Exhibit 5.1
October __, 2004
To Each of the Persons Listed
on Schedule I Attached Hereto
Re: Macquarie Infrastructure Company LLC
Macquarie Infrastructure Company Trust
Ladies and Gentlemen:
We have been asked to render certain opinions as to matters of
Delaware law relating to each of Macquarie Infrastructure Company LLC, a
Delaware limited liability company (the "Company"), and Macquarie Infrastructure
Company Trust, a Delaware statutory trust (the "Trust"), in connection with the
proposed issuance of shares (collectively, the "Shares") in the Trust. Initially
capitalized terms used herein and not otherwise defined are used herein as
defined in that certain Amended and Restated Trust Agreement of Macquarie
Infrastructure Company Trust dated as of October __, 2004, entered into by and
among the Company, as Sponsor, Wells Fargo Delaware Trust Company, as Delaware
Trustee ("Wells Fargo", and each Regular Trustee named therein (the "Trust
Agreement").
For purposes of giving the opinions hereinafter set forth, we have
examined only the following documents:
1. The Certificate of Trust for the Trust, dated as of April
13, 2004, as filed in the Office of the Secretary of State of the State of
Delaware (the "Secretary of State") on April 13, 2004;
2. The Amended and Restated Certificate of Trust for the Trust
dated as of October 12, 2004, as filed with the Secretary of State on
October 12, 2004;
3. The Trust Agreement of the Trust dated as of April 13, 2004
by and among the Company, as Sponsor, Wells Fargo, as Delaware Trust, and
the Regular Trustees named therein;
4. The Trust Agreement;
5. A Certificate of Good Standing for the Trust dated October
__, 2004, obtained from the Secretary of State;
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Schedule I attached hereto
October __, 2004
Page 2
6. The Certificate of Formation of the Company dated April 13,
2004, as filed with the Secretary of State on April 13, 2004;
7. The Amended and Restated Certificate of Formation of the Company
dated October 12, 2004, as filed with the Secretary of State on October 12,
2004;
8. The Operating Agreement of the Company dated as of April 13,
2004 by the Trust;
9. The Amended and Restated Operating Agreement of the Company
dated as of October __, 2004 by the Trust (the "Company Agreement");
10. A Certificate of Good Standing for the Company dated October __,
2004, obtained from the Secretary of State; and
11. Amendment No. 2 to the Registration Statement No. 333-116244 on
Form S-1 filed with the Securities and Exchange Commission on or about October
__, 2004, pursuant to the Securities Act of 1933, as amended, covering the
Shares (the "Registration Statement").
The documents referred to in (1) through (4) are collectively
referred to herein as the "Trust's Organizational Documents." The documents
referred to in (6) through (9) are collectively referred to herein as the
"Company's Organizational Documents." The documents referred to in (3), (4), (8)
and (9) are collectively referred to as the "Agreements" and individually as an
"Agreement."
For purposes of this opinion, we have not reviewed any documents
other than the documents listed in (1) through (11) above. In particular, we
have not reviewed any document (other than the documents listed in (1) through
(11) above) that is referred to or incorporated by reference into the documents
reviewed by us. We have assumed that there exists no provision in any document
that we have not reviewed that is inconsistent with the opinions stated herein.
In addition, we have conducted no independent factual investigation
of our own but rather have relied solely on the foregoing documents, the
statements and information set forth therein and the additional matters related
or assumed therein, all of which we have assumed to be true, complete and
accurate.
Based upon the foregoing, and subject to the assumptions,
qualifications, limitations and exceptions set forth herein, we are of the
opinion that:
1. The Trust has been duly created and is validly existing and in
good
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Schedule I attached hereto
October __, 2004
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standing as a statutory trust under the laws of the State of Delaware.
2. Subject to the other qualifications set forth herein (including,
without limitation, paragraph 3 below), the Shares have been duly authorized and
when the Shares shall have been otherwise issued and sold in accordance with the
Trust Agreement, such Shares will be validly issued, fully paid and
non-assessable undivided beneficial interests in the assets of the Trust.
3. When and if the actions referred to in paragraph 2 have occurred,
the holders of the Shares as beneficial owners of the Shares will be entitled to
the same limitation of personal liability extended to stockholders of private
corporations for profit organized under the General Corporation Law of the State
of Delaware, except that such holders of Shares may be obligated to (a) provide
indemnity and/or security in connection with the issuance of replacement Share
Certificates for lost, stolen or destroyed Share Certificates, if any,
representing such Shares, if such holders request Share Certificates in
accordance with the Trust Agreement and such Share Certificates are lost, and
(b) pay any sum of money or assessment that such holder has personally agreed to
pay.
4. The Company has been duly formed and is validly existing and in
good standing as a limited liability company under the laws of the State of
Delaware.
5. Subject to the other qualifications set forth herein (including,
without limitation, paragraph 6 below), the LLC Interests (as defined in the
Company Agreement) have been duly authorized and when the LLC Interests shall
have been otherwise issued and sold in accordance with the Company Agreement,
such LLC Interests will be validly issued, fully paid and non-assessable.
6. When and if the actions referred to in paragraph 5 have occurred,
the holders of the LLC Interests, as members of the Company, shall have no
liability for the obligations of the Company in excess of (a) their respective
obligations to make their agreed upon contributions to the Company as provided
for in the Company's Organizational Agreements, (b) their respective obligations
to make other payments as members of the Company or otherwise as provided for in
the Agreements, (c) their respective obligations to repay to the Company, (i)
any distribution received by them in violation of the Delaware Limited Liability
Company Act, 6 Del. C. Sections 18-101 et. seq. (the "LLC Act"), and (ii) any
amount arising out of an obligation or liability under other applicable law, and
(d) their respective shares of the assets and undistributed profits of the
Company.
All of the foregoing opinions contained herein are subject to the
following assumptions, qualifications, limitations and exceptions:
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Schedule I attached hereto
October __, 2004
Page 4
a. The foregoing opinions are limited to the laws of the State
of Delaware presently in effect, excluding the securities laws thereof. We have
not considered and express no opinion on the laws of any other jurisdiction,
including, without limitation, federal laws and rules and regulations relating
thereto.
b. We have assumed the legal capacity of any natural persons
who are parties to any of the documents examined by us.
c. We have assumed that all signatures on documents examined
by us are genuine, that all documents submitted to us as originals are authentic
and that all documents submitted to us as copies conform with the originals.
d. We have assumed that there are no agreements in existence
other than the Company's Organizational Agreements that require the members of
the Company to make capital contributions to the Company. We have assumed that
the Trust's Organizational Agreements, in the case of the Trust, and the
Company's Organizational Agreements, in the case of the Company, constitute the
entire agreement among each of the respective parties thereto with respect to
the subject matter thereof, including with respect to the admission of members
and beneficial owners to, as the case may be, and the creation, operation,
dissolution and winding up of, each of the Trust and the Company, as the case
may be.
e. We have assumed the due execution and delivery by each
party thereto to each document examined by us. In addition, we have assumed
further the due authorization by each party thereto (exclusive of the Trust and
the Company, hereinafter, the "Delaware Entities") of each document examined by
us, and that each of such parties (exclusive of the Delaware Entities) has the
full power, authority, and legal right to execute, deliver and perform each such
document. We also have assumed that each of the entities to each of the
Agreements (exclusive of the Delaware Entities) has been duly formed, is validly
existing and, if applicable, in good standing under the laws of their respective
jurisdictions of organization, and that the Agreements to which each of the
entities is a party do not result in the breach of the terms of, and do not
contravene its constituent documents or any law, rule or regulation applicable
to it. We have also assumed that each of the Agreements to which each of the
entities is a party does not (x) result in the breach of the terms of, and does
not contravene, any contractual restriction binding upon such entities, or (y)
require under any law, statute, rule, or regulation any filing with, or any
approval or consent of, any governmental authority.
f. We have assumed that (i) no event of dissolution has
occurred under the Trust's Organizational Agreements or the Company's
Organizational Agreements, (ii) no termination or liquidating event (as defined
in each of the Trust Agreement and the Company Agreement, as the case may be),
has occurred under the Trust Agreement or the
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Schedule I attached hereto
October __, 2004
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Company Agreement, as the case may be, (iii) there has been no transfer by the
Trust of all or any portion of its interest in Company, (iv) there has been no
decree of dissolution under Section 18-802 of the LLC Act with respect to the
Company, and (vii) the Trust, in its capacity as sole member of the Company, has
made its required capital contributions under the Company's Organizational
Agreements.
g. We note that we do not assume responsibility for the
contents of any offering material relating to the Trust or the Shares,
including, without limitation, the Registration Statement.
h. The opinions rendered herein speak only as of the date of
this letter, and we undertake no duty to advise you as to any change in law or
change in fact occurring after the delivery of this letter that could affect any
of the opinions rendered herein.
i. Except as expressly set forth in the opinions above, we
express no opinion on any documents or agreements referred to, or incorporated
by reference into, the Agreements or the Registration Statement.
This opinion is rendered solely for your benefit in connection with
the matters set forth herein and, without our prior written consent, may not be
furnished or quoted to, or relied upon by, any other person or entity for any
purpose.
We consent to the filing of this opinion with the Securities and
Exchange Commission as an exhibit to the Registration Statement and to the use
of our name under the heading "Legal Matters" in the Prospectus. In giving the
foregoing consents, we do not thereby admit that we come within the category of
Persons whose consent is required under Section 7 of the Securities Act of 1933,
as amended, or the rules and regulations of the Securities and Exchange
Commission thereunder.
Very truly yours,
Schedule I