Execution Copy
UNDERWRITING AGREEMENT
AIRCASTLE LIMITED
Common Shares
Underwriting Agreement
----------------------
February 7, 2007
J.P. Morgan Securities Inc.
Bear, Stearns & Co. Inc.
Citigroup Global Markets
Inc.
As Representatives of the
several
Underwriters listed
in Schedule 1
hereto
c/o J.P. Morgan Securities Inc.
277 Park Avenue
New York, New York 10172
Ladies and Gentlemen:
Aircastle Limited, a Bermuda exempted company (the "Company"),
proposes to
issue and sell to the several Underwriters listed in Schedule 1
hereto (the
"Underwriters"), for whom you are acting as representatives
(the
"Representatives"), an aggregate of 13,500,000 common shares, par
value U.S.
$0.01 per share, of the Company (the "Underwritten Shares") and, at
the option
of the Underwriters, up to an additional 2,025,000 common shares of
the Company
(the "Option Shares"). The Underwritten Shares and the Option
Shares are herein
referred to as the "Shares." The common shares of the Company to be
issued and
outstanding after giving effect to the sale of the Shares are
herein referred to
as the "Stock."
As
part of the offering contemplated by this Agreement, the
Underwriters
have agreed to reserve on a pro rata basis out of the Shares set
forth opposite
their names on Schedule 1 to this Agreement, up to 1,552,500 of the
common
shares, for sale to the Company's employees, officers, and
directors and other
parties associated with the Company (collectively, "Participants")
(the
"Directed Share Program"). The Shares to be sold by or on behalf of
the
Underwriters pursuant to the Directed Share Program (the "Directed
Shares") will
be sold pursuant to this Agreement at the public offering price.
Any Directed
Shares not confirmed for purchase by any Participants via the
Company's Directed
Share Program web site or orally by telephone by 8:00 A.M., New
York City time,
on the day immediately following the date on which this Agreement
is executed
will be offered to the public with the remaining Shares.
The
Company hereby confirms its agreement with the several
Underwriters
concerning the purchase and sale of the Shares, as follows:
1.
Registration Statement. The Company has prepared and filed with
the
Securities and Exchange Commission (the "Commission") under the
Securities Act
of 1933, as amended, and the rules and regulations of the
Commission thereunder
(collectively, the "Securities Act"), a registration statement on
Form S-1 (File
No. 333-140228), including a prospectus, relating to the Shares.
Such
registration statement, as amended at the time it becomes
effective, including
the information, if any, deemed pursuant to Rule 430A under the
Securities Act
to be part of the registration statement at the time of its
effectiveness ("Rule
430A Information"), is referred to herein as the "Registration
Statement"; and
as used herein, the term "Preliminary Prospectus" means each
prospectus included
in such registration statement (and any amendments thereto) before
it becomes
effective (including any prospectus wrapper or Directed Share
Program material
prepared by or with the consent of the Company for distribution in
connection
with the Directed Share Program attached to or included with any
preliminary
prospectus), any prospectus filed with the Commission pursuant to
Rule 424(a)
under the Securities Act and the prospectus included in the
Registration
Statement at the time of its effectiveness that omits Rule 430A
Information, and
the term "Prospectus" means the final prospectus in the form first
used (or made
available to the Underwriters for delivery, upon request of
purchasers pursuant
to Rule 173 under the Securities Act) in connection with sales of
the Shares
(including any prospectus wrapper or Directed Share Program
material prepared by
or with the consent of the Company for distribution in connection
with the
Directed Share Program attached to or included with final
prospectus). If the
Company has filed an abbreviated registration statement pursuant to
Rule 462(b)
under the Securities Act (the "Rule 462 Registration Statement"),
then any
reference herein to the term "Registration Statement" shall be
deemed to include
such Rule 462 Registration Statement. Capitalized terms used but
not defined
herein shall have the meanings given to such terms in the
Registration Statement
and the Prospectus.
At
or prior to the time when sales of the Shares were first made (the
"Time
of Sale"), the Company had prepared the following information
(collectively with
the pricing information set forth on Annex A, the "Time of Sale
Information"): a
Preliminary Prospectus dated February 1, 2007, and each
"free-writing
prospectus" (as defined pursuant to Rule 405 under the Securities
Act) listed on
Annex B(ii) hereto.
2.
Purchase of the Shares by the Underwriters. (a) The Company agrees
to
issue and sell the Shares to the several Underwriters as provided
in this
Agreement, and each Underwriter, on the basis of the
representations, warranties
and agreements set forth herein and subject to the conditions set
forth herein,
agrees, severally and not jointly, to purchase from the Company the
respective
number of Underwritten Shares set forth opposite such Underwriter's
name in
Schedule 1 hereto at a price per share (the "Purchase Price") of
U.S. $31.845.
In
addition, the Company agrees to issue and sell the Option Shares to
the
several Underwriters as provided in this Agreement, and the
Underwriters, on the
basis of the representations, warranties and agreements set forth
herein and
subject to the conditions set forth herein, shall have the option
to purchase,
severally and not jointly, from the Company the Option Shares at
the Purchase
Price less an amount equal to any dividends or distributions paid
or payable on
the Underwritten Shares but not payable on such Option Shares.
If
any Option Shares are to be purchased, the number of Option Shares
to be
purchased by each Underwriter shall be the number of Option Shares
which bears
the same ratio to the aggregate number of Option Shares being
purchased as the
number of Underwritten Shares set forth opposite the name of such
Underwriter in
Schedule 1 hereto (or such number increased as set forth in Section
10 hereof)
bears to the aggregate number of Underwritten Shares being
purchased from the
Company by the several Underwriters, subject, however, to such
adjustments to
eliminate any fractional Shares as the Representatives in their
sole discretion
shall make.
The
Underwriters may exercise the option to purchase the Option Shares
at
any time in whole, or from time to time in part, on or before the
thirtieth day
following the date of this Agreement, by written notice from the
Representatives
to the Company. Such notice shall set forth the aggregate number of
Option
Shares as to which the option is being exercised and the date and
time when the
Option Shares are to be issued and paid for which may be the same
date and time
as the Closing Date (as hereinafter defined) but shall not be
earlier than the
Closing Date nor later than the tenth full business day (as
hereinafter defined)
after the date of such notice (unless such time and date are
postponed in
accordance with the provisions of Section 10 hereof). Any such
notice shall be
given at least two business days prior to the date and time of
issue specified
therein.
(b)
The Company understands that the Underwriters intend to make a
public
offering of the Shares as soon after the effectiveness of this
Agreement as in
the judgment of the Representatives is advisable, and initially to
offer the
Shares on the terms set forth in the Prospectus. The Company
acknowledges and
agrees that the Underwriters may offer and sell Shares to or
through any
affiliate of an Underwriter and that any such affiliate may offer
and sell
Shares purchased by it to or through any Underwriter.
(c)
Payment for the Shares shall be made by wire transfer in
immediately
available funds to the account specified by the Company to the
Representatives
in the case of the Underwritten Shares, at the offices of Sidley
Austin LLP at
10:00 A.M., New York City time, on February 13, 2007, or at such
other time or
place on the same or such other date, not later than the fifth
business day
thereafter, as the Representatives and the Company may agree upon
in writing or,
in the case of the Option Shares, on the date and at the time and
place
specified by the Representatives in the written notice of the
Underwriters'
election to purchase such Option Shares. The time and date of such
payment for
the Underwritten Shares is referred to herein as the "Closing Date"
and the time
and date for such payment for the Option Shares, if other than the
Closing Date,
is herein referred to as the "Additional Closing Date."
Payment for the Shares to be purchased on the Closing Date or
the
Additional Closing Date, as the case may be, shall be made against
issue to the
Representatives for the respective accounts of the several
Underwriters of the
Shares to be purchased on such date in definitive form registered
in such names
and in such denominations as the Representatives shall request in
writing not
later than two full business days prior to the Closing Date or the
Additional
Closing Date, as the case may be, with any transfer taxes payable
in connection
with the sale of the Shares duly paid by the Company. The
certificates for the
Shares will be made available for inspection and packaging by
the
Representatives at the office of J.P. Morgan Securities Inc. set
forth above not
later than 1:00 P.M., New York City time, on the business day prior
to the
Closing Date or the Additional Closing Date, as the case may
be.
(d)
The Company acknowledges and agrees that the Underwriters are
acting
solely in the capacity of an arm's length contractual counterparty
to the
Company with respect to the offering of Shares contemplated hereby
(including in
connection with determining the terms of the offering) and not as a
financial
advisor or a fiduciary to, or an agent of, the Company or any other
person.
Additionally, none of the Representatives or other Underwriters are
advising the
Company or any other person as to any legal, tax, investment,
accounting or
regulatory matters in any jurisdiction. The Company shall consult
with its own
advisors concerning such matters and shall be responsible for
making its own
independent investigation and appraisal of the transactions
contemplated hereby,
and the Underwriters shall have no responsibility or liability to
the Company
with respect thereto. Any review by the Underwriters of the
Company, the
transactions contemplated hereby or other matters relating to such
transactions
will be performed solely for the benefit of the Underwriters and
shall not be on
behalf of the Company.
3.
Representations and Warranties of the Company. The Company
represents
and warrants to each Underwriter that:
(a)
Preliminary Prospectus. No order preventing or suspending the use
of
any Preliminary Prospectus has been issued by the Commission, and
each
Preliminary Prospectus, at the time of filing thereof, complied in
all material
respects with the Securities Act and did not contain any untrue
statement of a
material fact or omit to state a material fact required to be
stated therein or
necessary in order to make the statements therein, in the light of
the
circumstances under which they were made, not misleading; provided
that the
Company makes no representation and warranty with respect to any
statements or
omissions made in reliance upon and in conformity with information
relating to
any Underwriter furnished to the Company in writing by such
Underwriter through
the Representatives expressly for use in any Preliminary
Prospectus.
(b)
Time of Sale Information. The Time of Sale Information, at the Time
of
Sale did not, and at the Closing Date and as of the Additional
Closing Date, as
the case may be, will not, contain any untrue statement of a
material fact or
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;
provided that the Company makes no representation and warranty with
respect to
any statements or omissions made in reliance upon and in conformity
with
information relating to any Underwriter furnished to the Company in
writing by
such Underwriter through the Representatives expressly for use in
such Time of
Sale Information. No statement of material fact included in the
Prospectus has
been omitted from the Time of Sale Information and no statement of
material fact
included in the Time of Sale Information that is required to be
included in the
Prospectus has been omitted therefrom.
(c)
Issuer Free Writing Prospectus. Other than the Preliminary
Prospectus
and the Prospectus, the Company (including its agents and
representatives, other
than the Underwriters in their capacity as such) has not made,
used, prepared,
authorized, approved or referred to and will not prepare, make,
use, authorize,
approve or refer to any "written communication" (as defined in Rule
405 under
the Securities Act) that constitutes an offer to sell or
solicitation of an
offer to buy the Shares (each such communication by the Company or
its agents
and representatives (other than a communication referred to in
clause (i) below)
an "Issuer Free Writing Prospectus") other than (i) any document
not
constituting a prospectus pursuant to Section 2(a)(10)(a) of the
Securities Act
or Rule 134 under the Securities Act or (ii) the documents listed
on Annex B(i)
or Annex B(ii) hereto and other written communications approved in
writing in
advance by the Representatives. Each such Issuer Free Writing
Prospectus
complied in all material respects with the Securities Act, has been
filed in
accordance with the Securities Act (to the extent required thereby)
and, when
taken together with the Preliminary Prospectus accompanying, or
delivered prior
to delivery of, such Issuer Free Writing Prospectus, did not, and
at the Closing
Date and as of the Additional Closing Date, as the case may be,
will not,
contain any untrue statement of a material fact or 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; provided
that the
Company makes no representation and warranty with respect to any
statements or
omissions made in each such Issuer Free Writing Prospectus in
reliance upon and
in conformity with information relating to any Underwriter
furnished to the
Company in writing by such Underwriter through the Representatives
expressly for
use in any Issuer Free Writing Prospectus.
(d)
Registration Statement and Prospectus. The Registration Statement
has
been declared effective by the Commission. No order suspending the
effectiveness
of the Registration Statement has been issued by the Commission
and, to the
Company's knowledge, no proceeding for that purpose or pursuant to
Section 8A of
the Securities Act against the Company or related to the offering
has been
initiated or, to the Company's knowledge, is contemplated or
threatened by the
Commission; as of the applicable effective date of the Registration
Statement
and any amendment thereto, the Registration Statement complied and
will comply
in all material respects with the Securities Act, and neither the
Registration
Statement nor any amendment thereto contained or will contain any
untrue
statement of a material fact or omit to state a material fact
required to be
stated therein or necessary in order to make the statements therein
not
misleading; and as of the date of the Prospectus and any amendment
or supplement
thereto and as of the Closing Date and as of the Additional Closing
Date, as the
case may be, neither the Prospectus nor any amendment or supplement
thereto will
contain any untrue statement of a material fact or omit to state a
material fact
required to be stated therein or necessary in order to make the
statements
therein, in the light of the circumstances under which they were
made, not
misleading; provided that the Company makes no representation and
warranty with
respect to any statements or omissions made in reliance upon and in
conformity
with information relating to any Underwriter furnished to the
Company in writing
by such Underwriter through the Representatives expressly for use
in the
Registration Statement and the Prospectus and any amendment or
supplement
thereto.
(e)
Financial Statements. The financial statements together with
the
related notes thereto of the Company and its consolidated
subsidiaries included
in the Registration Statement, the Time of Sale Information and the
Prospectus
comply in all material respects with the applicable requirements of
the
Securities Act and present fairly in all material respects the
financial
position of the Company and its subsidiaries as of the dates
indicated and the
results of their operations and the changes in their cash flows for
the periods
specified; such financial statements have been prepared in
conformity with U.S.
generally accepted accounting principles applied on a consistent
basis
throughout the periods covered thereby, and the supporting
schedules, if any,
included in the Registration Statement present fairly in all
material respects
the information required to be stated therein; and the other
financial
information included in the Registration Statement, the Time of
Sale Information
and the Prospectus has been derived from the accounting records of
the Company
and its subsidiaries and presents fairly in all material respects
the
information shown thereby; and the Company is not required to
include any pro
forma financial statements or the financial statements of any other
business or
entity in the Registration Statement, the Time of Sale Information
or the
Prospectus under the Securities Act.
(f)
No Material Adverse Change. Since the date of the most recent
financial
statements of the Company included in the Registration Statement,
the Time of
Sale Information and the Prospectus, except in each case as
otherwise disclosed
in the Registration Statement, the Time of Sale Information and the
Prospectus,
(i) there has not been any change in the share capital or long-term
debt of the
Company or any of its subsidiaries, or any dividend or distribution
of any kind
declared, set aside for payment, paid or made by the Company on any
class of
shares, or any material adverse change, or any development
involving a
prospective material adverse change, in or affecting the business,
properties,
management, financial position, shareholders' equity, results of
operations or
prospects of the Company and its subsidiaries taken as a whole
(other than
changes (a) in the ordinary course of business in amounts
outstanding under the
Company's credit facilities or repurchase agreements described in
the
Registration Statement, the Time of Sale Information and the
Prospectus, or (b)
due to issuances of the Company's common shares or securities
convertible or
exercisable into the Company's common shares under the Company's
employee
benefit and option plans described in the Registration Statement,
the Time of
Sale Information and the Prospectus, including the settlement of a
restricted
share award), (ii) neither the Company nor any of its subsidiaries
has entered
into any transaction or agreement that is material to the Company
and its
subsidiaries taken as a whole or incurred any liability or
obligation, direct or
contingent, that is material to the Company and its subsidiaries
taken as a
whole and (iii) neither the Company nor any of its subsidiaries has
sustained
any 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 any action, order or decree of any court or arbitrator
or
governmental or regulatory authority which is material to the
Company and its
subsidiaries taken as a whole.
(g)
Organization and Good Standing. The Company and each
"significant
subsidiary" (as defined in Rule 1-02 of Regulation S-X) of the
Company, which
are listed on Schedule 2 of this Agreement (the "Significant
Subsidiaries"),
have been duly organized and are validly existing and in good
standing under the
laws of their respective jurisdiction of incorporation or
formation, as
applicable, are duly qualified to do business and are in good
standing in each
jurisdiction in which their respective ownership or lease of
property or the
conduct of their respective businesses requires such qualification,
and have all
power and authority necessary to own or hold their respective
properties and to
conduct the businesses in which they are engaged, except where the
failure to be
so qualified or have such power or authority would not,
individually or in the
aggregate, reasonably be expected to have a material adverse effect
on the
business, properties, management, financial position, shareholders'
equity,
results of operations or prospects of the Company and its
subsidiaries taken as
a whole (a "Material Adverse Effect"). The Company does not own or
control,
directly or indirectly, any company, corporation, association or
other entity
other than (i) the subsidiaries listed in Exhibit 21.1 to the
Registration
Statement and (ii) subsidiaries, if considered in the aggregate as
a single
subsidiary, would not constitute a "significant subsidiary" (as
defined in Rule
1-02 of Regulation S-X).
(h)
Capitalization. The Company has an authorized capitalization as
set
forth in the Registration Statement, the Time of Sale Information
and the
Prospectus under the heading "Capitalization"; all the issued
shares of the
Company have been duly and validly authorized and issued and are
fully paid and
non-assessable (except for directors' qualifying shares, if any,
and except as
set forth in the Registration Statement, the Time of Sale
Information and the
Prospectus) and except as described in or expressly contemplated by
the
Registration Statement, the Time of Sale Information and the
Prospectus, are not
subject to any preemptive or similar rights; there are no
outstanding rights
(including, without limitation, preemptive rights), warrants or
options to
acquire, or instruments convertible into or exchangeable for, any
shares or
other equity interest in the Company or any of its subsidiaries, or
any
contract, commitment, agreement, understanding or arrangement of
any kind
relating to the issuance of shares in the capital of the Company or
any such
subsidiary, any such convertible or exchangeable securities or any
such rights,
warrants or options; the share capital of the Company conforms in
all material
respects to the description thereof contained in the Registration
Statement, the
Time of Sale Information and the Prospectus; and all the
outstanding shares or
other equity interests of each Significant Subsidiary of the
Company have been
duly and validly authorized and issued, are fully paid and
non-assessable
(except for directors' qualifying shares and except as set forth in
the
Registration Statement, the Time of Sale Information and the
Prospectus) and,
except as otherwise described in the Registration Statement, the
Time of Sale
Information and the Prospectus, are owned directly or indirectly by
the Company,
free and clear of any lien, charge, encumbrance, security interest,
restriction
on voting or transfer or any other claim of any third party.
(i)
Due Authorization. The Company has full right, power and authority
to
execute and deliver this Agreement and to perform its obligations
hereunder.
(j)
Underwriting Agreement. This Agreement has been duly
authorized,
executed and delivered by the Company.
(k)
The Shares. The Shares have been duly authorized for issuance and
sale
by the Company and, when issued and delivered and paid for as
provided herein,
will be duly and validly issued and will be fully paid and
non-assessable and
will conform to the descriptions thereof in the Registration
Statement, the Time
of Sale Information and the Prospectus; and the issuance of the
Shares is not
subject to any preemptive or similar rights.
(l)
No Violation or Default. Neither the Company nor any of its
subsidiaries is (i) in violation of its charter, memorandum of
association,
bye-laws or similar organizational documents, as applicable, (ii)
in default,
and no event has occurred that, with notice or lapse of time or
both, would
constitute such a default, in the due performance or observance of
any term,
covenant or condition contained in any indenture, mortgage, deed of
trust, loan
agreement or other agreement or instrument to which the Company or
any of its
subsidiaries is a party or by which the Company or any of its
subsidiaries is
bound or to which any of the property or assets of the Company or
any of its
subsidiaries is subject or (iii) in violation of any law or statute
or any
judgment, order, rule or regulation of any court or arbitrator or
governmental
or regulatory authority, except, in the case of clause (i) above,
with respect
to subsidiaries of the Company other than the Significant
Subsidiaries and in
the case of clauses (ii) and (iii) above, for any such default or
violation that
would not, individually or in the aggregate, reasonably be expected
to have a
Material Adverse Effect.
(m)
No Conflicts. The execution, delivery and performance by the
Company of
this Agreement, the issuance and sale of the Shares and the
consummation of the
transactions contemplated by this Agreement will not (i) conflict
with or result
in a breach or violation of any of the terms or provisions of, or
constitute a
default under, or result in the creation or imposition of any lien,
charge or
encumbrance upon any property or assets of the Company or any of
its
subsidiaries pursuant to, any indenture, mortgage, deed of trust,
loan agreement
or other agreement or instrument to which the Company or any of its
subsidiaries
is a party or by which the Company or any of its subsidiaries is
bound or to
which any of the property or assets of the Company or any of its
subsidiaries is
subject, (ii) result in any violation of the provisions of the
charter,
memorandum of association, bye-laws or similar organizational
documents of the
Company or any of its subsidiaries or (iii) result in the violation
of any law
or statute or any judgment, order, rule or regulation of any court
or arbitrator
or governmental or regulatory authority, except in the case of
clauses (i) and
(iii) above, for any such conflict, breach or violation that would
not,
individually or in the aggregate, reasonably be expected to have a
Material
Adverse Effect.
(n)
No Consents Required. No consent, approval, authorization,
order,
registration or qualification of or with any court or arbitrator or
governmental
or regulatory authority, in Bermuda, the United States or
otherwise, is required
for the execution, delivery and performance by the Company of this
Agreement,
the issuance and sale of the Shares and the consummation of the
transactions
contemplated by this Agreement, except for (i) the registration of
the Shares
under the Securities Act, (ii) such as have already been obtained
or as may be
required by the rules of the New York Stock Exchange (the "NYSE")
or the
National Association of Securities Dealers, Inc., (iii) such
consents,
approvals, authorizations, orders and registrations or
qualifications as may be
required under applicable state securities laws in connection with
the purchase
and distribution of the Shares by the Underwriters, (iv) the filing
of the
Prospectus under the Companies Act of 1981 of Bermuda in connection
with the
offer and sale of the Shares and (v) such as may be required and
have been
obtained from the Bermuda Monetary Authority.
(o)
Legal Proceedings. Except as described in the Registration
Statement,
the Time of Sale Information and the Prospectus, there are no
legal,
governmental or regulatory investigations, actions, suits,
proceedings,
inquiries or investigations pending to which the Company or any of
its
subsidiaries is or may be a party or to which any property of the
Company or any
of its subsidiaries is or may be the subject that, individually or
in the
aggregate, if determined adversely to the Company or any of its
subsidiaries,
could reasonably be expected to have a Material Adverse Effect or
materially and
adversely affect the ability of the Company to perform its
obligations under
this Agreement; no such investigations, actions, suits,
proceedings, inquiries
or investigations are, to the knowledge of the Company, threatened
or
contemplated by any governmental or regulatory authority or
threatened by
others; and (i) there are no current or pending legal, governmental
or
regulatory actions, suits, proceedings, inquiries or investigations
that are
required under the Securities Act to be described in the
Registration Statement
or the Prospectus that are not so described in the Registration
Statement, the
Time of Sale Information and the Prospectus and (ii) there are no
contracts or
other documents that are required under the Securities Act to be
filed as
exhibits to the Registration Statement or described in the
Registration
Statement or the Prospectus that are not so filed as exhibits to
the
Registration Statement or described in the Registration Statement,
the Time of
Sale Information and the Prospectus.
(p)
Independent Accountants. Ernst & Young LLP, who has certified
certain
financial statements of the Company and its subsidiaries, is an
independent
registered public accounting firm with respect to the Company and
its
subsidiaries within the applicable rules and regulations adopted by
the
Commission and the Public Accounting Oversight Board (United
States) and as
required by the Securities Act.
(q)
Title to Real and Personal Property. Except as described in the
Registration Statement, the Time of Sale Information and the
Prospectus, the
Company and its subsidiaries have good and marketable title in fee
simple to, or
have valid rights to lease or otherwise use, all items of real and
personal
property that are material to the respective businesses of the
Company and its
subsidiaries, in each case free and clear of all liens,
encumbrances, claims and
defects and imperfections of title except those that (i) do not
materially
interfere with the use made and proposed to be made of such
property by the
Company and its subsidiaries or (ii) could not reasonably be
expected,
individually or in the aggregate, to have a Material Adverse
Effect.
(r)
Title to Intellectual Property. The Company and its subsidiaries
own or
possess adequate rights to use all material patents, patent
applications,
trademarks, service marks, trade names, trademark registrations,
service mark
registrations, copyrights, licenses and know-how (including trade
secrets and
other unpatented and/or unpatentable proprietary or confidential
information,
systems or procedures) necessary for the conduct of their
respective businesses;
and the conduct of their respective businesses will not conflict in
any material
respect with any such rights of others, and the Company and its
subsidiaries
have not received any notice of any claim of infringement or
conflict with any
such rights of others.
(s)
No Undisclosed Relationships. No relationship, direct or, to
the
Company's knowledge, indirect, exists between or among the Company
or any of its
subsidiaries, on the one hand, and Fortress Investment Group LLC
("Fortress")
and the directors, officers, shareholders, members, customers or
suppliers of
the Company or Fortress or any of their respective subsidiaries or
other
affiliates, on the other, that is required by the Securities Act to
be described
in the Registration Statement and the Prospectus and that is not so
described in
such documents and in the Time of Sale Information.
(t)
Investment Company Act. The Company is not and, after giving effect
to
the offering and sale of the Shares and the application of the
proceeds thereof
as described in the Registration Statement, the Time of Sale
Information and the
Prospectus, will not be required to register as an "investment
company" or an
entity "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 (collectively, "Investment Company Act").
(u)
Taxes. The Company and its subsidiaries have paid all Bermuda,
Ireland,
U.S. federal, state and local and foreign taxes and filed all tax
returns
required to be paid or filed through the date hereof except with
respect to
taxes and tax returns contested in good faith and except where the
failure to so
pay or file would not, individually or in the aggregate, reasonably
be expected
to have a Material Adverse Effect; and except as otherwise
disclosed in the
Registration Statement, the Time of Sale Information and the
Prospectus, no tax
deficiency has been determined adversely to the Company or any of
its
subsidiaries or any of their respective properties or assets which
would,
individually or in the aggregate, reasonably be expected to have a
Material
Adverse Effect; and the Company does not have any knowledge of any
tax
deficiency which, if determined adversely to the Company or any of
its
subsidiaries, would, individually or in the aggregate, reasonably
be expected to
have a Material Adverse Effect.
(v)
Licenses and Permits. The Company and its subsidiaries possess
all
licenses, certificates, permits and other authorizations issued by,
and have
made all declarations and filings with, the appropriate Bermuda,
Ireland, U.S.
federal, state and local or foreign governmental or regulatory
authorities that
are necessary for the ownership or lease of their respective
properties or the
conduct of their respective businesses as described in the
Registration
Statement, the Time of Sale Information and the Prospectus, except
where the
failure to possess or make the same would not, individually or in
the aggregate,
reasonably be expected to have a Material Adverse Effect; and
except as
described in the Registration Statement, the Time of Sale
Information and the
Prospectus, neither the Company nor any of its subsidiaries has
received notice
of any revocation or materially adverse modification of any such
license,
certificate, permit or authorization or has any reason to believe
that any such
license, certificate, permit or authorization will not be renewed
in the
ordinary course.
(w)
No Labor Disputes. No labor disturbance by or dispute with
employees of
the Company or any of its subsidiaries exists or, to the knowledge
of the
Company, is contemplated or threatened and the Company is not aware
of any
existing or imminent labor disturbance by, or dispute with, the
employees of any
of its or its subsidiaries' principal suppliers, contractors or
customers,
except, in each case, as would not have a Material Adverse
Effect.
(x)
Compliance With Environmental Laws. (i) The Company and its
subsidiaries (x) are in compliance with any and all applicable
Bermuda, Ireland,
U.S. federal, state and local and foreign laws, rules,
regulations,
requirements, decisions and orders relating to the protection of
human health
and safety, the environment or hazardous or toxic substances or
wastes,
pollutants or contaminants (collectively, "Environmental Laws"),
(y) have
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 and (z) have not received
notice of any
actual or potential liability for the investigation or remediation
of any
disposal or release of hazardous or toxic substances or wastes,
pollutants or
contaminants, and (ii) there are no costs or liabilities associated
with
Environmental Laws of or relating to the Company or its
subsidiaries, except in
the case of each of clauses (i) and (ii) above, for any such
failure to comply,
or failure to receive required permits, licenses or approvals, or
cost or
liability, as would not, individually or in the aggregate, have a
Material
Adverse Effect.
(y)
Compliance With ERISA. Each employee benefit plan, within the
meaning
of Section 3(3) of the Employee Retirement Income Security Act of
1974, as
amended ("ERISA"), that is maintained, administered or contributed
to by the
Company or any of its affiliates for employees or former employees
of the
Company and its affiliates has been maintained in compliance in all
material
respects with its terms and the requirements of any applicable
statutes, orders,
rules and regulations, including but not limited to ERISA and the
Internal
Revenue Code of 1986, as amended (the "Code"); no prohibited
transaction, within
the meaning of Section 406 of ERISA or Section 4975 of the Code,
has occurred
with respect to any such plan excluding transactions effected
pursuant to a
statutory or administrative exemption; and for each such plan that
is subject to
the funding rules of Section 412 of the Code or Section 302 of
ERISA, no
"accumulated funding deficiency" as defined in Section 412 of the
Code has been
incurred, whether or not waived, and the fair market value of the
assets of each
such plan (excluding for these purposes accrued but unpaid
contributions)
exceeds the present value of all benefits accrued under such plan
determined
using reasonable actuarial assumptions.
(z)
Accounting and Disclosure Controls. The Company (individually and
on a
consolidated basis) and its subsidiaries maintain systems of
"internal control
over financial reporting" (as defined in Rule 13a-15(f) of the
Securities
Exchange Act of 1934, as amended, and the rules and regulations of
the
Commission thereunder (collectively, the "Exchange Act")), that
complies with
the requirements of the Exchange Act and has been designed by the
Company's
principal executive officer and principal financial officer, or
under their
supervision, sufficient to provide reasonable assurance that: (i)
transactions
are executed in accordance with management's general or specific
authorizations;
(ii) transactions are recorded as necessary to permit preparation
of financial
statements in conformity with U.S. generally accepted accounting
principles and
to maintain asset accountability; (iii) access to assets is
permitted only in
accordance with management's general or specific authorization; and
(iv) the
recorded accountability for assets is compared with the existing
assets at
reasonable intervals and appropriate action is taken with respect
to any
differences. The Company's internal control over financial
reporting is
effective and the Company is not aware of any material weakness in
its internal
control over financial reporting.
Since the date of the latest audited financial statements of the
Company
included in the Prospectus, there has been 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.
The
Company maintains disclosure controls and procedures (as such term
is
defined in Rule 13a-15(e) under the Exchange Act) that comply with
the
requirements of the Exchange Act; such disclosure controls and
procedures have
been designed to ensure that material information relating to the
Company and
its subsidiaries is made known to the Company's principal executive
officer and
principal financial officer by others within those entities; and
such disclosure
controls and procedures are effective.
(aa)
Insurance. The Company and its subsidiaries have insurance
covering
their respective properties, operations, personnel and businesses,
including
business interruption insurance, which insurance is in amounts and
insures
against such losses and risks as are customary for entities engaged
in similar
businesses in similar industries and as are adequate in accordance
with the
Company's reasonable business judgment to protect the Company and
its
subsidiaries and their respective businesses; and neither the
Company nor any of
its subsidiaries has (i) received notice from any insurer or agent
of such
insurer that material capital improvements or other material
expenditures are
required or necessary to be made in order to continue such
insurance or (ii) 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 at
reasonable cost from similar insurers as may be necessary to
continue its
business.
(bb)
No Unlawful Payments. None of the Company, any of the Company's
subsidiaries or, to the knowledge of the Company, any director,
officer, agent,
employee or other person associated with or acting on behalf of the
Company or
any of its subsidiaries has (i) used any corporate funds for any
unlawful
contribution, gift, entertainment or other unlawful expense
relating to
political activity, (ii) made any direct or indirect unlawful
payment to any
foreign or domestic government official or employee from corporate
funds, (iii)
violated or is in violation of any provision of the Foreign Corrupt
Practices
Act of 1977 or (iv) made any bribe, rebate, payoff, influence
payment, kickback
or other unlawful payment.
(cc)
Compliance with Money Laundering Laws. The operations of the
Company
and its subsidiaries are and have been conducted at all times in
compliance in
all material respects with applicable financial recordkeeping and
reporting
requirements of the Currency and Foreign Transactions Reporting Act
of 1970, as
amended, the money laundering statutes of all jurisdictions, the
rules and
regulations thereunder and any related or similar rules,
regulations or
guidelines, issued, administered or enforced by any governmental
agency
(collectively, the "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 Company or any of its subsidiaries with respect to
the Money
Laundering Laws is pending or, to the knowledge of the Company,
threatened.
(dd)
Compliance with OFAC. None of the Company, any of the Company's
subsidiaries or, to the knowledge of the Company, an
