UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 OR 15(d)
of the Securities Exchange Act of 1934
Date of Report (Date of Earliest Event Reported): March 25, 2021
(Exact Name of Registrant as Specified in its Charter)
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(State or Other Jurisdiction of Incorporation)
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(Commission File Number)
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(IRS Employer Identification No.)
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(Address of Principal Executive Offices) (Zip Code)
(212 ) 798-6100
(Registrant’s Telephone Number, Including Area Code)
Not Applicable
(Former Name or Former Address, if Changed Since Last Report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the
following provisions:
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Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
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Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
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Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
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Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
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Securities registered pursuant to Section 12(b) of the Act:
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Title of each class:
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Trading Symbol(s):
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Name of each exchange on which registered:
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Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
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 pursuant to Section 13(a) of the Exchange Act. ☐
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Item 1.01
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Entry into a Material Definitive Agreement.
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The information set forth below under Item 3.03 of this Current Report on Form 8-K is hereby incorporated by reference into this Item 1.01.
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Item 3.03
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Material Modifications to Rights of Security Holders.
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As previously disclosed, on March 18, 2021, Fortress Transportation and Infrastructure Investors LLC (the “Company”) entered into an
underwriting agreement (the “Underwriting Agreement”) with Morgan Stanley & Co. LLC, Citigroup Global Markets Inc., J.P. Morgan Securities LLC, Stifel, Nicolaus & Company, Incorporated, UBS Securities LLC, BTIG, LLC, Cantor Fitzgerald &
Co., Compass Point Research & Trading, LLC, JMP Securities LLC, Raymond James & Associates, Inc., The Benchmark Company, LLC, The Oak Ridge Financial Services Group, Inc. and WR Securities, LLC as underwriters (collectively, the
“Underwriters”), relating to a registered public offering (the “Offering”) of 4,000,000 of its 8.25% Series C Fixed-Rate Reset Cumulative Perpetual Redeemable Preferred Shares, par value $0.01 per share (“Series C Preferred Shares”), and up to
600,000 additional Series C Preferred Shares pursuant to an over-allotment option granted to the Underwriters. The Underwriters notified the Company of their intent to exercise their over-allotment option with respect to an additional 200,000 shares
on March 24, 2021, and the Offering closed on March 25, 2021. In connection with the issuance of the Series C Preferred Shares, on March 25, 2021, the Company amended and restated its Third Amended and Restated Limited Liability Company Agreement,
which now includes a Share Designation (the “Share Designation”) with respect to the Series C Preferred Shares.
The Share Designation provides that the Company will pay, when, as and if declared by the Company’s board of directors, out of funds legally available for such purpose, quarterly cumulative cash distributions on the Series C Preferred Shares at a rate equal to (i) for each Distribution
Period (as defined in the Share Designation) from, and including, March 25, 2021 to, but excluding, June 15, 2026 (the “First Reset Date”), 8.25% per annum, and (ii) for each Distribution Period beginning on the First Reset Date, during each Reset
Period (as defined in the Share Designation), the Five-Year Treasury Rate (as defined in the Share Designation) as of the most recent Reset Distribution Determination Date (as defined in the Share Designation) plus a spread of 737.8 basis points per
annum.
The Series C Preferred Shares rank senior and prior to the Company’s common shares and pari passu with the Company’s 8.25% Series A Fixed-to-Floating Rate Cumulative Perpetual
Redeemable Preferred Shares and 8.00% Series B Fixed-to-Floating Rate Cumulative Perpetual Redeemable Preferred Shares, in each case with respect to the payment of distributions and rights upon the Company’s liquidation, dissolution or winding up.
On or after June 15, 2026, the Company may redeem the Series C Preferred Shares, in whole or in part, at any time or from time to time, at
a redemption price of $25.00 per Series C Preferred Share, plus an amount equal to all accumulated and unpaid distributions thereon, if any, to, but excluding, the date of redemption, whether or not declared.
At any time within 120 days after the conclusion of any review or appeal process instituted by the Company following the occurrence of a
Rating Event (as defined in the Share Designation), the Company may, at its option, redeem the Series C Preferred Shares in whole, but not in part, prior to June 15, 2026, at a redemption price per Series C Preferred Share equal to $25.50, plus an
amount equal to all accumulated and unpaid distributions thereon, if any, to, but excluding, the date of redemption, whether or not declared.
If a Tax Redemption Event (as defined in the Share Designation) occurs, the Company may, at its option, redeem the Series C Preferred
Shares, in whole but not in part, prior to June 15, 2026 and within 60 days after the occurrence of such Tax Redemption Event, at a redemption price of $25.25 per Series C Preferred Share, plus an amount equal to all accumulated and unpaid
distributions thereon, if any, to, but excluding, the date of redemption, whether or not declared.
If a Change of Control (as defined in the Share Designation) occurs, the Company may, at its option, redeem the Series C Preferred Shares,
in whole but not in part, prior to June 15, 2026 and within 60 days after the occurrence of such Change of Control, at a price of $25.25 per Series C Preferred Share, plus an amount equal to all accumulated and unpaid distributions thereon to, but
excluding, the date of redemption, whether or not declared. If a Change of Control occurs (whether before, on or after June 15, 2026) and the Company does not give notice prior to the 31st day following the Change of Control to redeem all the
outstanding Series C Preferred Shares, the distribution rate per annum on the Series C Preferred Shares will increase by 500 basis points, beginning on the 31st day following such Change of Control.
The Series C Preferred Shares have no stated maturity, are not subject to any sinking fund or mandatory redemption and will remain
outstanding indefinitely unless repurchased or redeemed by the Company.
Holders of Series C Preferred Shares generally have no voting rights, but they will have limited voting rights if the Company fails to pay
dividends for six or more quarterly distribution periods (whether or not consecutive) and under certain other circumstances.
The foregoing description of the terms of the Series C Preferred Shares is qualified in its entirety by reference to the Fourth Amended and
Restated Limited Liability Company Agreement (including the Share Designation), a copy of which is filed as Exhibit 3.1 to the Company’s Form 8-A
filed on March 25, 2021 and is incorporated herein by reference. A copy of the form of a certificate representing Series C Preferred Shares is filed as Exhibit 4.1 to the Company’s Form 8-A filed on March 25, 2021 and is incorporated herein by
reference.
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Item 9.01
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Financial Statements and Exhibits.
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(d) Exhibits.
Exhibit Index
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Exhibit
Number
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Description
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Fourth Amended and Restated Limited Liability Company Agreement of Fortress Transportation and Infrastructure Investors LLC, dated as of March 25,
2021 (incorporated by reference to Exhibit 3.2 to Fortress Transportation and Infrastructure Investors LLC’s Form 8-A, filed March 25, 2021)
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Share Designation with respect to the 8.25% Fixed-Rate Reset Series C Cumulative Perpetual Redeemable Preferred Shares, dated as of March 25, 2021
(included as part of Exhibit 3.1)
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Form of certificate representing the 8.25% Fixed-Rate Reset Series C Cumulative Perpetual Redeemable Preferred Shares of Fortress Transportation and
Infrastructure Investors LLC (incorporated by reference to Exhibit 4.1 to Fortress Transportation and Infrastructure Investors LLC’s Form 8-A, filed March 25, 2021)
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Opinion of Cravath, Swaine & Moore LLP, relating to the Series C Preferred Shares (including the consent required with respect thereto)
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Opinion of Cravath, Swaine & Moore LLP as to certain tax matters relating to the Series C Preferred Shares (including the consent required with
respect thereto)
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Consent of Cravath, Swaine & Moore LLP (included in Exhibit 5.1)
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Consent of Cravath, Swaine & Moore LLP (included in Exhibit 8.1)
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104
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Cover Page Interactive Data File - the cover page XBRL tags are embedded within the Inline XBRL document
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its
behalf by the undersigned hereunto duly authorized.
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FORTRESS TRANSPORTATION AND INFRASTRUCTURE INVESTORS LLC
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By:
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/s/ Scott Christopher
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Name:
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Scott Christopher
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Title:
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Chief Financial Officer
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Date: March 25, 2021
Exhibit 5.1
March 25, 2021
Fortress Transportation and Infrastructure Investors LLC
4,200,000 8.25% Fixed-Rate Reset Series C Cumulative Perpetual
Redeemable Preferred Shares
Ladies and Gentlemen:
We have acted as counsel for Fortress Transportation and Infrastructure Investors LLC, a Delaware limited liability company (the “Company”), in connection with the preparation and filing with the Securities and Exchange Commission (the “Commission”) of
the Prospectus Supplement, dated March 18, 2021 (the “Prospectus
Supplement”), of the Company, filed with the Commission and relating to the issuance and sale by the Company of an aggregate of
4,200,000 8.25% Fixed-Rate Reset Series C Cumulative Perpetual Redeemable Preferred Shares, par value $0.01 per share, representing limited liability company interests in the Company, with a liquidation preference of $25.00 per share (the “Preferred Shares”), in accordance with the Underwriting Agreement, dated March 18, 2021 (the “Underwriting Agreement”), among the several
underwriters listed on Schedule A thereto (the “Underwriters”) and the Company.
In that connection, we have examined originals, or copies certified or otherwise identified to our satisfaction, of such documents,
corporate records and other instruments as we have deemed necessary or appropriate for the purposes of this opinion, including: (a) the Certificate of Formation of the Company, dated as of February 13, 2014; (b) the Amended and Restated Limited
Liability Company Agreement of the Company, dated as of May 20, 2015, as amended by the First Amendment thereto dated March 8, 2016; (c) the Second Amended and Restated Limited Liability Company Agreement of the Company, dated as of September 12,
2019; (d) the Third Amended and Restated Limited Liability Company Agreement of the Company, dated as of November 27, 2019; (e) the Fourth Amended and Restated Limited Liability Company Agreement of the Company, dated as of March 25, 2021; (f) the
resolutions adopted by the Board of Directors of the Company (the “Board”) on February 27, 2020 and March 17, 2021, the resolutions adopted by the Compensation
Committee of the Board on March 17, 2021 and the Action by Unanimous Written Consent of the Pricing Committee of the Board on March 18, 2021; and (g) the Registration Statement on Form S‑3 (Registration No. 333-236770 filed with the Commission on
February 28, 2020 (the “Registration Statement”), with respect to registration under the Securities Act of 1933, as amended (the “Act”), of an unlimited aggregate amount of various securities of the Company, to be issued from time to time by the Company. As to various questions of fact material to this opinion, we
have relied upon representations of officers or directors of the Company and documents furnished to us by the Company without independent verification of their accuracy.
In rendering this opinion, we have assumed, with your consent and without independent investigation or verification, the genuineness of
all signatures, the legal capacity and competency of all natural persons, the due authorization, execution and delivery of the agreements by all parties thereto (other than the Company), the authenticity of all documents submitted to us as originals
and the conformity to authentic original documents of all documents submitted to us as duplicates or copies.
Based on the foregoing and subject to the qualifications set forth herein and subject to compliance with applicable state securities
laws, we are of opinion that the Preferred Shares, when issued and delivered against payment therefor in accordance with the Underwriting Agreement, will be validly issued, and the holders of such Preferred Shares will have no obligation to make any
further payments for the purchase of such Preferred Shares or contributions to the Company solely by reason of their ownership of such Preferred Shares (except as may otherwise be required by Sections 18-607 and 18-804 of the Limited Liability
Company Act of the State of Delaware).
We are admitted to practice in the State of New York, and we express no opinion as to matters governed by any laws other than the laws
of the State of New York, the Limited Liability Company Act of the State of Delaware and the Federal laws of the United States of America.
We are aware that we are referred to under the heading “Legal Matters” in the Prospectus Supplement. We hereby consent to such use of our name therein and to the filing of this
opinion as Exhibit 5.1 to the Company’s Current Report on Form 8-K filed on March 25, 2021, and to the incorporation by reference of this opinion into
the Registration Statement. In giving this consent, we do not hereby admit that we are within the category of persons whose consent is required under Section 7 of the Act or the rules and regulations of the Commission promulgated thereunder.
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Very truly yours,
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/s/ Cravath, Swaine & Moore LLP
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Fortress Transportation and Infrastructure Investors LLC
1345 Avenue of the Americas, 45th Floor
New York, New York 10105
Exhibit 8.1
March 25, 2021
Fortress Transportation and Infrastructure Investors LLC
Offering of 8.25% Fixed-Rate Reset Series C Cumulative Perpetual
Redeemable Preferred Shares
Ladies and Gentlemen:
We have acted as counsel for Fortress Transportation and Infrastructure Investors LLC, a Delaware limited liability company (the “Company”), in connection with the issuance and sale from time to time by the Company of shares of the Company’s 8.25% Fixed-Rate Reset Series C Cumulative
Perpetual Redeemable Preferred Shares, par value $0.01 per share, representing limited liability company interests in the Company, with a liquidation preference of $25.00 per share (the “Preferred Shares”). The Preferred Shares will be registered pursuant to the automatic shelf registration statement on Form S-3 (Registration No. 333-236770) filed by the Company with the Securities and Exchange
Commission (the “SEC”) on February 28, 2020, under the Securities Act of 1933, including the related prospectus dated February 28, 2020, as supplemented by the
related prospectus supplement (the “Prospectus Supplement”) dated March 18, 2021 (as so supplemented, the “Registration Statement”).
In that connection, we have examined and relied upon (i) the Registration Statement, (ii) the officer’s certificate dated the date
hereof and addressed to us by Scott Christopher, the Chief Financial Officer of the Company (the “Officer’s Certificate”), (iii) the Amended and Restated
Limited Liability Company Agreement of the Company, dated as of May 20, 2015, as amended by the First Amendment thereto dated March 8, 2016, (iv) the Second Amended and Restated Limited Liability Company Agreement of the Company, dated as of
September 12, 2019, (v) the Third Amended and Restated Limited Liability Company Agreement of the Company, dated as of November 27, 2019 and (vi) the Fourth Amended and Restated Limited Liability Company Agreement of the Company, dated as of March
25, 2021. In addition, we have examined, and relied as to matters of fact upon, originals or copies, certified or otherwise identified to our satisfaction, of such corporate records, agreements, documents and other instruments and made such other
inquiries as we have deemed necessary or appropriate to enable us to render the opinion set forth below. In such examination, we have assumed the genuineness of all signatures, the legal capacity of natural persons, the authenticity of all documents
submitted to us as originals, the conformity to original documents of all documents submitted to us as duplicates or certified or conformed copies and the authenticity of the originals of such latter documents. We have not, however, undertaken any
independent investigation of any factual matter set forth in any of the foregoing.
In rendering this opinion, we have assumed that (i) relevant statements set forth in the Registration Statement are true, correct and
complete, (ii) the representations as to factual matters made by the Company in the Officer’s Certificate are true, correct and complete and will remain true, correct and complete at all times in the foreseeable future and (iii) the representations
made in the Officer’s Certificate qualified by belief, knowledge, materiality or any similar qualification are true, correct and complete without such qualification. If any assumption above is untrue for any reason, our opinion might be adversely
affected and may not be relied upon.
Our opinion is based on current provisions of the Internal Revenue Code of 1986, as amended (the “Code”), Treasury Regulations promulgated thereunder, published pronouncements of the Internal Revenue Service and case law, any of which may be changed at any time with retroactive
effect. Any change in applicable laws or the facts and circumstances relevant to the Company, or any inaccuracy in the statements, facts, assumptions or representations upon which we have relied, may affect the continuing validity of our opinion as
set forth herein. We assume no responsibility to inform you of any such change or inaccuracy that may occur or come to our attention. Finally, our opinion is limited to the tax matters specifically covered hereby. We are members of the Bar of the
State of New York, and we do not express any opinion herein concerning any law other than the Federal law of the United States.
Based upon the foregoing, in our opinion, the Company will be treated, for U.S. Federal income tax purposes, as a partnership and not as
an association or a publicly traded partnership (within the meaning of Section 7704 of the Code) subject to tax as a corporation. The Company’s treatment as a partnership depends upon its ability to meet, through actual operating results, certain
requirements relating to the sources of its income and various other qualification tests imposed under the Code, the results of which are not reviewed by us. Accordingly, no assurance can be given that the actual results of the Company’s operations
for its current or any future taxable year will satisfy the requirements for treatment as a partnership under the Code.
We hereby consent to the filing of this opinion letter with the SEC as an exhibit to the Company's Current Report on Form
8-K filed on March 25, 2021, to the references to our Firm in the Prospectus Supplement and to the incorporation by reference of this opinion into the Registration Statement. In giving our consent, we do not admit that we come within the category
of persons whose consent is required under Section 7 of the Securities Act of 1933 or the rules and regulations of the SEC promulgated thereunder.
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Very truly yours,
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/s/ Cravath, Swaine & Moore LLP
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Fortress Transportation and Infrastructure Investors LLC
ATTN: Nadeem Harb
Tax Director
1345 Avenue of the Americas, 26th Floor
New York, New York 10105