYING WITHIN THE NORTHWEST QUARTER (NW 1/4) OF SECTION 20, TOWNSHIP 21 SOUTH, RANGE 61 EAST, M.D.M., CLARK COUNTY, NEVADA DESCRIBED AS FOLLOWS;
 
COMMENCING AT THE SOUTHWEST CORNER OF THE SOUTHEAST QUARTER (SE 1/4) OF THE NORTHWEST QUARTER (NW 1/4) OF SAID SECTION 20, SAID POINT ALSO BEING THE CENTERLINE INTERSECTION OF HARMON AVENUE (PUBLIC STREET - VARYING WIDTH) AND POLARIS STREET (PUBLIC STREET - 60.00 FEET WIDE), THENCE NORTH 00°03’40” WEST ALONG THE WEST LINE OF SAID SOUTHEAST QUARTER (SE 1/4), SAID WEST LINE ALSO BEING THE CENTERLINE OF SAID POLARIS STREET, 664.10 FEET TO A POINT ON THE NORTH LINE OF THE SOUTH 664.00 FEET OF SAID SOUTHEAST QUARTER (SE 1/4); THENCE DEPARTING SAID WEST LINE AND CENTERLINE ALONG SAID NORTH LINE SOUTH 89°04’32” WEST, 30.00 FEET TO A POINT ON THE EAST RIGHT-OF-WAY LINE OF SAID POLARIS STREET AND THE SOUTH EAST CORNER OF THAT PARCEL OF LAND DESCRIBED IN THAT CERTAIN GRANT, BARGAIN, SALE DEED TO CLARK COUNTY RECORDED MARCH 7,1978 IN BOOK 856 OF OFFICIAL RECORDS AS INSTRUMENT NO. 815220 IN THE CLARK COUNTY RECORDER’S OFFICE, CLARK COUNTY, NEVADA AND THE POINT OF BEGINNING; THENCE NORTH 00°03’40” WEST ALONG SAID EASTERLY RIGHT-OF-WAY LINE, SAID EASTERLY RIGHT-OF-WAY LINE ALSO BEING A WESTERLY LINE OF SAID LOT 1 OF FINAL MAP OF CITY VIEW, A COMMERCIAL SUBDIVISION, 196.03 FEET TO A POINT ON THE NORTH LINE OF THE SOUTH 860.00 FEET OF SAID SOUTHEAST QUARTER (SE 1/4); THENCE DEPARTING SAID EASTERLY RIGHT-OF-WAY LINE AND SAID WEST LINE ALONG SAID NORTHERLY LINE SOUTH 89°04’32” EAST, 594.19 FEET TO A POINT ON THE WESTERLY RIGHT-OF-WAY LINE OF ALDEBARAN AVENUE (PUBLIC STREET - VARYING WIDTH), SAID WESTERLY RIGHT-OF-WAY LINE ALSO BEING A EASTERLY LINE OF SAID LOT 1 OF FINAL MAP OF CITY VIEW, A COMMERCIAL SUBDIVISION; THENCE ALONG SAID WESTERLY RIGHT-OF-WAY LINE AND EASTERLY LINE THE FOLLOWING FOUR (4) COURSES: 1) SOUTH 00°30’44” WEST 330.45 FEET TO THE BEGINNING A NON-TANGENT CURVE HAVING A RADIUS OF 45.50, A RADIAL LINE TO SAID POINT BEARS NORTH 40°44’15” WEST; 2) THENCE CURVING TO THE LEFT ALONG THE ARC OF SAID CURVE, CONCAVE EASTERLY, THROUGH A CENTRAL ANGLE OF 90°52’37”, AN ARC LENGTH OF 72.17 FEET TO THE BEGINNING OF A TANGENT REVERSE CURVE HAVING A RADIUS OF 14.50 FEET, A RADIAL
 

Exhibit 1-B-1

 
LINE THROUGH SAID POINT BEARS SOUTH 48°23’09” WEST; 3) THENCE CURVING TO THE RIGHT ALONG SAID CURVE, CONCAVE SOUTHWESTERLY, THROUGH A CENTRAL ANGLE OF 42°07’35”, AN ARC LENGTH OF 10.66 FEET; 4) THENCE SOUTH 00°30’44” WEST, 103.18 FEET TO A SOUTHEAST CORNER OF SAID LOT 1 OF FINAL MAP OF CITY VIEW, A COMMERCIAL SUBDIVISION, SAID POINT ALSO BEING THE NORTHEAST CORNER OF PARCEL 1 AS SHOWN BY PARCEL MAP THEREOF ON FILE RECORDED JUNE 11, 2003 IN BOOK 20030611 OF OFFICIAL RECORDS AS INSTRUMENT NO. 03055, FILE 105 OF PARCEL MAPS, PAGE 5 IN THE CLARK COUNTY RECORDER’S OFFICE, CLARK COUNTY, NEVADA; THENCE DEPARTING SAID WESTERLY RIGHT-OF-WAY LINE, NORTH 89°04’11” WEST ALONG A SOUTHERLY LINE OF SAID LOT 1 OF FINAL MAP OF CITY VIEW, A COMMERCIAL SUBDIVISION, SAID SOUTHERLY LINE ALSO BEING THE NORTHERLY LINE OF SAID PARCEL 1 OF FILE 105 OF PARCEL MAPS, PAGE 5, A DISTANCE OF 296.31 FEET TO A POINT ON THE EAST LINE OF THE WEST 322.75 FEET OF SAID SOUTHEAST QUARTER (SE 1/4); THENCE DEPARTING SAID SOUTHERLY AND NORTHERLY LINE NORTH 00°03’40” WEST, 312.09 FEET TO A POINT ON THE NORTH LINE OF THE SOUTH 664.00 FEET OF SAID SOUTHEAST QUARTER (SE 1/4); THENCE ALONG SAID NORTH LINE, NORTH 89°04’32” WEST, 292.79 FEET TO THE POINT OF BEGINNING.
 
CONTAINING 208,482 SQUARE FEET OR 4.79 ACRES.
 
Legal Description (Survey Area 2)
 
THIS LEGAL DESCRIBES A PORTION OF LOT 1 AS SHOWN BY FINAL MAP OF CITY VIEW, A COMMERCIAL SUBDIVISION, THEREOF ON FILE RECORDED FEBRUARY 13, 2014 AS INSTRUMENT NO. 01881 OF OFFICIAL RECORDS, BOOK 146 OF PLATS, PAGE 46 IN THE CLARK COUNTY RECORDER’S OFFICE, CLARK COUNTY, NEVADA, LYING WITHIN THE NORTHWEST QUARTER (NW 1/4) OF SECTION 20, TOWNSHIP 21 SOUTH, RANGE 61 EAST, M.D.M., CLARK COUNTY, NEVADA DESCRIBED AS FOLLOWS:
 
COMMENCING AT THE SOUTHWEST CORNER OF THE SOUTHEAST QUARTER (SE 1/4) OF THE NORTHWEST QUARTER (NW 1/4) OF SAID SECTION 20 SAID POINT ALSO BEING THE CENTERLINE INTERSECTION OF HARMON AVENUE (PUBLIC STREET - VARYING WIDTH) AND POLARIS STREET (PUBLIC STREET - 60.00 FEET WIDE); THENCE ALONG THE SOUTH LINE OF SAID SOUTHEAST QUARTER (SE 1/4), SAID SOUTH LINE ALSO BEING THE CENTERLINE OF SAID HARMON AVENUE, SOUTH 89°04’32”’ EAST, 645.58 FEET TO THE SOUTHWEST CORNER OF THE SOUTHEAST QUARTER (SE 1/4) OF THE SOUTHEAST QUARTER (SE 1/4) OF THE NORTHWEST QUARTER (NW 1/4) OF SAID SECTION 20, SAID SOUTHWEST CORNER ALSO BEING THE CENTERLINE

Exhibit 1-B-2

 
INTERSECTION OF HARMON AVENUE (PUBLIC STREET- VARYING WIDTH) AND ALDEBARAN AVENUE (PUBLIC STREET - VARYING WIDTH); THENCE DEPARTING SAID SOUTH LINE NORTH 00°30’44” EAST ALONG THE WEST LINE OF THE SOUTHEAST QUARTER (SE 1/4) OF THE SOUTHEAST QUARTER (SE 1/4) OF THE NORTHWEST QUARTER (NW 1/4) OF SAID SECTION 20, SAID WEST LINE ALSO BEING THE CENTELINE OF SAID ALDEBARAN AVENUE, 455.34 FEET TO A POINT ON THE WESTERLY EXTENSION OF A SOUTHERLY LINE OF SAID LOT 1 OF FINAL MAP OF CITY VIEW, A COMMERCIAL SUBDIVISION; THENCE ALONG SAID WESTERLY EXTENSION S0UTH 89°28’06” EAST, 30.00 FEET TO A POINT ON THE EASTERLY LINE OF ALDEBARAN AVENUE AND THE POINT OF BEGINNING, SAID EASTERLY RJGHT-OF-WAY LINE ALSO BEING A WESTERLY LINE OF SAID LOT 1 OF FINAL MAP OF CITY VIEW, A COMMERCIAL SUBDIVISION AND THE BEGINNING OF A NON-TANGENT CURVE HAVING A RADIUS OF 14,50 FEET, A RADIAL LINE TO SAID POINT BEARS NORTH 89°29’16” WEST; THENCE ALONG SAID EASTERLY RIGHT-OF-WAY LINE AND WESTERLY LINE THE FOLLOWING THREE (3) COURSES: 1) CURVING TO THE RIGHT ALONG THE ARC OF SAID CURVE, CONCAVE SOUTHEASTERLY, THROUGH A CENTRAL ANGLE OF 42°07’35”, AN ARC LENGTH OF 10.66 FEET TO THE BEGINNING OF A TANGENT REVERSE CURVE HAVING A RADIUS OF 45.50 FEET, A RADIAL LINE THROUGH SAID POINT BEARS NORTH 47°21’41” WEST; 2) THENCE CURVING TO THE LEFT ALONG THE ARC OF SAID CURVE, CONCAVE SOUTHWESTERLY, THROUGH A CENTRAL ANGLE OF 90°52’37”, AN ARC LENGTH OF 72.17 FEET TO AN ANGLE POINT THEREIN TO WHICH A RADIAL LINE BEARS NORTH 41°45’43” EAST; 3) THENCE NORTH 00°30’44” EAST 45.57 FEET; THENCE DEPARTING SAID EASTERLY RIGHT-OF-WAY LINE AND WESTERLY LINE SOUTH 89°28’32” EAST, 147,00 FEET; THENCE PARALLEL TO THE WEST LINE OF THE SOUTHEAST QUARTER (SE 1/4) OF THE SOUTHEAST QUARTER (SE 1/4) OF THE NORTHWEST QUARTER (NW 1/4) OF SAID SECTION 20 SOUTH 00°30’44” WEST, 120.05 FEET TO A POINT ON A SOUTHERLY LINE OF SAID LOT 1 OF FINAL MAP OF CITY VIEW, A COMMERCIAL SUBDIVISION SAID POINT ALSO BEING THE NORTHWEST CORNER OF LOT 6 AS SHOWN BY FINAL MAP OF INTERSTATE INDUSTRIAL PARK THEREOF ON FILE RECORDED MAY 7,1984 IN BOOK 1917 OF OFFICIAL RECORDS AS INSTRUMENT NO. 1876748, BOOK 31 OF PLATS, PAGE 61 IN THE CLARK COUNTY RECORDER’S OFFICE, CLARK COUNTY, NEVADA; THENCE ALONG SAID SOUTHERLY LINE, SAID SOUTHERLY LINE ALSO BEING THE NORTHERLY LINE OF SAID LOT 6, NORTH 89°28’06” WEST, 147.00 FEET TO THE POINT OF BEGINNING.
 
CONTAINING 16,907 SQUARE FEET OR 0.39 ACRES.
 
Exhibit 1-B-3

 
Legal Description (Survey Area 3)
 
THIS LEGAL DESCRIBES A PORTION OF LOT 1 AS SHOWN BY FINAL MAP OF CITY VIEW, A COMMERCIAL SUBDIVISION, THEREOF ON FILE RECORDED FEBRUARY 13, 2014 AS INSTRUMENT NO. 01881 OF OFFICIAL RECORDS, BOOK 146 OF PLATS, PAGE 46 IN THE CLARK COUNTY RECORDER’S OFFICE, CLARK COUNTY, NEVADA, LYING WITHIN THE NORTHWEST QUARTER (NW 1/4) OF SECTION 20, TOWNSHIP 21 SOUTH, RANGE 61 EAST, M.D.M., CLARK COUNTY, NEVADA DESCRIBED AS FOLLOWS:
 
COMMENCING AT THE SOUTHWEST CORNER OF THE SOUTHEAST QUARTER (SE 1/4) OF THE NORTHWEST QUARTER (NW 1/4) OF SAID SECTION 20 SAID POINT ALSO BEING THE CENTELINE INTERSECTION OF HARMON AVENUE (PUBLIC STREET - VARYING WIDTH) AND POLARIS STREET (PUBLIC STREET - 60.00 FEET WIDE); THENCE ALONG SOUTH LINE OF SAID SOUTHEAST QUARTER (SE 1/4), SAID SOUTH LINE ALSO BEING THE CENTERLINE OF SAID HARMON AVENUE, SOUTH 89°04’32” EAST, 645.58 TO THE SOUTHWEST CORNER OF THE SOUTHEAST QUARTER (SE 1/4) OF THE SOUTHEAST QUARTER (SE 1/4) OF THE NORTHWEST QUARTER (NW 1/4) OF SAID SECTION 20, SAID SOUTHWEST CORNER ALSO BEING THE CENTERLINE INTERSECTION OF HARMON AVENUE (PUBLIC STREET - VARYING WIDTH) AND ALDEBARAN AVENUE (PUBLIC STREET -VARYING WIDTH); THENCE DEPARTING SAID SOUTH LINE NORTH 00°30’44” EAST ALONG THE WEST LINE OF THE SOUTHWEST CORNER OF THE SOUTHEAST QUARTER (SE 1/4) OF THE SOUTHEAST QUARTER (SE 1/4) OF THE NORTHWEST QUARTER (NW 1/4) OF SAID SECTION 20, SAID WEST LINE ALSO BEING THE CENTERLINE OF SAID ALDEBARAN AVENUE, 666.18 FEET TO THE SOUTHWEST CORNER OF THE NORTHEAST QUARTER (NE 1/4) OF THE SOUTHEAST QUARTER (SE 1/4) OF THE NORTHWEST QUARTER (NW 1/4) OF SAID SECTION 20 SAID POINT BEING AN ANGLE POINT IN A WESTERLY LINE OF SAID LOT 1 OF FINAL MAP OF CITY VIEW, A COMMERCIAL SUBDIVISION; THENCE ALONG SAID WESTERLY LINE THE FOLLOWING SEVEN (7) COURSES: 1) CONTINUING NORTH 00°30’44” EAST ALONG THE WEST LINE OF SAID NORTHEAST QUARTER (NE 1/4), 1.00 FEET TO A POINT ON THE NORTH LINE OF THE SOUTH 1.00 FEET OF THE NORTHEAST QUARTER (NE 1/4) OF THE SOUTHEAST QUARTER (SE 1/4) OF THE NORTHWEST QUARTER (NW 1/4) OF SAID SECTION 20 SAID POINT BEING THE SOUTHWEST CORNER OF THAT PARCEL OF LAND DESCRIBED IN THAT CERTAIN GRANT, BARGAIN, SALE DEED TO CLARK COUNTY RECORDED NOVEMBER 19,1986 IN BOOK 861119 OF OFFICIAL RECORDS AS INSTRUMENT NO.
Exhibit 1-B-4

 
00554 IN THE CLARK COUNTS RECORDER’S OFFICE, CLARK COUNTY, NEVADA; THENCE ALONG THE SOUTHERLY, EASTERLY AND NORTHERLY LINES OF SAID PARCELTHE FOLLOWING FOUR (4): 2) & 1) THENCE DEPARTING SAID WEST LINE ALONG SAID NORTH LINE OF SOUTH 1.00 FEET SOUTH 89°12’47” EAST, 30.00 FEET TO THE POINT OF BEGINNING; 3) & 2) THENCE DEPARTING SAID NORTH LINE NORTH 00°30’44” EAST, 228.96 FEET TO THE BEGINNING OF A TANGENT CURVE TO THE RIGHT HAVING A RADIUS OF 25.00 FEET; 4) & 3) THENCE CURVING TO THE RIGHT ALONG THE ARC OF SAID CURVE, CONCAVE SOUTHEASTERLY, THROUGH A CENTRAL ANGLE OF 46°34’03”, AN ARC LENGTH OF 20.32 FEET TO THE BEGINNING OF A TANGENT REVERSE CURVE HAVING A RADIUS OF 55.00 FEET A RADIAL LINE THROUGH SAID POINT BEARS NORTH 42°55’13” WEST; 5) & 4) CURVING TO THE LEFT ALONG THE ARC OF SAID CURVE, CONCAVE SOUTHWESTERLY, THROUGH A CENTRAL ANGLE OF 136°34’03”, AND ARC LENGTH OF 131.10 FEET TO A POINT ON THE AFOREMENTIONED WEST LINE OF THE NORTHEAST QUARTER (NE 1/4) OF THE SOUTHEAST QUARTER (SE 1/4) OF THE NORTHWEST QUARTER (NW 1/4} OF SAID SECTION 20 SAID WEST LINE ALSO BEING THE EASTERLY RIGHT-OF-WAY LINE OF SAID ALDEBARAN AVENUE; 6) THENCE ALONG SAID WEST LINE NORTH 00°30’44” EAST, 323.20 FEET TO THE SOUTHWEST CORNER OF THE SOUTHEAST QUARTER (SE 1/4) OF THE NORTHEAST QUARTER (NE 1/4) OF THE NORTHWEST QUARTER (NW 1/4} OF SAID SECTION 20; 7) THENCE ALONG THE WEST LINE OF SAID SOUTHEAST QUARTER (SE 1/4) OF THE NORTHEAST QUARTER (NE 1/4} OF THE NORTHWEST QUARTER (NW 1/4} OF SAID SECTION 20 NORTH 00°31’06” EAST, 2.44 FEET TO THE NORTHEAST CORNER OF THAT PARCEL OF LAND AS DESCRIBED IN THAT CERTAIN GRANT DEED TO CLARK COUNTY, NEVADA RECORDED FEBRUARY 23,1971 IN BOOK 103 OF OFFICIAL RECORDS AS INSTRUMENT NO. 82199 IN THE CLARK COUNTY RECORDER’S OFFICE, CLARK COUNTY, NEVADA; THENCE CONTINUING ALONG SAID WEST LINE NORTH 00o31’06” EAST, 458.89 FEET TO A POINT ON THE WESTERLY RIGHT-OF-WAY LINE OF DEAN MARTIN DR (FORMERLY INDUSTRIAL ROAD) (PUBLIC STREET - VARYING WIDTH), SAID WESTERLY RIGHT-OF-WAY LINE ALSO BEING THE EASTERLY LINE OF SAID LOT 1 OF FINAL MAP OF CITY VIEW, A COMMERCIAL SUBDIVISION, AND THE BEGINNING OF A NON-TANGENT CURVE HAVING A RADIUS OF 540.00 FEET, A RADIAL LINE TO SAID POINT BEARS SOUTH 56°52’08” WEST, SAID WESTERLY RIGHT-OF-WAY LINE AS SHOWN BY PARCEL MAP THEREOF ON RLE RECORDED APRIL 30,1990 IN BOOK 930430 OF OFFICIAL RECORDS AS INSTRUMENT NO. 01302 IN FILE 75 OF PARCEL MAPS, PAGE 63 IN THE CLARK COUNTY RECORDER’S OFFICE, CLARK COUNTY, NEVADA; THENCE ALONG SAID WESTERLY RIGHT-OF-WAY LINE AND EASTERLY LINE CURVING TO THE LEFT ALONG THE ARC OF SAID CURVE, CONCAVE NORTHEASTERLY, THROUGH A CENTRAL ANGLE OF 17°43’50”, AN ARC LENGTH OF 167.11 FEET; THENCE CONTINUING ALONG SAID WESTERLY
Exhibit 1-B-5

 
RIGHT-OF-WAY LINE AND EASTERLY LINE SOUTH 50°51’42” EAST, 97.09” TO THE MOST NORTHERLY CORNER OF LOT 2 AS SHOWN BY SAID FILE 75 OF PARCEL MAPS, PAGE 63; THENCE ALONG THE WESTERLY AND SOUTHERLY LINES OF SAID LOT 2, SAID WESTERLY AND SOUTHERLY LINES ALSO BEING COINCIDENT WITH THE EASTERLY LINE OF SAID LOT 1 OF FINAL MAP OF CITY VIEW, A COMMERCIAL SUBDIVISION, THE FOLLOWING FIVE (5) COURSES: 1) SOUTH 39°08’18” WEST, 35,00 FEET TO AN ANGLE POINT THEREIN; 2) THENCE SOUTH 50°50’14” EAST, 30.12 FEET TO AN ANGLE POINT THEREIN; 3) THENCE SOUTH 00°31’31” WEST, 255.13 FEET TO AN ANGLE POINT THEREIN; 4) THENCE SOUTH 89°29’39” EAST, 198.67 FEET TO AN ANGLE POINT THEREIN; 5) THENCE NORTH 38°29’40” EAST, 55.97 FEET TO A POINT ON THE AFOREMENTIONED WESTERLY RIGHT-OF-WAY LINE OF SAID DEAN MARTIN DRIVE AS DESCRIBED BY THAT CERTAIN GRANT OF EASEMENT TO THE COUNTY OF CLARK RECORDED NOVEMBER 19,1986 IN BOOK 861119 OF OFFICIAL RECORDS AS INSTRUMENT NO. 00550 IN THE CLARK COUNTY RECORDER’S OFFICE, CLARK COUNTY, NEVADA, SAID WESTERLY RIGHT-OF-WAY LINE ALSO BEING THE EASTERLY LINE OF SAID LOT 1 OF FINAL MAP OF CITY VIEW, A COMMERCIAL SUBDIVISION; THENCE ALONG SAID WESTERLY RIGHT-OF-WAY LINE AND EASTERLY LINE THE FOLLOWING TEN (10) COURSES: 1) SOUTH 51°20’2O” EAST, 31.54 FEET TO THE BEGINNING OF A NON-TANGENT CURVE HAVING A RADIUS OF 15.00 FEET, A RADIAL LINE TO SAID POINT BEARS NORTH 51°20’20” WEST; 2) THENCE CURVING TO THE RIGHT ALONG THE ARC OF SAID CURVE, CONCAVE SOUTHEASTERLY, THROUGH A CENTRAL ANGLE OF 10°03’47”, AN ARC LENGTH OF 2.63 FEET; 3) THENCE NORTH 48°43’27” EAST, 10.43 FEET TO THE BEGINNING OF A TANGENT CURVE TO THE RIGHT HAVING A RADIUS OF 22.54 FEET; 4) THENCE CURVING TO THE RIGHT ALONG THE ARC OF SAID CURVE, CONCAVE SOUTHERLY, THROUGH A CENTRAL ANGLE OF 90°02’30”, AN ARC LENGTH OF 35.42 FEET TO THE BEGINNING OF A TANGENT COMPOUND CURVE HAVING A RADIUS OF 195.00 FEET, A RADIAL LINE TO SAID POINT BEARS NORTH 48°45’56” EAST; 5) THENCE CURVING TO THE RIGHT ALONG THE ARC OF SAID CURVE, CONCAVE SOUTHWESTERLY, THROUGH A CENTRAL ANGLE OF 15°10’52”, AND ARC LENGTH OF 51.67 FEET TO THE BEGINNING OF A TANGENT COMPOUND CURVE HAVING A RADIUS OF 465.00 FEET, A RADIAL LINE TO SAID POINT BEARS NORTH 63°56’48” EAST, SAID POINT LYING ON THE WESTERLY RIGHT-OF-WAY LINE OF SAID DEAN MARTIN DRIVE AS DESCRIBED IN THAT CERTAIN QUITCLAIM DEED TO COUNTY OF CLARK RECORDED OCTOBER 24,1995 IN BOOK 19951024 OF OFFICIAL RECORDS AS INSTRUMENT NO. 01570 IN THE CLARK COUNTY RECORDER’S OFFICE, CLARK COUNTY, NEVADA; 6) THENCE CURVING TO THE RIGHT ALONG THE ARC OF SAID CURVE, CONCAVE SOUTHWESTERLY, THROUGH A CENTRAL ANGLE OF 23°42’15”, AN ARC LENGTH OF 192.38 FEET; 7) THENCE SOUTH 02°20’57” EAST, 34.45 FEET TO AN ANGLE POINT THEREIN; 8) 
Exhibit 1-B-6

 
THENCE NORTH 87°39’16” EAST, 0.16 FEET TO THE NORTHWEST CORNER OF THAT PARCEL OF LAND AS DESCRIBED IN THAT CERTAIN GRANT, BARGAIN, SALE DEED TO COUNTY OF CLARK RECORDED APRIL 12,1996 IN BOOK 19960412 OF OFFICIAL RECORDS AS INSTRUMENT NO. 00574 IN THE CLARK COUNTY RECORDER’S OFFICE, CLARK COUNTY, NEVADA; 9) THENCE SOUTH 02°43’18” EAST, 383.08 FEET TO THE BEGINNING OF A TANGENT CURVE TO THE RIGHT HAVING A RADIUS OF 1000.00 FEET; 10) THENCE CURVING TO THE RIGHT ALONG THE ARC OF SAID CURVE, CONCAVE SOUTHWESTERLY, THROUGH A CENTRAL ANGLE OF 01°50’19”, AN ARC LENGTH OF 32,09 FEET TO A POINT ON THE AFOREMENTIONED NORTH LINE OF THE SOUTH 1.00 FEET OF THE NORTHEAST QUARTER (NE 1/4) OF THE SOUTHEAST QUARTER (SE 1/4) OF THE NORTHWEST QUARTER (NW 1/4) OF SAID SECTION 20 TO WHICH A RADIAL LINE BEARS NORTH 89°07’01” EAST; THENCE DEPARTING SAID WESTERLY RIGHT-OF-WAY LINE AND EASTERLY LINE NORTH 89°12’47” WEST, 561.67 FEET TO THE POINT OF BEGINNING.
 
CONTAINING 430,122 SQUARE FEET / 9.87 ACRES.
 
BASIS OF BEARINGS
 
NORTH 01°05’22” EAST, BEING THE EAST LINE OF THE SOUTHEAST QUARTER (SE 1/4) OF THE NORTHWEST QUARTER (NW 1/4) OF SECTION 20, TOWNSHIP 21 SOUTH, RANGE 61 EAST, M.D.M., AS SHOWN BY FINAL MAP OF INTERSTATE INDUSTRIAL PARK THEREOF ON FILE RECORDED MAY 7,1984 IN BOOK 1917 OF OFFICIAL RECORDS AS INSTRUMENT NO. 1876748, BOOK 31 OF PLATS, PAGE 61 IN THE CLARK COUNTY RECORDERS OFFICE, CLARK COUNTY, NEVADA.
 
Exhibit 1-B-7

Exhibit “1-C”
Legal Description of the 4424 Polaris Land
 
THIS LEGAL DESCRIBES A PORTION OF LOT 1 AS SHOWN BY FINAL MAP OF CITY VIEW, A COMMERCIAL SUBDIVISION, THEREOF ON FILE RECORDED FEBRUARY 13, 2014 AS INSTRUMENT NO. 01881 OF OFFICIAL RECORDS, BOOK 146 OF PLATS, PAGE 46 IN THE CLARK COUNTY RECORDER’S OFFICE, CLARK COUNTY, NEVADA, LYING WITHIN THE NORTHWEST QUARTER (NW 1/4) OF SECTION 20, TOWNSHIP 21 SOUTH, RANGE 61 EAST, M.D.M., CLARK COUNTY, NEVADA DESCRIBED AS FOLLOWS:
 
LEGAL DESCRIPTION
 
COMMENCING AT THE SOUTHWEST CORNER OF THE SOUTHEAST QUARTER (SE 1/4) OF THE NORTHWEST QUARTER (NW 1/4) OF SAID SECTION 20 SAID POINT ALSO BEING THE CENTERLINE INTERSECTION OF HARMON AVENUE (PUBLIC STREET - VARYING WIDTH) AND POLARIS STREET (PUBLIC STREET - 60.00 FEET WIDE); THENCE NORTH 00°03’40” WEST ALONG THE WEST LINE OF SAID SOUTHEAST QUARTER (SE 1/4), SAID WEST LINE ALSO BEING THE CENTERLINE OF SAID POLARIS STREET, 352.04 FEET TO A POINT ON THE NORTH LINE OF THE SOUTH 352.00 FEET OF SAID SOUTHEAST QUARTER (SE 1/4); THENCE DEPARTING SAID WEST LINE AND CENTERLINE SOUTH 89°04’11” EAST, 30.00 FEET TO THE POINT OF BEGINNING A POINT ON THE EAST RIGHT-OF-WAY LINE OF SAID POLARIS STREET SAID POINT BEING THE NORTHWEST CORNER OF LOT 1 AS SHOWN BY PARCEL MAP THEREOF ON FILE RECORDED JANUARY 12,1979 IN BOOK 995 OF OFFICIAL RECORDS AS INSTRUMENT NO. 954848, FILE 23 OF PARCEL MAPS, PAGE 72 IN THE CLARK COUNTY RECORDER’S OFFICE, CLARK COUNTY, NEVADA AND A SOUTHWEST CORNER OF LOT 1 OF SAID FINAL MAP OF CITY VIEW, A COMMERCIAL SUBDIVISION; THENCE NORTH 00°03’40” WEST ALONG SAID EASTERLY RIGHT-OF-WAY LINE, SAID EASTERLY RIGHT-OF-WAY LINE ALSO BEING A WESTERLY LINE OF SAID LOT 1 OF FINAL MAP OF CITY VIEW, A COMMERCIAL SUBDIVISION, 312.06 FEET TO A POINT ON THE NORTH LINE OF THE SOUTH 664.00 FEET OF SAID SOUTHEAST QUARTER (SE 1/4) AND THE NORTHEAST CORNER OF THAT CERTAIN PARCEL OF LAND DESCRIBED IN THAT CERTAIN GRANT DEED TO CLARK COUNTY RECORDED APRIL 8, 1970 IN BOOK 23 OF OFFICIAL RECORDS AS INSTRUMENT NO. 18102 IN THE CLARK COUNTY RECORDER’S OFFICE, CLARK COUNTY, NEVADA; THENCE DEPARTING SAID EASTERLY RIGHT-OF-WAY LINE AND SAID WEST LINE ALONG SAID NORTHERLY LINE SOUTH 89°04’32EAST, 292.79 FEET TO A POINT ON THE EAST LINE OF THE WEST 322.75 FEET OF SAID SOUTHEAST QUARTER (SE 1/4); THENCE ALONG SAID EAST LINE SOUTH 00°03’40” EAST, 312.09 FEET TO A POINT ON A SOUTHERLY LINE OF SAID LOT 1
 
Exhibit 1-C-1

 
OF FINAL MAP OF CITY VIEW, A COMMERCIAL SUBDIVISION, SAID SOUTHERLY LINE ALSO BEING THE NORTHERLY LINE OF THE AFOREMENTIONED LOT 1 OF SAID FILE 23 OF PARCEL MAPS, PAGE 72; THENCE ALONG SAID SOUTHERLY AND NORTHERLY LINE NORTH 89°04’11” WEST, 292,79 FEET TO THE POINT OF BEGINNING.
 
CONTAINING 91,360 SQUARE FEET OR 2.10 ACRES.
 
BASIS OF BEARINGS:
 
NORTH 01°05’72” EAST, BEING THE EAST LINE OF THE SOUTHEAST QUARTER (SE 1/4) OF THE NORTHWEST QUARTER (NW 1/4) OF SECTION 20, TOWNSHIP 21 SOUTH, RANGE 61 EAST, M.D.M., AS SHOWN BY FINAL MAP OF INTERSTATE INDUSTRIAL PARK THEREOF ON FILE RECORDED MAY 7,1984 IN BOOK 1917 OF OFFICIAL RECORDS AS INSTRUMENT NO. 1876748, BOOK 31 OF PLATS, PAGE 61 IN THE CLARK COUNTY RECORDER’S OFFICE, CLARK COUNTY, NEVADA.
 
Exhibit 1-C-2


 

 

 

 


Exhibit “1-D”
Legal Description of the Leased Land
 
THIS LEGAL DESCRIBES A PORTION OF LOT 1 AS SHOWN BY FINAL MAP OF CITY VIEW, A COMMERCIAL SUBDIVISION, THEREOF ON FILE RECORDED FEBRUARY 13, 2012 AS INSTRUMENT NO. 01881 OF OFFICIAL RECORDS, BOOK 146 OF PLATS, PAGE 46 IN THE CLARK COUNTY RECORDER’S OFFICE, CLARK COUNTY, NEVADA, LYING WITHIN THE NORTHWEST QUARTER (NW 1/4) OF SECTION 20, TOWNSHIP 21 SOUTH, RANGE 61 EAST, M.D.M., CLARK COUNTY, NEVADA DESCRIBES AS FOLLOWS:
 
LEGAL DESCRIPTION
 
COMMENCING AT THE SOUTHWEST CORNER OF THE SOUTHEAST QUARTER (SE 1/4) OF THE NORTHWEST QUARTER (NW 1/4) OF SAID SECTION 20, SAID POINT ALSO BEING THE CENTERLINE INTERSECTION OF HARMON AVENUE (PUBLIC STREET - VARYING WIDTH) AND POLARIS STREET (PUBLIC STREET - 60.00 FEET WIDE), THENCE NORTH 00°O3’40” WEST ALONG THE WEST LINE OF SAID SOUTHEAST QUARTER (SE 1/4), SAID WEST LINE ALSO BEING THE CENTERLINE OF SAID POLARIS STREET 1329.40 FEET TO THE SOUTHWEST CORNER OF THE NORTHEAST QUARTER (NE 1/4) OF THE NORTHWEST QUARTER (NW 1/4) OF SAID SECTION 20; THENCE ALONG THE WEST LINE OF SAID NORTHEAST QUARTER (NE 1/4) NORTH 00°03’34” WEST, 613,67 FEET TO THE POINT OF BEGINNING BEING A POINT ON THE NORTHERLY RIGHT-OF-WAY LINE OF SAID POLARIS STREET AS SHOWN AND DEDICATED ON SAID FINAL MAP OF CITY VIEW, A COMMERCIAL SUBDIVISION, BOOK 146 OF PLATS, PAGE 46, SAID POINT BEING THE BEGINNING OF A NON-TANGENT CURVE HAVING A 50.00 FOOT RADIUS, A RADIAL LINE TO SAID POINT BEARS NORTH 00°03’34” WEST; THENCE CURVING TO THE RIGHT ALONG THE ARC OF SAID CURVE, CONCAVE SOUTHWESTERLY, THROUGH A CENTRAL ANGLE OF 36°52’31”, AN ARC LENGTH OF 32.18 FEET TO A POINT ON THE EAST LINE OF THE WEST 30.00 FEET OF SAID NORTHEAST QUARTER (NE 1/4) TO WHICH A RADIAL LINE BEARS NORTH 36°48’57” EAST; THENCE ALONG SAID EASTERLY LINE NORTH 00°03’34” WEST, 30.56 FEET; THENCE DEPARTING SAID EAST LINE SOUTH 89°25’56” EAST, 199.95 FEET TO A POINT ON THE SOUTHERLY EXTENSION OF THE WESTERLY LINE OF THAT PARCEL OF LAND AS DESCRIBED IN THAT CERTAIN GRANT, BARGAIN, SALE DEED TO COUNTY OF CLARK THEREOF RECORDED SEPTEMBER 15, 1994 IN BOOK 19940915 OF OFFICIAL RECORDS AS INSTRUMENT NO. 00286 IN THE CLARK COUNTY RECORDERS OFFICE, CLARK COUNTY, NEVADA; THENCE ALONG SAID SOUTHERLY EXTENSION, PARALLEL WITH THE WEST LINE OF SAID NORTHEAST QUARTER (NE 1/4) NORTH 00°03’34”WEST. 30.00 FEET TO THE SOUTHWEST CORNER SAID PARCEL OF 
Exhibit 1-D-1

LAND OF RIGHT-OF-WAY OF HOTEL RIO DRIVE AS DESCRIBED IN SAID GRANT, BARGAIN, SALE DEED TO COUNTY OF CLARK, BOOK 19940915 OF OFFICIAL RECORDS, INSTRUMENT NO. 00286, SAID SOUTHERLY RIGHT-OF-WAY LINE IS COINCIDENT WITH THE NORTHERLY OF SAID LOT 1 OF FINAL MAP OF CITY VIEW, A COMMERCIAL SUBDIVISION, BOOK 146 OF PLATS, PAGE 46; THENCE ALONG SAID NORTHERLY LINE OF SAID LOT 1 THE FOLLOWING NINE (9) COURSES: 1) ALONG SAID SOUTHERLY RIGHT-OF-WAY LINE NORTH 00°03’34” WEST, 24.12 FEET TO THE MOST SOUTHERLY CORNER OF THAT PORTION OF HOTEL RIO DRIVE AS DESCRIBED AS PARCEL II IN THAT CERTAIN FINAL ORDER OF CONDEMNATION THEREOF ON FILE RECORDED JANUARY 5, 1996 IN BOOK 19960105 OF OFFICIAL RECORDS AS INSTRUMENT NO. 01010 IN THE CLARK COUNTY RECORDER’S OFFICE, CLARK COUNTY, NEVADA, SAID POINT ALSO BEING THE BEGINNING OF A NON-TANGENT CURVE HAVING A RADIUS OF 497.69 FEET, A RADIAL LINE TO SAID POINT BEARS NORTH 43°54’03” EAST; THENCE ALONG THE SOUTHERLY, WESTERLY AND NORTH LINES OF SAID PARCEL II THE FOLLOWING 5 COURSES: 2) & 1) CURVING TO THE LEFT ALONG THE ARC OF SAID CURVE, CONCAVE SOUTHWESTERLY, THROUGH A CENTRAL ANGLE OF 10°26’24”. AN ARC LENGTH OF 90.69 FEET TO A POINT TO WHICH A RADIAL LINE BEARS NORTH 33°27’39” EAST; 3) & 2) THENCE NORTH 58°07’21” WEST, 24.00 FEET; 4) & 3) THENCE NORTH 31°52’39” EAST, 69.00 FEET; 5) & 4)THENCE SOUTH 58°07’21” EAST. 24.00 FEET TO THE BEGINNING OF A NON-TANGENT CURVE HAVING A RADIUS OF 566.67 FEET, A RADIAL LINE TO SAID POINT BEARS NORTH 33°16’05” EAST; 6) & 5) THENCE CURVING TO THE RIGHT ALONG THE ARC OF SAID CURVE, CONCAVE SOUTHWESTERLY, THROUGH A CENTRAL ANGLE OF 04°14’16”, AN ARC LENGTH OF 41.91 FEET TO A POINT ON THE AFOREMENTIONED WESTERLY LINE OF SAID GRANT, BARGAIN, SALE DEED TO COUNTY OF CLARK, BOOK 19940915 OF OFFICIAL RECORDS, INSTRUMENT NO. 00286; 7) THENCE ALONG SAID WESTERLY LINE AND NORTHERLY EXTENSION THEREOF NORTH 00°03’34” WEST, 69.83 FEET TO A POINT ON THE SOUTHERLY RIGHT-OF-WAY LINE OF FLAMINGO ROAD AS DESCRIBED IN THAT CERTAIN DEED TO THE STATE OF NEVADA THEREOF ON FILE RECORDED AUGUST 26, 1983 IN BOOK 17940F OFFICIAL RECORDS AS INSTRUMENT NO. 1753257 IN THE CLARK COUNTY RECORDER’S OFFICE, CLARK COUNTY, NEVADA; 8) THENCE ALONG SAID SOUTHERLY RIGHT-OF-WAY LINE NORTH 74°19’41” WEST, 73.12 FEET TO AN ANGLE POINT THEREIN: 9) THENCE CONTINUING ALONG SAID SOUTHERLY  RIGHT-OF-WAY LINE NORTH 70’37’58” WEST, 101.09 FEET TO AN ANGLE POINT IN THE EASTERLY RIGHT-OF-WAY LINE OF THE UNION PACIFIC RAILROAD SAID POINT BEING ON THE NORTHEASTERLY EXTENSION OF THAT PARCEL OF LAND AS DESCRIBED AS 
Exhibit 1-D-2

PARCEL II (EXHIBIT A-1) IN THAT CERTAIN FINAL ORDER OF CONDEMNATION THEREOF ON FILE RECORDED JUNE 17, 1997 IN B00K 19970617 OF OFFICIAL RECORDS AS INSTRUMENT NO. 00614 IN THE CLARK COUNTY RECORDER’S OFFICE, CLARK COUNTY, NEVADA, SAID EASTERLY RIGHT-OF-WAY LINE BEING COINCIDENT WITH THE WESTERLY LINE OF SAID LOT 1 OF FINAL MAP OF CITY VIEW, A COMMERCIAL SUBDIVISION. BOOK 146 OF PLATS, PAGE 46; THENCE ALONG SAID EASTERLY RIGHT-OF-WAY LINE AND SAID WESTERLY LINE THE FOLLOWING SIX (6) COURSES; 1) SOUTH 27°54’59” WEST, 47.23 FEET TO THE MOST NORTHERLY CORNER OF THAT PARCEL OF LAND AS DESCRIBED AS PARCEL III IN SAID FINAL ORDER OF CONDEMNATION, BOOK 19960105 OF OFFICIAL RECORDS AS INSTRUMENT NO, 01010; THENCE ALONG SAID DESCRIBED PARCEL OF LAND THE FOLLOWING THREE (3) COURSES: 2 & 1) SOUTH 62°05’01” EAST, 2.37 FEET; 3) & 2) THENCE SOUTH 27°54’59” WEST, 48.00 FEET; 4) & 3) THENCE NORTH 62°05’01” WEST, 2.37 FEET TO A POINT ON THE AFOREMENTIONED EASTERLY RIGHT-OF-WAY LINE OF SAID UNION PACIFIC RAILROAD; 5) THENCE ALONG SAID EASTERLY RIGHT-OF-WAY LINE SOUTH 27°54’59” WEST, 41.67 FEET TO A POINT ON THE AFOREMENTIONED WEST LINE OF SAID NORTHEAST QUARTER (NE 1/4); 6) THENCE DEPARTING SAID EASTERLY RIGHT-OF-WAY LINE ALONG SAID WEST LINE SOUTH 00°03’34 EAST, 165.97 FEET TO THE POINT OF BEGINNING,
 
CONTAINING 47, 291 SQUARE FEET /1.09 ACRES.
Exhibit 1-D-3

Exhibit “2”

Leases

Lease
Address
Lease between TM II South Tech, LLC, C.Y. & R.I. Heritage Inn of Palmdale, Inc., C.Y. Heritage Inn of Dayton, Inc. (as Landlord) and 4D Commissary (as Tenant) dated February 15, 2012
4255 Dean Martin Drive, Unit G, Las Vegas, NV
Addendum I to Lease between TM II South Tech, LLC, C.Y. & R.I. Heritage Inn of Palmdale, Inc., C.Y. Heritage Inn of Dayton, Inc. (as Landlord) and 4D Commissary (as Tenant) dated January 15, 2017
4255 Dean Martin Drive, Unit H, Las Vegas, NV
Lease between TM II South Tech, LLC, C.Y. & R.I. Heritage Inn of Palmdale, Inc.; C.Y. Heritage Inn of Dayton, Inc. (as Landlord) and 5.11, Inc. (as Tenant) dated May 1, 2015
4305 Dean Martin Drive, Unit 100, 105, 110, Las Vegas, NV
Lease between TM II South Tech, LLC, C.Y. & R.I. Heritage Inn of Palmdale, Inc.; C.Y. Heritage Inn of Dayton, Inc. (as Landlord) and A Touch of Las Vegas Day Spa (as Tenant) dated December 20, 2017
4305 Dean Martin Drive, Unit 160, Las Vegas, NV
Assignment and Assumption of Leases between A Touch of Las Vegas Day Spa, LLC (as Assignor) and_________ an individual (as Assignee) dated December 28, 2017
 
Lease between Tharaldson Ethanol Plant I, LLC (as Landlord) and A&T Inc. dated July 20, 2016
4288 S. Polaris Ave., Unit 105 and 107, Las Vegas, NV
Lease between TM II South Tech, LLC, C.Y. & R.I. Heritage Inn of Palmdale, Inc.; C.Y. Heritage Inn of Dayton, Inc. (as Landlord) and Vegas Tickets LLC (as Tenant) dated March 29, 2018
4305 Dean Martin Drive, Unit 125, Las Vegas, NV
Lease between 4424 Polaris Avenue, LLC (as Landlord) and AB Calif Acquisition Corp. (as Tenant) dated April 4, 2012
4424 S. Polaris Ave., Las Vegas, NV
Lease between TM II South Tech, LLC, C.Y. & R.I. Heritage Inn of Palmdale, Inc.; C.Y. Heritage Inn of Dayton, Inc. (as Landlord) and American Reprographics Company, LLC (as Tenant) dated July 31, 2012
4345 Dean Martin Drive, Unit 100, Las Vegas, NV
Lease between TM II South Tech, LLC, C.Y. & R.I. Heritage Inn of Palmdale, Inc.; C.Y. Heritage Inn of Dayton, Inc. (as Landlord) and ARTEE COLLECTIONS, INC., DBA ARTEE FABRICS & HOME (as Tenant) dated April 24, 2013
4305 Dean Martin Drive, Unit 165, 170 and 175 Las Vegas, NV

Exhibit 2-1

Lease between Tharaldson Ethanol Plant I, LLC (as Landlord) and Galaxy Outdoor LLC (as Tenant) dated January 10, 2018
4425 Dean Martin and 3040 Business Lane, Las Vegas, NV
Lease between TM II South Tech, LLC, C.Y. & R.I. Heritage Inn of Palmdale, Inc.; C.Y. Heritage Inn of Dayton, Inc. (as Landlord) and Best Boxes (as Tenant) dated July 12, 2017
4255 Dean Martin Drive, Unit H, Las Vegas, NV
Lease between TM II South Tech, LLC, C.Y. & R.I. Heritage Inn of Palmdale, Inc.; C.Y. Heritage Inn of Dayton, Inc. (as Landlord) and Centaur Sculpture Galleries LTD, Inc. (as Tenant) dated September 3, 2014
4345 Dean Martin Drive, Unit 200, Las Vegas, NV
Lease between TM II South Tech, LLC, C.Y. & R.I. Heritage Inn of Palmdale, Inc.; C.Y. Heritage Inn of Dayton, Inc. (as Landlord) and Coveredge (as Tenant) dated March 13, 2013
4325 Dean Martin Drive, Unit 370 and 375, Las Vegas, NV
Lease between TM II South Tech, LLC, C.Y. & R.I. Heritage Inn of Palmdale, Inc.; C.Y. Heritage Inn of Dayton, Inc. (as Landlord) and Dakco USA (as Tenant) dated November 8, 2016
4335 Dean Martin Drive, D400, Las Vegas, NV
Lease between Tharaldson Motels II of Las Vegas, Inc. (as Landlord) and Echelon Resorts LLC (as Tenant) dated February 24, 2009
4425 Aldebaran Avenue, Las Vegas, NV
First Amendment to Lease between Tharaldson Motels II of Las Vegas, Inc. (as Landlord) and Echelon Resorts LLC (as Tenant) dated March 9, 2015
4425 Aldebaran Avenue, Las Vegas, NV
Lease Agreement between The Ferguson Family Trust (as lessor) and Marnell Properties (as lessee) dated April 5, 2000
Ground Lease
Sublease Agreement between Marnell Properties (as sublessor) and Heritage Inn Houston Limited Partnership, R.I. Heritage Inn of Chandler, Inc., Midwest Heritage Inn of Chandler, Inc., Heritage Inn Number LXV Limited Partnership (as sublessee) dated May 17, 2006
Ground Lease
Assignment of Lease and Termination of Sublease between Katherine Anne Ferguson Trust (as Landlord), Marnell Properties, LLC (as Tenant) and Tharaldson Ethanol Plant I, L.L.C. (as Subtenant) dated July __, 2012
Ground Lease

Exhibit 2-2

Lease between TM II South Tech, LLC, C.Y. & R.I. Heritage Inn of Palmdale, Inc.; C.Y. Heritage Inn of Dayton, Inc. (as Landlord) and Amador Medical (as Tenant) dated July 14, 2016
4325 Dean Martin Drive, Unit 330 and 340, Las Vegas, NV
Lease between TM II South Tech, LLC, C.Y. & R.I. Heritage Inn of Palmdale, Inc.; C.Y. Heritage Inn of Dayton, Inc. (as Landlord) and Full Conceal, Inc. (as Tenant) dated June 12, 2017
4325 Dean Martin Drive, Unit 347, 350, 360, Las Vegas, NV
Lease between TM II South Tech, LLC, C.Y. & R.I. Heritage Inn of Palmdale, Inc.; C.Y. Heritage Inn of Dayton, Inc. (as Landlord) and Hakkasan Holdings, LLC (as Tenant) dated July 14, 2015
4425 Aldebaran Avenue, Unit 1 North, Las Vegas, NV
Lease between Tharaldson Ethanol Plant I, LLC (as Landlord) and Monster (as Tenant) dated December 24, 2017
4288 S. Polaris Ave 105, Las Vegas, NV
Lease between TM II South Tech, LLC, C.Y. & R.I. Heritage Inn of Palmdale, Inc.; C.Y. Heritage Inn of Dayton, Inc. (as Landlord) and Professional Pool Care LLC (as Tenant) dated February 3, 2012
4325 Dean Martin Drive, Unit 345, Las Vegas, NV
Addendum II to Lease between TM II South Tech, LLC, C.Y. & R.I. Heritage Inn of Palmdale, Inc.; C.Y. Heritage Inn of Dayton, Inc. (as Landlord) and Professional Pool Care LLC (as Tenant) dated February 17, 2017
4325 Dean Martin Drive, Unit 345, Las Vegas, NV
Lease between TM II South Tech, LLC, C.Y. & R.I. Heritage Inn of Palmdale, Inc.; C.Y. Heritage Inn of Dayton, Inc. (as Landlord) and Push IV, LLC (as Tenant) dated April 20, 2017
4305 Dean Martin, # 145, Las Vegas, NV
Lease between TM II South Tech, LLC, C.Y. & R.I. Heritage Inn of Palmdale, Inc.; C.Y. Heritage Inn of Dayton, Inc. (as Landlord) and Push IV, LLC (as Tenant) dated August 30, 2018
4315 Dean Martin, # 225-230, Las Vegas, NV
Lease between TM II South Tech, LLC, C.Y. & R.I. Heritage Inn of Palmdale, Inc.; C.Y. Heritage Inn of Dayton, Inc. (as Landlord) and Rick Engineering Company (as Tenant) dated June 1, 2018
4255 Dean Martin, Suite F, Las Vegas, NV
Lease between TM II South Tech, LLC, C.Y. & R.I. Heritage Inn of Palmdale, Inc.; C.Y. Heritage Inn of Dayton, Inc. (as Landlord) and Crostra and Partners, LLC (as Tenant) dated August 11, 2016
4315 Dean Martin Drive, Unit 210, Las Vegas, NV
Lease between TM II South Tech, LLC, C.Y. & R.I.Heritage Inn of Palmdale, Inc.; C.Y. Heritage Inn of Dayton, Inc. (as Landlord) and Crostra and Partners, LLC (as Tenant) dated August 29, 2018
4325 Dean Martin Drive, Unit 325, Las Vegas, NV

 
Exhibit 2-3

Lease between TM II South Tech, LLC, C.Y. & R.I. Heritage Inn of Palmdale, Inc.; C.Y. Heritage Inn of Dayton, Inc. (as Landlord) and Crostra and Partners, LLC (as Tenant) dated September 10, 2015
4305 Dean Martin Drive, Unit 120, Las Vegas, NV
Lease between TM II South Tech, LLC, C.Y. & R.I. Heritage Inn of Palmdale, Inc.; C.Y. Heritage Inn of Dayton, Inc. (as Landlord) and Sol-up USA, LLC (as Tenant) dated January 10, 2017
4305 Dean Martin Drive, Unit 140, Las Vegas, NV
Lease between TM II South Tech, LLC, C.Y. & R.I. Heritage Inn of Palmdale, Inc.; C.Y. Heritage Inn of Dayton, Inc. (as Landlord) and Sol-up USA, LLC (as Tenant) dated March 7, 2013
4305 Dean Martin Drive, Unit 150 and 155, Las Vegas, NV
Addendum II to Lease between TM II South Tech, LLC, C.Y. & R.I. Heritage Inn of Palmdale, Inc.; C.Y. Heritage Inn of Dayton, Inc. (as Landlord) and Sol-up USA, LLC (as Tenant) dated September 14, 2016
4305 Dean Martin Drive, Unit 150 and 155, Las Vegas, NV
Lease between TM II South Tech, LLC, C.Y. & R.I. Heritage Inn of Palmdale, Inc.; C.Y. Heritage Inn of Dayton, Inc. (as Landlord) and Taxi Ads Las Vegas, LLC (as Tenant) dated April 18, 2016
4255 Dean Martin Drive, Unit E, Las Vegas, NV
Lease between TM II South Tech, LLC, C.Y. & R.I. Heritage Inn of Palmdale, Inc.; C.Y. Heritage Inn of Dayton, Inc. (as Landlord) and Top Golf (as Tenant) dated July 6, 2016
4255 Dean Martin Drive, Unit D, Las Vegas, NV
Lease between TM II South Tech, LLC, C.Y. & R.I. Heritage Inn of Palmdale, Inc.; C.Y. Heritage Inn of Dayton, Inc. (as Landlord) and Vegas Balloon Rides, LLC (as Tenant) dated September 16, 2011
4390 Polaris Avenue, Las Vegas, NV
Lease between TM II South Tech, LLC, C.Y. & R.I. Heritage Inn of Palmdale, Inc.; C.Y. Heritage Inn of Dayton, Inc. (as Landlord) and VivaCity Fitness Holdings LLC (as Tenant) dated June 7, 2017 Replacement Lease
4325 Dean Martin Drive, Unit 315, Las Vegas, NV
Remodel/Expansion Warehouse Rental Agreement Store 3473 between CV Property Management (as Landlord) and Wal-Mart Stores East, LP (as Tenant) dated July 6, 2018
4288 Polaris Ave., Las Vegas, NV

 
Exhibit 2-4

Remodel/Expansion Warehouse Rental Agreement Store  2838, 2884 between CV Property Management (as Landlord) and Wal-Mart Stores East, LP (as Tenant) dated April 5, 2018
4288 Polaris Ave., Las Vegas, NV
Lease between Tharaldson Motels II of Las Vegas, Inc. (as Landlord) and West Pro Builders, LLC (as Tenant) dated November 17, 2008
4305 Dean Martin Drive, Unit 115, Las Vegas, NV
Addendum I to Lease between Tharaldson Motels II of Las Vegas, Inc. (as Landlord) and West Pro Builders, LLC (as Tenant) dated October 15, 2015
4305 Dean Martin Drive, Unit 115, Las Vegas, NV

Exhibit 2-5

Exhibit “3”
Contracts

Sign Lease Agreement between American Outdoor Advertising, LLC and South Tech Partners LLC dated May 18, 1999
(South Tech) 4335 S. Industrial Road, Las Vegas, NV
Addendum to Sign Lease Agreement between American Outdoor Advertising, LLC and South Tech Partners LLC dated June 1, 1999
4345 S. Industrial Road, Las Vegas, NV
Bulletin Contract between Diversified Asset Management and The Lamar Companies dated March 29, 2007
 
Bulletin Contract between Diversified Asset Management and The Lamar Companies dated March 29, 2007
 
Agreement between Alarmco, Inc. and CV Property Mgmt Southtec dated July 25, 2016
4425 Aldebaran Ave., Las Vegas, NV
Agreement between Alarmco, Inc. and CV Property Mgmt Southtec dated July 25, 2016
4425 Aldebaran Ave., Las Vegas, NV
Agreement between Alarmco, Inc. and CV Property Mgmt Southtec dated July 28, 2016
4345 Dean Martin Drive, Las Vegas, NV
Agreement between Alarmco, Inc. and CV Property Mgmt Southtec dated July 25, 2016
4425 Aldebaran Ave., Las Vegas, NV
Agreement between Alarmco, Inc. and CV Property Mgmt Southtec dated July 25, 2016
4425 Aldebaran Ave., Las Vegas, NV
Agreement between Alarmco, Inc. and CV Property Mgmt Southtec dated February 1, 2009
4425 Aldebaran Ave., Las Vegas, NV
Agreement between Alarmco, Inc. and CV Property Mgmt Southtec dated February 1, 2009
4255 Aldebaran Ave., Las Vegas, NV
Agreement between Alarmco, Inc. and CV Property Mgmt Southtec dated February 11, 2009
4305 Dean Martin Drive, Las Vegas, NV
Agreement between Alarmco, Inc. and CV Property Mgmt Southtec dated February 11, 2009
4315 Dean Martin Drive, Las Vegas, NV
Agreement between Alarmco, Inc. and CV Property Mgmt Southtec dated February 11, 2009
4335 Dean Martin Drive, Las Vegas, NV
Agreement between Alarmco, Inc. and CV Property Mgmt Southtec dated February 1, 2009
4345 Dean Martin Drive, Las Vegas, NV

Exhibit 3-1

Agreement between Alarmco, Inc. and CV Property Mgmt Southtec dated February 11, 2009
4325 Dean Martin Drive, Las Vegas, NV
Agreement between Alarmco, Inc. and CV Property Mgmt Southtec dated January 20, 2010
4325 Aldebaran, Las Vegas, NV
Agreement between Alarmco, Inc. and CV Property Mgmt Southtec dated February 1, 2009
4631 Dean Martin Drive, Las Vegas, NV
Agreement between Alarmco, Inc. and CV Property Mgmt Southtec dated February 12, 2009
4425 S. Polaris Ave., Las Vegas, NV
Agreement between Alarmco, Inc. and CV Property Mgmt Southtec dated February 1, 2009
4288 S. Polaris Ave., Las Vegas, NV
Agreement between Alarmco, Inc. and CV Property Mgmt Southtec dated February 11, 2009
4325 Aldebaran, Las Vegas, NV
Agreement between Alarmco, Inc. and CV Property Mgmt Southtec dated February 11, 2009
4416 Aldebaran, Las Vegas, NV
Agreement between Alarmco, Inc. and CV Property Mgmt Southtec dated February 1, 2009
3060 Business Lane, Las Vegas, NV
Agreement between Alarmco, Inc. and CV Property Mgmt Southtec dated February 11, 2009
4425 Dean Martin Drive, Las Vegas, NV
Quote between M&R Fire Protection LLC and CV Properties dated February 6, 2014
 
Quote between M&R Fire Protection LLC and Diversified Real Estate Group dated February 17, 2014
4315 Dean Martin Drive, 4335 Dean Martin Drive, 4305 Dean Martin Drive, 4425 Aldebaran, 4416 Aldebaran, 4345 Dean Martin Drive, 4699 Dean Martin Drive, 4631 Dean Martin Drive, 4425 Dean Martin Drive, 4631 Dean Martin Drive, 4342 Dean Martin Drive
Customer Service Agreement between Republic Services and CV Property Management dated April 15, 2014
4416 Aldebaran Ave.
Customer Service Agreement between Republic Services and CV Property Management dated April 15, 2014
3360 Business Lane
Customer Service Agreement between Republic Services and CV Property Management dated April 15, 2014
4285 Polaris Ave.
Customer Service Agreement between Republic Services and CV Property Management dated April 15, 2014
4631 Dean Martin Drive

Exhibit 3-2

Customer Service Agreement between Republic Services and CV Property Management dated April 15, 2014
4425 Dean Martin Drive
Customer Service Agreement between Republic Services and CV Property Management dated April 15, 2014
4305 Dean Martin Drive
Customer Service Agreement between Republic Services and CV Property Management dated April 15, 2014
4255 Dean Martin Drive
Credit Application and Agreement to Pay between Discount Dumpsters and CV Property Management dated March 27, 2014
 
Service Agreement between Discount Dumpsters and CV Property Management dated March 27, 2014
 

 
Exhibit 3-3


Exhibit “4”
 
Form of Grant, Bargain and Sale Deed
 
APN(s): [______________________]
 
WHEN RECORDED MAIL TO AND MAIL
PROPERTY TAX STATEMENTS TO:
 
   
   
   
Attn:     
 
GRANT, BARGAIN AND SALE DEED
 
THIS INDENTURE WITNESSETH that [_______________________], a [_______________________], for valuable consideration, the receipt of which is hereby acknowledged, does hereby Grant, Bargain, Sell and Convey to [_______________________], a [_______________________], with an address of [________________], all that real property situated in the County of Clark, State of Nevada, bounded and described as follows:
 
See Exhibit A attached hereto and by this reference incorporated herein (the “Property”);
 
Together with all and singular the improvements, fixtures, tenements, hereditaments and appurtenances thereunto belonging or in anywise appertaining, and any reversions, remainders, rents, issues, or profits thereof; and
 
Subject to (i) taxes for the current fiscal year, not due or delinquent, and any and all taxes and assessments levied or assessed after the recording date hereof, which includes the lien of supplemental taxes, if any; and (ii) restrictions, conditions, reservations, rights of way and easements affecting the use and occupancy of this Property as the same may now appear of record.
 
[Signature and acknowledgement appear on following page.]

Witness my hand this _____________ day of ________________________ , 2018.
 
[_______________________],
a [______________________]
 
By:
   
Name:
   
Title:
   
 
STATE OF NEVADA
 
COUNTY OF CLARK
 
This instrument was acknowledged before me on _____________, 2018 by__________________ as _____________________________________________ of [______________________________________].

(Seal, if any)
 
  Signature of Notarial Officer

Exhibit 4-2

EXHIBIT A TO DEED
 
LEGAL DESCRIPTION
 
(to be attached)
Exhibit 4-3

Exhibit 5
 
Form of Ground Lease Assignment and Assumption Agreement
 
APN(s): [______________________]
 
WHEN RECORDED RETURN TO:
 
   
   
   
Attn:     
 
ASSIGNMENT AND ASSUMPTION AGREEMENT
(Ground Lease)
 
THIS ASSIGNMENT AND ASSUMPTION AGREEMENT (this “Assignment and Assumption Agreement”), dated as of [________________], 2018 (the “Effective Date”), is made by and between [_________________________________________], a [_______________] (“Assignor”), and [______________________________], a [_______________] (“Assignee”).
 
RECITALS
 
WHEREAS, Assignor and Assignee are parties to that certain Purchase and Sale Agreement and Joint Escrow Instructions, dated as of [________], 2018 (together with all amendments, supplements, modifications, appendices, assignments and addenda thereto, the “Purchase Agreement”), providing for, among other things, the sale, transfer, conveyance, assignment and delivery by Assignor to Assignee of the Ground Lease (as defined below);
 
WHEREAS, Assignor is the holder of the lessee’s interest under that certain Lease Agreement, which is more particularly described on Exhibit A attached hereto (together with all amendments, supplements, modifications, appendices, assignments and addenda thereto, the “Ground Lease”), pursuant to which Assignor leases certain real property more particularly described therein; and
 
WHEREAS, pursuant to the provisions of the Purchase Agreement, Assignor has agreed to assign to Assignee all of Assignor’s right, title and interest under the Ground Lease, and Assignee has agreed to assume all of Assignor’s obligations under the Ground Lease.

AGREEMENT
 
NOW, THEREFORE, in consideration of the foregoing premises and mutual covenants and agreements contained herein and in the Purchase Agreement and for other good and valuable consideration, the receipt, adequacy and legal sufficiency of which are hereby acknowledged, Assignee and Assignor hereby agree as follows:
 
1.          Assignment and Assumption. Effective as of the Effective Date, Assignor hereby sells, transfers, assigns, conveys, grants, delivers and delegates to Assignee all of Assignor’s right, title, benefit, privilege and interest in, to and under the Ground Lease, and Assignee hereby accepts such assignment, assumes from Assignor the Ground Lease and agrees to pay, perform and discharge when due all of the obligations, covenants, agreements and conditions to be performed by Assignor as lessee under the Ground Lease.
 
2.          Conflict. This Assignment and Assumption Agreement is subject to all of the terms, conditions and limitations set forth in the Purchase Agreement. In the event that any provision of this Assignment and Assumption Agreement shall be construed to conflict with a provision of the Purchase Agreement, the provision of the Purchase Agreement shall be deemed to be controlling.
 
3.          Further Assurances. Each of the parties hereto covenants and agrees to execute and deliver, at the request of any other party hereto, such further instruments of transfer and assignment and to take such other action as such other party may reasonably request to more effectively consummate the assignments and assumptions contemplated by this Assignment and Assumption Agreement.
 
4.          Governing Law. The internal laws of the State of Nevada applicable to contracts made and wholly performed therein shall govern the validity, construction, performance and effect of this Assignment and Assumption Agreement.
 
5.          Successors and Assigns. This Assignment and Assumption Agreement shall be binding upon, and inure to the benefit of, the parties hereto and their respective successors in interest and assigns.
 
6.          Headings. The subject headings or captions of the paragraphs in this Assignment and Assumption Agreement are inserted for convenience of reference only and shall not affect the meaning, construction or interpretation of any provisions contained herein. All capitalized terms defined herein are equally applicable to both the singular and plural forms of such terms.
 
7.          Counterparts. This Assignment and Assumption Agreement may be signed in one or multiple counterparts, with each counterpart having the same force and effect as if this single instrument were executed by each of the parties hereto and delivered to the other party.
 
8.          No Third Party Beneficiaries. There are no third-party beneficiaries to this Assignment and Assumption Agreement.
Exhibit 5-2

9.          Severability. If any provision of this Assignment and Assumption Agreement shall be held invalid, illegal or unenforceable, the validity, legality or enforceability of the other provisions of this Assignment and Assumption Agreement shall not be affected thereby, and there shall be deemed substituted for the provision at issue a valid, legal and enforceable provision as similar as possible to the provision at issue.
 
10.        Recording. Assignee may cause this Assignment and Assumption Agreement to be recorded in the Office of the County Recorder of Clark County, Nevada on or about the Effective Date.
 
[Signatures and acknowledgements appear on the following pages.]
Exhibit 5-3

IN WITNESS WHEREOF, the parties hereto have caused this Assignment and Assumption Agreement to be executed as of the Effective Date.
 
ASSIGNOR:
 
[_______________________],
a [______________________]
 
By:
   
Name:
   
Title:
   
 
ASSIGNEE:
 
[_______________________],
a [______________________]

By:
   
Name:
   
Title:
 
 

Exhibit 5-4

STATE OF _____________
 
COUNTY OF _____________
 
This instrument was acknowledged before me on __________, 201_ by __________________ as ________________________________________ of [_________________________________].
 
(Seal, if any)
   
 
(Signature of Notarial Officer)
 
STATE OF _____________
 
COUNTY OF _____________
 
This instrument was acknowledged before me on __________, 201_ by __________________ as ________________________________________ of [_________________________________].

(Seal, if any)
   
 
(Signature of Notarial Officer)

Exhibit 5-5

EXHIBIT A
 
DESCRIPTION OF GROUND LEASE
 
[to be provided]
[to include all applicable recording information]
Exhibit 5-6

[CS&M Draft—09/14/2018]

Exhibit 6

Form of Stockholder Agreement



STOCKHOLDER AGREEMENT

Dated as of []

by and between

BRIGHTLINE HOLDINGS LLC

and

THARALDSON ETHANOL PLANT I, LLC



  TABLE OF CONTENTS
       
     
Page
       
Article I
 
       
Information Rights
 
 
1.1
Stockholder Information Rights
1
       
Article II
 
     
Transfers; Tag-Along; Drag-Along; Put Right
 
 
2.1
Transfer Restrictions
2
 
2.2
Tag Along; Drag Along; Put Right
4
       
Article III
 
     
Definitions
 
 
3.1
Defined Terms
8
 
3.2
Interpretation
11
     
Article IV
 
     
Miscellaneous
 
 
4.1
Term
11
 
4.2
Notices
11
 
4.3
Amendment
13
 
4.4
Assignment
13
 
4.5
Severability
14
 
4.6
Counterparts
14
 
4.7
Entire Agreement
14
 
4.8
Governing Law
14
 
4.9
Jurisdiction
14
 
4.10
Service of Process
15
 
4.11
Waiver of Jury Trial
15
 
4.12
Enforcement
15
 
4.13
Third Party Beneficiaries
15
 
4.14
Permitted Transferee Representative
15
 
4.15
Confidentiality
16
 
4.16
Cooperation
16
i

This STOCKHOLDER AGREEMENT, dated as of [] (this “Agreement), is by and between BRIGHTLINE HOLDINGS LLC a Delaware [limited liability company][corporation]1 (“Purchaser”), and THARALDSON ETHANOL PLANT I, LLC, a Nevada limited liability company (the “Stockholder”).

W I T N E S S E T H:

WHEREAS, on September 17, 2018, Purchaser, the Stockholder and the other parties thereto entered into a Real Estate Purchase and Sale Agreement (as it may be amended from time to time, the “Purchase Agreement”), pursuant to which, among other things, Purchaser will issue, on the date hereof, Purchaser Common Shares to the Stockholder in an amount equal to the Share Purchase Price; and

WHEREAS, each of the parties wishes to set forth in this Agreement certain terms and conditions regarding, among other things, the Stockholder’s ownership of Purchaser Common Shares;

NOW, THEREFORE, in consideration of the premises, and of the representations, warranties, covenants and agreements set forth herein, and intending to be legally bound, the parties agree as follows:

ARTICLE I

Information Rights

1.1          Stockholder Information Rights.

(a)          Quarterly Financial Statements. Purchaser shall deliver to the Stockholder, within 90 calendar days after the end of each fiscal quarter of OpCo (other than the last fiscal quarter of any fiscal year of OpCo):

(i)          an unaudited balance sheet as at the end of such fiscal quarter; and

(ii)         an unaudited income statement for such fiscal quarter;

in each case for OpCo and its subsidiaries (on a consolidated basis), excluding footnotes thereto, all prepared in accordance with GAAP (applicable to non-public companies) consistently applied throughout the periods covered thereby, subject to changes resulting from normal year-end adjustments.

(b)          Annual Financial Statements. Purchaser shall deliver to the Stockholder, within 120 calendar days after the end of each fiscal year of OpCo:

(i)          an audited balance sheet as at the end of such fiscal year; and


1 To be updated based on type of entity at Closing.

(ii)         an audited income statement and statement of cash flows for such fiscal year;

in each case for OpCo and its subsidiaries (on a consolidated basis), including any footnotes thereto, prepared in accordance with GAAP (applicable to non-public companies) consistently applied throughout the periods covered thereby (except as otherwise disclosed in the footnotes thereto).

(c)          Other Information. Purchaser will consider and respond in good faith to reasonable requests made by the Stockholder for other information related to the Stockholder’s investment in Purchaser; provided, however, that Purchaser shall not be required to provide any such information if (i) Purchaser determines in good faith that such information is competitively sensitive; (ii) such information relates to the Purchase Agreement, any ancillary transaction documents related thereto or any of the transactions contemplated thereby or otherwise relates to any commercial relationship between the Stockholder or any of its affiliates, on the one hand, and Purchaser or any of its affiliates, on the other hand; or (iii) Purchaser determines in good faith that providing such information would reasonably be expected to (A) jeopardize an attorney-client privilege or cause a loss of attorney work product protection or (B) violate any applicable Law or Judgment or any Contract with a third party.

(d)          Termination. The provisions of this Section 1.1 shall terminate upon the earlier to occur of (i) the consummation of a Purchaser IPO and (ii) the Stockholder Disposition Event.

(e)          Limitation on Other Rights. The rights of the Stockholder under this Section 1.1 are in lieu of any other rights to information that may be available under the Delaware Act (including pursuant to Section 18-305 of the Delaware Act) or common law in its capacity as a member of Purchaser, to the extent applicable.

ARTICLE II

Transfers; Tag-Along; Drag-Along; Put Right

2.1          Transfer Restrictions.

(a)          Other than Permitted Transfers, subject to Section 2.1(c), the Stockholder shall not, directly or indirectly, Transfer any Purchaser Common Shares until the date following the later of (i) consummation of the Purchaser IPO and (ii) the last day of any lock-up period agreed to by the Stockholder in connection with such Purchaser IPO (such later date, the “Restricted Period Termination Date”).
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(b)          “Permitted Transfers” means, in each case so long as such Transfer is in accordance with applicable Laws and Judgments and the provisions of Purchaser’s Organizational Documents:

(i)          a Transfer of Purchaser Common Shares to a Permitted Transferee, so long as such Permitted Transferee, to the extent it has not already done so, executes a customary joinder to this Agreement, in form and substance reasonably acceptable to Purchaser, in which such Transferee makes customary representations and warranties and agrees to be subject to all covenants and agreements of the Stockholder under this Agreement; provided that if at any time the Transferee ceases to be an affiliate of such Transferor, such Transferee shall, and such Transferor shall procure that such Transferee shall, immediately Transfer back the Transferred Purchaser Common Shares to such Transferor as if such Transfer had not taken place ab initio, and Purchaser shall no longer, and shall instruct its transfer agent and other third parties to no longer, record or recognize such Transfer on the share register of Purchaser;

(ii)         a Transfer of Purchaser Common Shares pursuant to Section 2.2(a); and

(iii)        any other Transfer of Purchaser Common Shares with Purchaser’s prior written consent, such consent not to be unreasonably withheld, conditioned or delayed.

(c)          If, as of the date following the first anniversary of this Agreement, (i) Purchaser has not consummated a Purchaser IPO and (ii) the Stockholder Disposition Event has not occurred prior to such date, then the Stockholder shall have the right (on behalf of itself and the Permitted Transferees) to deliver, on one occasion, a written notice to Purchaser on or prior to the date that is five (5) business days after the first anniversary of this Agreement (such notice, a “Third Party Transfer Election”), electing to terminate the restrictions on Transfer set forth in Section 2.1(a) for a period of 90 days following the delivery of such Third Party Transfer Election and to require Purchaser to, for such 90 day period, use commercially reasonable efforts to provide such assistance as is reasonably requested by the Stockholder (on behalf of itself and the Permitted Transferees) in connection with any proposed Transfer by the Stockholder or any Permitted Transferee of Purchaser Common Shares then held by the Stockholder or such Permitted Transferee to any proposed Transferee, including reasonably cooperating with the due diligence of the proposed Transferee by making available to such proposed Transferee (subject to customary confidentiality obligations by such proposed Transferee) (A) the financial statements referred to in Sections 1.1(a) and 1.1(b) and (B) such other customary due diligence information reasonably requested by the Stockholder (on behalf of itself and the applicable Permitted Transferees) or such proposed Transferee.

(d)          Notwithstanding anything to the contrary contained herein, including the occurrence of the Restricted Period Termination Date or any Third Party Transfer Election, the Stockholder shall not, directly or indirectly, Transfer any Purchaser Common Shares other than in accordance with applicable Law and Judgment and Purchaser’s Organizational Documents. Until the consummation of a Purchaser IPO, Purchaser shall not, and shall cause its members not to, amend or otherwise modify its Organizational Documents in any manner that would result in any restrictions on Transfer therein becoming more restrictive than any restrictions on Transfer set forth in Purchaser’s Organizational Documents as of the date of the Purchase Agreement.
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(e)          Any Transfer or attempted Transfer of Purchaser Common Shares in violation of this Section 2.1 shall, to the fullest extent permitted by applicable Law and Judgment, be null and void ab initio, and Purchaser shall not, and shall instruct its transfer agent and other third parties not to, record or recognize any such purported transaction on the share register or other books and records of Purchaser. Any share certificate or other instrument evidencing the Purchaser Common Shares issued to the Stockholder on the Closing Date shall bear a legend detailing the restrictions on transfer set forth in this Agreement.

2.2          Tag Along; Drag Along; Put Right.

(a)          Tag Along Rights. Notwithstanding anything in Section 2.1 to the contrary, if any Fortress Stockholder or group of Fortress Stockholders proposes to effect a Change of Control Sale prior to the consummation of the Purchaser IPO, the Stockholder may, at its option, elect to exercise its rights under this Section 2.2(a).

(i)          In the event of a proposed Change of Control Sale, Purchaser shall deliver to the Stockholder: (A) a written notice of the terms and conditions of such Change of Control Sale (a “Change of Control Notice”) and offer the Stockholder (and any Permitted Transferee that then owns any Purchaser Common Shares) the opportunity to participate in such Change of Control Sale on the same terms and conditions, subject to the same agreements and for the same consideration, as the applicable Fortress Stockholders participating in such Change of Control Sale and (B) the purchase agreement (or similar instrument of transfer), including all attachments and schedules, that is the subject of such Change of Control Sale.

(ii)         From the date of the delivery of all of the information described in Section 2.2(a)(i), until the date that is 10 business days thereafter (the “Tag Along Election Period”), the Stockholder (and any Permitted Transferee that then owns any Purchaser Common Shares) shall have the right, exercisable by written notice delivered by the Stockholder (such participating Stockholder and such other participating Permitted Transferees that then own any Purchaser Common Shares, a “Tag Along Stockholder”) to Purchaser within such Tag Along Election Period, to request that the applicable Fortress Stockholders include in the Change of Control Sale the number of Purchaser Common Shares as is specified in such notice; provided, however, that if the aggregate number of Purchaser Common Shares proposed to be Transferred by the applicable Fortress Stockholders, the Tag Along Stockholders and any other holder of Purchaser Common Shares in the Change of Control Sale exceeds the number of Purchaser Common Shares that can be Transferred on the terms and conditions set forth in the Change of Control Notice, then only the Tag Along Portion of Purchaser Common Shares held by the applicable Fortress Stockholders and the Tag Along Stockholders shall be Transferred pursuant to the applicable Change of Control Sale. All out-of-pocket costs and expenses incurred by the Tag Along Stockholders in connection with a Change of Control Sale described in this Section 2.2(a) shall be paid by the Tag Along Stockholders. In connection with any Change of Control Sale described in this Section 2.2(a), the closing of the Transfer of Purchaser Common Shares held by the applicable Fortress Stockholders and the closing of the Transfer of Purchaser Common Shares held by each Tag Along Stockholder shall each occur on the same date.
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(iii)        Notwithstanding the foregoing, the Fortress Stockholders may at any time prior to consummation of a Change of Control Sale described in this Section 2.2(a) terminate the proposed Transfer and the related tag along rights of any Tag Along Stockholder with respect to such proposed Transfer. Purchaser shall cause the Fortress Stockholders to comply with the provisions of this Section 2.2(a).

(b)          Drag Along. Notwithstanding anything in Section 2.1 to the contrary, if Purchaser or any Fortress Stockholder or group of Fortress Stockholders proposes to effect a Change of Control Sale prior to the consummation of a Purchaser IPO, Purchaser or such Fortress Stockholders may, at their option, require the Stockholder (and any Permitted Transferee that then owns any Purchaser Common Shares) to Transfer in such Change of Control Sale all of the Purchaser Common Shares then owned by the Stockholder (and such other Permitted Transferees that then own any Purchaser Common Shares) (collectively, the “Drag Along Stockholders”) on the same terms and conditions, subject to the same agreements and for the same consideration, as the applicable Fortress Stockholders participating in such Change of Control Sale, pursuant to the terms of this Section 2.2(b).

(i)          In the event Purchaser or any Fortress Stockholders elect to exercise their rights pursuant to this Section 2.2(b), Purchaser shall provide to the Stockholder a Change of Control Notice not later than the 10th business day prior to the closing of the proposed Change of Control Sale.
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(ii)         Upon receipt of a Change of Control Notice, the Drag Along Stockholders shall be required to participate in the Change of Control Sale, on the terms and conditions set forth in the Change of Control Notice (subject to this Section 2.2(b)(ii) and Section 2.2(b)(iii)) and, if any such Change of Control Sale involves a merger, consolidation or sale of all or substantially all assets of Purchaser and its subsidiaries, the Drag Along Stockholders shall be required to vote in favor of or consent in writing to such merger, consolidation or sale of all or substantially all assets (and, without limiting the foregoing, each Drag Along Stockholder shall (to the extent applicable) waive any dissenters’ rights, appraisal rights or similar rights in connection therewith). In connection with the foregoing, each Drag Along Stockholder shall be required to join and become a party to each agreement that is approved by Purchaser or any Fortress Stockholder or group of Fortress Stockholders, as applicable (or to which any Fortress Stockholder is a party), in connection with a Change of Control Sale, including any such agreement that provides for representations and warranties, indemnification obligations (including escrows, hold backs or other similar arrangements to support such indemnification obligations), releases, covenants or other obligations, in each case, of the holders of Purchaser Common Shares party thereto; provided that (x) except in the case of the following clause (y), the indemnification obligations of each Drag Along Stockholder in connection with a Change of Control Sale shall be the same as those made by the Fortress Stockholders and apportioned based on such Drag Along Stockholder’s pro rata portion of the aggregate consideration received by the holders of Purchaser Common Shares in such transaction, (y) with respect to breaches of Fundamental Representations made by any Drag Along Stockholder in connection with a Change of Control Sale, such Drag Along Stockholder shall be solely liable, and (z) the aggregate amount of liability for any Drag Along Stockholder shall not in any case exceed the total consideration received by such Drag Along Stockholder in the Change of Control Sale. The Stockholder (i) hereby appoints Purchaser or any designee thereof as its representative in connection with any agreement contemplated by this Section 2.2(b) (including the right to resolve any potential indemnification claims or other disputes on behalf of the Fortress Stockholders and the Drag Along Stockholders) and (ii) hereby irrevocably grants to, and appoints, Purchaser or any designee thereof, as the Stockholder’s proxy and attorney in fact (with full power of substitution), for and in the name, place and stead of each Drag Along Stockholder, to vote the Purchaser Common Shares held by each Drag Along Stockholder, or to grant a consent or approval in respect of such Purchaser Common Shares, in connection with any meeting of Purchaser or any action by written consent in lieu of a meeting of Purchaser with respect to a Change of Control Sale. The Stockholder hereby affirms that such irrevocable proxy is given to secure the performance of the duties of the Stockholder under this Agreement, and is coupled with an interest and irrevocable. All out of pocket costs and expenses incurred by any Drag Along Stockholder in connection with a Change of Control Sale described in this Section 2.2(b) shall be paid by such Drag Along Stockholder. In connection with any Change of Control Sale described in this Section 2.2(b), the closing of the Transfer of Purchaser Common Shares held by the applicable Fortress Stockholders and the closing of the Transfer of Purchaser Common Shares held by each Drag Along Stockholder shall each occur on the same date.
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(iii)        Notwithstanding the foregoing, Purchaser and the applicable Fortress Stockholders may at any time prior to consummation of a Change of Control Sale described in this Section 2.2(b) terminate the proposed Transfer and any concomitant drag along obligations of any Drag Along Stockholders with respect to such proposed Transfer.

(c)          Put Right.

(i)          If, as of the date that is 90 days after the date on which the Stockholder delivers a Third Party Transfer Election pursuant to Section 2.1(c) (such date, the “Put Trigger Date”), (A) Purchaser has not consummated a Purchaser IPO and (B) the Stockholder or any Permitted Transferee continue to hold Purchaser Common Shares, then the Stockholder shall have the right (on behalf of itself and the Permitted Transferees) to deliver, on one occasion in respect of the Put Trigger Date, a written notice to Purchaser on or prior to the date that is 30 days after the Put Trigger Date, electing to require Purchaser to purchase all of the Purchaser Common Shares then held by the Stockholder or any Permitted Transferee within 90 days of delivery of the written notice to Purchaser of such election (such date, the “Put Closing Date”), at a price per Purchaser Common Share equal to the Purchaser Common Share Value (this amount, the “Put Amount”). The Stockholder and each Permitted Transferee, as applicable, shall execute and deliver to Purchaser customary share transfer documentation reasonably requested by Purchaser in connection with any Transfer of Purchaser Common Shares contemplated by this Section 2.2(c) and, without limiting the foregoing, the Stockholder and each such Permitted Transferee shall be required to make Fundamental Representations to the Purchaser in the definitive share transfer documentation related to any such Transfer.

(ii)         Notwithstanding anything herein to the contrary, if, following the Closing and prior to the Put Closing Date, there has been a material and sustained disruption of, or material and sustained adverse change in, conditions in the financial, banking or capital markets that, in Purchaser’s reasonable judgment, would materially impair Purchaser’s ability to obtain the financing necessary to pay the Put Amount to the Stockholder or any Permitted Transferee, as applicable, on commercially reasonable terms, then Purchaser may, upon delivery of written notice to the Stockholder and such Permitted Transferees, extend the Put Closing Date until such time at which such financing becomes available on commercially reasonable terms (this time period, the “Put Closing Extension Period”). Purchaser shall use reasonable best efforts to obtain this financing at the earliest reasonable opportunity. During the Put Closing Extension Period, interest on the Put Amount will accrue at a rate of four percent (4.0%) per annum; provided that under no circumstances will such interest rate be less than the short-term Applicable Federal Rate, as defined in Section 1274(d) of the Internal Revenue Code (the “AFR”), and Purchaser and the Stockholder shall periodically review this interest rate (and no less than annually) until the Put Amount is fully paid to ensure this interest rate continues to exceed the AFR. Purchaser’s internal records of applicable interest rates will be determinative in the absence of manifest error.
7


(d)       Notwithstanding anything in this Agreement to the contrary, this Section 2.2 shall terminate immediately upon the consummation of a Purchaser IPO.

 

Article III

Definitions

 

3.1       Defined Terms. Terms that are not otherwise defined in this Agreement shall have the meaning ascribed to them in the Purchase Agreement. As used in this Agreement, the following terms shall have the following meanings:

 

affiliate” means, with respect to any person, any other person controlling, controlled by or under common control with such first person.

 

AFR” has the meaning set forth in Section 2.2(c)(ii).

 

Agreement” has the meaning set forth in the preamble.

 

Beneficially Own” or “Beneficial Ownership” has the meaning assigned to such term in Rule 13d-3 under the Securities Exchange Act of 1934, as amended, and a person’s beneficial ownership of securities shall be calculated in accordance with the provisions of such Rule (in each case, irrespective of whether or not such Rule is actually applicable in such circumstance).

 

business day” means a day, other than a Saturday or a Sunday, on which commercial banks are not required or authorized to close in each of New York City and Las Vegas, Nevada.

 

Change of Control Notice” has the meaning set forth in Section 2.2(a).

 

Change of Control Sale” means any transaction or series of related transactions in which any Fortress Stockholder or group of Fortress Stockholders proposes to Transfer (whether by merger, consolidation or sale or other Transfer of Purchaser Common Shares or otherwise) 50% or more of the then outstanding Purchaser Common Shares to any person (other than another Fortress Stockholder or other affiliate of Holdings).

 

Delaware Act” means the Delaware Limited Liability Company Act (6 Del. C. Section 18-101, et seq.), as amended from time to time.

 

Drag Along Stockholder” has the meaning set forth in Section 2.2(b).

 

Fortress” means [●].2

 


2 Note to Draft: To reference applicable Fortress fund that controls Buyer.
8

Fortress Stockholder” means Holdings and any affiliate of Fortress (other than Purchaser and its subsidiaries) that Beneficially Owns Purchaser Common Shares at any time.

 

Fundamental Representations” means certain customary “fundamental representations” to be made by the holders of Purchaser Common Shares in connection with a Change of Control Sale or a Transfer to Purchaser as contemplated by Section 2.2(c), as applicable, including representations with respect to ownership and authority to Transfer, free of liens, claims and encumbrances, the Purchaser Common Shares proposed to be Transferred by such holder of Purchaser Common Shares, no conflicts and absence of approvals with respect to the Purchaser Common Shares proposed to be Transferred by such holder of Purchaser Common Shares, the due authorization, execution, delivery and enforceability of the definitive documents entered into by such holder of Purchaser Common Shares in connection with such Transfer, no brokers and compliance with applicable Laws and Judgments.

 

GAAP” means generally accepted accounting principles of the United States.

 

Holdings” means AAF Holdings LLC, a Delaware limited liability company.

 

OpCo” means Brightline Trains LLC.

 

Organizational Documents” means any charter, certificate, articles or deed of incorporation, articles of organization, certificate of formation, articles of association, bylaws, operating agreement or similar formation or governing documents and instruments.

 

Permitted Transferee” means the Stockholder and any affiliate thereof.

 

Permitted Transfers” has the meaning set forth in Section 2.1(b).

 

person” means any individual, firm, corporation, partnership, limited liability company, trust, joint venture, Governmental Entity or other entity.

 

Purchase Agreement” has the meaning set forth in the recitals.

 

Purchaser” has the meaning set forth in the preamble.

 

Put Amount” has the meaning set forth in Section 2.2(c)(i).

 

Put Closing Date” has the meaning set forth in Section 2.2(c)(i).

 

Put Closing Extension Period” has the meaning set forth in Section 2.2(c)(ii).

 

Put Trigger Date” has the meaning set forth in Section 2.2(c)(i).

9

Restricted Period Termination Date” has the meaning set forth in Section 2.1(a).

 

Stockholder” has the meaning set forth in the preamble.

 

Stockholder Disposition Event” means the date upon which the Stockholder and its Permitted Transferees cease to collectively hold a number of Purchaser Common Shares in excess of 1/2 of the aggregate number of Purchaser Common Shares previously issued and delivered to the Stockholder pursuant to the Purchase Agreement.

 

subsidiary” means, with respect to any person, any other person, an amount of the voting securities or other voting ownership or voting partnership interests of which sufficient to elect at least a majority of its board of directors or other governing body (or, if there are no such voting interests, 50% or more of the equity interests of which) is owned, directly or indirectly, by such first person or by another subsidiary of such first person.

 

Tag Along Portion” means, with respect to any person, the product of: (i) the aggregate number of Purchaser Common Shares proposed to be Transferred in a Change of Control Sale contemplated pursuant to Section 2.2(a), multiplied by (ii) a fraction, the numerator of which is the number of Purchaser Common Shares held by such person and the denominator of which is the aggregate number of Purchaser Common Shares then held by the Fortress Stockholders, the Tag Along Stockholders and any other holders of Purchaser Common Shares, in each case participating in such Change of Control Sale.

 

Tag Along Stockholder” has the meaning set forth in Section 2.2(a)(ii).

 

Third Party Transfer Election” has the meaning set forth in Section 2.1(c).

 

Transfer” means (i) any direct or indirect offer, sale, lease, assignment, encumbrance, pledge, grant of a security interest, hypothecation, disposition or other transfer (by operation of Law or otherwise), either voluntary or involuntary, or entry into any contract, option or other arrangement or understanding with respect to any offer, sale, lease, assignment, encumbrance, pledge, hypothecation, disposition or other transfer (by operation of Law or otherwise), of any capital stock or interest in any capital stock or (ii) in respect of any capital stock or interest in any capital stock, the entry into any swap or any other agreement, transaction or series of transactions that hedges or transfers, in whole or in part, directly or indirectly, the economic consequence of ownership of such capital stock or interest in capital stock, whether any such swap, agreement, transaction or series of transactions is to be settled by delivery of securities, in cash or otherwise. “Transferor” means a person that Transfers or proposes to Transfer; and “Transferee” means a person to whom a Transfer is made or is proposed to be made.

10

3.2       Interpretation. The descriptive headings of the several Articles and Sections of this Agreement and the Table of Contents to this Agreement are inserted for convenience only, do not constitute a part of this Agreement and shall not affect in any way the meaning or interpretation of this Agreement. All references herein to “Articles” or “Sections” shall be deemed to be references to Articles or Sections hereof unless otherwise indicated. For all purposes hereof, the terms “include”, “includes” and “including” shall be deemed to be followed by the words “without limitation”. The words “hereof”, “hereto”, “hereby”, “herein” and “hereunder” and words of similar import when used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement. The word “will” shall be construed to have the same meaning as the word “shall”. The word “or” is not exclusive. The word “extent” in the phrase “to the extent” means the degree to which a subject or other thing extends, and such phrase shall not mean simply “if”. The phrase “date hereof” or “date of this Agreement” shall be deemed to refer to [●]. The definitions contained in this Agreement are applicable to the singular as well as the plural forms of such terms and to the masculine as well as the feminine and neuter genders of such terms. Any applicable Law defined or referred to herein means such applicable Law as from time to time amended, modified or supplemented. Any reference to any statute herein shall also be deemed to refer to all rules and regulations promulgated thereunder. References to a person are also to its successors and permitted assigns. With respect to Purchaser Common Shares, such term shall include any shares of Purchaser Common Shares or other securities of Purchaser received by the Stockholder or any Permitted Transferee as a result of any stock split, stock dividend or distribution, or other subdivision, reorganization, reclassification or similar capital transaction.

 

Article IV

Miscellaneous

 

4.1       Term. This Agreement shall be effective as of the date hereof and shall automatically terminate upon a Purchaser IPO. If this Agreement is terminated pursuant to this Section 4.1, this Agreement shall become void and of no further force and effect, except for the provisions set forth in Section 3.2 and this Article IV.

 

4.2       Notices. All notices, requests, permissions, waivers and other communications hereunder shall be in writing and shall be deemed to have been duly given (a) three business days following sending by registered or certified mail, postage prepaid, (b) when sent, if sent by email (with written confirmation of receipt), (c) when delivered, if delivered personally to the intended recipient, and (d) one business day following sending by overnight delivery via a national courier service and, in each case, addressed to a party at the following address for such party:

 

if to Purchaser,

 

Brightline Holdings LLC

c/o Florida East Coast Industries, LLC

ATTN: Kolleen Cobb

2855 Le Jeune Rd, 4th Floor

Coral Gables, FL 33134

Telephone No.:(305) 520-2344

E-Mail:             kolleen.cobb@feci.com

 

11

with a copy to:

 

Brownstein Hyatt Farber Schreck, LLP

Attn: Rebecca Miltenberger

100 North City Parkway, Suite 1600

Las Vegas, NV 89106

Telephone No.: (702) 464-7052

E-Mail:             rmiltenberger@bhfs.com

 

and

 

Cravath, Swaine & Moore LLP
Worldwide Plaza
825 Eighth Avenue
New York, NY 10019-7475
Attention:
        Damien R. Zoubek, Esq.

                         O. Keith Hallam, III, Esq.
Email:               dzoubek@cravath.com
                         khallam@cravath.com

 

if to Holdings,

 

Fortress Investment Group
1345 Avenue of the Americas
New York, NY 10105

Attention:         Ken Nicholson
Email:
               knicholson@fortress.com

 

with a copy to:

 

Brownstein Hyatt Farber Schreck, LLP

Attn: Rebecca Miltenberger

100 North City Parkway, Suite 1600

Las Vegas, NV 89106

Telephone No.: (702) 464-7052

E-Mail:             rmiltenberger@bhfs.com

 

and

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Cravath, Swaine & Moore LLP
Worldwide Plaza
825 Eighth Avenue
New York, NY 10019-7475
Attention:         Damien R. Zoubek, Esq.

                         O. Keith Hallam, III, Esq.
Email:               dzoubek@cravath.com
                         khallam@cravath.com

 

if to the Stockholder,

 

c/o Tharaldson Investments

4255 Dean Martin Drive, Suite J

Las Vegas, NV 89103

Attn: Don Cape

Telephone No.: (702) 385-4988 ext. 2

E-Mail:             dcape@diversifiedgrp.com

 

with a copy to:

 

Holland & Hart LLP 

Attn: Tom L. DeVine

555 17th Street, Suite 3200

Denver, CO 80202

Telephone No.: (303) 295-8110

Email:               tldevine@hollandandhart.com

 

or to such other address(es) as shall be furnished in writing by any such party to the other parties in accordance with the provisions of this Section 4.2.

 

4.3       Amendment. Subject to Section 4.14, this Agreement may be amended, modified, superseded or canceled only by an instrument in writing signed by the Stockholder and Purchaser and any of the provisions hereof may be waived only by an instrument in writing signed by or on behalf of the party waiving compliance.

 

4.4       Assignment. Neither this Agreement nor any of the rights or obligations of the parties hereunder may be assigned by any of the parties (including by operation of Law or otherwise) without the prior written consent of the other party; provided that the Stockholder may assign its rights and obligations under this Agreement in connection with a Transfer to a Permitted Transferee made in compliance with the terms of this Agreement (it being understood, however, that in the event of any Transfer other than pursuant to Section 2.1(b)(i), such Transferee in such Transfer shall not be entitled to any of the benefits of this Agreement). Subject to the immediately preceding sentence, this Agreement shall be binding upon, and inure to the benefit of and be enforceable by, the parties and their respective successors and permitted assigns. Any attempted assignment in violation of this Section 4.4 shall be void.

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4.5       Severability. The invalidity, illegality or unenforceability of any portion of this Agreement shall not affect the validity, force or effect of the remaining portions of this Agreement. If it is ever held that any restriction hereunder is too broad to permit enforcement of such restriction to its fullest extent, each party agrees that a court of competent jurisdiction may enforce such restriction to the maximum extent permitted by Law, and each party hereby consents and agrees that such scope may be judicially modified accordingly in any Proceeding brought to enforce such restriction.

 

4.6       Counterparts. This Agreement may be executed in one or more counterparts, all of which shall be considered one and the same agreement, and shall become effective when one or more counterparts have been signed by each of the parties and delivered, in person or by facsimile, or by electronic image scan, receipt acknowledged, to the other parties.

 

4.7       Entire Agreement. This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes any previous agreements and understandings between the parties with respect to such matters. No party shall take, or cause to be taken, including by entering into agreements or other arrangements with provisions or obligations that conflict, or purport to conflict, with the terms of this Agreement or any of the transactions contemplated hereby, any action with either an intent or effect of impairing any such other person’s rights under this Agreement.

 

4.8       Governing Law. This Agreement and disputes relating hereto (whether for breach of contract, tortious conduct or otherwise) shall be governed and construed in accordance with the Laws of the State of Delaware, without reference to its conflicts of law principles.

 

4.9       Jurisdiction. Each party (a) submits to the personal jurisdiction of the Delaware Court of Chancery in and for New Castle County, or in the event (but only in the event) that such Delaware Court of Chancery does not have subject matter jurisdiction over such dispute, the United States District Court for the District of Delaware, or in the event (but only in the event) that such United States District Court also does not have jurisdiction over such dispute, any Delaware State court sitting in New Castle County, in the event any dispute (whether in contract, tort or otherwise) arises out of this Agreement or the transactions contemplated hereby, (b) agrees that it shall not attempt to deny or defeat such personal jurisdiction by motion or other request for leave from any such court and (c) agrees that it shall not bring any claim, action or proceeding relating to this Agreement or the transactions contemplated hereby in any court other than the Delaware Court of Chancery in and for New Castle County, or in the event (but only in the event) that such Delaware Court of Chancery does not have subject matter jurisdiction over such claim, action or proceeding, the United States District Court for the District of Delaware, or in the event (but only in the event) that such United States District Court also does not have jurisdiction over such claim, action or proceeding, any Delaware State court sitting in New Castle County. 

14

4.10       Service of Process. Each party agrees that service of any process, summons, notice or document by U.S. registered mail to such party’s respective address set forth in Section 4.2 shall be effective service of process for any Proceeding with respect to any matters for which it has submitted to jurisdiction pursuant to Section 4.9.

 

4.11       Waiver of Jury Trial. Each party hereby waives, to the fullest extent permitted by applicable Law and Judgment, any right it may have to a trial by jury in respect of any Proceeding arising out of or in connection with this Agreement or the transactions contemplated hereby or disputes relating hereto (whether for breach of contract, tortious conduct or otherwise). Each party (a) certifies that no representative, agent or attorney of any other party has represented, expressly or otherwise, that such other party would not, in the event of any Proceeding, seek to enforce the foregoing waiver and (b) acknowledges that it and the other parties have been induced to enter into this Agreement by, among other things, the mutual waivers and certifications in this Section 4.11.

 

4.12       Enforcement. The parties agree that irreparable damage would occur and that the parties would not have any adequate remedy at Law in the event that any of the provisions of this Agreement were not performed in accordance with their specific terms or were otherwise breached. It is accordingly agreed that the parties shall be entitled to seek an injunction or injunctions to prevent breaches of this Agreement and to enforce specifically the provisions of this Agreement in the courts referred to in Section 4.9, this being in addition to any other remedy to which the parties are entitled at Law or in equity.

 

4.13       Third Party Beneficiaries. Nothing contained in this Agreement, expressed or implied, is intended to confer upon any person other than the parties hereto any benefits, rights, or remedies.

 

4.14       Permitted Transferee Representative. The parties hereto acknowledge and agree that the Stockholder shall be the designated representative of any and all Permitted Transferees with full authority to make all representations and warranties and agree to all covenants on behalf of and in the name of the Permitted Transferees, and to make all decisions and determinations, and to take all actions (including giving consents and waivers or agreeing to any amendments to this Agreement or to the termination hereof) required or permitted hereunder on behalf of the Permitted Transferees, and any such action, decision or determination so made or taken shall be deemed the action, decision or determination of each such Permitted Transferee, and any notice, document, certificate or information required to be given, whether in writing or otherwise, to any Permitted Transferee shall be deemed so given if given to the Stockholder and Purchaser shall be fully protected against liability in relying on the actions of the Stockholder as being authorized by the Permitted Transferees. The Stockholder shall ensure the due, prompt and faithful performance and discharge by, and compliance with, all of the obligations, covenants, terms, conditions and undertakings of the Permitted Transferees under this Agreement in accordance with the terms hereof.

15

4.15       Confidentiality. The Stockholder shall, and shall use reasonable best efforts to cause its affiliates, officers, directors, employees, agents and representatives to, keep confidential and not disclose to any other person, or use for their own benefit or the benefit of any other person, any information regarding Purchaser or any of its affiliates obtained pursuant to this Agreement or in its capacity as an equityholder of Purchaser or the terms of this Agreement. The obligations of the Stockholder under this Section 4.15 shall not apply to information which: (i) is or becomes generally available to the public without breach of obligations under this Section 4.15 or (ii) is required in the opinion of legal counsel to the Stockholder to be disclosed by applicable Law or any Judgment; provided, however, that in any such case, the Stockholder must notify Purchaser in writing as early as practicable prior to disclosure to allow Purchaser to take appropriate measures to preserve the confidentiality of such information (and, if requested by Purchaser, the Stockholder shall reasonably cooperate, at Purchaser’s expense, with any such effort by Purchaser to preserve the confidentiality of such information).

 

4.16       Cooperation. If Purchaser has not consummated a Purchaser IPO on or prior to the Closing Date, the Stockholder and each Permitted Transferee that then holds any Purchaser Common Shares shall use commercially reasonable efforts to cooperate with any action reasonably requested by Purchaser from and after the Closing to effect a Purchaser IPO (including any corporate reorganization of Purchaser or any of its subsidiaries or other reasonable activities, the expenses of which are reimbursed by Purchaser).

 

[The remainder of this page left intentionally blank.]

16

IN WITNESS WHEREOF, this Agreement has been duly executed and delivered by the duly authorized officers of the parties as of the date first herein above written.

 

  BRIGHTLINE HOLDINGS, LLC  
       

By:
  
 
    Name:  
    Title:  

  THARALDSON ETHANOL PLANT I, LLC  
       

By:
   
 
    Name:  
    Title:
 


Exhibit 7
 
Form of Assignment and Assumption Agreement
 
ASSIGNMENT AND ASSUMPTION AGREEMENT
 
THIS ASSIGNMENT AND ASSUMPTION AGREEMENT (this “Assignment and Assumption Agreement”), dated ________, 20__, is made by and between [________________], a [________________] (“Seller”), and [________________], a [________________] (“Purchaser”).  Capitalized terms used but not otherwise defined herein shall have the meanings ascribed thereto in the Agreement (as defined below).
 
W I T N E S S E T H:
 
WHEREAS, Seller and Purchaser are parties to that certain Purchase and Sale Agreement and Joint Escrow Instructions, dated as of [_______], 2018 (together with all amendments, supplements, modifications, appendices, assignments and addenda thereto, the “Agreement”), providing for, among other things, the sale, transfer and conveyance by Seller to Purchaser of Seller’s right, title and interest in and to the Property; and
 
WHEREAS, pursuant to the Agreement, Seller has agreed to assign to Purchaser certain contracts, and Purchaser has agreed to accept the assignment of such contracts and assume certain liabilities related thereto.
 
AGREEMENT
 
NOW, THEREFORE, in consideration of the foregoing premises and mutual covenants and agreements contained herein and in the Agreement and for other good and valuable consideration, the receipt, adequacy and legal sufficiency of which are hereby acknowledged, Purchaser and Seller hereby agree as follows:
 
1.           Assignment and Assumption.  Effective as of the Closing, Seller hereby transfers, assigns, conveys and delegates to Purchaser all of Seller’s right, title and interest in, to and under the Assumed Contracts listed on Schedule A.  Effective as of the Closing, Purchaser hereby accepts such assignment and assumes from Seller all liabilities and obligations under the Assumed Contracts accruing from and after the Closing, and agrees to pay, perform and discharge, when due, all of such liabilities and obligations.
 
2.           Indemnification.
 
(a)          Purchaser shall indemnify, defend and hold Seller harmless for, from and against any and all claims, liabilities, losses, damages, costs and expenses (including, without limitation, reasonable attorneys’ fees and charges), resulting from or arising from any liabilities or obligations under the Assumed Contracts with respect to any matters, events or conditions first occurring on or after the Closing.
Exhibit 7-1

(b)          Seller shall indemnify, defend and hold Purchaser harmless for, from and against any and all claims, liabilities, losses, damages, costs and expenses (including, without limitation, reasonable attorneys’ fees and charges), resulting from or arising from any liabilities or obligations under the Assumed Contracts with respect to any matters, events or conditions first occurring prior to the Closing.
 
3.           Conflict.  This Assignment and Assumption Agreement is subject to all of the terms, conditions and limitations set forth in the Agreement.  In the event that any provision of this Assignment and Assumption Agreement shall be construed to conflict with a provision of the Agreement, the provision of the Agreement shall be deemed to be controlling.
 
4.           Governing Law.  The internal laws of the State of Nevada applicable to contracts made and wholly performed therein shall govern the validity, construction, performance and effect of this Assignment and Assumption Agreement.
 
5.           Successors and Assigns.  This Assignment and Assumption Agreement shall be binding upon, and inure to the benefit of, the parties hereto and their respective successors in interest and assigns.
 
6.           Headings.  The subject headings or captions of the paragraphs in this Assignment and Assumption Agreement are inserted for convenience of reference only and shall not affect the meaning, construction or interpretation of any provisions contained herein.  All capitalized terms defined herein are equally applicable to both the singular and plural forms of such terms.
 
7.          Counterparts.  This Assignment and Assumption Agreement may be signed by facsimile or other electronic transmission and/or in one or multiple counterparts, with each counterpart having the same force and effect as if this single instrument were executed by each of the parties hereto and delivered to the other party.
 
8.           No Third Party Beneficiaries.  There are no third-party beneficiaries to this Assignment and Assumption Agreement.
 
9.           Severability.  If any provision of this Assignment and Assumption Agreement shall be held invalid, illegal or unenforceable, then the validity, legality or enforceability of the other provisions of this Assignment and Assumption Agreement shall not be affected thereby, and there shall be deemed substituted for the provision at issue a valid, legal and enforceable provision as similar as possible to the provision at issue.
 
[Signatures appear on following page.]
Exhibit 7-2

IN WITNESS WHEREOF, the Parties have caused this Assignment and Assumption Agreement to be executed as of the date first above written.
 
SELLER
 
[_______________________],
a [______________________]

By:
   
Name:
   
Title:
   
 
BUYER

[_______________________],
a [______________________]

By:
   
Name:
   
Title:
   
Exhibit 7-3

Schedule A to Assignment and Assumption
 
Assumed Contracts
Exhibit 7-4

Exhibit 8
 
Form of Seller’s FIRPTA Affidavit
 
Section 1445 of the Internal Revenue Code of 1986, as amended (the “Code”), provides that a transferee of a United States real property interest must withhold tax if the transferor is a foreign person.  For U.S. tax purposes (including Section 1445 of the Code), the owner of a disregarded entity (which has legal title to a U.S. real property interest under local law) will be the transferor of the property and not the disregarded entity.

To inform [________________], a [________________] (“Transferee”) that withholding of tax is not required upon the transfer by [________________] (“Transferor”) of a United States real property interest, the undersigned hereby certifies and declares by means of this certification the following:

(a)          Transferor, through its 100% owned disregarded entity, [________________], a [________________] (“Seller”), is the seller under that Purchase and Sale Agreement and Joint Escrow Instructions, dated as of ______________, 2018, by and between Seller and Transferee;

(b)          Transferor is not a foreign corporation, foreign partnership, foreign trust, foreign estate or foreign person (as those terms are defined in the Code and the Income Tax Regulations promulgated thereunder).

(c)          Transferor’s U.S. employer or tax (social security) identification number is ____________________.

(d)          Transferor is not a disregarded entity as defined in Treasury Regulation Section 1.1445-2(b)(2)(iii).

(e)        The address for Transferor is _____________________________________. Transferor understands that this Certification may be disclosed to the Internal Revenue Service by Transferee and that any false statement contained herein could be punished by fine, imprisonment, or both.

“TRANSFEROR”

_______________________
a ______________________

By:
   
Name:
   
Title:
   
Dated:
 
, 2018
Exhibit 8-1

Exhibit 9
 
Form of Assignment and Bill of Sale
 
ASSIGNMENT AND BILL OF SALE
 
Reference is hereby made to (a) that certain real property located in Clark County, Nevada and described in more detail on Exhibit A of that certain Purchase and Sale Agreement and Joint Escrow Instructions, dated as of ____________, 2018, by and between [________________], a [________________] (“Seller”), and [________________], a [________________] (“Purchaser”), (b) the improvements located thereon, and (c) the rights, privileges and entitlements incident thereto (collectively, the “Property”).

For good and valuable consideration, receipt of which is hereby acknowledged, Seller does hereby give, grant, bargain, sell, transfer, assign, convey and deliver to Purchaser all of Seller’s right, title and interest in all assets, rights, materials and/or claims used, owned or held in connection with the use, management, development or enjoyment of the Property, including, without limitation: (i) all land use entitlements, subdivision agreements and other agreements relating to the development of the Property; (ii) all plans, specifications, maps, tentative maps, final maps and civil improvement plans, drawings and other renderings relating to the Property; (iii) all contract rights, warranties, claims and any similar rights relating to and benefiting the Property or the assets transferred hereby including, but not limited to, those contained in any construction and consultant agreements pertaining to the Property; (iv) all intangible rights, goodwill and rights benefiting the Property; (v) all development rights benefiting the Property; (vi) all rights, claims or awards benefiting the Property; (vii) all improvements located on or about the Property; and (viii) all will serve letters and commitments pertaining to the Property from applicable utility purveyors, including, but not limited to, sewer and water.

Seller hereby covenants that it will, at any time and from time to time upon written request therefore, execute and deliver to Purchaser, its nominees, successors and/or assigns, any new or confirmatory instruments and do and perform any other acts which Purchaser, its nominees, successors and/or assigns, may request in order to fully transfer possession and control of, and protect the rights of Purchaser, its nominees, successors and/or assigns in, all the assets of Seller intended to be transferred and assigned hereby.

(Signature appears on following page.)
Exhibit 9-1

IN WITNESS WHEREOF, this Assignment and Bill of Sale has been executed by Seller as of ______________, 2018.
 
SELLER:

[_________________________],
a [________________________]

By:
   
Name:
   
Title:
   
Exhibit 9-2

Exhibit 10

Form of Tenant Notice Letter


[_________________________], 20__

VIA [INSERT DELIVERY METHOD REQUIRED BY APPLICABLE LEASE]

[INSERT TENANT NOTICE ADDRESS]

RE:          [INSERT REFERENCE TO APPLICABLE LEASE]

Dear ______________:

Please be advised that on ___________________, 2018, Landlord conveyed its interest in the above-referenced Property to ______________________ (“New Landlord”).  [Tenant’s security deposit has been transferred to New Landlord and] Tenant shall direct all payments and correspondence from and after the date hereof related to the Lease to New Landlord at the following address:

   
   
 
Attn:
   
 
 
   
   
   
 
 
Sincerely,
 
     
 
[____________________________________],
 
 
a [___________________________________]
 
 
 
By:
   
 
Name:
   
 
Title:
   
Exhibit 10-1

Exhibit 11

Form of Lessor Consent and Estoppel Certificate

FROM:
[Name of Lessor]
 
[Street Address]
 
[City, State, Zip]
   
TO:
[Name of Purchaser]
 
[Street Address]
 
[City, State, Zip]

 
Re:
That certain Lease Agreement, dated ___________, by and between [_____________], a [_____________] (“Lessor”), and [__________], a [____________] (“Lessee”), together with all exhibits, modifications, assignments and amendments thereto (the “Lease”), [and that certain Memorandum of Lease recorded on ___________, in Book No. ___________, as Instrument No. ___________ in the Official Records of Clark County, Nevada,] with respect to the real property located bearing Clark County Assessor Parcel Number 162-20-112-001 (the “Property”), as more particularly described in the Lease

Dear Sirs:
 
The undersigned Lessor acknowledges that [*], a [*] (“Purchaser”), has contracted with the Lessee for the acquisition by Purchaser of all of certain assets owned by Lessee, including, without limitation, Lessee’s interest in the Lease.  This Lessor Consent and Estoppel Certificate (this “Certificate”) is being required as a condition to such acquisition.  Accordingly, Lessor hereby certifies and confirms to Purchaser, its successors and/or assigns, as its/their interest may appear, and acknowledges and agrees as follows:
 
THE LEASE.
 
(a)          Lessor is the current legal and record owner of the fee interest in the Property and of the lessor’s interest under the Lease.  Lessor has not assigned or agreed to assign its interest or any portion thereof as lessor under the Lease.
 
(b)          The current address for notices, demand and communications to the Lessor under the Lease is as follows:
 
 
 
 
 
 
 

(c)          A true, correct and complete copy of the Lease is attached hereto as Exhibit A, and the Lease has not been amended, assigned or modified other than as shown on Exhibit A.
Exhibit 11-1

(d)          Lessee is the current “Lessee” under the Lease.
 
(e)          The construction of the leased premises and any other improvements required to be constructed on the Property pursuant to the terms of the Lease have been completed, and Lessee has taken possession of the leased premises and is paying rent on a current basis.
 
(f)          The Lease is in full force and effect, and constitutes the entire agreement between Lessor and Lessee.  There are no other agreements, written or oral, between Lessor and Lessee relating to Lessee’s occupancy of the Property, including, without limitation, any agreement with respect to any additional obligations of Lessee not set forth in the Lease.
 
(g)          The Lease commenced on _____________ and the current term will expire on ________________.  The rent commencement date, if different than the commencement date set forth above, is _______________________.  Tenant has no option to renew or extend the term of the Lease, except as follows: ________________________.
 
(h)          The current rent to be paid by Lessee is $__________ per month.
 
(i)           Lessee has deposited with Lessor a security deposit in the amount of $_________ (if none, so state).  No portion of such security deposit has been applied to cure any default under the Lease.
 
(j)           Neither Lessor nor, to Lessor’s knowledge, Lessee is in default under the Lease and there is no event which, with the giving of notice and/or the passage of time, would constitute such a default.
 
(k)          Lessor has no present claims or defenses to the enforcement of the Lease and no present reason, claim or ground to terminate the Lease or declare a default thereunder.
 
(l)           To Lessor’s knowledge, Lessee has no present set-offs, claims or defenses to the enforcement of the Lease and no present reason, claim or ground to terminate the Lease or declare a default thereunder.
 
(m)         Neither Lessor nor, to Lessee’s knowledge, Lessee, has commenced any action or given or received any notice for the purpose of terminating the Lease.
 
2.          CONSENT.  Notwithstanding anything to the contrary contained in the Lease, Lessor hereby consents to, and approves of, Lessee’s transfer to Purchaser, and Purchaser’s acquisition from Lessee, of Lessee’s interest to the Property under the terms of the Lease.
 
3.          MISCELLANEOUS.
 
(a)          The person signing this Certificate on behalf of Lessor is duly authorized to execute and deliver this Certificate on behalf of Lessor.
Exhibit 11-2

(b)          Lessor agrees that Purchaser may rely on the consent and certifications set forth above as conclusive evidence of such matters, and all such certifications shall inure to the benefit of Purchaser and its respective successors and assigns, and shall be binding upon Lessor, and its successors and assigns.
 

Very truly yours,  
     
  [LESSOR], [ENTITY]  
       

By:
 
 
  Name:
 
  Its:
 

Exhibit 11-3

EXHIBIT A
 
Lease
(to be attached)
Exhibit 11-4

Exhibit 12

Form of Tenant Estoppel Certificate

TENANT ESTOPPEL CERTIFICATE

To:
 [Purchaser] (“Purchaser”)
 
 [*]
 
 [*]
   Attention: [*]
   

 [Seller] (“Seller”)
 
 [*]
 
 [*]
   Attention: [*]

Re:
Property Address:  [*] (the “Property”)
 
Lease:              [*] (the “Lease”), dated as of [*], by and between Seller and [*] (“Tenant” and, together with Seller, the “Parties”)
 
Area Leased:  [*] (the “Premises”)

Tenant understands that Purchaser is under contract with Seller to purchase the Property.  This Tenant Estoppel Certificate (this “Certificate”) is being required as a condition to such purchase.  Accordingly, Tenant hereby certifies and confirms to Purchaser and acknowledges and agrees as follows:

1.          A true, correct and complete copy of the Lease is attached hereto as Exhibit A, and the Lease has not been amended, assigned or modified other than as shown on Exhibit A.  The Lease is in full force and effect and constitutes the entire agreement between the Parties as to the Premises or any portion thereof.  There are no other agreements, written or oral, between Seller and Tenant relating to Tenant’s occupancy of the Premises, including, without limitation, any agreement with respect to any additional obligations of Seller not set forth in the Lease.

2.          Rent, in the monthly amount of $[*], has been paid to the [*] day of the current month and all additional rent has been paid current.  No rent has been paid more than thirty (30) days in advance of its due date except [*].  Tenant has deposited with Seller a security deposit in the amount of $[*].  No portion of such security deposit has been applied to cure any default under the Lease.

3.          Tenant is the current “Tenant” under the Lease and is currently in occupancy of the Premises.  The Lease commenced on [*] and the current term will expire on [*].  The rent commencement date, if different than the commencement date set forth above, is [*].  Tenant has no option to renew or extend the term of the Lease, except as follows: __________________.
Exhibit 12-1

4.          All work to be performed for Tenant by Seller under the Lease has been performed as required and has been accepted by Tenant, and any payments, free rent or other payments, credits, allowances or abatements required to be given by Seller to Tenant have already been received by Tenant, except _________________.

5.          Neither Tenant nor, to Tenant’s knowledge, Seller is in default under the Lease and there is no event which, with the giving of notice and/or the passage of time, would constitute such a default.  Tenant has no present set-offs, claims or defenses to the enforcement of the Lease and no present reason, claim or ground to terminate the Lease or declare a default thereunder.

6.          Neither Tenant nor, to Tenant’s knowledge, Seller, has commenced any action or given or received any notice for the purpose of terminating the Lease.  Tenant has received no notice of any prior sale, assignment, pledge or other transfer of the Lease or of rent received thereunder, except ______________________.

7.          Tenant has not assigned the Lease or sublet all or a portion of the Premises. Tenant does not hold the Premises under assignment or sublease; nor does anyone except Tenant and Tenant’s employees occupy the Premises except ____________________________________.

8.          Tenant has no right or option to purchase all or any part of the Premises or any building which is a part of the Premises or to occupy any additional space at the Property.

9.          Landlord has the right to terminate the Lease upon [*] prior written notice to Tenant.
 
10.        The person signing this Certificate on behalf of Tenant is duly authorized to execute and deliver this Certificate on behalf of Tenant.
 
If a blank in this document is not filled in, the blank will be deemed to read “None.”
Exhibit 12-2

Tenant agrees that Purchaser may rely on the certifications set forth above as conclusive evidence of such matters, and all such certifications shall inure to the benefit of Purchaser and its successors and assigns, and shall be binding upon Tenant, and its successors and assigns.
 
Dated this _____ day of ________, 20__.

TENANT:

 
 
,
a
 
 

By:
 
 
Name:
 
 
Its:
 
 

Address for Notices:

 
 
 
 
 
 
Exhibit 12-3

EXHIBIT A

LEASE

(To be attached)

Exhibit 12-4

EX-10.78 15 s002218x10_ex10-78.htm EXHIBIT 10.78

Exhibit 10.78

AMENDMENT TO REAL ESTATE PURCHASE AND SALE AGREEMENT
CITYVIEW PROPERTY, CLARK COUNTY, NEVADA

THIS AMENDMENT TO REAL ESTATE PURCHASE AND SALE AGREEMENT (this “Amendment”) is made and entered into as of October 31, 2018 (the “Effective Date”), by and among Tharaldson Ethanol Plant I, LLC, a Nevada limited liability company (“TEP”), TMII South Tech, LLC, a Nevada limited liability company (“TMII”), C.Y. & R.I. Heritage Inn of Palmdale, Inc., a Nevada corporation (“Heritage Inn Palmdale”), C.Y. Heritage Inn of Dayton, Inc., a Nevada corporation (“Heritage Inn Davton”), and 4424 Polaris Avenue, LLC, a Nevada limited liability company (“4424 Polarisand, together with TEP, TMII, Heritage Inn Palmdale and Heritage Inn Dayton, the Seller”) and Brightline Holdings, LLC, a Delaware limited liability company (“Purchaser”).

RECITALS

A. Seller and Purchaser have previously entered into that certain Real Estate Purchase and Sale Agreement, dated September 17, 2018, with respect to certain real property bearing Clark County Assessor Parcel Numbers 162-20-112-002, 162-20-112-003, 162-20-214-004, 162-20-214-003, 162-20-214-005, 162-20-214-001, 162-20-214-002 and 162-20-112-001 as described more fully therein (the “Agreement”).

B. The parties hereto now desire to amend the Agreement as set forth below.

AGREEMENT

NOW, THEREFORE, in consideration of the mutual covenants and agreements of the parties hereto, and other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties hereto agree as follows:

1. Recitals. The foregoing recitals are true and correct and are incorporated herein by this reference as though set forth in full.

2. Capitalized Terms. All capitalized terms used herein shall have the meanings ascribed to them in the Agreement, unless otherwise defined herein.

3. Amendment. Seller and Purchaser hereby amend the Agreement by deleting in its entirety and replacing the first sentence in Section 5.3 with the following:

“5.3. Title Objections. On or before November 16, 2018 (“Title Objection Date”), Purchaser shall notify the Seller in writing of any title exceptions or matters identified in the Commitment, the Exception Documents, or the Survey of which Purchaser disapproves (“Title Objection Notice”).”

4. Conflict. This Amendment is and shall be construed as a part of the Agreement. In case of any inconsistency between this Amendment and the Agreement, the provisions containing such inconsistency shall first be reconciled with one another to the maximum extent possible, and then to the extent of any remaining inconsistency, the terms of this Amendment shall be controlling.
Page 1

5. Force and Effect. Except as set forth in this Amendment, the terms and conditions of the Agreement shall remain unchanged and in full force and effect.

6. Counterparts: Facsimile or Electronic Signature: Authority. The parties hereto agree that this Amendment may be executed in multiple counterparts which, when signed by all parties, shall constitute a binding agreement. The parties further agree that this Amendment may be executed and delivered by facsimile or electronic signature, and that any facsimile or electronic signature shall be binding upon the party providing such signature as if it were the party’s original signature.

[Signatures appear on next page]
Page 2

IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of the Effective Date.

 
PURCHASER:
     
 
BRIGHTLINE HOLDINGS, LLC.,
 
a Delaware limited liability company
     
 
By:
/s/ Kolleen Cobb
 
Name:
Kolleen Cobb
 
Title:
Vice President

[Signatures Continue on Following Page]
Page 3

 
SELLER:
     
 
THARALDSON ETHANOL PLANT I, LLC,
 
a Nevada limited liability company
     
 
By:
/s/ Gary Tharaldson
 
Name:
Gary Tharaldson
 
Its:
Manager

 
TMII SOUTH TECH, LLC,
 
a Nevada limited liability company
     
 
By:
/s/ Gary Tharaldson
 
Name:
Gary Tharaldson
 
Its:
Manager

 
C.Y. HERITAGE INN OF DAYTON, INC.,
 
a Nevada corporation
     
 
By:
/s/ Gary Tharaldson
 
Name:
Gary Tharaldson
 
Its:
President

 
4424 POLARIS AVENUE, LLC
 
a Nevada limited liability company
     
 
By:
/s/ Gary Tharaldson
 
Name:
Gary Tharaldson
 
Its:
Manager

 
C.Y. & R.I. HERITAGE INN OF
PALMDALE, INC.
 
a Nevada corporation
     
 
By:
/s/ Gary Tharaldson
 
Name:
Gary Tharaldson
 
Its:
President

Page 4
EX-10.79 16 s002218x10_ex10-79.htm EXHIBIT 10.79

Exhibit 10.79

SECOND AMENDMENT TO REAL ESTATE PURCHASE AND SALE AGREEMENT
CITYVIEW PROPERTY, CLARK COUNTY, NEVADA

THIS SECOND AMENDMENT TO REAL ESTATE PURCHASE AND SALE AGREEMENT (this Amendment”) is made and entered into as of November  30, 2018 (the Amendment Date”), by and among Tharaldson Ethanol Plant I, LLC, a Nevada limited liability company (“TEP”), TMII South Tech, LLC, a Nevada limited liability company (“TMII”), C.Y. & R.I. Heritage Inn of Palmdale, Inc., a Nevada corporation (“Heritage Inn Palmdale”), C.Y. Heritage Inn of Dayton, Inc., a Nevada corporation (Heritage Inn Davton), and 4424 Polaris Avenue, LLC, a Nevada limited liability company (“4424 Polaris and, together with TEP, TMII, Heritage Inn Palmdale and Heritage Inn Dayton, the Seller”) and Virgin Trains USA LLC f/k/a Brightline Holdings, LLC , a Delaware limited liability company (“Purchaser).

RECITALS

A. Seller and Purchaser have previously entered into  that  certaiReal  Estate Purchase and Sale Agreement, dated September 17, 2018, as amended  bthat  certain Amendment to Real Estate Purchase and Sale Agreement, dated as of October 31, 2018 , with respect to certain real property bearing Clark County Assessor Parcel Numbers 162-20-112-002 , 162-20-112-003, 162-20-214-004, 162-20-214-003, 162-20-214-005, 162-20-214-001, 162-20-214-002 and 162-20-112-001 as described more fully there in (as amended, the Agreement”).

B. The parties hereto now desire to amend the Agreement as set forth below.

AGREEMENT

NOW, THEREFORE, in consideration of the mutual covenants and agreements of the parties hereto, and other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties hereto agree as follows:

1. Recitals. The foregoing recitals are true and correct and are incorporated herein by this reference as though set forth in full.

2. Capitalized Terms. All capitalized terms used herein shall have the meanings ascribed to them in the Agreement, unless otherwise defined herein.

3. Amendment. The Agreement shall be amended by deleting in its entirety and replacing the definition of Inspect ion Period in Section 2.13 of the Agreement with the following:

Inspection Period” shall mean the period commencing on the Effective Date and expiring at 12:00 p.m. (Pacific) on December 5, 2018.

4. Conflict.  This Amendment is and shall be construed as a part of the Agreement. In case of any inconsistency between this Amendment and the Agreement, the provisions containing such inconsistency shall first be reconciled with one another to the maxim um extent possible, and then to the extent of any remaining inconsistency, the terms of this Amendment shall be controlling.

Page 1

5. Force and Effect. Except as set forth in this Amendment, the terms and conditions of the Agreement shall remain unchanged and in full force and effect.

6. Counterparts: Facsimile or Electronic Signature: Authority. The parties hereto agree that this Amendment may be executed in multiple counterparts which, when signed by all parties, shall constitute a binding agreement. The parties further agree that this Amendment may be executed and delivered by facsimile or electronic signature, and that any facsimile or electronic signature shall be binding upon the party providing such signature as if it were the partys original signature.

[Signatures appear on next page]

Page 2

IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of the Amendment Date.

 
PURCHASER:
     
 
VIRGIN TRAINS USA LLC f/k/a
BRIGHTLINE HOLDINGS, LLC
 
a Delaware limited liability company
     
 
By:
/s/ Kolleen Cobb
 
Name:
Kolleen Cobb
 
Title:
Vice President

[Signatures Continue on Following Page]

 
SELLER:
     
 
THARALDSON ETHANOL PLANT I, LLC,
 
a Nevada limited liability company
     
 
By:
/s/ Gary Tharaldson
 
Name:
Gary Tharaldson
 
Its:
Manager

 
TMII SOUTH TECH, LLC,
 
a Nevada limited liability company
     
 
By:
/s/ Gary Tharaldson
 
Name:
Gary Tharaldson
 
Its:
Manager

 
C.Y. HERITAGE INN OF DAYTON, INC.,
 
a Nevada corporation
     
 
By:
/s/ Gary Tharaldson
 
Name:
Gary Tharaldson
 
Its:
President

 
4424 POLARIS AVENUE, LLC
 
a Nevada limited liability company
     
 
By:
/s/ Gary Tharaldson
 
Name:
Gary Tharaldson
 
Its:
Manager

 
C.Y. & R.I. HERITAGE INN OF
PALMDALE, INC.
 
a Nevada corporation
     
 
By:
/s/ Gary Tharaldson
 
Name:
Gary Tharaldson
 
Its:
President

Consent to Amendment

Western Alliance Bank, an Arizona corporation, as lender to Seller, hereby consents to this Amendment.

WESTERN ALLIANCE BANK,
an Arizona corporation

By: /s/ Dennis Balletto  

Name:
Dennis Balletto
 

Its:
Senior Vice President
 


EX-10.80 17 s002218x10_ex10-80.htm EXHIBIT 10.80

Exhibit 10.80

THIRD AMENDMENT TO REAL ESTATE PURCHASE AND SALE AGREEMENT
CITYVIEW PROPERTY, CLARK COUNTY, NEVADA

THIS THIRD AMENDMENT TO REAL ESTATE PURCHASE AND SALE AGREEMENT (this “Amendment”) is made and entered into as of December 5, 2018 (the “Amendment Date”), by and among Tharaldson Ethanol Plant I, LLC, a Nevada limited liability company (“TEP”), TM II South Tech, LLC, a Nevada limited liability company (“TMII”), C.Y. & R.I. Heritage Inn of Palmdale, Inc., a Nevada corporation (“Heritage Inn Palmdale”), C.Y. Heritage Inn of Dayton, Inc., a Nevada corporation (“Heritage Inn Dayton”), and 4424 Polaris Avenue, LLC, a Nevada limited liability company (“4424 Polarisand, together with TEP, TMII, Heritage Inn Palmdale and Heritage Inn Dayton, the Seller”) and Virgin Trains USA LLC f/k/a Brightline Holdings, LLC, a Delaware limited liability company (“Purchaser”).

RECITALS

A. Seller and Purchaser have previously entered into that certain Real Estate Purchase and Sale Agreement, dated September 17, 2018, as amended by that certain Amendment to Real Estate Purchase and Sale Agreement, dated as of October 31, 2018, and as further amended by that certain Second Amendment to Real Estate Purchase and Sale Agreement, dated as of November 30, 2018, with respect to certain real property bearing Clark County Assessor Parcel Numbers 162-20-112-002, 162-20-112-003, 162-20-214-004, 162-20-214-003, 162-20-214-005, 162-20-214-001, 162-20-214-002 and 162-20-112-001 as described more fully therein (as amended, the “Agreement”).

B. The parties hereto now desire to amend the Agreement as set forth below.

AGREEMENT

NOW, THEREFORE, in consideration of the mutual covenants and agreements of the parties hereto, and other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties hereto agree as follows:

1. Recitals. The foregoing recitals are true and correct and are incorporated herein by this reference as though set forth in full.

2. Capitalized Terms. All capitalized terms used herein shall have the meanings ascribed to them in the Agreement, unless otherwise defined herein.

3. Amendment. Seller and Purchaser hereby amend the Agreement as follows:

(a) Section 3.5(j) of the Agreement shall be amended by restating that Section in its entirety as follows:

“(j) Seller shall use commercially reasonable efforts to obtain the Landlord Consent and Estoppel confirming the terms set forth in the Ground Lease and that Seller is not in default thereunder, in substantially the form of Exhibit 11 attached hereto (the “Landlord Consent”), duly executed by Lessor, and dated no earlier than thirty (30) days prior to the Closing Date. Seller’s obligations under this Section 3.5(j) are not conditions to Closing. In the event Seller is unsuccessful in obtaining the Landlord Consent prior to Closing Seller shall continue its commercially reasonable efforts to obtain the Landlord Consent post-Closing.”
Page 1

(b) Section 3.5 of the Agreement shall be amended to add the following subsection:

“(m) A vacation of easement executed by the applicable Seller of that certain right-of-way easement to construct and operate a railroad spur as granted by that certain Grant, Bargain Sale Deed disclosed by Exception 51 to the Commitment in form and substance reasonably acceptable to Purchaser and acceptable to the Title Company for purposes of removing Exception No. 51 from the Commitment.”

(c) Exhibit 11 to the Agreement shall be modified to include certification from Lessor, in form and substance reasonably acceptable to Purchaser, that (i) it has paid and shall continue to pay when due and payable any and all principal recapture taxes assessed against the Leased Land; and (ii) any leases, contracts or other agreements with third parties which are senior in priority to Seller’s interest in the Leased Land are valid and binding obligations solely of Lessor, no obligations thereunder shall be assumed by Seller and/or Purchaser, and Lessor is not in default thereunder.

(d) The Agreement shall be amended to add a new Section 5.6 of as follows:

“(a) Seller shall use commercially reasonable efforts to cause that certain Declaration of Covenants Conditions and Restrictions disclosed by Exception Nos. 86 and 96 to the Commitment to be terminated by the owners thereunder and evidence of the same recorded in Office of the County Recorder of Clark County, Nevada. Seller’s obligations under this Section 5.6(a) are not a condition to Closing. If Seller is unsuccessful in obtaining the termination prior to Closing it shall continue to cooperate with Purchaser to obtain post-Closing;”

“(b) Seller shall use commercially reasonable efforts to obtain a vacation easement executed by the successor(s) in interest to Paul Ferguson and Katherine Ferguson of the easement for railroad spur lines reserved to Paul Ferguson and Katherine Ferguson, as husband and wife, pursuant to that certain Grant, Bargain and Sale Deed disclosed by Exception No. 49 to the Commitment in form and substance reasonably acceptable to Purchaser and acceptable to the Title Company for purposes of removing Exception No. 49 from the Commitment. Seller’s obligations under this Section 5.6(b) are not a condition to Closing. If Seller is unsuccessful in obtaining the vacation easement prior to Closing it shall continue to cooperate with Purchaser to obtain post-Closing.”
Page 2

(e) Section 6.1 of the Agreement shall be amended to delete the first two sentences thereof and replace them with the following:

“6.1 General. At any time during the term of this Agreement, but only after forty-eight ( 48) hours’ prior notice to Seller (which may be given via e-mail), Purchaser, or its agents may enter upon the Property at reasonable times to perform inspections and tests deemed necessary by Purchaser, in its sole discretion. Purchaser shall be permitted to complete subsurface testing as recommended by that certain Phase I Environmental Site Assessment, dated as of November 15, 2018, prepared by Terracon Consultants, Inc. (“Terracon”), bearing project no. 64187125, with borings located in such locations as determined by Terracon in its reasonable discretion and provided to Seller no less than forty-eight (48) hours’ prior to such testing (which notice may be given via e-mail).”

4. Conflict. This Amendment is and shall be construed as a part of the Agreement. In case of any inconsistency between this Amendment and the Agreement, the provisions containing such inconsistency shall first be reconciled with one another to the maximum extent possible, and then to the extent of any remaining inconsistency, the terms of this Amendment shall be controlling.

5. Force and Effect. Except as set forth in this Amendment, the terms and conditions of the Agreement shall remain unchanged and in full force and effect.

6. Counterparts; Facsimile or Electronic Signature; Authority. The parties hereto agree that this Amendment may be executed in multiple counterparts which, when signed by all parties, shall constitute a binding agreement. The parties further agree that this Amendment may be executed and delivered by facsimile or electronic signature, and that any facsimile or electronic signature shall be binding upon the party providing such signature as if it were the party’s original signature.

[Signatures appear on next page]
Page 3

IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of the Amendment Date.

 
PURCHASER:
     
 
VIRGIN TRAINS USA LLC f/k/a
BRIGHTLINE HOLDINGS, LLC.,
 
a Delaware limited liability company
     
 
By:
/s/ Kolleen Cobb
 
Name:
Kolleen Cobb
 
Title:
Vice President

[Signatures Continue on Following Page]
Page 4

 
SELLER:
     
 
THARALDSON ETHANOL PLANT I, LLC,
 
a Nevada limited liability company
     
 
By:
/s/ Gary Tharaldson
 
Name:
Gary Tharaldson
 
Its:
Manager

 
TMII SOUTH TECH, LLC,
 
a Nevada limited liability company
     
 
By:
/s/ Gary Tharaldson
 
Name:
Gary Tharaldson
 
Its:
Manager

 
C.Y. HERITAGE INN OF DAYTON, INC.,
 
a Nevada corporation
     
 
By:
/s/ Gary Tharaldson
 
Name:
Gary Tharaldson
 
Its:
President

 
4424 POLARIS AVENUE, LLC
 
a Nevada limited liability company
     
 
By:
/s/ Gary Tharaldson
 
Name:
Gary Tharaldson
 
Its:
Manager

 
C.Y. & R.I. HERITAGE INN OF
PALMDALE, INC.
 
a Nevada corporation
     
 
By:
/s/ Gary Tharaldson
 
Name:
Gary Tharaldson
 
Its:
President
Page 5

Consent to Amendment

Western Alliance Bank, an Arizona corporation, as lender to Seller, hereby consents to this Amendment.

WESTERN ALLIANCE BANK,
 
an Arizona corporation
 
     
By:
   
Name:
   
Its:
   


Page 6
EX-10.81 18 s002218x10_ex10-81.htm EXHIBIT 10.81

Exhibit 10.81

STATE ROAD 528
CFX PROJECT: 528-1240
 
PURCHASE AND SALE AGREEMENT
 
THIS PURCHASE AND SALE AGREEMENT (“Agreement”) is made and entered into as of the 21st day of November, 2018, by and between the GREATER ORLANDO AVIATION AUTHORITY, with a principal address of One Jeff Fuqua Boulevard, Orlando, FL 32827-4399 (“GOAA”), an agency of the City of Orlando, existing as an independent special district under the laws of the State of Florida, the CENTRAL FLORIDA EXPRESSWAY AUTHORITY, a public corporation of the State of Florida with a principal address of 4974 ORL Tower Road, Orlando, FL 32807 (“CFX”), the CITY OF ORLANDO (the “City”), a Florida Municipal Corporation existing under the laws of the State of Florida with a principal address of 400 South Orange Avenue, Orlando, FL 32801, and ALL ABOARD FLORIDA - OPERATIONS LLC, a Delaware limited liability company authorized to conduct business in Florida, with a principal address 2855 Lejeune Road, 4th Floor, Coral Gables, FL 33134 (“RAIL COMPANY”). GOAA, CFX, CITY and Rail Company are sometimes collectively referred to herein as the “Parties”.
 
W I T N E S S E T H:
 
WHEREAS, GOAA is a public body corporate and politic duly organized and validly existing under Chapter 98-492, Special Laws of Florida 1998, as amended (the “GOAA Act”), as an independent special district and agency of the City of Orlando, Florida; and
 
WHEREAS, the City is fee owner of that certain real property located in Orange County, Florida, consisting of approximately 2.28 acres, being more particularly described on Exhibit “A” attached hereto and incorporated herein by this reference (the “528 Ramp Property”); and
 
WHEREAS, GOAA occupies, controls, and operates the 528 Ramp Property, pursuant to that certain Amended and Restated Operation and Use Agreement by and between GOAA and City, dated August 31,2015, with an effective date of October 1,2015 (the “Operating Agreement”), and that certain Memorandum of Operation and Use Agreement filed March 23, 2016 in Official Records as Clerk’s Document No. 20160146368, Public Records of Orange County, Florida; and
 
WHEREAS, CFX is fee owner of that certain real property located in Orange County, Florida, consisting of approximately 0.229 acres, being more particularly described in Exhibit “B” attached hereto and incorporated herein by this reference (the “Cargo Road Ramp Property”); and


STATE ROAD 528
CFX PROJECT: 528-1240
 
WHEREAS, City is fee owner of that certain real property located in Orange County, Florida, consisting of approximately 0.097 acres, being more particularly described on Exhibit “C” attached hereto and incorporated herein by this reference (“Easement Parcel 801”); and
 
WHEREAS, City is fee owner of that certain real property located in Orange County, Florida, consisting of approximately 0.035 acres, being more particularly described on Exhibit “D” attached hereto and incorporated herein by this reference (“Easement Parcel 802”); and
 
WHEREAS, City is fee owner of that certain real property located in Orange County, Florida, consisting of approximately 0.118 acres, being more particularly described on Exhibit “E” attached hereto and incorporated herein by this reference (“Easement Parcel 803”); and
 
WHEREAS, City is fee owner of that certain real property located in Orange County, Florida, consisting of approximately 0.42 acres, being more particularly described on Exhibit “F” attached hereto and incorporated herein by this reference (“Easement Parcel 804”); and
 
WHEREAS, GOAA occupies, controls and operates Easement Parcel 801, Easement Parcel 802, Easement Parcel 803 and Easement Parcel 804 (collectively the “Easement Parcels”) pursuant to the Operating Agreement (the 528 Ramp Property, the Cargo Road Ramp Property, Easement Parcel 801, Easement Parcel 802, Easement Parcel 803 and Easement Parcel 804 collectively referred to as the “Properties”); and
 
WHEREAS, Rail Company is developing an inter-city commercial passenger rail connection between Miami and Orlando with the Orlando terminus located at the Orlando International Airport (the “Rail Project” or “Project”); and
 
WHEREAS, as a result of the development of the Rail Project, CFX agrees to purchase, and GOAA and City desire to sell, fee simple interest in the 528 Ramp Property, all upon the terms and conditions set forth herein; and
 
WHEREAS, as a result of the development of the Rail Project, GOAA and City desire to purchase, and CFX agrees to sell, fee simple interest in the Cargo Road Ramp Property, all upon the terms and conditions set forth herein; and
 
WHEREAS, as a result of the development of the Rail Project and the sale of the Cargo Road Ramp Property, drainage will have to be redirected and CFX will require drainage easements on the Easement Parcels (“Drainage Easements”); and
 
WHEREAS, the Rail Company wishes to fund the entire transaction because the additional CFX Right-of-Way on CFX property and on GOAA property are required to accommodate an easement for the Rail Company for the Rail Project; and
2

STATE ROAD 528
CFX PROJECT: 528-1240

WHEREAS, pursuant to the terms of the Operating Agreement and the terms of the GOAA Act as set forth in Chapter 16 of the Charter of the City of Orlando, Florida, City and GOAA have the authority to make the determination to sell, convey and accept various interests in and to the 528 Ramp Property, the Cargo Road Ramp Property and the Easement Parcels, including, without limitation, conveyance of fee simple, and the granting of perpetual easements and rights of entry; and
 
WHEREAS, CFX was created by Part III, Chapter 348, Florida Statutes (the “CFX Act”) to, among other things, construct, improve, maintain and operate a limited access toll road known as the Central Florida Expressway System; and was granted all powers necessary and convenient to conduct its business, including the power to contract with other public agencies; and
 
WHEREAS, the Parties desire to formalize the terms and conditions whereby GOAA and the City shall sell and convey title to the 528 Ramp Property to CFX, CFX shall sell and convey title to the Cargo Road Ramp Property to GOAA, and GOAA shall grant easements to CFX in the Easement Parcels; Rail Company shall fund the transactions and CFX shall acquire said interest in the 528 Ramp Property and the Easement Parcels and GOAA and City shall acquire said interest in the Cargo Road Ramp Property;
 
NOW THEREFORE, for and in consideration of the mutual covenants and agreements herein set forth, and other good and valuable consideration, the receipt, adequacy and sufficiency of which are hereby expressly acknowledged by the parties hereto, CFX, Rail Company, GOAA, and the City hereby covenant and agree as follows:
 
1.          Recitals. The foregoing recitals are true and correct and are incorporated herein by this reference.
 
2.          Agreement to Convey 528 Ramp Property. Subject to the terms and conditions of this Agreement, City and GOAA hereby agree to transfer and convey to CFX all of their respective rights, title, and interest in and to the 528 Ramp Property by Special Warranty Deed, substantially in the form of Exhibit “G.”
 
3.          Agreement to Convey Cargo Road Ramp Property. Subject to the terms and conditions of this Agreement, CFX hereby agrees to transfer and convey to GOAA and the City all of its respective rights, title, and interest in and to the Cargo Road Ramp Property by Special Warranty Deed, substantially in the form of Exhibit “H.”
 
4.          Agreement to Convey Easements on Easement Parcel 801. Easement Parcel 802, Easement Parcel 803 and Easement Parcel 804. Subject to the terms and conditions of this Agreement, GOAA hereby agrees to convey a drainage easement to CFX on Easement Parcel 801, Easement Parcel 802, Easement Parcel 803 and Easement Parcel 804 by Drainage Easement substantially in the form of Exhibit “I.”
 
5.          Agreement to Fund the Purchase Price. Subject to the terms and conditions of this Agreement, the Rail Company hereby agrees to fund the Purchase Price, as defined below (subject to prorations and adjustments shown on the settlement statement), the appraisal costs set forth in Paragraph 6, the cost of a survey of the Properties, and the CFX closing costs as set forth in Paragraph 10(h).
3

STATE ROAD 528
CFX PROJECT: 528-1240

6.           Appraisal and Purchase Price.
 
(a)          528 Ramp Property. The purchase price (the “Ramp Property Purchase Price”) to be paid by Rail Company for CFX to GOAA and City for fee simple interest of the 528 Ramp Property shall be determined by a fair-market-value appraisal, certified to all Parties (GOAA, the City, the Rail Company, and CFX), subject to review appraisal certification in accordance with CFX’s standard procedures (the “CFX Appraisal”), which CFX Appraisal shall be performed by Walter Carpenter, MAI, of Pinel & Carpenter, Inc. (the “Appraiser”) and reviewed by the Consortium Appraisal, Inc. (the “Review Appraiser”) at Rail Company’s sole cost and expense, and based upon a value within ninety (90) days of closing. (CFX’s Manual, Sec. 5-6.05) It is specifically acknowledged and agreed that, in preparation of the CFX Appraisal, the Appraiser and/or Review Appraiser shall consult with GOAA, Rail Company and CFX, their respective legal counsel, staff, and consultants, as the Appraiser and/or Review Appraiser shall deem appropriate. The CFX Appraisal shall utilize the FAA’s definition of Fair Market Value and said CFX Appraisal is subject to FAA approval and CFX approval. GOAA, Rail Company and CFX shall cooperate in good faith with the Appraiser and Review Appraiser in preparation of the CFX Appraisal and its review. The final CFX Appraisal shall not be issued until Rail Company has reviewed and approved the CFX Appraisal. Between sixty (60) to ninety (90) days before the Closing Date, the Rail Company, at its expense, shall obtain and deliver to CFX, City, Rail Company and GOAA the CFX Appraisal and review certification as to the 528 Ramp Property.
 
(b)          Cargo Road Ramp Property. The purchase price (the “Cargo Road Ramp Purchase Price”) to be paid by Rail Company for GOAA and City to CFX for fee simple interest of the Cargo Road Ramp Property shall be determined by a fair-market-value appraisal, certified to all Parties (GOAA, the City, the Rail Company, and CFX), subject to review appraisal certification in accordance with GOAA and City’s standard procedures (the “GOAA and City Appraisal”), which GOAA and City Appraisal shall be performed by the Appraiser and reviewed by the Review Appraiser at Rail Company’s sole cost and expense, and based upon a value within ninety (90) days of closing. (CFX’s Manual, Sec. 5-6.05) It is specifically acknowledged and agreed that, in preparation of the GOAA and City Appraisal, the Appraiser and/or Review Appraiser shall consult with GOAA, Rail Company and CFX, their respective legal counsel, staff, and consultants, as the Appraiser and/or Review Appraiser shall deem appropriate. The GOAA and City Appraisal shall utilize the FAA’s definition of Fair Market Value and said GOAA and City Appraisal is subject to FAA approval and CFX approval. GOAA, Rail Company and CFX shall cooperate in good faith with the Appraiser and Review Appraiser in preparation of the GOAA and City Appraisal and its review. The final GOAA and City Appraisal shall not be issued until Rail Company has reviewed and approved the GOAA and City Appraisal. Between sixty (60) to ninety (90) days before the Closing Date, GOAA and City, at the expense of the Rail Company, shall obtain and deliver to CFX and Rail Company the GOAA and City Appraisal and review certification as to the Cargo Road Ramp Property.
4

STATE ROAD 528
CFX PROJECT: 528-1240

(c)          Easement Parcels. The purchase price (the “Easement Parcels Purchase Price”) to be paid by Rail Company for CFX to GOAA and City for a drainage easement in Easement Parcel 801, Easement Parcel 802, Easement Parcel 803 and Easement Parcel 804 shall be determined by fair-market-value appraisals, certified to all Parties (GOAA, the City, the Rail Company, and CFX), subject to review appraisal certification in accordance with CFX’s standard procedures (the “Easement Appraisals”), which Easement Appraisals shall be performed by the Appraiser and reviewed by the Review Appraiser at Rail Company’s sole cost and expense, and based upon a value within ninety (90) days of closing. It is specifically acknowledged and agreed that, in preparation of the Easement Appraisals, the Appraiser and/or Review Appraiser shall consult with GOAA, Rail Company and CFX, their respective legal counsel, staff, and consultants, as the Appraiser and/or Review Appraiser shall deem appropriate. The Easement Appraisals shall utilize the FAA’s definition of Fair Market Value and said Easement Appraisals are subject to FAA approval and CFX approval. GOAA, Rail Company and CFX shall cooperate in good faith with the Appraiser and Review Appraiser in preparation of the Easement Appraisals and their review. The final Easement Appraisals shall not be issued until Rail Company has reviewed and approved the Easement Appraisals. Between sixty (60) to ninety (90) days before the Closing Date, the Rail Company, at its expense, shall obtain and deliver to City, Rail Company and GOAA the Easement Appraisals and review certification as to Easement Parcel 801, Easement Parcel 802, Easement Parcel 803 and Easement Parcel 804.
 
(d)          Set-off. In the event the 528 Ramp Property Purchase Price together with the prices of the Easement Parcel 801, Easement Parcel 802, Easement Parcel 803, and Easement Parcel 804 (the “Combined Purchase Price”), is higher than the Cargo Road Ramp Purchase Price, the Cargo Road Ramp Purchase Price shall be subtracted from the Combined Purchase Price, resulting in the “GOAA Purchase Price.” GOAA will accept the GOAA Purchase Price and the Cargo Road Ramp Property, which price will be paid by the Rail Company. In the event that the Combined Purchase Price is higher than the Cargo Road Ramp Purchase Price, CFX will accept the 528 Ramp Property and the Easement Parcels in consideration of the conveyance of the Cargo Road Ramp Property; otherwise, CFX will accept the 528 Ramp Property, the Easement parcels, and the difference between the Cargo Road Ramp Purchase Price and the Combined Purchase Price, resulting in the “CFX Purchase Price,” which price will be paid by the Rail Company.
 
(e)          In connection with the appraisals to be prepared as provided herein, the Parties acknowledge and agree that the valuation of the property interests to be conveyed as it relates to the Properties shall not result in any loss of access or severance damage nor shall any other damage exist with respect to any remaining property owned or occupied by CFX, City or GOAA.
 
(f)          The terms and conditions of Section 6(e) shall survive Closing. It is acknowledged and agreed that the payment of the CFX Purchase Price and the GOAA Purchase Price, as may be adjusted herein, represents full compensation to CFX, the City and GOAA for the Property.
5

STATE ROAD 528
CFX PROJECT: 528-1240

7.           Conditions Precedent.
 
(a)          Notwithstanding anything to the contrary contained in this Agreement, the Parties acknowledge and agree that GOAA, CFX and the City shall have no obligations to sell, transfer, convey or accept the Properties; and CFX, GOAA and the City shall have no obligation to accept the conveyances; and Rail Company shall have no obligation to fund the GOAA Purchase Price or the closing costs, unless and until (1) all Escrow Release Conditions contained in Exhibit 11 of that certain Rail Line Easement Agreement, as amended dated January 22, 2014 between GOAA and Rail Company have been satisfied; (2) the Escrow Documents (as defined in the Rail Line Easement Agreement) shall be released from Escrow; and (3) any and all other conditions precedent to the Rail Project proceeding have been satisfied.
 
(b)          Notwithstanding anything to the contrary contained in this Agreement, if at any time prior to Closing, Rail Company determines that the Properties are no longer needed for the development of the Rail Project, then Rail Company may, at its election, terminate this Agreement.
 
(c)          Notwithstanding anything to the contrary contained in this Agreement, the parties acknowledge and agree that GOAA, CFX, and the City shall have no obligations to sell, transfer, convey or accept the Properties; and CFX, GOAA and the City shall have no obligation to accept the conveyances; and Rail Company shall have no obligation to fund the GOAA Purchase Price or the closing costs, unless and until (1) CFX determines that the Cargo Road Ramp Property is excess property and can be declared as surplus property, including the adoption of the appropriate resolutions by the CFX Board after receipt of the necessary supporting documentation; (2) all the requirements set forth in CFX’s Property Acquisition, Disposition & Permitting Procedures Manual (“Manual”) have occurred, including those related to the Lease Purchase Agreement with the Florida Department of Transportation; (3) CFX approves the Rail Company’s final construction plans; and (4) the Rail Company is not in breach of any of its obligations in any Easement Agreement with CFX or any other agreement with CFX related to the S.R. 528 corridor.
 
8.          Right of Entry: Insurance.
 
(a)        Grant of Right of Entry for the 528 Ramp Property. It is acknowledged and agreed by the Parties that the Rail Company’s Project timing requires the Rail Company to enter onto the 528 Ramp Property and the Cargo Road Ramp Property to begin design, engineering and permitting the Rail Project and associated changes to S.R. 528 prior to the conveyance and grant of the property interests contemplated herein. In partial consideration of Rail Company’s payment of the CFX Appraisal and GOAA Appraisal, by execution of this Agreement, GOAA and City agree and hereby grant to CFX, Rail Company, their respective employees, agents, engineers, contractors, assigns (including utility providers) and other representatives, for that period of time beginning upon the date hereof and ending upon conveyance of the 528 Ramp Property interest herein and subject to the other terms and conditions herein set forth, a non-exclusive right and license to enter upon, over, under, and through the 528 Ramp Property as may be necessary or desirable for the Rail Project, the 528 ramp, and related infrastructure. This right of entry shall include the right to enter upon, over, under, and through the 528 Ramp Property for the purposes of inspecting the 528 Ramp Property for design, engineering and permitting of the Rail Project as CFX or the Rail Company deem necessary or prudent and associated changes to S.R. 528 and related interchanges as CFX or the Rail Company deem necessary or prudent. Said right and license shall merge and terminate upon the conveyance of the Properties or upon termination of this Agreement.
6

STATE ROAD 528
CFX PROJECT: 528-1240

(b)          Insurance and Third Party Beneficiary for 528 Ramp Property. All work performed within the 528 Ramp Property under the rights of entry granted herein to the Rail Company or Rail Company’s employees, agents, engineers, contractors, assigns (including utility providers) and other representatives shall be at the sole risk and expense of such parties performing such work and neither GOAA nor City shall have any liability for any injuries or damages sustained. Additionally, Rail Company shall require that its contractors, agents and consultants that carry out inspection work on the Property provide insurance in accordance with GOAA guidelines. Rail Company shall include in its applicable contracts related to the Rail Project that GOAA and City are third party beneficiaries of its contracts as to indemnification and an additional insured as to insurance related to use of the 528 Ramp Property or applicable portions thereof pursuant to the grants of right-of-entry.

Rail Company shall not unreasonably disturb any GOAA operations on the 528 Ramp Property or property adjoining the 528 Ramp Property or damage any improvements which may be located on the 528 Ramp Property or property adjoining the 528 Ramp Property. Rail Company shall not permit the filing of any liens against the 528 Ramp Property in connection with their respective inspection activities contemplated herein. In the event a claim of lien is filed against the 528 Ramp Property as a result of the inspection work by or on behalf of Rail Company, or as a result of other actions or omissions of Rail Company, then Rail Company (whichever party whose inspection work or other act or omission caused such lien to be filed) shall cause such hen to be satisfied or transferred to bond so as no longer to be a lien against the 528 Ramp Property within thirty (30) days after Rail Company received notice from GOAA that the claim lien has been filed. Rail Company shall maintain worker’s compensation and liability insurance in accordance with GOAA’s Risk Management/Safety policies and procedures contained in the GOAA Policy and Procedure Manual; such required insurance coverage to be maintained with insurance companies that are insurers of internationally recognized reputation in the aviation market. Rail Company shall cause its contractors, subcontractors, agents, and permittees accessing the 528 Ramp Property to maintain insurance coverage in accordance with GOAA’s Risk Management/Safety policies and procedures contained in the GOAA Policy and Procedure Manual. Access to the Air Operations Area of the Airport is strictly prohibited.
7

STATE ROAD 528
CFX PROJECT: 528-1240

Rail Company shall furnish evidence of such insurance coverage prior to any contractor, subcontractor, agent, or permittee of Rail Company entering upon the 528 Ramp Property.
 
(c)          Application for Temporary Right of Entry Permit for the Cargo Road Ramp Property. It is acknowledged and agreed by the Parties that the Rail Company’s Project timing requires the Rail Company to enter onto the Cargo Road Ramp Property to begin design, engineering and permitting the Rail Project and associated changes to S.R. 528 prior to the conveyance and grant of the property interests contemplated herein. In order to obtain a Temporary Right of Entry (“TROE”) Permit to enter upon the Cargo Road Ramp Property, Rail Company shall submit an Application for a TROE Permit, which shall be processed in accordance with CFX’s Property Acquisition, Disposition & Permitting Procedures Manual. Said TROE shall merge and terminate upon the conveyance of the Properties or upon termination of this Agreement.
 
(d)          Insurance and Third Party Beneficiary for Cargo Road Ramp Property. All work performed within the Cargo Road Ramp Property under the rights of entry granted herein to the City, GOAA, the Rail Company or GOAA’s or Rail Company’s employees, agents, engineers, contractors, assigns (including utility providers) and other representatives shall be at the sole risk and expense of such parties performing such work and CFX shall not have any liability for any injuries or damages sustained. Additionally, GOAA shall require that its contractors, agents and consultants that carry out inspection work on the Cargo Road Ramp Property provide insurance in accordance with GOAA’s Risk Management/Safety policies and procedures contained in the GOAA Policy and Procedure Manual. GOAA shall include in its applicable contracts related to Cargo Road Ramp Property that CFX is a third party beneficiary of its contracts as to indemnification and an additional insured as to insurance related use of the Cargo Road Ramp Property or applicable portions thereof pursuant to the grants of right-of-entry.
 
Rail Company, City and GOAA shall not unreasonably disturb any CFX operations on the Cargo Road Ramp Property or property adjoining the Cargo Road Ramp Property or damage any improvements which may be located on the Cargo Road Ramp Property or property adjoining the Cargo Road Ramp Property. Rail Company, City and GOAA shall not permit the filing of any liens against the Cargo Road Ramp Property in connection with its inspection activities contemplated herein. In the event a claim of lien is filed against the Cargo Road Ramp Property as a result of the inspection work by or on behalf of Rail Company, City or GOAA, or as a result of other actions or omissions of Rail Company, City or GOAA, then Rail Company or GOAA shall cause such lien to be satisfied or transferred to bond so as no longer to be a lien against the Cargo Road Ramp Property within thirty (30) days after Rail Company or GOAA receives notice from CFX that the claim lien has been filed. Rail Company, City and GOAA shall maintain worker’s compensation and liability insurance in accordance with CFX’s guidelines. Rail Company, City and GOAA shall cause its contractors, subcontractors, agents, and permittees accessing the Cargo Road Ramp Property to maintain insurance coverage in accordance with CFX’s guidelines.
8

 

STATE ROAD 528

CFX PROJECT: 528-1240

 

Rail Company. City and GOAA shall furnish evidence of such insurance coverage prior to any contractor, subcontractor, agent, or permittee of Rail Company, City or GOAA entering upon the Cargo Road Ramp Property.

 

9.           Evidence of Title.

 

(a)          528 Ramp Property and Easement Parcels. Within sixty days of the Effective Date, Rail Company shall, at Rail Company’s sole cost and expense, order a commitment from an agent of Rail Company’s selection for a policy of Owner’s Title Insurance (the “CFX Commitment”) which shall be written on a title insurance company reasonably satisfactory and acceptable to CFX. Copies of all documents constituting the exceptions referred to in the CFX Commitment shall be attached thereto. The CFX Commitment shall bind the title company to deliver to CFX a policy of Owner’s Title Insurance, which shall insure CFX’s title to, in CFX’s discretion, all of the 528 Ramp Property and the Easement Parcels in an amount satisfactory to CFX. In addition, Rail Company shall provide a survey of the 528 Ramp Property and Easement Parcels so that the Title Company will remove the exception from coverage relating to “rights, interests or claims . . . which a correct survey would disclose.” CFX shall have ninety (90) days from the date of receipt of the CFX Commitment (or an update thereto) and survey to examine same and notify Rail Company of any defects, a defect being a matter which would render title unmarketable or otherwise unusable by CFX for its intended purposes; provided, however, it is expressly agreed CFX shall take title subject to those matters, if any, set forth on Exhibit “J,” attached hereto and incorporated herein (the “CFX Permitted Exceptions”), which survey shall be paid for by Rail Company. Any survey exceptions or matters not acceptable to CFX shall be treated as title defects. Rail Company shall have sixty (60) days within which to remove such defect(s), and shall use reasonable efforts to correct any such defect(s) in title within the time period provided therefore; provided, however, (i) Rail Company will not be required to file suit; (ii) Rail Company will not be required to expend more than $10,000.00, excluding tax liens which will be paid in full, and (iii) GOAA and City shall not be required to expend any funds, in curing any such defect. If Rail Company is unsuccessful in removing same within said time period, CFX shall have the option of: (i) accepting title as it then is; (ii) terminating the Agreement, whereupon each party shall then be released of all further obligations related to the 528 Ramp Property; or (iii) electing to have Rail Company continue to take such reasonable steps as necessary to remove such defects. In the event the time period for cure of any such defects extends beyond the scheduled Closing Date as defined hereinafter, the Closing Date shall extend accordingly, at CFX’s option. Those exception items listed in the CFX Commitment and accepted by CFX shall be deemed as CFX Permitted Exceptions. At Closing, since CFX desires title insurance, Rail Company shall pay the premium on behalf of CFX for the Owner’s Title Insurance Policy to be issued (with the portion of the title premium for the Owner’s Title Insurance Policy, calculated at the “Butler” rate, but in no event shall CFX be required to pay a portion of the premium).

 

9

STATE ROAD 528

CFX PROJECT: 528-1240

 

(b)          Cargo Road Ramp Property. Within sixty (60) days of the Effective Date, Rail Company shall, at Rail Company’s sole cost and expense not to exceed $500.00, order a commitment from an agent of Rail Company’s selection for a policy of Owner’s Title Insurance (the “GOAA Commitment”) which shall be written on a title insurance company reasonably satisfactory and acceptable to GOAA. Copies of all documents constituting the exceptions referred to in the GOAA Commitment shall be attached thereto. The GOAA Commitment shall bind the title company to deliver to GOAA a policy of Owner’s Title Insurance, which shall insure GOAA’s title to, in GOAA’s discretion, all or a portion of the Cargo Road Ramp Property in an amount satisfactory to GOAA. In addition, Rail Company shall provide a survey of the Cargo Road Ramp Property so that the Title Company will remove the exception from coverage relating to “rights, interests or claims . . . which a correct survey would disclose.” GOAA shall have thirty (30) days from the date of receipt of the GOAA Commitment (or an update thereto) and survey to examine same and notify Rail Company of any defects, a defect being a matter which would render title unmarketable or otherwise unusable by GOAA for its intended purposes; provided, however, it is expressly agreed GOAA shall take title subject to those matters, if any, set forth on Exhibit “K,” attached hereto and incorporated herein (the “GOAA Permitted Exceptions”), which survey shall be paid for by Rail Company. Any survey exceptions or matters not acceptable to GOAA shall be treated as title defects. Rail Company shall have sixty (60) days within which to remove such defect(s), and shall use reasonable efforts to correct any such defect(s) in title within the time period provided therefore; provided, however, (i) Rail Company will not be required to file suit; and (ii) Rail Company will not be required to expend more than $5,000.00 and (iii) CFX shall not be required to expend any funds in curing any such defect. If Rail Company is unsuccessful in removing same within said time period, GOAA shall have the option of: (i) accepting title as it then is; (ii) terminating the Agreement, whereupon each party shall then be released of all further obligations related to the Cargo Road Ramp Property, or (iii) electing to have Rail Company continue to take such reasonable steps as necessary to remove such defects. In the event the time period for cure of any such defects extends beyond the scheduled Closing Date as defined hereinafter, the Closing Date shall extend accordingly, at GOAA’s option. Those exception items listed in the GOAA Commitment and accepted by GOAA shall be deemed as GOAA Permitted Exceptions. At Closing, if GOAA elects to obtain title insurance, Rail Company shall pay the premium on behalf of GOAA for the Owner’s Title Insurance Policy to be issued (with the portion of the title premium for the Owner’s Title Insurance Policy, calculated at the “Butler” rate, but in no event shall CFX be required to pay a portion of the premium).

 

(c)          As-Is Conveyance. The Cargo Road Ramp Property is being conveyed “AS IS, WHERE IS, WITH ALL FAULTS,” in such condition as the same may be on the closing date, without any representations or warranties by CFX as to any condition of the Property, including, without limitation, surface and subsurface environmental conditions, whether latent or patent. CFX makes no guarantee, warranty or representation, express or implied, as to the quality, character, or condition of Cargo Road Ramp Property, or any part thereof, or to the fitness of the Cargo Road Ramp Property, or any part thereof, for any use or purpose, or any representation as to the nonexistence of any hazardous substances. Neither party shall have any claim against the other, in law or in equity, based upon the condition of the Cargo Road Ramp Property, or the failure of the Cargo Road Ramp Property to meet any standards. In no event shall CFX be liable for any incidental, special, exemplary, or consequential damage. In the event that any hazardous substances are discovered on, at or under the Cargo Road Ramp Property, neither party shall maintain any action or assert any claim against the other, its successors and their respective members, employees and agents arising out of or relating to any such hazardous substances. The provisions of this Section shall survive the Closing. (CFX Manual, Sec. 5-6.09)

 

10

STATE ROAD 528

CFX PROJECT: 528-1240

 

GOAA and the City have read and understands the provisions of this Section and acknowledge and agree that except as expressly set forth in this Agreement, it is acquiring the Cargo Road Ramp Property “AS-IS, WHERE IS AND WITH ALL FAULTS” and that CFX has disclaimed herein any and all warranties, express or implied.

 

(d)          As-Is Conveyance. The 528 Ramp Property is being conveyed “AS IS, WHERE IS, WITH ALL FAULTS,” in such condition as the same may be on the closing date, without any representations or warranties by City and GOAA as to any condition of the Property, including, without limitation, surface and subsurface environmental conditions, whether latent or patent. City and GOAA make no guarantee, warranty or representation, express or implied, as to the quality, character, or condition of 528 Ramp Property, or any part thereof, or to the fitness of the 528 Ramp Property, or any part thereof, for any use or purpose, or any representation as to the nonexistence of any hazardous substances. Neither party shall have any claim against the other, in law or in equity, based upon the condition of the 528 Ramp Property, or the failure of the 528 Ramp Property to meet any standards. In no event shall City and GOAA be liable for any incidental, special, exemplary, or consequential damage. In the event that any hazardous substances are discovered on, at or under the 528 Ramp Property, neither party shall maintain any action or assert any claim against the other, its successors and their respective members, employees and agents arising out of or relating to any such hazardous substances. The provisions of this Section shall survive the Closing.

 

CFX has read and understands the provisions of this Section and acknowledge and agree that except as expressly set forth in this Agreement, it is acquiring the 528 Ramp Property “AS-IS, WHERE IS AND WITH ALL FAULTS” and that City and GOAA have disclaimed herein any and all warranties, express or implied.

 

10.          Closing Date, Closing Procedures and Requirements.

 

(a)          Closing Date. The closing of the transaction contemplated under this Agreement (the “Closing”) shall be held on a day and time mutually agreeable to the Parties upon not less than fifteen (15) days’ written notice to CFX, City and GOAA after Conditions Precedent have been met, unless such date is extended in order to secure the required Deed of Release and other releases from the Federal Aviation Administration (“FAA”) or by agreement in writing by the Parties (the “Closing Date”). Closing shall occur at the offices of CFX’s attorney or any other place which is mutually acceptable to the Parties. Without limiting anything contained herein, Closing may be accomplished by mail or courier. The Closing shall occur after satisfaction of the conditions precedent set forth in Section 7 above. The parties agree that the Closing shall occur on or before December 31, 2018, unless extended by written agreement approved by the City, GOAA, and CFX, through the Mayor, Chief Executive Officer, and Executive Director, respectively. In the event that the Closing does not occur prior to the deadline, as it may be extended, this Agreement automatically terminates.

 

11

STATE ROAD 528

CFX PROJECT: 528-1240

 

(b)          Conveyance of Title for 528 Ramp Property. At the Closing, City and GOAA shall execute and deliver to CFX a Special Warranty Deed, substantially in the form of Exhibit “G”, conveying fee simple marketable record title to the 528 Ramp Property to CFX, free and clear of all liens, general and special assessments, easements, reservations, restrictions and encumbrances, except the Permitted Exceptions. GOAA shall execute a Consent to said deed, as required by CFX. Additionally, at Closing, GOAA, at GOAA’s cost, shall deliver to CFX an executed FAA letter and Deed of Release as to the 528 Ramp Property pursuant to paragraph 26. In the event any mortgage, lien or other encumbrance encumbers 528 Ramp Property at Closing and is not paid and satisfied by GOAA, such mortgage, lien or encumbrance shall, at CFX’s election, be satisfied and paid by Rail Company. City, GOAA, and CFX agree that such documents, resolutions and certificates as may be necessary to carry out the terms of this Agreement shall be executed and/or delivered by such parties at Closing, including, without limitation, an affidavit by GOAA and/or City in form sufficient to enable CFX’s title company to delete all standard title exceptions from CFX’s title policy.

 

(c)          Conveyance of Title for Cargo Road Ramp Property. At the Closing, CFX shall execute and deliver to GOAA, a Special Warranty Deed, substantially in the form of Exhibit “H” conveying fee simple marketable record title to the Cargo Road Ramp Property to GOAA, free and clear of all liens, general and special assessments, easements, reservations, restrictions and encumbrances, except the Permitted Exceptions, the preservation or reestablishment of CFX’s limited access boundaries and rights as set forth in the legal descriptions, the Special Warranty Deed, or official public records, and easements for existing drainage or other such encumbrances that are necessary or beneficial for CFX to retain pursuant to that certain Drainage Easement Agreement to be dated as of the Closing Date. In the event any mortgage, lien or other encumbrance encumbers Cargo Road Ramp Property at Closing and is not paid and satisfied by CFX, such mortgage, lien or encumbrance shall, at GOAA’s election, be satisfied and paid with the proceeds of the GOAA Purchase Price and the GOAA Purchase Price shall be increased by the amount so paid. City, GOAA, and CFX agree that such documents, resolutions and certificates as may be necessary to carry out the terms of this Agreement shall be executed and/or delivered by such parties at Closing, including, without limitation, an affidavit by CFX in form sufficient to enable GOAA’s title company to delete all standard title exceptions from GOAA’s title policy, should GOAA elect to obtain a title policy, subject to CFX approval of the form of the affidavit.

 

(d)          Conveyance of Possession of 528 Ramp Property. City and GOAA shall deliver exclusive possession of the 528 Ramp Property to CFX at Closing.

 

(e)          Conveyance of Possession of Cargo Road Ramp Property. CFX shall deliver exclusive possession of the Cargo Road Ramp Property to the City and GOAA at Closing, subject to the drainage easement in favor of CFX, preservation or reestablishment of CFX’s limited access boundaries where applicable, and such encumbrances that are necessary or beneficial for CFX to retain pursuant to that certain Drainage Easement Agreement to be dated as of the Closing Date.

 

12

STATE ROAD 528

CFX PROJECT: 528-1240

 

(f)          Conveyance of Easement in Easement Parcel 801, Easement Parcel 802. Easement Parcel 803 and Easement Parcel 804. At the Closing, City and GOAA shall execute and deliver to CFX, a Drainage Easement, substantially in the form of Exhibit “I” conveying a non-exclusive drainage easement in Easement Parcel 801, Easement Parcel 802, Easement Parcel 803 and Easement Parcel 804 to CFX, free and clear of all liens, general and special assessments, easements, reservations, restrictions and encumbrances, except the Permitted Exceptions. Additionally, at Closing, GOAA, at GOAA’s cost, shall deliver to CFX an executed FAA letter and Deed of Release as to the Easement Parcel 801, Easement Parcel 802, Easement Parcel 803 and Easement Parcel 804 pursuant to paragraph 26. In the event any mortgage, lien or other encumbrance encumbers Easement Parcel 801 and/or Easement Parcel 802, Easement Parcel 803_and/or Easement Parcel 804, or the underlying fee simple interests, at Closing and is not paid and satisfied by GOAA, such mortgage, lien or encumbrance shall, at CFX’s election, be satisfied and paid with the proceeds of the GOAA Purchase Price. City, GOAA, and CFX agree that such documents, resolutions and certificates as may be necessary to carry out the terms of this Agreement shall be executed and/or delivered by such parties at Closing, including, without limitation, an affidavit by GOAA and/or City in form sufficient to enable CFX’s title company to delete all standard title exceptions from CFX’s title policy.

 

(g)          Prorating of Taxes and Assessments. Rail Company shall pay all taxes, assessments, and charges applicable to the Cargo Road Ramp Property, 528 Ramp Property and the Easement Parcels, if any, for all years through the Closing Date.

 

(h)          Closing Costs. Rail Company shall, at Closing, pay: (i) all real property transfer and transaction taxes and levies, including documentary stamps on the deeds and easements, if any, relating to the purchase and sale of the Properties (provided, that the Parties shall cooperate in good faith to evidence and confirm all applicable exemptions from said taxes); (ii) the cost of recording the deeds and easements for Properties; (iii) all costs pertaining to the Commitments, including, but not limited to, title insurance premiums, title search fees, and the premiums for any endorsements requested by CFX, the City and GOAA including but not limited to the ALTA 9-06 Endorsement (commonly known as the “Florida Form 9”), and all costs related to the issuance of the Commitments and any title insurance policy insuring title to the Properties or any portion thereof; (iv) all of the costs and expenses associated with the surveying of the Properties and preparation of the legal descriptions and sketch of descriptions thereof; and (v) all costs of CFX and the City and GOAA’s due diligence inspections of the Property. For the 528 Ramp Property and Easement Parcels, GOAA shall pay: (i) all costs of recording corrective title documents, if any, required in order to deliver title in condition as provided in Paragraph 9(a) above. GOAA shall pay the costs associated with obtaining the Deed of Release from the Federal Aviation Administration (“FAA”). For the Cargo Road Ramp Property, Rail Company shall pay all costs of recovering corrective title documents, if any, required in order to deliver title in condition as provided in Paragraph 9(b) above. Each party shall pay its own attorneys’ fees and costs in connection with this Agreement and the Closing, with the exception that Rail Company shall also pay the fees and costs of attorneys representing CFX in connection with this Agreement and the Closing. All other costs incurred at Closing shall be borne by the Rail Company.

 

13

STATE ROAD 528

CFX PROJECT: 528-1240

 

11.          Warranties and Representations of GOAA. To induce CFX and Rail Company to enter into this Agreement and to purchase the 528 Ramp Property and easements, GOAA, in addition to the other representations and warranties set forth herein, makes the following representations and warranties, each of which is given to the best of GOAA’s knowledge:

 

(a)          That, pursuant to the GOAA Act and the Operating Agreement and subject to issuance of the necessary deed and letters of release from the FAA, GOAA has the full right, power, and authority to enter into and deliver this Agreement, to sell, convey and consent to the purchase and sale and conveyance of the 528 Ramp Property and Drainage Easements in accordance herewith and to perform all covenants and agreements of GOAA hereunder.

 

(b)          Pursuant to the GOAA Act and the Operating Agreement, GOAA has the present, exclusive right to occupy, operate, control and use the 528 Ramp Property and the Easement Parcels, and there are no tenancy, rental or other occupancy agreements affecting the 528 Ramp Property and the Easement Parcels other than the Permitted Exceptions.

 

(c)          That there are no actions, suits or proceedings of any kind or nature whatsoever, legal or equitable, affecting the 528 Ramp Property and the Easement Parcels or any portion thereof, or relating to or arising out of the ownership of the 528 Ramp Property and the Easement Parcels, in any court, or before or by any federal, state, county or municipal department, commission, board, bureau, or agency or other governmental instrumentality.

 

(d)          With the exception of the notice provisions associated with surplus federal property, no person, firm or other legal entity other than CFX has any right or option whatsoever to acquire the interest contemplated herein as to the 528 Ramp Property and the Drainage Easements or any portion or thereof or any interest therein.

 

(e)          Subject to obtaining written consent from the FAA, that the execution and delivery of this Agreement and the consummation of the transaction contemplated herein shall not and do not constitute a violation or breach by GOAA of any provision of any agreement or other instrument to which GOAA is a party or to which GOAA may be subject although not a party or which may otherwise affect or encumber the 528 Ramp Property and the Easement Parcels, nor result in or constitute a violation or breach of any judgment, order, writ, injunction or decree issued against GOAA, including, without limitation, the covenants contained in that certain Quit Claim Deed recorded in Official Records Book 933, Page 129, Public Records of Orange County, Florida.

 

(f)          Subject to issuance of a deed and letter of release from the FAA, that the sale of the 528 Ramp Property and Easement Parcels to CFX and the use of the 528 Ramp Property and Easement Parcels will not interfere with the landing and takeoff of aircraft at the Orlando International Airport, nor interfere with the air navigation and or communication facilities serving the Orlando International Airport nor otherwise constitute an airport hazard.

 

14

STATE ROAD 528

CFX PROJECT: 528-1240

 

(g)          To the best knowledge of GOAA, as of the date of this Agreement, GOAA has not received written notice from any governmental authority or agency of any material violation with respect to the 528 Ramp Property and the Easement Parcels of laws relating to Hazardous Materials (as hereinafter defined) which violation remains uncured in any material respect. For purposes of this Agreement, the term Hazardous Materials shall mean (a) any toxic substance or hazardous waste, hazardous substance or related hazardous material; (b) asbestos in any form which is or could become friable, urea formaldehyde foam insulation, transformers or other equipment which contain dielectric fluid containing levels of polychlorinated biphenyls in excess of presently existing federal, state or local safety guidelines, whichever are more stringent; and (c) any substance, material or chemical which is defined as or included in the definition of “hazardous substances”, “toxic substances”, “hazardous materials”, “hazardous wastes” or words of similar import under any federal, state or local statute, law, code, or ordinance or under the regulations adopted or guidelines promulgated pursuant thereto, including, but not limited to, the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, 42 U.S.C. §9061 et seq.; the Hazardous Materials Transportation Act, as amended, 49 U.S.C. §1801, et seq.; the Resource Conservation and Recovery Act, as amended, 42 U.S.C. §6901, et seq.; and the Federal Water Pollution Control Act, as amended, 33 U.S.C. §1251, et seq., provided, however, that the term “Hazardous Material” shall not include (i) motor oil and gasoline contained in or discharged from vehicles not used primarily for the transport of motor oil or gasoline, or (ii) materials which are stored or used in the ordinary course of operating the 528 Ramp Property.

 

(h)          That each and every one of the foregoing representations and warranties is true and correct as of the date hereof, will remain true and correct throughout the term of this Agreement, and will be true and correct as of the Closing Date.

 

(i)          In the event that any changes occur as to any information, documents or exhibits referred to in the subparagraphs of this section, or in any other part of this Agreement, of which GOAA has knowledge, GOAA shall immediately disclose same to CFX and Rail Company when such knowledge is first available; and in the event of any change which may be deemed by CFX to be materially adverse, CFX may, at its election, terminate this Agreement.

 

12.          Warranties and Representations of City. To induce CFX and Rail Company to enter into this Agreement and to purchase the 528 Ramp Property, City, in addition to the other representations and warranties set forth herein, makes the following representations and warranties, each of which is given to the best of City’s knowledge:

 

(a)          That City, as fee simple owner of the 528 Ramp Property and the Easement Parcels, has taken all steps necessary under its Charter, the GOAA Act, and the Operating Agreement to approve and authorize the sale and conveyance of the 528 Ramp Property and the Drainage Easements contemplated herein, including, without limitation, conveyance of the fee simple [and the granting of perpetual easements]. Further, no person, firm or other legal entity other than CFX has any right or option whatsoever to acquire the interest contemplated herein as to the 528 Ramp Property and the Drainage Easements or any portion thereof or any interest therein.

 

15

STATE ROAD 528

CFX PROJECT: 528-1240

 

(b)          To the best knowledge of the City, there are no actions, suits or proceedings of any kind or nature whatsoever, legal or equitable, affecting the 528 Ramp Property or the Easement Parcels or any portion thereof or relating to or arising out of City’s fee ownership of the 528 Ramp Property and the Easement Parcels, in any court or before or by any federal, state, county or municipal department, commission, board, bureau, or agency or other governmental instrumentality.

 

(c)          Subject to obtaining written consent from the FAA, that the execution and delivery of this Agreement and the consummation of the transaction contemplated herein shall not and do not constitute a violation or breach by City of any provision of any agreement or other instrument to which City is a party, or to which City may be subject although not a party or which may otherwise affect or encumber the 528 Ramp Property and the Easement Parcels, nor result in or constitute a violation or breach of any judgment, order, writ, injunction or decree issued against City, including, without limitation, the covenants contained in that certain Quit Claim Deed recorded in Official Records Book 933, Page 129, Public Records of Orange County, Florida.

 

(d)          To the best knowledge of City, as of the date of this Agreement, City has not received written notice from any governmental authority or agency of any material violation with respect to the 528 Ramp Property and the Easement Parcels of laws relating to Hazardous Materials (as hereinafter defined) which violation remains uncured in any material respect. For purposes of this Agreement, the term Hazardous Materials shall mean (a) any toxic substance or hazardous waste, hazardous substance or related hazardous material; (b) asbestos in any form which is or could become friable, urea formaldehyde foam insulation, transformers or other equipment which contain dielectric fluid containing levels of polychlorinated biphenyls in excess of presently existing federal, state or local safety guidelines, whichever are more stringent; and (c) any substance, material or chemical which is defined as or included in the definition of “hazardous substances”, “toxic substances”, “hazardous materials”, “hazardous wastes” or words of similar import under any federal, state or local statute, law, code, or ordinance or under the regulations adopted or guidelines promulgated pursuant thereto, including, but not limited to, the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, 42 U.S.C. §9061 et seq.; the Hazardous Materials Transportation Act, as amended, 49 U.S.C. §1801, et seq.; the Resource Conservation and Recovery Act, as amended, 42 U.S.C. §6901, et seq.; and the Federal Water Pollution Control Act, as amended, 33 U.S.C. § 1251, et seq., provided, however, that the term “Hazardous Material” shall not include (i) motor oil and gasoline contained in or discharged from vehicles not used primarily for the transport of motor oil or gasoline, or (ii) materials which are stored or used in the ordinary course of operating the 528 Ramp Property

 

16

STATE ROAD 528

CFX PROJECT: 528-1240

 

(e)          That each and every one of the foregoing representations and warranties is true and correct as of the date hereof, will remain true and correct throughout the term of this Agreement, and will be true and correct as of the Closing Date.

 

(f)          In the event that any changes occur as to any information, documents, or exhibits referred to in the subparagraphs of this section, or in any other part of this Agreement, of which City has knowledge, City shall immediately disclose same to CFX and Rail Company when such knowledge is first available; and in the event of any change which may be deemed by CFX to be materially adverse, CFX may, at its election, terminate this Agreement.

 

13.          Warranties and Representations of CFX. To induce the City and GOAA to enter into this Agreement and to purchase the Cargo Road Ramp Property, CFX, in addition to the other representations and warranties set forth herein, makes the following representations and warranties, each of which is given to the best of CFX’s knowledge:

 

(a)          That, pursuant to the CFX Act, CFX has the full right, power, and authority to enter into and deliver this Agreement, to sell, convey and consent to the purchase and sale and conveyance of the Cargo Road Ramp Property in accordance herewith, including, without limitation, conveyance of the Cargo Road Ramp Property and to perform all covenants and agreements of CFX hereunder.

 

(b)          Pursuant to the CFX Act, CFX has the present, exclusive right to occupy, operate, control and use the Cargo Road Ramp Property, and there are no tenancy, rental or other occupancy agreements affecting the Cargo Road Ramp Property other than the Permitted Exceptions.

 

(c)          That there are no actions, suits or proceedings of any kind or nature whatsoever, legal or equitable, affecting the Cargo Road Ramp Property or any portion thereof, or relating to or arising out of the ownership of the Cargo Road Ramp Property, in any court, or before or by any federal, state, county or municipal department, commission, board, bureau, or agency or other governmental instrumentality.

 

(d)          With the exception of the items in the official public records and the reserved drainage easement, no person, firm or other legal entity other than GOAA and City have any right or option whatsoever to acquire the interest contemplated herein as to the Cargo Road Ramp Properly or any portion or thereof or any interest therein.

 

(e)          The execution and delivery of this Agreement and the consummation of the transaction contemplated herein shall not and do not constitute a violation or breach by CFX of any provision of any agreement or other instrument to which CFX is a party or to which CFX may be subject although not a party or which may otherwise affect or encumber the Cargo Road Ramp Property, nor result in or constitute a violation or breach of any judgment, order, writ, injunction or decree issued against CFX.

 

17

STATE ROAD 528

CFX PROJECT: 528-1240

 

(f)          To the best knowledge of CFX, as of the date of this Agreement, CFX has not received written notice from any governmental authority or agency of any material violation with respect to the Property of laws relating to Hazardous Materials (as hereinafter defined) which violation remains uncured in any material respect. For purposes of this Agreement, the term Hazardous Materials shall mean (a) any toxic substance or hazardous waste, hazardous substance or related hazardous material; (b) asbestos in any form which is or could become friable, urea formaldehyde foam insulation, transformers or other equipment which contain dielectric fluid containing levels of polychlorinated biphenyls in excess of presently existing federal, state or local safety guidelines, whichever are more stringent; and (c) any substance, material or chemical which is defined as or included in the definition of “hazardous substances”, “toxic substances”, “hazardous materials”, “hazardous wastes” or words of similar import under any federal, state or local statute, law, code, or ordinance or under the regulations adopted or guidelines promulgated pursuant thereto, including, but not limited to, the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, 42 U.S.C. §9061 et seq.; the Hazardous Materials Transportation Act, as amended, 49 U.S.C. §1801, et seq.; the Resource Conservation and Recovery Act, as amended, 42 U.S.C. §6901, et seq.; and the Federal Water Pollution Control Act, as amended, 33 U.S.C. §1251, et seq., provided, however, that the term “Hazardous Material” shall not include (i) motor oil and gasoline contained in or discharged from vehicles not used primarily for the transport of motor oil or gasoline, or (ii) materials which are stored or used in the ordinary course of operating the Property.

 

(g)          That each and every one of the foregoing representations and warranties is true and correct as of the date hereof, will remain true and correct throughout the term of this Agreement, and will be true and correct as of the Closing Date.

 

(h)          In the event that any changes occur as to any information, documents or exhibits referred to in the subparagraphs of this section, or in any other part of this Agreement, of which CFX has knowledge, CFX shall immediately disclose same to GOAA when such knowledge is first available; and in the event of any change which may be deemed by GOAA to be materially adverse, GOAA may, at its election, terminate this Agreement.

 

14.          Defaults. In the event any party breaches any warranty or representation contained in this Agreement, or fails to comply with or perform any of the conditions to be complied with, or any of the covenants, agreements or obligations to be performed by such party under the terms and provisions of this Agreement, a non-defaulting party, in its sole discretion, shall be entitled to: (i) exercise any and all rights and remedies available to it under this Agreement, at law and in equity, including without limitation, the right of specific performance; or (ii) terminate this Agreement. Notwithstanding anything to the contrary contained in this Agreement, the right of specific performance shall automatically terminate one (1) year from the date on which this Agreement has been executed by all parties, unless extended by approval of the GOAA Chief Executive Officer and CFX Executive Director. Upon any such termination, this Agreement and all rights and obligations created hereunder shall be deemed null and void and of no further force or effect. Prior to exercising any remedies, the non-defaulting party shall provide the defaulting party with thirty (30) days’ written notice and opportunity to cure the default.

 

18

STATE ROAD 528

CFX PROJECT: 528-1240

 

15.          Notices. Any notices which may be permitted or required hereunder shall be in writing and shall be deemed to have been duly given as of the date and time the same are personally delivered or within three (3) days after depositing with the United States Postal Service, postage prepaid by registered or certified mail, return receipt requested, or within one (1) day after depositing with Federal Express or other overnight delivery service from which a receipt may be obtained, and addressed as follows:

     
  CFX: CENTRAL FLORIDA
EXPRESSWAY AUTHORITY
4974 ORL Tower Road
Orlando, Florida 32807
Attn: Executive Director
     
  Copy to: Joseph L. Passiatore, Esq.
General Counsel
Central Florida Expressway Authority
4974 ORL Tower Road
Orlando, Florida 32807
     
  GOAA: GREATER ORLANDO AVIATION AUTHORITY
One Jeff Fuqua Boulevard
Orlando, Florida 32827-4399
Attn: Chief Executive Officer
     
  Copy to: MARCHENA AND GRAHAM, P.A.
976 Lake Baldwin Lane, Suite 101
Orlando, Florida 32814
Attn: Marcos R. Marchena, Esq.
     
  CITY: CITY OF ORLANDO
400 South Orange Avenue
Orlando, Florida 32801
Attn: Chief Administrative Officer
     
  Copy to: CITY OF ORLANDO
Office of Legal Affairs
400 South Orange Avenue
Orlando, Florida 32801
Attn: Roy K. Payne, Esq.

 

19

 

STATE ROAD 528

CFX PROJECT: 528-1240

     
  RAIL COMPANY:

ALL ABOARD FLORIDA – OPERATIONS LLC
2855 LeJeune Road, 4th Floor
Coral Gables, FL 33134
Attention: P. Michael Reininger

     
  Copy to: ALL ABOARD FLORIDA OPERATIONS LLC
2855 LeJeune Road, 4th Floor
Coral Gables, FL 33134
Attention: Kolleen Cobb
     
  Copy to: AKERMAN LLP
350 East Las Olas Boulevard, Suite 1600
Fort Lauderdale, FL 33301
Attention: Eric D. Rapkin

 

or to such other address as any party hereto shall from time to time designate to the other party by notice in writing as herein provided.

 

16.          General Provisions. No failure of any party to exercise any power given hereunder or to insist upon strict compliance with any obligation specified herein, and no custom or practice at variance with the terms hereof, shall constitute a waiver of any party’s right to demand exact compliance with the terms hereof. This Agreement contains the entire agreement of the Parties hereto with respect to the subject matter of this Agreement, and no representations, inducements, promises, or agreements, oral or otherwise, between the Parties not embodied herein shall be of any force or effect. Any amendment to this Agreement shall not be binding upon any of the Parties hereto unless such amendment is in writing and executed by all Parties. The provisions of this Agreement shall inure to the benefit of and be binding upon the Parties hereto and their respective heirs, administrators, executors, personal representatives, successors and assigns. Wherever under the terms and provisions of this Agreement, the time for performance falls upon a Saturday, Sunday, or legal holiday, such time for performance shall be extended to the next business day. This Agreement may be executed in multiple counterparts, each of which shall constitute an original, but all of which taken together shall constitute one and the same agreement. The headings inserted at the beginning of each paragraph of this Agreement are for convenience only, and do not add to or subtract from the meaning of the contents of each paragraph. City, GOAA, and CFX do hereby covenant and agree that such documents as may be legally necessary or otherwise appropriate to carry out the terms of this Agreement shall be executed and delivered by each party at Closing. This Agreement shall be interpreted under the laws of the State of Florida. The parties hereto agree that venue for any legal action authorized hereunder shall be exclusively in the state courts of Orange County, Florida.

 

17.          Survival of Provisions. All covenants, representations, and warranties set forth in this Agreement shall survive the Closing, and shall survive the execution or delivery of any and all deeds and other documents at any time executed or delivered under, pursuant to or by reason of this Agreement, and shall survive the payment of all monies made under, pursuant to or by reason of this Agreement.

 

20

STATE ROAD 528

CFX PROJECT: 528-1240

 

18.          Severability. This Agreement is intended to be performed in accordance with, and only to the extent permitted, by all applicable laws, ordinances, rules, and regulations. If any provision of this Agreement or the application thereof, to any person or circumstance, shall, for any reason and to any extent be invalid or unenforceable, the remainder of this Agreement, and the application of such provision to other persons or circumstances, shall not be affected thereby, but rather, shall be enforced to the greatest extent permitted by law.

 

19.          Attorneys’ Fees. In the event of any dispute hereunder or of any action to interpret or enforce this Agreement, any provision hereof, or any matter arising herefrom, each party shall bear their own fees, costs and expenses..

 

20.          Waiver of Jury Trial. THE PARTIES VOLUNTARILY WAIVE A TRIAL BY JURY IN ANY LITIGATION OR ACTION ARISING FROM THIS AGREEMENT.

 

21.          Radon Gas. Radon is naturally occurring radioactive gas that, when it has accumulated in a building in sufficient quantities, may present health risks to persons who are exposed to it over time. Levels of radon that exceed federal and state guidelines have been found in buildings in Florida. Additional information regarding radon and radon testing may be obtained from your county health department.

 

22.          Effective Date. When used herein, the term “Effective Date” or the phrase “the date hereof’ or “the date of this Agreement” shall mean the last date that CFX, City, GOAA, or Rail Company executes this Agreement.

 

23.          Release for 528 Ramp Property. Easement 801, Easement 802. Easement 803. and Easement 804.

 

(a)          City and GOAA Release. By execution of this Agreement, City and GOAA acknowledge and agree that the amounts set forth in this Agreement represent the full compensation to City and GOAA for the 528 Ramp Property and the Drainage Easements, and City and GOAA each hereby waives and releases CFX and Rail Company from any claim for loss of access or severance damages to any remaining property owned or occupied by City or GOAA, that results from the CFX’s acquisition of the 528 Ramp Property and the Drainage Easements, or construction of improvements thereon. Nothing contained herein shall release CFX from it liabilities or obligations with respect to (i) warranties, representations and covenants in the Agreement expressly surviving Closing, or (ii) any loss or damages caused by the negligence or willful wrongdoing of CFX, its employees, contractors or agents.

 

21

STATE ROAD 528

CFX PROJECT: 528-1240

 

(b)          CFX Release. By execution of this Agreement, CFX acknowledges and agrees that as of the date of City’s execution and delivery of the deed, and GOAA’s consent thereto, CFX shall remise, release, acquit, satisfy, and forever discharge City and GOAA of and from all, and all manner of action and actions, cause and causes of action, suits, sums of money, covenants, contracts, controversies, agreements, promises, trespasses, damages, judgments, claims and demands whatsoever, in law or in equity, which CFX may have against City or GOAA for, upon, or by reason pertaining to the physical condition or suitability for use of the 528 Ramp Property; provided, however, such release shall specifically exclude (i) any warranties, representations and covenants in the Agreement expressly surviving Closing; (ii) any misrepresentation by City or GOAA regarding this Agreement; or (iii) any loss or damages caused by the negligence or willful wrongdoing of City or GOAA, or their respective employees, contractors, or agents.

 

24.          Release for Cargo Road Ramp Property.

 

(a)          CFX Release. By execution of this Agreement, CFX acknowledges and agrees that the amounts set forth in this Agreement represent the full compensation to CFX for the Cargo Road Ramp Property, and CFX hereby waives and releases GOAA and City from any claim for loss of access or severance damages to any remaining property owned or occupied by CFX that results from the GOAA and City’s acquisition of the Cargo Road Ramp Property, or construction of improvements thereon. Nothing contained herein shall release GOAA from its liabilities or obligations with respect to (i) warranties, representations and covenants in the Agreement expressly surviving Closing, or (ii) any loss or damages caused by the negligence or willful wrongdoing of GOAA and City, and their respective employees, contractors or agents.

 

(b)          GOAA and City Release. By execution of this Agreement, GOAA and City acknowledge and agree that as of the date of CFX’s execution and delivery of the deed, GOAA and City shall remise, release, acquit, satisfy, and forever discharge CFX of and from all, and all manner of action and actions, cause and causes of action, suits, sums of money, covenants, contracts, controversies, agreements, promises, trespasses, damages, judgments, claims and demands whatsoever, in law or in equity, which GOAA and City may have, against CFX for, upon, or by reason pertaining to the physical condition or suitability for use of the Cargo Road Ramp Property; provided, however, such release shall specifically exclude (i) any warranties, representations and covenants in the Agreement expressly surviving Closing; (ii) any misrepresentation by CFX regarding this Agreement; or (iii) any loss or damages caused by the negligence or willful wrongdoing of CFX, or its employees, contractors, or agents.

 

(c)          Limited-Access Lines. In further consideration of CFX’s agreement to release or partially release any limited-access line, GOAA and the City hereby release and discharge CFX from all past, present and future claims or actions arising out of, or in any way connected with, the location or relocation of the limited-access lines, including any claim for loss of access to any party’s remaining property, business damages, severance damages or any other damages. The release or partial release of any limited-access line shall expressly state that it is not conveying or restoring any other abutter’s rights including, without limitation, any claims for air, light and view between any abutting property and CFX’s property. (CFX Manual, Sec. 5-7.05)

 

22

STATE ROAD 528

CFX PROJECT: 528-1240

 

25.          Brokerage. City, GOAA, Rail Company and CFX hereby represent and warrant each to the other that said warranting party has not engaged or dealt with any agent, broker, or finder in regard to this Agreement, or to the sale and purchase of the Property contemplated hereby. It is agreed by all parties hereto that any warranting party breaching or having breached this warranty shall indemnify all other non-breaching warranting parties for any damages, fines, penalties or losses incurred by them as a result of or arising from such breach. Nothing contained in the foregoing indemnification shall be construed to be a waiver of any immunity or limitation of liability the City, GOAA, or CFX may have under the doctrine of sovereign immunity or Section 768.28, Florida Statutes.

 

26.          FAA Requirements. On or before Closing, GOAA shall request any releases or other documentation required from the FAA as it relates to the 528 Ramp Property and the Easement Parcels. The Parties’ obligation to close is subject to the FAA issuing the required deeds and letters of release. The FAA requires certain provisions be made to the Agreement as a condition of the Deeds of Release being issued by the FAA, and in accordance with the requirements of the FAA, CFX, City and GOAA hereby agree to the following provisions as conditions of conveyance for the 528 Ramp Property and the Drainage Easements as follows (i.e., the following or substantially similar language will be included as part of the covenants, conditions and restrictions in the deeds conveying the 528 Ramp Property and the Drainage Easements):

 

(i)          City and GOAA reserve unto themselves, their successors and assigns, for the use and benefit of the public, a right of flight for the passage of aircraft in the airspace above the surface of the real property herein described, together with the right to cause in said airspace such noise as may be inherent in the operations of aircraft, now known or hereafter used, for navigation of, or in the said airspace, for use of said airspace for landing on, or taking off from, or operating on Orlando International Airport.

 

(ii)          CFX, City and GOAA expressly agree for themselves, their successors and assigns, to restrict the height of structures, objects of natural growth and other obstructions on the herein described real property to such a height so as to comply with the FAA Regulations, Part 77.

 

(iii)          CFX, City and GOAA expressly agree for themselves, their successors and assigns, to prevent any use of the herein described real property which would interfere with the landing or takeoff of aircraft at the Orlando International Airport, or interfere with the air navigation, and or communication facilities serving the Airport, or otherwise constitute an airport hazard.

 

(iv)          CFX, City and GOAA, and their successors and assigns shall not permit/afford access from the subject 528 Ramp Property onto Orlando International Airport Property for aeronautical purposes.

 

(v)          City and GOAA shall insure that if the 528 Ramp Property is used or converted to a municipal use, an amount equal to the fair market value will be deposited into an identifiable interest bearing account prior to conversion of the 528 Ramp Property to the municipal use. The proceeds should remain in this account until utilized in accordance with the FAA Order 5190.6B, paragraph 22.17.e.

 

23

STATE ROAD 528

CFX PROJECT: 528-1240

 

27.          Exhibits. The following Exhibits are attached hereto and incorporated herein by reference:

 

Exhibit “A”— 528 Ramp Property

Exhibit “B”— Cargo Road Ramp Property

Exhibit “C”— Easement Parcel 801

Exhibit “D”— Easement Parcel 802

Exhibit “E”— Easement Parcel 803

Exhibit “F”— Easement Parcel 804

Exhibit “G”— Form of Special Warranty Deed (528 Ramp Property)

Exhibit “H”— Form of Special Warranty Deed (Cargo Road Property)

Exhibit “I”— Form of Drainage Easement

Exhibit “J”— CFX Permitted Exceptions

Exhibit “K”— GOAA Permitted Exceptions

 

28.          Intentionally Deleted.

 

29.          Warranties and Representations of Rail Company. To induce CFX to enter into this Agreement and to purchase the 528 Ramp Property and to induce City and GOAA to enter this Agreement and to purchase the Cargo Road Ramp Property, the Rail Company, in addition to the other representations and warranties set forth herein, makes the following representations and warranties, each of which is given to the best of the Rail Company’s knowledge:

 

(a)          That the use of the 528 Ramp Property by Rail Company for the Rail Project, or other ancillary uses, including all rail cars and other structures to be placed thereon or therein by the Rail Company, will not violate the height limitations necessary to comply with the FAA Regulations, Part 77.

 

(b)          That the Rail Company acknowledges and agrees to comply with all FAA Requirements set forth in Section 26 herein.

 

(c)          That the Rail Company will not object to whatever condition that CFX accepts title to the 528 Ramp Property and will not object to the condition of the 528 Ramp Property once purchased, and the Rail Company agrees that its final construction plans are subject to CFX’s approval.

 

(d)          That the Rail Company will not object to whatever condition that GOAA and the City accept title to the Cargo Road Ramp Property and will not object to the condition of the Cargo Road Ramp Property once purchased.

24

 

STATE ROAD 528

CFX PROJECT: 528-1240

[SIGNATURE PAGES FOLLOWING]

 

25

STATE ROAD 528
CFX PROJECT: 528-1240

IN WITNESS WHEREOF, the parties hereto have caused these presents to be executed in their respective names as of the date first above written.

   
“CITY”
   
CITY OF ORLANDO, FLORIDA,
   
a Florida municipal corporation
     
ATTEST
   
By:
   
By:
 

Printed Name:
Denise Aldridge
 
Printed Name:
Patty Sheehan

Title: 
City Clerk
 
Title: 
 Mayor Pro Tem

[Official Seal]
   
Date: 
April 17, 2018
 
   
APPROVED AS TO FORM AND LEGALITY FOR THE USE AND RELIANCE OF THE CITY OF ORLANDO, ONLY, THIS 22 DAY OF May, 2018
         
     
By:
 
      City Attorney 
     
Printed Name:
Roy Payne

 
“GOAA”
 
GREATER ORLANDO AVIATION
AUTHORITY
   
ATTEST:
By:
 
   
Phillip N. Brown, A.A.E.,
Chief Executive Officer 
Dayci S. Burnette-Snyder,


Assistant Secretary
 
 
Date:  5-29, 2018

   
APPROVED AS TO FORM AND LEGALITY this 23rd day of May, 2018, for the use and reliance by the GREATER ORLANDO AVIATION AUTHORITY, only. Marchena and Graham, P.A., General Counsel.
     
   
By:
 
   

Marchena and Graham, P.A.

 
City Council Meeting:  4/16/18
 
Item K-6 Documentary 180416K06

26

STATE ROAD 528
CFX PROJECT: 528-1240
   
“CFX”
   
CENTRAL FLORIDA
   
EXPRESSWAY AUTHORITY, a public Corporation of the State of Florida
       
ATTEST:
     
   
By:
 
     
Laura Kelley, Executive Director
Regla Lamaute, Executive Assistant
     
   
Date:
 Nov. 21
, 2018

 
APPROVED AS TO FORM AND LEGALITY FOR USE AND RELIANCE BY THE CENTRAL FLORIDA EXPRESSWAY AUTHORITY ONLY.
 
       ,
 
Counsel.
 
           
 
By:
   
 
Print:
 Linda S. B. Lanosa
 
 
Date:
 Nov. 21
, 2018
 

       
ALL ABOARD FLORIDA OPERATIONS LLC
                 
ATTEST:
 
By:
 
       
Print Name:
 Kolleen Cobb
  
 
Title:
 Vice President
Print Name:
   
Dated:
 2/21
, 2018
Title:
          
 

WITNESSES:
 
   
Print Name:
 Brianna Hernandez
 
     
   
Print Name:
 Maria V. Rincon
 

   

27


EX-10.82 19 s002218x10_ex10-82.htm EXHIBIT 10.82
 
Exhibit 10.82
 
STATE ROAD 528
CFX PROJECT: 528-1240
 
FIRST AMENDMENT TO PURCHASE AND SALE AGREEMENT
 
THIS FIRST AMENDMENT TO THE PURCHASE AND SALE AGREEMENT (“First Amendment”) is made and entered into as of the ____ day of _________, 2018, by and between the GREATER ORLANDO AVIATION AUTHORITY, with a principal address of One Jeff Fuqua Boulevard, Orlando, FL 32827-4399 (“GOAA”), an agency of the City of Orlando, existing as an independent special district under the laws of the State of Florida, the CENTRAL FLORIDA EXPRESSWAY AUTHORITY, a public corporation of the State of Florida with a principal address of 4974 ORL Tower Road, Orlando, FL 32807 (“CFX”), the CITY OF ORLANDO (the “City”), a Florida Municipal Corporation existing under the laws of the State of Florida with a principal address of 400 South Orange Avenue, Orlando, FL 32801, and ALL ABOARD FLORIDA - OPERATIONS LLC, a Delaware limited liability company authorized to conduct business in Florida, with a principal address 2855 Lejeune Road, 4th Floor, Coral Gables, FL 33134 (“RAIL COMPANY”). GOAA, CFX, CITY and Rail Company are sometimes collectively referred to herein as the “Parties”.
 
RECITALS
 
WHEREAS, Rail Company is developing an inter-city commercial passenger rail connection between Miami and Orlando with the Orlando terminus located at the Orlando International Airport (the “Rail Project” or “Project”); and
 
WHEREAS, the Parties previously entered into a Purchase and Sale Agreement (“Agreement”) formalizing the terms and conditions whereby GOAA and the City shall sell and convey title to the 528 Ramp Property to CFX, CFX shall sell and convey title to the Cargo Road Ramp Property to GOAA, and GOAA shall grant easements to CFX in the Easement Parcels; Rail Company shall fund the transactions and CFX shall acquire said interest in the 528 Ramp Property and the Easement Parcels and GOAA and City shall acquire said interest in the Cargo Road Ramp Property;
 
WHEREAS, the Agreement states that the Closing should occur on or before December 31, 2018, unless extended by written agreement approved by the City, GOAA, and CFX, through the Mayor, Chief Executive Officer, and Executive Director, respectively;
 
WHEREAS, the parties desire to extend the deadline for a Closing to July 1, 2019;
   
 
City Council Meeting: 1-14-19
 
Item: K-9 Documentary: 190114K09
1

 
NOW THEREFORE, for good and valuable consideration, the receipt, adequacy and sufficiency of which are hereby expressly acknowledged by the Parties, CFX, Rail Company, GOAA, and the City hereby covenant and agree as follows:
 
1.          Recitals. The foregoing recitals are true and correct and are incorporated herein by this reference.
 
2.          Closing. The Closing should occur on or before July 1, 2019.
 
3.          Ratification. Except as expressly amended hereby, all the remaining provisions of the Agreement shall remain in full force and effect.
 
4.         Counterparts; Email Signatures. This First Amendment may be executed in any number of counterparts, each of which shall be considered an original, and all of such counterparts shall constitute one amendment. To facilitate execution of this First Amendment, any of the Parties may execute and exchange by e-mail as a portable document format or other electronic imaging, counterparts of the signature page, which shall be deemed original signatures for all purposes.
 
[SIGNATURE PAGES FOLLOWING]
2


IN WITNESS WHEREOF, the parties hereto have caused these presents to be executed in their respective names as of the date first above written.

   
“CITY”
CITY OF ORLANDO, FLORIDA,
a Florida municipal corporation
ATTEST:
   
By:
 
By:
 

Printed Name:
Denise Aldridge  
Printed Name:
Regina I. Hill

Title:
City Clerk  
Title:
Mayor Pro Tem

[Official Seal]
   
Date:
January 14, 2019

   
APPROVED AS TO FORM AND LEGALITY FOR THE USE AND RELIANCE OF THE CITY OF ORLANDO, ONLY, THIS 7 DAY OF JAN, 2019.
     
       By:  
        City Attorney  

 
Printed Name:
Roy Payne

   
“GOAA”
GREATER ORLANDO AVIATION AUTHORITY
ATTEST:
   
    By:   
Dayci S. Burnette-Snyder,
 
Phillip N. Brown, A.A.E.,
Assistant Secretary
   
Chief Executive Officer
       
 
Date: 12/4/18, 2018
       
     
APPROVED AS TO FORM AND LEGALITY this 30th day of November, 2018, for the use and reliance by the GREATER ORLANDO AVIATION AUTHORITY, only. Marchena and Graham, P.A., General Counsel.
       
       By:    
       
Marchena and Graham, P.A.
           
City Council Meeting: 1-14-19        
Item: K-9 Documentary: 1901141209        
3


   
“CFX”
   
CENTRAL FLORIDA
   
EXPRESSWAY AUTHORITY, a public Corporation of the State of Florida
ATTEST:
     
   
By:
 
   
Laura Kelley, Executive Director
Regla (“Mimi”) Lamaute,
     
Board Service Coordinator
     
   
Date:
Nov. 21, 2018

  APPROVED AS TO FORM AND LEGALITY FOR USE AND RELIANCE BY THE CENTRAL FLORIDA EXPRESSWAY AUTHORITY ONLY.  
      ,
 
Counsel.
   
       
 
By:
   
 
Print:
 Linda S. B. Lanosa  
 
Date:
Nov. 21, 2018
 

   
ALL ABOARD FLORIDA – OPERATIONS LLC
     
ATTEST:
 
By:
   
   
Print Name:
 
   
Title:
   
Print Name:
   
Dated: _________________, 2018
Title:
       

WITNESSES:
 
   
Print Name:
   
   
   
Print Name:
   


EX-21.1 20 s002218x10_ex21-1.htm EXHIBIT 21.1
Exhibit 21.1

VIRGIN TRAINS USA INC. (f/k/a VIRGIN TRAINS USA LLC) SUBSIDIARIES


Subsidiary
 
State of Formation
AAF Holdings A LLC
 
Delaware
AAF Operations Holdings LLC
 
Delaware
AAF Jacksonville Segment LLC
 
Delaware
BL Cocoa Curve TOD LLC
 
Delaware
BL RH TOD LLC
 
Delaware
BL Vegas Holding LLC
 
Delaware
Brightline Management LLC
 
Delaware
Brightline Property Holdings LLC
 
Delaware
Brightline Trains – Las Vegas LLC (f/k/a DesertXpress Enterprises LLC)
 
Delaware
Brightline Trains LLC
 
Delaware
East West Land LLC
 
Delaware
FLL 4th Avenue Development LLC
 
Delaware
FLL Andrews Development LLC
 
Delaware
FLL Flagler Development LLC
 
Delaware
Florida DispatchCo LLC (50%)
 
Delaware
Miami Supertower A LLC
 
Delaware
Miami Supertower B LLC
 
Delaware


EX-23.2 21 s002218x10_ex23-2.htm EXHIBIT 23.2

Exhibit 23.2

Consent of Independent Registered Public Accounting Firm

We consent to the reference to our firm under the caption “Experts” and to the use of our report dated April 24, 2018 (except Note 1, as to which the date is November 16, 2018), in Amendment No. 3 to the Registration Statement (Form S-1 No. 333-228447) and related Prospectus of Virgin Trains USA LLC for the registration of 32,584,100 shares of its common stock.

/s/ Ernst & Young LLP

Miami, Florida
January 29, 2019


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