-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, BWc2O/mP+aY2M4/zq+QmXogJr3gG9jKkIavo6OxBK1qLqzz9gLb0JjFORT5Maeg5 1iiK7SaLknXZh3WRgXw5ng== 0000947871-05-000967.txt : 20050510 0000947871-05-000967.hdr.sgml : 20050510 20050510124045 ACCESSION NUMBER: 0000947871-05-000967 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 20050510 DATE AS OF CHANGE: 20050510 SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: Macquarie Infrastructure CO Trust CENTRAL INDEX KEY: 0001289788 STANDARD INDUSTRIAL CLASSIFICATION: WHOLESALE-PETROLEUM & PETROLEUM PRODUCTS (NO BULK STATIONS) [5172] IRS NUMBER: 206196808 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-80247 FILM NUMBER: 05814978 BUSINESS ADDRESS: STREET 1: 600 FIFTH AVENUE, 21ST FLOOR CITY: NEW YORK STATE: NY ZIP: 10020 BUSINESS PHONE: 212-548-6555 MAIL ADDRESS: STREET 1: 600 FIFTH AVENUE, 21ST FLOOR CITY: NEW YORK STATE: NY ZIP: 10020 FORMER COMPANY: FORMER CONFORMED NAME: Macquarie Infrastructure Assets Trust DATE OF NAME CHANGE: 20040510 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: Macquarie Infrastructure Management (USA) INC CENTRAL INDEX KEY: 0001311388 IRS NUMBER: 000000000 STATE OF INCORPORATION: DE FISCAL YEAR END: 0331 FILING VALUES: FORM TYPE: SC 13D/A BUSINESS ADDRESS: STREET 1: 600 FIFTH AVENUE, 21ST FLOOR CITY: NEW YORK STATE: NY ZIP: 10020 BUSINESS PHONE: 212-548-6538 MAIL ADDRESS: STREET 1: 600 FIFTH AVENUE, 21ST FLOOR CITY: NEW YORK STATE: NY ZIP: 10020 SC 13D/A 1 sc13da_041405.txt AMENDMENT NO. 1 TO SCHEDULE 13D UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 SCHEDULE 13D Under the Securities Exchange Act of 1934 (Amendment No. 2) Macquarie Infrastructure Company Trust - -------------------------------------------------------------------------------- (Name of Issuer) Shares Representing Beneficial Interests in the Issuer ("Shares of Trust Stock") - -------------------------------------------------------------------------------- (Title of Class of Securities) 55607X 10 8 - -------------------------------------------------------------------------------- (Cusip Number) Peter Stokes Macquarie Infrastructure Company Trust 600 Fifth Avenue, 21st Floor New York, NY 10020 Telephone: (212) 548-6538 Shemara Wikramanayake Macquarie Infrastructure Management (USA) Inc. 600 Fifth Avenue, 21st Floor New York, NY 10020 Telephone: (212) 581-8037 - -------------------------------------------------------------------------------- (Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications) Copy to: Antonia E. Stolper Shearman & Sterling LLP 599 Lexington Avenue New York, New York 10022 Telephone: (212) 848-4000 May 10, 2005 - -------------------------------------------------------------------------------- (Date of Event Which Requires Filing of this Statement) If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of ss.ss.240.13d-1(e), 240.13d-l(f) or 240.13d-l(g), check the following box. |_| The information required in the remainder of this cover page shall not be deemed to be filed for the purpose of Section 18 of the Securities Exchange Act of 1934 or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes). CUSIP No. 55607X 10 8 - -------------------------------------------------------------------------------- 1. Name of Reporting Person: Macquarie Infrastructure Management (USA) Inc. I.R.S. Identification Nos. of above persons (entities only): - -------------------------------------------------------------------------------- 2. Check the Appropriate Box if a Member of a Group (See Instructions): (a) |_| (b) |_| - -------------------------------------------------------------------------------- 3. SEC Use Only: - -------------------------------------------------------------------------------- 4. Source of Funds (See Instructions): AF - -------------------------------------------------------------------------------- 5. Check if Disclosure of Legal Proceedings Is Required Pursuant to Item 2(d) or 2(e): - -------------------------------------------------------------------------------- 6. Citizenship or Place of Organization: Delaware - -------------------------------------------------------------------------------- 7. Sole Voting Power: 2,433,101 Number of ----------------------------------------------------------------- Shares Beneficially 8. Shared Voting Power: 0 Owned by Each ----------------------------------------------------------------- Reporting Person With 9. Sole Dispositive Power: 1,507,101 ----------------------------------------------------------------- 10. Shared Dispositive Power: 926,000 - -------------------------------------------------------------------------------- 11. Aggregate Amount Beneficially Owned by Each Reporting Person: 2,433,101 - -------------------------------------------------------------------------------- 12. Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions): |_| - -------------------------------------------------------------------------------- 13. Percent of Class Represented by Amount in Row (11): 9.0% - -------------------------------------------------------------------------------- 14. Type of Reporting Person (See Instructions): CO - -------------------------------------------------------------------------------- TABLE OF CONTENTS Page Item 1. Security and Issuer....................................................1 Item 2. Identity and Background................................................1 Item 3. Source and Amount of Funds or Other Consideration......................1 Item 4. Purpose of Transaction.................................................1 Item 5. Interest in Securities of the Issuer...................................1 Item 6. Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the Issuer...............................2 Item 7. Material to Be Filed as Exhibits.......................................2 Signatures EXHIBIT INDEX A. Letter Agreement dated April 2005 between Macquarie Bank Limited and Macquarie International Infrastructure Fund Limited. B. Pledge Agreement dated May 3, 2005 between the Reporting Person and Macquarie International Infrastructure Fund Limited. iii AMENDMENT NO. 2 TO SCHEDULE 13D This Amendment No. 2 amends the Report on Schedule 13D, originally filed on December 30, 2004, as amended by Amendment No. 1 of Schedule 13D, filed on April 25, 2005 (together, the "Schedule 13D"). Unless indicated otherwise, all items left blank remain unchanged and any items which are reported are deemed to amend and supplement the existing items in the Schedule 13D. Capitalized terms used without definitions in this Amendment No. 2 shall have the respective meanings ascribed to them in the Schedule 13D. Item 1. Security and Issuer. ------------------- Item 2. Identity and Background. ----------------------- Item 3. Source and Amount of Funds or Other Consideration. ------------------------------------------------- Item 4. Purpose of Transaction. ---------------------- Item 5. Interest in Securities of the Issuer. ------------------------------------ The response set forth in Item 5 of the Schedule 13D is hereby amended and supplemented by the following information. MBL has entered into a total return swap with respect to an as yet undetermined number of Shares of Trust Stock held by the Reporting Person. The counterparty to the swap is Macquarie International Infrastructure Fund Limited, or MIIF, a mutual fund company which is managed by a member of the Macquarie group of companies. The swap has an initial term of 10 years, extendable for an additional 10-year term at the option of MIIF. The number of Shares of Trust Stock subject to the swap, or the Swap Shares, will be based on an aggregate value of S$25.5 million ($15.5 million based on the spot rate of $0.61 to S$1.00 as of March 31, 2005) and a future volume weighted average trading price per share. The number of Swap Shares may be increased by up to approximately 10%. Under the total return swap, MBL has agreed to pay to MIIF the total return (i.e., all distributions of income and capital, including all non-cash distributions) in respect of the Swap Shares and MIIF has agreed to pay MBL the total return (i.e., all coupon and interest payments) in respect of a portfolio of debt securities with an equivalent aggregate value. The Reporting Person has entered into a pledge agreement with MIIF pursuant to which the Reporting Person has pledged 926,000 Shares of Trust Stock and all related distributions to MIIF to secure MBL's obligations under the total return swap. After the number of Swap Shares has been finalized, MIIF will release from the pledge any excess Shares of Trust Stock. The Reporting Person will retain the voting rights on all pledged Shares. The swap may be terminated by either party upon 90 days' written notice after the Issuer has had a Registration Statement on Form S-3 covering the Swap Shares declared effective or upon certain other events of default or similar events. At termination, the swap may be physically settled by delivery of all or part of the Swap Shares to MIIF, cash settled, or a combination of the two. As a result of the transactions described in this Schedule 13D, the Reporting Person has sole voting power over 2,433,101 Shares of Trust Stock. The Reporting Person has sole dispositive power over 1,507,101 Shares of Trust Stock and shared dispositive power over 926,000 Shares of Trust Stock, subject to adjustment following finalization of the number of Swap Shares. Item 6. Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the Issuer. --------------------------------------------------------------------- The response set forth in Item 6 of Schedule 13D is hereby amended and supplemented by the following: Please refer to the discussion under Item 5 above for a description of contracts and arrangements relating to the Shares of Trust Stock beneficially owned by the Reporting Person. Item 7. Material to Be Filed as Exhibits. -------------------------------- Exhibit Description - ------------- ------------------------------------------------------------- A. Letter Agreement dated April 2005 between Macquarie Bank Limited and Macquarie International Infrastructure Fund Limited. B. Pledge Agreement dated May 3, 2005 between the Reporting Person and Macquarie International Infrastructure Fund Limited. 2 Signature After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this Statement is true, complete and correct. May 10, 2005 MACQUARIE INFRASTRUCTURE MANAGEMENT (USA) INC. By: /s/ Peter Stokes -------------------------------------------- Name: Peter Stokes Title: President and Chief Executive Officer 3 EXHIBIT INDEX Exhibit Description Page No. - --------- --------------------------------------------------------- --------- A. Letter Agreement dated April 2005 between Macquarie A-1 Bank Limited and Macquarie International Infrastructure Fund Limited. B. Pledge Agreement dated May 3, 2005 between the B-2 Reporting Person and Macquarie International Infrastructure Fund Limited. EX-99.A 2 ex-a_041405.txt LETTER AGREEMENT Exhibit A Macquarie Bank Limited ABN 46 008 583 542 1 Martin Place Sydney NSW 2000 Australia April 2005 The Directors Macquarie International Infrastructure Fund Limited (Company Registration Number EC 36305) Rosebank Centre 11 Bermudiana Road Pembroke HM 08 Bermuda Swap Transaction - ------------------------------------------------------------------------ Dear Sirs, The purpose of this letter agreement (this "Confirmation") is to confirm the terms and conditions of the Transaction entered into between us on the Trade Date specified below (the "Transaction"). This Confirmation constitutes a "Confirmation" as referred to in the ISDA Master Agreement specified below. The definitions and provisions contained in the 2002 ISDA Equity Derivatives Definitions (the "Equity Definitions"), as published by the International Swaps and Derivatives Association, Inc., are incorporated into this Confirmation. In the event of any inconsistency between the Equity Definitions and this Confirmation, this Confirmation will govern. 1. This Confirmation supplements, forms part of, and is subject to, the 2002 ISDA Master Agreement dated as of April 2005, as amended and supplemented from time to time (the "Agreement"), between Macquarie Bank Limited ("Party A") and Macquarie International Infrastructure Fund Limited ("Party B"). All provisions contained in the Agreement govern this Confirmation except as expressly modified below. 2. The terms of the particular Transaction to which this Confirmation relates are as follows: General Terms: Trade Date: April 2005 Effective Date: The date which is one Sydney Business Day after the date on which Party B first issues shares to successful applicants under a prospectus lodged with and registered by the Monetary Authority of Singapore in respect of the initial public offering of ordinary shares in the capital of Party B ("Prospectus"). A-1 Termination Date: The earlier to occur of: (a) the first Business Day 90 days after either party gives the other party a notice terminating this Transaction in full ("Termination Notice"); (b) subject to Party B's right to extend this Transaction as set forth below (in which case the Termination Date will be determined as set out below), the first Business Day 10 years after the Effective Date; and (c) the Early Termination Date or the date on which this Transaction is terminated by either party following the occurrence of any event which entitles that party to terminate this Transaction; provided, however, that if Party A determines that (i) the occurrence of any Termination Date (including an Early Termination Date) might give rise to liabilities under Section 16 of the Securities Act of 1933, as amended (the "Securities Act") when paired with any other transaction, termination or transfer undertaken in connection with this Transaction, and (ii) such liabilities cannot be averted by changing the settlement method as set forth under "Settlement Method Election" below, then the occurrence of such Termination Date will be delayed until the later of (x) the Business Day next following the date that is six months after the most recent such other transaction, termination or transfer, or (y) if Party A would be required to pay an amount in respect of such termination based on the arithmetic average of the daily volume weighted average price of the MIC Trust Shares for the Termination Reference Period (each as defined below), the date which is sixteen (16) Exchange Business Days after the date specified in clause (x). Party B may, by notice to Party A given not less than 90 days (or such shorter period agreed by Party A) before the date then specified under paragraph (b), increase the number of years specified in that paragraph by 10. The terms of this Confirmation, including this paragraph will continue to apply unchanged after Party B's notice. The parties agree that this gives Party B the right to continue extending the term of this Transaction. Restriction on Neither party may give a Termination Termination Notice: Notice until a registration statement on Form S-3 covering resales by Macquarie Infrastructure Management (USA) Inc. ("MIMUSA") (an "S-3 Registration Statement") of the Securities Act has been declared effective for at least the number of MIC Trust Shares as there are in the Party A Equity Portfolio. A-2 Portfolio Assets: Section 1.14 of the Equity Definitions shall be deleted and replaced with the following: ""Portfolio Assets" means, in respect of this Transaction, the shares, securities or other assets specified as such in this Confirmation". For the purposes of this Transaction, all references in the Equity Definitions to "Shares" shall be read as references to "Portfolio Assets" and corresponding amendments will be made to all related terms used in the Equity Definitions. In relation to Party A and the Equity Portfolio Return Amounts payable by Party A to Party B, any reference in the Equity Definitions to "Portfolio Assets" shall be to the Party A Equity Portfolio Assets. In relation to Party B and the Debt Portfolio Return Amounts payable by Party B to Party A, any reference in the Equity Definitions to "Portfolio Assets" shall be to the Party B Debt Portfolio Assets. Party A Equity Portfolio Assets: On the Effective Date, the number of MIC Trust Shares equal to the US Dollar Equivalent of SGD 25.5 million on the date which is 2 Sydney Business Days before the Effective Date divided by the arithmetic average of the daily volume weighted average price of the MIC Trust Shares (as defined below) (with such exclusions and inclusions as the Exchange's rules provide and Adjusted as described below) on the Exchange on the 15 Exchange Business Days ending 3 Sydney Business Days before the Effective Date (the "First Reference Period") (the price so determined being the "Initial VWAP") rounded down to the nearest 1,000 MIC Trust Shares. Over-allotment Option: On and from the Over-allotment Option Exercise Date, the Party A Equity Portfolio Assets shall include an additional number of MIC Trust Shares equal to the US Dollar Equivalent of the Over-allotment Amount on the Over-allotment Option Exercise Date, divided by the arithmetic average of the daily volume weighted average price of the MIC Trust Shares (with such exclusions and inclusions as the Exchange's rules provide and Adjusted as described below) on the Exchange on the 15 Exchange Business Days ending on the Over-allotment Option Exercise Date, (the "Over-allotment Reference Period") (the price so determined being the "Over-allotment VWAP") rounded A-3 down to the nearest 1,000 MIC Trust Shares. Each MIC Trust Share included from time to time in the Party A Equity Portfolio Assets as described above shall be a Party A Equity Portfolio Asset. On and from the date on which any Party A Equity Portfolio Asset is sold or physically delivered to Party B, or settlement occurs in respect of that asset, in accordance with the Settlement Terms, that Party A Equity Portfolio Asset shall no longer be a Party A Equity Portfolio Asset for the purposes of this Confirmation. In this Confirmation: "Adjusted" in relation to the calculation of the arithmetic average of the daily volume weighted average price of the MIC Trust Shares, means that if a Cum Date occurs during the Reference Period then the daily volume weighted average price of MIC Trust Shares on each day during the Reference Period which is on or before the Cum Date will be reduced by the Cum Value. "Cum Date" means the last date on which MIC Trust Shares may be acquired on the Exchange with or carrying an entitlement to a particular distribution or other entitlement. "Cum Value" means: (a) in the case of a cash dividend or other distribution, the amount of that dividend or distribution; (b) in the case of an entitlement which is traded on the Exchange during the Reference Period, the arithmetic average of the daily volume weighted average price of the entitlement (with such exclusions and inclusions as the Exchange's rules provide) on those days during the Reference Period on which the entitlement is traded; and (c) in the case of an entitlement which is not traded on the Exchange during the Reference Period, the value of the entitlement reasonably determined by Party A. "MIC Trust Shares" means fully paid shares of trust stock issued by Macquarie Infrastructure Company NYSE ticker symbol "MIC"). "Over-allotment Amount" means the amount which is 3.72% of the total amount received by Party B in respect of the exercise of the Over-allotment Option on the Over- A-4 allotment Option Exercise Date. The Over-allotment Amount will be a SGD amount. "Over-allotment Option" means the over-allotment option granted by Party B and described in the Prospectus. "Over-allotment Option Exercise Date" means the date on which the Over-allotment Option is exercised. "Reference Period" means: (a) the First Reference Period; (b) the Over-allotment Reference Period; (c) the Sale Reference Period (as defined below); or (d) the Valuation Reference Period (as defined below). "SGD" means Singapore Dollars. "US Dollar Equivalent" of an amount expressed in Singapore Dollars means, on any date, the amount of US Dollars determined by converting that amount of Singapore Dollars into US Dollars at the spot rate of exchange determined by the Calculation Agent to be the rate of exchange to buy US Dollars with Singapore Dollars on that date. Party B Debt Portfolio Eligible Party B Debt Portfolio Assets: Assets (as defined in Schedule A) from time to time identified by Party B and agreed by Party A (in its absolute discretion) to be the Party B Debt Portfolio Assets which, on the Effective Date: (a) in the case of cash deposits only, are equal to; (b) in the case of debt securities only, have an aggregate face value equal to; or (c) in the case of a combination of cash deposits and debt securities, the cash deposits and the aggregate face value of the debt securities together equal, the number of Party A Equity Portfolio Assets multiplied by the Initial VWAP. Over-allotment Option: On and from the Over-allotment Option Exercise Date, the Party B Equity Portfolio Assets shall include additional Eligible Party B Debt Portfolio Assets identified by Party B and agreed by Party A (in its absolute discretion) to be the Party B Debt Portfolio Assets which: (a) in the case of cash deposits only, are equal to; (b) in the case of debt securities only, have an A-5 aggregate face value equal to; or (c) in the case of a combination of cash deposits and debt securities, the cash deposits and the aggregate face value of the debt securities together equal, the number of additional Party A Equity Portfolio Assets on and from the Over-allotment Option Exercise Date multiplied by the Over-allotment VWAP. Party B must reinvest any principal repayments, prepayments, or like distributions (including any funding breakage fees associated with mandatory or optional prepayments) received by Party B in respect of the Party B Debt Portfolio Assets in Eligible Party B Debt Portfolio Assets from time to time identified by Party B and agreed by Party A (in its absolute discretion). Party A may at any time require Party B to adjust the composition of the Party B Debt Portfolio Assets. Following receipt of a notice from Party A requiring an adjustment to the composition of the Party B Debt Portfolio Assets, Party B shall promptly, and in any event within 5 Business Days of the notice, replace any relevant Party B Debt Portfolio Assets with Eligible Party B Debt Portfolio Assets identified by Party B and agreed by Party A (in its absolute discretion). Following a request by Party A in relation to an adjustment of the composition of the Party B Debt Portfolio Assets, Party A will bear the reasonable costs incurred by Party B in relation to that adjustment. On and from the date on which any asset included in the Party B Debt Portfolio Assets is sold or physically delivered to Party A in accordance with the Settlement Terms, that asset shall no longer be a Party B Debt Portfolio Asset for the purposes of this Confirmation. Exchange: Party A Equity Portfolio Assets: New York Stock Exchange. Party B Debt Portfolio Assets: Not Applicable. Related Exchange(s): All exchanges. Equity Portfolio Return Amounts payable by Party A in respect of Party A Equity Portfolio Assets: Equity Definitions: In this Confirmation, all references in the Equity Definitions to "Equity Amount" where used in the context of an amount payable by Party A to Party B in respect of the Party A Equity Portfolio Assets, shall be read as a reference to "Equity Portfolio Return Amount" (as that term A-6 is defined in this Confirmation) and corresponding amendments will be made to all related terms used in the Equity Definitions. Sections 8.6(a)(ii) and 8.7 of the Equity Definitions shall not apply to this Confirmation. Equity Portfolio Return Amount Payer: Party A Equity Portfolio Return Amount Receiver: Party B Type of Return: Total Return. Equity Portfolio Return Amount: The Paid Amount multiplied by the number of Party A Equity Portfolio Assets. In this Confirmation: "gross cash dividend" has the meaning given to it in Section 10.1(c) of the Equity Definitions. "Paid Amount" shall mean 100% of the gross cash dividend or distribution (whether in the nature of income or capital) on or in respect of the Party A Equity Portfolio Assets (or any of them) on any Record Date falling during the Equity Portfolio Return Period. "Record Date" means the date on which an entitlement to receive a dividend or distribution, on or in respect of the Party A Equity Portfolio Assets (or any of them) is determined. Equity Portfolio Return Period: The period commencing on the Effective Date and ending on the Settlement Date. Equity Portfolio Return Payment Date: As soon as practicable, and in any event no later than 5 Exchange Business Days after Party A receives an Equity Portfolio Return Amount in respect of any Party A Equity Portfolio Asset. If any non-cash distribution is made in respect of any Party A Equity Portfolio Asset on any Record Date falling during the Equity Portfolio Return Period, then the Equity Portfolio Return Amount shall include all such non-cash distributions provided that Party A must procure MIMUSA's consent to delivery of, and actual delivery of, A-7 those non-cash distributions to Party B on or prior to the related Equity Portfolio Return Payment Date, rather than making payment of an amount of cash to Party B (and any references to the payment of Equity Portfolio Return Amounts shall include a reference to the delivery of non-cash distributions as necessary). Extraordinary Dividend: Not Applicable. Re-investment of Dividends: Not Applicable. Equity Notional Reset: Not Applicable. Debt Portfolio Return Amounts payable by Party B in respect of Party B Debt Portfolio Assets: Equity Definitions: In this Confirmation, all references in the Equity Definitions to "Equity Amount" where used in the context of an amount payable by Party B to Party A in respect of the Party B Debt Portfolio Assets, shall be read as a reference to "Debt Portfolio Return Amount" (as that term is defined in this Confirmation) and corresponding amendments will be made to all related terms used in the Equity Definitions. Sections 8.6(a)(ii) and 8.7 of the Equity Definitions shall not apply to this Confirmation. Debt Portfolio Return Amount Payer: Party B Debt Portfolio Return Amount Receiver: Party A Type of Return: Total Return. Debt Portfolio Return All coupon or interest payments and Amount: other distributions (excluding principal repayments or prepayments or like distributions, whether in whole or in part, and funding breakage fees associated with mandatory or optional prepayments) received by Party B in respect of the Party B Debt Portfolio Assets in respect of the Debt Portfolio Return Period. Party B shall notify Party A of any such amounts as soon as practicable after receipt by Party B. Debt Portfolio Return The period commencing on the Period: Effective Date and ending on the Settlement Date. Debt Portfolio Return Payment Date: As soon as practicable, and in any event no later than 5 A-8 Singapore Business Days after Party B receives any Debt Portfolio Return Amount. Settlement Terms for Equity Portfolio Return Amounts and Debt Portfolio Return Amounts: Cash Settlement: Applicable, other than in the case of a Settlement Date in respect of an Early Partial Termination or the termination of this Transaction. In Section 8.6(b) of the Equity Definitions, the words "and, in addition, on each Dividend Payment Date, the relevant Equity Amount Payer will pay to the Equity Amount Receiver the relevant Dividend Amount (if any) owed by such Equity Amount Payer on that Dividend Payment Date" shall not apply to this Confirmation. Settlement Currency: Payments by Party A: The settlement currency for dealings settled through the Clearance System in respect of the Party A Equity Portfolio Assets. Payments by Party B: The currency in which the relevant Debt Portfolio Return Amount is denominated. Cash Settlement Payment Date: In respect of Party A, each Equity Portfolio Return Payment Date. In respect of Party B, each Debt Portfolio Return Payment Date. Settlement Terms for Early Partial Termination or Termination of this Transaction: Early Termination; Sections 6(c)(ii), (d), (e) and (f) Close-Out Netting of the Agreement shall not apply to this Transaction. Any Early Termination Date designated by either party shall be no less than fifteen Exchange Business Days following the day the notice specifying such Early Termination Date is effective. Electing Party: Party A Settlement Method Election: Applicable in relation to Party A's obligations in relation to the Party A Equity Portfolio Assets on a Settlement Date as described below: Early Partial Termination or Termination by Party A: In relation to: (a) a Settlement Date in respect of an Early Partial Termination (as described below) following an Early Partial Termination Notice given by Party A; A-9 (b) a Settlement Date in respect of the termination of this Transaction following a Termination Notice given by Party A; and (c) a Settlement Date in respect of the termination of this Transaction by Party B following the occurrence of any event which entitles Party B to terminate this Transaction, Physical Settlement will apply to Party A's obligations in relation to the Party A Equity Portfolio Assets on a Settlement Date if (i) Physical Settlement would not breach any applicable laws or policies (including where relevant by reference to the last report regarding foreign ownership of MIC Trust Shares delivered to MIC or to the holders from time to time of MIC Trust Shares before the Settlement Method Election Date), (ii) an S-3 Registration Statement for the applicable number of Party A Portfolio Equity Assets has been declared effective and (iii) either (x) Physical Settlement would apply for at least 600,000 Party A Portfolio Equity Assets or (y) the Issuer has confirmed to Party B in writing that the Issuer would treat Party B as an assignee of MIMUSA's rights under the Registration Rights Agreement. Physical Settlement will only apply to a rounded down number of Party A Equity Portfolio Assets, as described below. Each party will assist the other (and Party A will procure MIMUSA's assistance to Party B) to do any thing which is necessary for the purpose of obtaining any consents or approvals under applicable laws or policies in order to enable Physical Settlement (and the transfer of MIMUSA's rights under the Registration Rights Agreement) to occur, including executing and delivering any application or other forms and notices before the Settlement Method Election Date. On the Settlement Method Election Date, Party A shall determine whether Physical Settlement does not apply due to the restrictions set forth above. If Physical Settlement does not apply due to the restrictions set forth above, then Party A must procure MIMUSA's consent to the sale of the Party A Equity Portfolio Assets in a commercially reasonable manner on a single day on or before the date which is 5 Exchange Business Days after the Settlement Method Election Date for a sale price at least equal to the number of Party A Equity Portfolio Assets to be sold multiplied by the arithmetic average of the daily volume weighted average price of the MIC Trust Shares A-10 (with such exclusions and inclusions as the Exchange's rules provide and Adjusted as described above) on the Exchange for the period of 15 Exchange Business Days ending on the Settlement Method Election Date (the "Sale Reference Period") (the "Party A Capital Value"). Nothing in this Confirmation shall require Party A to procure MIMUSA's consent to the sale of, or the actual sale or attempted sale of, the Party A Equity Portfolio Assets for an amount in excess of the Party A Capital Value. If Party A is unable to procure the sale of the Party A Equity Portfolio Assets (or any of them) in a commercially reasonable manner for an amount at least equal to the Party A Capital Value on a single day on or before the date which is 5 Exchange Business Days after the Settlement Method Election Date ("VWAP Sale Period"), then Party A shall procure the sale of the unsold Party A Equity Portfolio Assets on market on a single day within 10 Exchange Business Days unless the parties agree to a further time period for such sale ("Market Sale Period"). Notwithstanding anything set forth above, if Physical Settlement does not apply due to the restrictions set forth above, and if either (i) no S-3 Registration Statement has been declared effective or (ii) Party A determines that the sale of the Party A Equity Portfolio Assets as set forth above might give rise to liabilities under Section 16 of the Securities Act, then Party A will instead pay Party B an amount equal to the relevant number of Party A Equity Portfolio Assets multiplied by the arithmetic average of the daily volume weighted average price of the MIC Trust Shares (with such exclusions and inclusions as the Exchange's rules provide and Adjusted during such period as described above) on the Exchange on the 15 Exchange Business Days ending on the Termination Date (the "Termination Reference Period"). Early Partial Termination or Termination by Party B, or Termination on the date described at paragraph (b) of "Termination Date": In relation to: (a) a Settlement Date in respect of an Early Partial Termination (as described below) following an Early Partial Termination Notice given by Party B; (b) a Settlement Date in respect of the termination of this Transaction following a Termination Notice given by Party B or the termination of this A-11 Transaction on the date described at paragraph (b) of "Termination Date"; and (c) a Settlement Date in respect of the termination of this Transaction by Party A following the occurrence of any event which entitles Party A to terminate this Transaction, Party A may elect whether: (1) to procure MIMUSA's consent to the sale of, and the actual sale of, the Party A Equity Portfolio Assets (or any of them) in a commercially reasonable manner for an amount at least equal to the Party A Capital Value on a single day on or before the date which is 5 Exchange Business Days after the Settlement Method Election Date. If Party A is unable to procure the sale of the Party A Equity Portfolio Assets (or any of them) in a commercially reasonable manner for an amount at least equal to the Party A Capital Value on a single day on or before the date which is 5 Exchange Business Days after the Settlement Method Election Date, then Party A shall procure the sale of the unsold Party A Equity Portfolio Assets on market on a single day within the Market Sale Period; or (2) to have Physical Settlement apply to Party A's obligations in relation to the Party A Equity Portfolio Assets on a Settlement Date if (i) Physical Settlement would not breach any applicable laws or policies, (ii) an S-3 Registration Statement for the applicable number of Party A Portfolio Equity Assets has been declared effective and (iii) either (x) Physical Settlement would apply for at least 600,000 Party A Portfolio Equity Assets or (y) the Issuer has confirmed to Party B in writing that the Issuer would treat Party B as an assignee of MIMUSA's rights under the Registration Rights Agreement, with the balance of the Party A Equity Portfolio Assets (if any) to be sold as described at paragraph (1) above. Notwithstanding anything set forth above, if Physical Settlement does not apply due to the restrictions set forth above, and if either (i) no S-3 Registration Statement has been declared effective or (ii) Party A determines that the sale of the Party A Equity Portfolio Assets as set forth above might give rise to liabilities under Section 16 of the Securities Act, then Party A will instead pay Party B an A-12 amount equal to the relevant number of Party A Equity Portfolio Assets multiplied by the arithmetic average of the daily volume weighted average price of the MIC Trust Shares (with such exclusions and inclusions as the Exchange's rules provide and Adjusted during such period as described above) on the Exchange during the Termination Reference Period. Applicable in relation to Party B's obligations in relation to the Party B Debt Portfolio Assets on a Settlement Date as described below: Party A may elect whether to require Party B to: (1) sell the Party B Debt Portfolio Assets (or any of them) in a commercially reasonable manner on or before the date which is 2 Singapore Business Days before the Settlement Date; or (2) have Physical Settlement apply to Party B's obligations in relation to the Party B Debt Portfolio Assets. If Party B is unable to sell the Party B Debt Portfolio Assets (or any of them) in a commercially reasonable manner on or before the date which is 2 Singapore Business Days before the Settlement Date, then Physical Settlement shall apply to Party B's obligations in relation to the unsold Party B Debt Portfolio Assets. Deposit of sale proceeds into Sale Proceeds Promptly after either party (or, in Account: the case of the Party A Equity Portfolio Assets, MIMUSA) receives any sale proceeds in respect of the sale of any Portfolio Assets required as described above, those sale proceeds must be deposited in an interest bearing account (the "Sale Proceeds Account"). The relevant party shall procure that the entity making the deposit (which may be MIMUSA) may only withdraw those sale proceeds and interest thereon from the Sale Proceeds Account as permitted by the Credit Support Document provided by that party. Settlement Obligations: Sections 9.3, 9.5, 9.6 and 9.7 of the Equity Definitions shall not apply to this Confirmation. Section 9.11 of the Equity Definitions shall not apply to Party A under this Confirmation; provided, however, that on any date on which Shares are conveyed to Party B, Party A represents that Party B has received good title to such Shares, free from any lien, charge, claim or other encumbrance (other than a lien routinely imposed on all securities by the relevant Clearance System). In respect of each Settlement A-13 Date in respect of which Physical Settlement is applicable, on the relevant Settlement Date: (a) in the case of Physical Settlement in respect of Party A's obligations in relation to the Party A Equity Portfolio Assets, Party A shall procure MIMUSA's consent to delivery, and actual delivery, of the relevant number of Party A Equity Portfolio Assets, and any transfer forms or agreements necessary to effect the transfer of those Party A Equity Portfolio Assets, to Party B; and (b) in the case of Physical Settlement in respect of Party B's obligations in relation to the Party B Debt Portfolio Assets, Party B shall deliver the relevant Party B Debt Portfolio Assets, and any transfer forms or agreements necessary to effect the transfer of those Party B Debt Portfolio Assets, to Party A, such delivery will be made to the account or address nominated for that purpose by the relevant party. Subject to Section 2(c) of the Agreement, in respect of each Settlement Date in respect of which the Portfolio Assets are required to be sold as described above: (a) unless Physical Settlement applies in respect of the Party A Equity Portfolio Assets (or any of them), Party A shall pay (or procure MIMUSA's payment of) the Party A Settlement Price to Party B; and (b) in the case of the sale of the Party B Debt Portfolio Assets (or any of them), Party B shall pay the Party B Settlement Price to Party A, such payment will be made to the account nominated for that purpose by the relevant party. Condition of Settlement: Notwithstanding any provision of this Confirmation or the Agreement, the obligations of each party in respect of a Settlement Date as described above (the "Settlement Obligations") are conditional on each party complying with its Settlement Obligations. If either party fails to comply with its Settlement Obligations on the Settlement Date, or such other date specified for the completion of its Settlement Obligations, then each party must promptly: (a) return to the other all documents delivered to it in respect of those Settlement Obligations; A-14 (b) repay to the other all payments received by it in respect of those Settlement Obligations; and (c) do everything reasonably required by the other to reverse any action taken under or in connection with the satisfaction of its Settlement Obligations, without prejudice to any other rights either party may have in respect of that failure. Settlement Method Election Date: 20 Business Days before the Settlement Date. Settlement Date: Subject to the provisions below, the later of: (a) 5 Business Days after the Termination Date; and (b) if Party A is required to procure the sale of Party A Equity Portfolio Assets on market during a Market Sale Period, the date which is 5 Business Days after the last day of the Market Sale Period. Notwithstanding any provision of this Confirmation or the Agreement: (i) if either party notifies the other party prior to the Settlement Date that compliance with the Settlement Terms or with its Settlement Obligations would breach applicable insider trading laws then the Settlement Date will be delayed until any insider information in the possession of that party has been released to the public; and (ii) if Party A is required to procure the sale of Party A Equity Portfolio Assets on market during a Market Sale Period and Party A notifies Party B that such sale would breach the antimanipulation provisions of any U.S. securities law or regulation, then the Settlement Date will be delayed until such time as the sale can be made in accordance with such law or regulation. Settlement Price: Section 7.3 of the Equity Definitions shall not apply to this Confirmation, and in this Confirmation, "Settlement Price" shall have the meaning set out below: Party A Settlement Price: Either: (a) an amount equal to the aggregate of: (1) the sale proceeds received in respect of the sale of those Party A Equity Portfolio Assets; and (2) interest paid or accrued on the balance standing to the credit of the related Sale Proceeds Account from its establishment until the Settlement Date at the rate offered by the institution with whom the A-15 Sales Proceed Account is held, less expenses incurred in relation to the sale but only if the Settlement Date is in respect of: i. an Early Partial Termination following an Early Partial Termination Notice given by Party B; ii. the termination of this Transaction following a Termination Notice given by Party B or the termination of this Transaction on the date described at paragraph (b) of "Termination Date"; or iii. the termination of this Transaction by Party A following the occurrence of an event which entitles Party A to terminate this Transaction; or (b) if either (1) no S-3 Registration Statement has been declared effective or (2) Party A determines that the sale of the Party A Equity Portfolio Assets as set forth above might give rise to liabilities under Section 16 of the Securities Act, then an amount equal to the relevant number of Party A Equity Portfolio Assets multiplied by the arithmetic average of the daily volume weighted average price of the MIC Trust Shares (with such exclusions and inclusions as the Exchange's Rules provide and Adjusted as set forth above) on the Exchange during the Termination Reference Period. Party B Settlement Price: An amount equal to the aggregate of: (a) the sale proceeds received in respect of the sale of those Party B Debt Portfolio Assets: and (b) interest paid or accrued on the balance standing to the credit of the Sale Proceeds Account of Party B from its establishment until the Settlement Date at the rate offered by the institution with whom the Sales Proceeds Account is held, less expenses incurred in relation to the sale but only if the Settlement Date is in respect of: i. an Early Partial Termination following an Early Partial Termination Notice given by Party A; ii. the termination of this Transaction following a Termination Notice given by Party A; or A-16 iii. the termination of this Transaction by Party B following the occurrence of an event which entitles Party B to terminate this Transaction. Default Settlement Method: Not applicable. Clearance System: In respect of the Party A Equity Portfolio Assets, not applicable. In respect of the Party B Debt Portfolio Assets, not applicable. Settlement Currency: Payments by Party A: US Dollars. Payments by Party B: The currency in which the relevant Party B Debt Portfolio Assets are denominated. Early Partial Termination Terms: When Applicable: A Termination Date in respect of an Early Partial Termination occurs 25 Exchange Business Days after either party gives an Early Partial Termination Notice to the other party. Early Partial Termination Notice: An Early Partial Termination Notice is a notice by one party to the other party specifying that it wishes Early Partial Termination to occur in relation to a number of Party A Equity Portfolio Assets (being a number that is a multiple of 10,000 which is not less than 100,000 and which means that the number of Party A Equity Portfolio Assets remaining the subject of this Transaction after the Early Partial Termination is not less than 600,000 (or such lesser number as to which the Issuer then has confirmed in writing that it would treat Party B as an assignee of MIMUSA's rights under the Registration Rights Agreement upon the transfer of such number of Party A Equity Portfolio Assets)). Neither party may give an Early Partial Termination Notice until an S-3 Registration Statement has been declared effective for at least the number of MIC Trust Shares as are affected by the Early Partial Termination Notice. Effect of Early Partial Termination Notice: The effect of an Early Partial Termination Notice is that: (a) partial termination will occur in accordance with the Settlement Terms set out above for that number A-17 of Party A Equity Portfolio Assets specified in the Early Partial Termination Notice and that portion of Party B Debt Portfolio Assets identified by Party B and agreed by Party A (in its absolute discretion) which is the same as the proportion which the Party A Equity Portfolio Assets specified in the Early Partial Termination Notice bears to the number of Party A Equity Portfolio Assets before Early Partial Termination, with references to Settlement being to the Early Partial Termination and corresponding amendments to allow Settlement to occur under the Settlement Terms set out above; and (b) following the Early Partial Termination, the number of Party A Equity Portfolio Assets is reduced by the number of Party A Equity Portfolio Assets the subject of that Early Partial Termination and the Party B Debt Portfolio Assets are reduced by the portion of Party B Debt Portfolio Assets the subject of that Early Partial Termination (calculated as set out in paragraph (a) above). Voting: Party A Equity Portfolio Assets: Party A shall be free to act, or refrain from acting, in respect of any request, act, decision, vote or other matter relating to the Party A Equity Portfolio Assets (or any of them), and will not be required to act at the direction of or in accordance with any instruction from Party B or any other person regarding any request, act, decision, vote or other matter relating to the Party A Equity Portfolio Assets (or any of them). Party B Debt Portfolio Assets: Party B shall be free to act, or refrain from acting, in respect of any request, act, decision, vote or other matter relating to the Party B Debt Portfolio Assets (or any of them), and will not be required to act at the direction of or in accordance with any instruction from Party A or any other person regarding any request, act, decision, vote or other matter relating to the Party B Debt Portfolio Assets (or any of them). Adjustments: Method of Adjustment: Party A Equity Portfolio Assets: Calculation Agent Adjustment (except in relation to a Rights Issue (as defined below) in respect of the Party A Equity Portfolio Assets). Any reference in Section 11.2(c)(C) of the Equity Definitions to the "relevant Number of Shares" shall read as a reference to the "number of Party A Equity Portfolio Assets". In Section 11.2(c)(C) of the Equity Definitions, the words "the Initial Price, the Equity Notional Amount, the Knock-in Price, the Knock-out Price" shall not apply to this A-18 Confirmation. Party B Debt Portfolio Assets: Calculation Agent Adjustment. Any reference in Section 11.2(c)(C) of the Equity Definitions to the "relevant Number of Shares" shall read as a reference to the "number of Party B Debt Portfolio Assets". In Section 11.2(c)(C) of the Equity Definitions, the words "the Initial Price, the Equity Notional Amount, the Knock-in Price, the Knock-out Price" shall not apply to this Confirmation. Options Exchange: Party A Equity Portfolio Assets: Not Applicable. Party B Debt Portfolio Assets: Not Applicable. Rights Issue: In this Confirmation, "Rights Issue" means any right given to the holder of any Party A Equity Portfolio Asset during the Equity Portfolio Return Period to subscribe for and, following payment of the prescribed subscription price, to receive additional securities. If Party A is offered a Rights Issue in respect of any Party A Equity Portfolio Asset, no adjustment will be made and Party A must promptly notify Party B of the relevant details of the Rights Issue. Party B must promptly, and in any event on or before the date which is 10 Exchange Business Days before the last day on which Party A may take up that Rights Issue, notify Party A whether it requires Party A to take up the Rights Issue. If Party B notifies Party A (within the time period described above) that it requires Party A to take up the Rights Issue, then Party A must take up the Rights Issue and enter into a new total return swap with Party B in relation to the Rights Issue securities, at the price of such Rights Issue securities under the Rights Issue and otherwise on terms substantially similar to the terms of this Transaction. Extraordinary Events: Consequences of Merger Events: Applicable only to Party A Equity Portfolio Assets. Share-for-Share: Calculation Agent Adjustment. Share-for-Other: Calculation Agent Adjustment. Share-for-Combined: Calculation Agent Adjustment. A-19 Options Exchange: Party A Equity Portfolio Assets: Not Applicable. Party B Debt Portfolio Assets: Not Applicable. Tender Offer: Applicable only to Party A Equity Portfolio Assets. Consequences of Tender Offers: Share-for-Share: Calculation Agent Adjustment. Share-for-Other: Calculation Agent Adjustment. Share-for-Combined: Calculation Agent Adjustment. Options Exchange: Party A Equity Portfolio Assets: Not Applicable. Party B Debt Portfolio Assets: Not Applicable. Composition of Combined Consideration: Applicable. Nationalization, Insolvency or Delisting: Negotiated Close-out. For the purposes of this Transaction, Section 12.6(c)(i) of the Equity Definitions shall read: ""Negotiated Close-out" means that the parties may, but are not obliged to, terminate the Transaction on mutually acceptable terms and if the parties do not agree to terminate the Transaction, then it continues on the terms and subject to the conditions then in effect." Additional Disruption Events: Failure to Deliver: Not applicable. Insolvency Filing: Applicable. Change in Law: Applicable. For the purposes of this Transaction, Section 12.9(b)(i) of the Equity Definitions is amended so that the words "and the Determining Party will determine the Cancellation Amount payable by one party to the other" shall not apply on the occurrence of an Insolvency Filing or a Change in Law. Additional Disruption The following shall also be Events: Additional Disruption Events for the purposes of this Confirmation: (a) If any Party B Debt Portfolio Asset ceases to be an Eligible Party B Debt Portfolio Asset (as defined in A-20 Schedule A), and the relevant Party B Debt Portfolio Asset is not replaced with Eligible Party B Debt Portfolio Assets identified by Party B and agreed by Party A (in its absolute discretion) within 5 Business Days of the date on which it ceased to be an Eligible Party B Debt Portfolio Asset. (b) If at any time the value of the Party A Equity Portfolio Assets (calculated on any date by multiplying the number of Party A Equity Portfolio Assets by the arithmetic average of the daily volume weighted average price of the MIC Trust Shares (with such exclusions and inclusions as the Exchange's rules provide and Adjusted as described above) on the Exchange on the preceding 15 Exchange Business Days (the "Valuation Reference Period") equals or is less than SGD 12.75 million or, if the Over-allotment Option is exercised, the amount which is half of the amount which is the aggregate of SGD 12.75 million and the Over-allotment Amount. If either of these Additional Disruption Events occurs, then Section 12.9(b)(i) of the Equity Definitions shall apply as if the event was a "Change in Law" or "Insolvency Filing" for the purposes of that section, except that following the occurrence of an Additional Disruption Event as described at paragraph (a) above, Section 12.9(b)(i) will not be amended as described above so that the words "and the Determining Party will determine the Cancellation Amount payable by one party to the other" shall apply on the occurrence of an Additional Disruption Event as described at paragraph (a) above. The Cancellation Amount will be calculated without double-counting any value realised by either party on settlement of the Transaction under the Settlement Terms for Early Partial Termination or termination of this Transaction. Determining Party: Party A Non-Reliance: Applicable. Agreements and Acknowledgments Applicable. Regarding Hedging Activities: Additional Acknowledgments: Applicable. 3. Additional Provisions. The parties agree that any failure by Party A to procure the consent of MIMUSA to a sale, delivery or payment by the date required as set forth above A-21 shall be treated for purposes of Section 5(a)(i) of the Agreement as a failure by Party A to make a payment or delivery under Section 2(a)(i) of the Agreement. 4. Party A agrees to provide the following Credit Support Documents: Pledge by MIMUSA of Party A Equity Portfolio Assets in favour of Party B. Party B agrees to provide the following Credit Support Documents: Deed of Charge made on the date hereof between Party B and MIMUSA. 5. Account Details: Account for payments to Party A: The account from time to time notified in writing by Party A to Party B to be the account for payments to Party A. Account for payments to Party B: The account from time to time notified in writing by Party B to Party A to be the account for payments to Party B. Please confirm that the foregoing correctly sets forth the terms of our agreement by executing the copy of this Confirmation enclosed for that purpose and returning it to us or by sending to us a letter or telex substantially similar to this letter, which letter or telex sets forth the material terms of the Transaction to which this Confirmation relates and indicates your agreement to those terms. Yours sincerely, MACQUARIE BANK LIMITED By: /s/ Neil Horner ---------------------------------- Name: Neil Horner Title: Senior Corporate Counsel Confirmed as of the date first above written: MACQUARIE INTERNATIONAL INFRASTRUCTURE FUND LIMITED By: /s/ Robert Mulderig ----------------------------- Name: Robert A. Mulderig Title: Director A-22 SCHEDULE A ELIGIBLE PARTY B DEBT PORTFOLIO ASSET An asset is an "Eligible Party B Debt Portfolio Asset" if it is: 1. a debt security issued by Macquarie Bank Limited; or 2. a debt security issued by a third party provided that (in respect of all debt securities which are Party B Debt Portfolio Assets or which are the subject of any transaction entered into on substantially the same terms and conditions as this Transaction between Party B and Macquarie Bank Limited or any Affiliate of Macquarie Bank Limited) if the third party issuer: (i) has a rating of A (Standard & Poor's), then no more than AUD10 million (or its equivalent in foreign currencies) is invested in debt securities having a maturity of more than 2 years issued by that third party issuer; (ii) has a rating of AA (Standard & Poor's), then no more than AUD50 million (or its equivalent in foreign currencies) is invested in debt securities having a maturity of more than 5 years issued by that third party issuer; and (iii) has a rating of AAA (Standard & Poor's), then no more than AUD100 million (or its equivalent in foreign currencies) is invested in debt securities having a maturity of more than 7 years issued by that third party issuer; or 3. a cash deposit standing to the credit of a bank account in the name of Party B held in a Macquarie Bank Limited offshore banking unit account. A-23 EX-99.B 3 exh-b_041405.txt PLEDGE AGREEMENT Exhibit B PLEDGE AGREEMENT THIS PLEDGE AGREEMENT is made as of this 3rd day of May, 2005, between Macquarie Infrastructure Management (USA) Inc., a Delaware corporation ("Pledgor") and Macquarie International Infrastructure Fund Limited ("Secured Party"). WHEREAS, Macquarie Bank Limited ("MBL"), which is Pledgor's corporate parent, and Secured Party have entered into a 2002 Master Agreement and a total return swap confirmation thereunder, each dated on or about the date hereof (together, the "Swap Agreement"); WHEREAS, Pledgor and Secured Party are entering into this Pledge Agreement and Pledgor is granting the pledge provided for herein to support MBL's obligations under the Swap Agreement; NOW, THEREFORE, in consideration of their mutual covenants contained herein and to secure the full and punctual observance and performance by MBL of all Secured Obligations (as defined herein), the parties hereto, intending to be legally bound, hereby mutually covenant and agree as follows: 1. Definitions. As used herein, the following words and phrases shall have the following meanings: "Authorized Officer" of Pledgor means, if Pledgor is not a natural person, any officer, trustee or general partner (or any officer thereof), as applicable, as to whom Pledgor shall have delivered notice to Secured Party that such trustee, general partner or officer is authorized to act hereunder on behalf of Pledgor. "Business Day" means any day on which commercial banks are open for business in New York City. "Calculation Agent" means the Secured Party. "Collateral Event of Default" means, at any time, the occurrence of either of the following: (A) failure of the Collateral to include, as Eligible Collateral, Shares at least equal in number to the Required Number or (B) failure at any time of the Security Interests to constitute valid and perfected security interests in all of the Collateral, subject to no prior or equal Lien. "Collateral" has the meaning provided in Section 2(a). "Control" means "control" as defined in Section 8-106 and Section 9-106 of the UCC. "Custodian" means The Bank of New York acting as custodian for Secured Party in accordance with the Custody Agreement. "Custody Agreement" means the Custody Agreement dated on or about the date hereof between Secured Party and the Custodian. B-1 "Effective Date" has the meaning given to it in the Swap Agreement. "Eligible Collateral" means Shares or other Collateral acceptable to Secured Party in its sole discretion, provided that Pledgor has good and marketable title thereto, free of all Liens (other than the Security Interests) and Transfer Restrictions (other than any Existing Transfer Restrictions) and that Secured Party has a valid, first priority perfected security interest therein, a first lien thereon and Control with respect thereto. "Enforcement Event", following the occurrence of an Event of Default or Collateral Event of Default, means a failure by MBL to remedy that Event of Default or Collateral Event of Default on or before the date which is the later of: (a) the Business Day following the last day of any cure or remedy period afforded to MBL under the Swap Agreement in respect of that Event of Default or Collateral Event of Default; and (b) 10 Business Days after notice from the Secured Party to MBL specifying the Event of Default or Collateral Event of Default. "Event of Default" means a failure by MBL to perform a Secured Obligation when due. "Existing Transfer Restrictions" means Transfer Restrictions existing by virtue of the fact that Pledgor is an "affiliate", within the meaning of Rule 144 under the Securities Act, of the Issuer. "Initial Number" means 926,000. "Issuer" means Macquarie Infrastructure Company Trust (New York Stock Exchange ticker "MIC"). "Lien" means any lien, mortgage, security interest, pledge, charge or encumbrance of any kind. "Location" means, with respect to any party, the place such party is "located" within the meaning of Section 9-307 of the UCC. "Over-allotment Option" has the meaning given to it in the Swap Agreement. "Over-allotment Option Exercise Date" has the meaning given to it in the Swap Agreement. "Party A Equity Portfolio Assets" has the meaning given to it in the Swap Agreement. "Person" means an individual, a corporation, a partnership, an association, a trust or any other entity or organization, including a government or political subdivision or an agency or instrumentality thereof. "Pledged Shares" means, as of any date, the Shares listed on Schedule 1. "Required Number" means (i) the Initial Number at all times prior to the date which is the later of the Over-allotment Option Exercise Date and the last day on which the Over-allotment Option may be exercised, and (ii) thereafter, the number of Party A Equity Portfolio Assets. B-2 "Sales Proceeds Account" means any interest-bearing demand deposit account established and maintained as set forth in Section 6(b). "Secured Moneys" means all debts and monetary liabilities of MBL to the Secured Party on any account under or in relation to the Swap Agreement, irrespective of whether the debts or liabilities (A) are present or future, (B) are actual, prospective, contingent or otherwise or (C) are at any time ascertained or unascertained. "Secured Obligations" means all present and future obligations of MBL to Secured Party under the Swap Agreement including the obligation to pay the Secured Moneys. "Securities Act" means the Securities Act of 1933, as amended. "Security Interests" means the security interests in the Collateral created hereby. "Settlement Date" has the meaning assigned to it in the Swap Agreement. "Shares" means shares of trust stock of the Issuer. "Sydney Business Days" has the meaning assigned to it in the Swap Agreement. "Transfer Restriction" means, with respect to any Shares or item of Collateral pledged under this Pledge Agreement, any condition to or restriction on the ability of the owner thereof to sell, assign or otherwise transfer such Shares or item of Collateral or to enforce the provisions thereof or of any document related thereto whether set forth in such item of Collateral itself or in any document related thereto, including, without limitation, (i) any requirement that any sale, assignment or other transfer or enforcement of such Shares or item of Collateral be consented to or approved by any Person, including, without limitation, the issuer thereof or any other obligor thereon, (ii) any limitations on the type or status, financial or otherwise, of any purchaser, pledgee, assignee or transferee of such Shares or item of Collateral, (iii) any requirement of the delivery of any certificate, consent, agreement, opinion of counsel, notice or any other document of any Person to the issuer of, any other obligor on or any registrar or transfer agent for, such Shares or item of Collateral, prior to the sale, pledge, assignment or other transfer or enforcement of such Shares or item of Collateral and (iv) any registration or qualification requirement or prospectus delivery requirement for such Shares or item of Collateral pursuant to any federal, state or foreign securities law (including, without limitation, any such requirement arising as a result of the fact that such Shares or Collateral are "restricted securities" as defined in Rule 144 under the Securities Act or the fact that Pledgor is an "affiliate", as defined in Rule 144 under the Securities Act, of the relevant Issuer; provided that the required delivery of any assignment, instruction or entitlement order from the seller, pledgor, assignor or transferor of such Shares or item of Collateral, together with any evidence of the corporate or other authority of such Person, shall not constitute a "Transfer Restriction". "UCC" means the Uniform Commercial Code as in effect from time to time in the State of New York. 2. The Security Interests. In order to secure the full and punctual observance and performance by MBL of all Secured Obligations: B-3 (a) Pledgor hereby pledges to Secured Party and grants to Secured Party a security interest in and to, and a lien upon and right of set off against, and transfers to Secured Party, as and by way of a security interest, all of its right, title and interest in and to (i) the Pledged Shares; (ii) all income, proceeds and collections received or to be received, or derived or to be derived, now or any time hereafter (whether before or after the commencement of any proceeding under applicable bankruptcy, insolvency or similar law, by or against Pledgor or with respect to Pledgor) from or in connection with the Pledged Shares (including, without limitation, any shares of capital stock issued by Issuer in respect of any Pledged Shares or any cash, securities or other property distributed in respect of or exchanged for any Pledged Shares, or into which any such Pledged Shares are converted, in connection with any merger or similar event or otherwise, and any security entitlements in respect of any of the foregoing); (iii) all powers and rights now owned or hereafter acquired under or with respect to the Pledged Shares and (iv) any Sales Proceeds Account established pursuant to Section 6(b) and all funds from time to time held therein or credited thereto (collectively, the "Collateral"). (b) On or before the date which is 2 Sydney Business Days before the Effective Date, Pledgor shall deliver to Custodian in pledge hereunder the Pledged Shares. (c) Secured Party shall have all of the rights, remedies and recourses with respect to the Collateral afforded a secured party by the UCC, in addition to, and not in limitation of, the other rights, remedies and recourse afforded to Secured Party by this Pledge Agreement. Pledgor shall not be generally liable for MBL's obligations under the Swap Agreement, and Secured Party shall have no recourse against Pledgor for such obligations except to the extent set forth herein. (d) Upon the establishment of a Sales Proceeds Account pursuant to Section 6(b), Pledgor shall confirm in writing, in a form satisfactory to Secured Party, its pledge and grant of a Security Interest in, and lien upon and right of set off against, all of its right, title and interest in and to such Sales Proceeds Account and all funds from time to time held therein or credited thereto. 3. Representations and Warranties of Pledgor. Pledgor hereby represents and warrants to Secured Party, which representations shall be deemed repeated on each date Pledgor delivers Pledged Shares as Collateral hereunder, that: (a) Pledgor (i) owns and, at all times prior to the release of the Collateral pursuant to the terms of this Pledge Agreement, will own the Collateral free and clear of any Liens (other than the Security Interests) or Transfer Restrictions (other than any Existing Transfer Restrictions) and (ii) is not and will not become a party to or otherwise bound by any agreement, other than this Pledge Agreement, that (x) restricts in any manner the rights of any present or future owner of the Collateral with respect thereto or (y) provides any person other than Pledgor, Secured Party or any securities intermediary through whom any Collateral is held (but in the case of any such securities intermediary only in respect of Collateral held through it) with Control with respect to any Collateral. (b) Other than financing statements or other similar or equivalent documents or instruments with respect to the Security Interests, no financing statement, security agreement or similar or equivalent document or instrument covering all or any part of the Collateral is on file or of B-4 record in any jurisdiction in which such filing or recording would be effective to perfect a Lien, security interest or other encumbrance of any kind on such Collateral. (c) (i) Upon the filing of a UCC financing statement naming the Pledgor as "debtor" and the Secured Party as "secured party" and describing the Collateral in the office of the Secretary of State of the State of Delaware, Secured Party will have a valid, enforceable and perfected Security Interest in the Collateral subject to no prior Lien. (d) Subject to Section 4(a), no registration, recordation or filing with any governmental body, agency or official is required in connection with the execution and delivery of this Pledge Agreement or necessary for the validity or enforceability hereof or thereof or for the perfection or enforcement of the Security Interests. (e) Pledgor has not performed and will not perform any acts that might prevent Secured Party from enforcing any of the terms of this Pledge Agreement or that might limit Secured Party in any such enforcement. (f) The Location of Pledgor is Delaware. 4. Certain Covenants of Pledgor. Pledgor agrees that, so long as any Secured Obligation remains outstanding: (a) Pledgor shall, at the expense of Pledgor and in such manner and form as Secured Party may require, give, execute, deliver, file and record any financing statement, notice, instrument, document, agreement or other papers that may be necessary or desirable in order (i) to create, preserve, perfect, substantiate or validate any security interest granted pursuant hereto, (ii) to create or maintain Control with respect to any such security interests in any investment property (as defined in Section 9-102(49) of the UCC) constituting Collateral or (iii) to enable Secured Party to exercise and enforce its rights hereunder with respect to such security interest. To the extent permitted by applicable law, Pledgor hereby authorizes Secured Party to execute and file, in the name of Pledgor or otherwise, UCC financing or continuation statements that Secured Party in its sole discretion may deem necessary or appropriate to further perfect, or maintain the perfection of, the Security Interests. Pledgor hereby authorizes the filing of any financing statements or continuation statements, and amendments to financing statements, in any jurisdictions and with any filing offices as the Secured Party may determine, in its sole discretion, are necessary or advisable to perfect the security interest granted to the Secured Party in connection herewith. Such financing statements may describe the collateral in the same manner as described in this Security Agreement or may contain an indication or description of collateral that describes such property in any other manner as the Secured Party may determine, in its sole discretion, is necessary to ensure the perfection of the security interest in the Collateral granted to the Secured Party in connection herewith. (b) Pledgor shall warrant and defend its title to the Collateral, subject to the rights of Secured Party, against the claims and demands of all persons. Secured Party may elect, but without an obligation to do so, to discharge any Lien of any third party on any of the Collateral. (c) Pledgor agrees that it shall not (1) create or permit to exist any Lien (other than the Security Interests) or any Transfer Restriction (other than any Existing Transfer Restrictions) B-5 upon or with respect to the Collateral, (2) sell or otherwise dispose of, or grant any option with respect to, any of the Collateral or (3) enter into or consent to any agreement pursuant to which any person other than the Pledgor, the Secured Party and any securities intermediary through whom any of the Collateral is held (but in the case of any such securities intermediary only in respect of Collateral held through it) has or will have Control in respect of any Collateral. 5. Administration of the Collateral. (a) Any delivery of Shares as Collateral to Secured Party or its Custodian by Pledgor shall be effected by delivery of certificates representing such Shares to Secured Party, accompanied by any required transfer tax stamps, and in suitable form for transfer by delivery or accompanied by duly executed instruments of transfer or assignment in blank, with signatures appropriately guaranteed, all in form and substance satisfactory to Secured Party. Upon delivery of any such Pledged Shares under this Pledge Agreement, Secured Party shall examine (or cause the examination of) such Pledged Shares and assignment to determine that they comply as to form with the requirements for Eligible Collateral. (b) Within one Business Day of the later of (i) the Over-allotment Option Exercise Date and (ii) the last day on which the Over-allotment Option may be exercised, the Secured Party shall cause the return to the Pledgor of a number of Shares equal to the difference, if any, between the Initial Number and the number of Party A Equity Portfolio Assets on such day. Such returned Shares shall be fully released and discharged from the Security Interests (and Schedule 1 shall be deemed amended to reflect such release). (c) If on any Business Day Secured Party determines that a Collateral Event of Default shall have occurred, Secured Party shall promptly notify Pledgor of such determination by telephone call to Pledgor or, if Pledgor is not a natural person, an Authorized Officer of Pledgor followed by a written confirmation of such call. (d) Unless and until Secured Party is entitled to exercise its remedies with respect to Collateral as set forth below, Secured Party shall not be entitled to pledge, rehypothecate or further assign any Collateral without Pledgor's prior written consent. (e) Secured Party may exchange Pledged Share certificates for certificates of smaller denominations from time to time as it deems desirable in order to facilitate the release or sale of Pledged Shares as set forth in this Pledge Agreement. Each such exchange shall be at the expense of Pledgor, and Schedule 1 shall be deemed amended to reflect each such exchange. (f) Pledgor agrees that Pledgor shall forthwith upon demand pay to Secured Party: i. the amount of any taxes that Secured Party may have been required to pay by reason of the Security Interests or to free any of the Collateral from any Lien thereon, and ii. the amount of any and all out-of-pocket expenses, including the fees and disbursements of counsel and of any other experts, that Secured Party may incur in connection with (A) the enforcement of this Pledge Agreement, including such expenses as are incurred to preserve the value of the Collateral and the validity, perfection, rank and value of the Security B-6 Interests, (B) the collection, sale or other disposition of any of the Collateral, (C) the exercise by Secured Party of any of the rights conferred upon it hereunder or (D) any Enforcement Event. Any such amount not paid on demand shall bear interest (computed on the basis of a year of 360 days and payable for the actual number of days elapsed) at a rate per annum equal to 5% plus the prime rate as published in The Wall Street Journal, Eastern Edition in effect from time to time during the period from the date hereof to the date of the termination of this Pledge Agreement. 6. Settlement of Swap Agreement. (a) If "Physical Settlement" applies under the Swap Agreement as set forth therein for any Settlement Date, Pledgor may consent to the delivery of any Pledged Shares in satisfaction of MBL's obligations under the Swap Agreement by giving Secured Party notice of such consent in writing. If Pledgor so consents in writing, then on the later of (i) such consent or (ii) that Settlement Date, upon Secured Party's satisfaction of its obligations then due to MBL under the Swap Agreement, Secured Party shall hold such Pledged Shares absolutely and free from any claim or right of Pledgor, and Schedule 1 shall be deemed amended to reflect such delivery. (b) If MBL is required to pay a Settlement Price to Secured Party, Pledgor may consent to the sale of any Pledged Shares and the delivery of the proceeds thereof, plus any interest on such proceeds, in satisfaction of MBL's obligations under the Swap Agreement by giving Secured Party notice of such consent in writing. If Pledgor so consents, then (i) Secured Party shall establish a Sales Proceeds Account with Custodian in accordance with the Swap Agreement and execute an agreement with the Custodian and Secured Party, in a form satisfactory to Secured Party, so that Secured Party shall have Control over such Sales Proceeds Account, (ii) MBL may direct the sale of such Pledged Shares, and (iii) the proceeds of any such sale shall be deposited in the Sales Proceeds Account (and Schedule 1 shall be deemed amended to reflect the sale of such Pledged Shares). On the relevant Settlement Date, upon Secured Party's satisfaction of its obligations then due to MBL under the Swap Agreement, Secured Party may withdraw from the Sales Proceeds Account an amount equal to the amount owed by MBL to Secured Party on that Settlement Date, and shall hold such amount absolutely and free from any claim or right of Pledgor, and shall release to Pledgor any excess amounts in the Sales Proceeds Account. (c) Pledgor may consent to the release of any Collateral and the delivery of such Collateral to Secured Party in satisfaction of MBL's obligations under the Swap Agreement in respect of any Equity Portfolio Return Payment Date (as defined in the Swap Agreement) by giving Secured Party notice of such consent in writing. If Pledgor so consents, then on the later of (i) such consent or (ii) that Equity Portfolio Return Payment Date, upon Secured Party's satisfaction of its obligations then due to MBL under the Swap Agreement, Secured Party shall hold such Collateral absolutely and free from any claim or right of Pledgor. 7. Voting Rights in Collateral. Unless Secured Party shall have exercised its rights to sell or retain Collateral following an Enforcement Event, Pledgor shall have the right, from time to time, to vote and to give consents, ratifications and waivers with respect to the Collateral. 8. Remedies upon Enforcement Events. (a) If any Enforcement Event shall have occurred and be continuing, Secured Party may exercise all the rights of a secured party under the Uniform Commercial Code (whether or not in effect in the jurisdiction where such rights are exercised) and, in addition, without being required to give any notice, except as herein provided or as may be required by mandatory provisions of law, may sell such Collateral as may be necessary to B-7 generate proceeds sufficient to satisfy in full all Secured Obligations or hereunder, at public or private sale or at any broker's board or on any securities exchange, for cash, upon credit or for future delivery, and at such price or prices as Secured Party may deem satisfactory. Pledgor covenants and agrees that it will execute and deliver such documents and take such other action as Secured Party deems necessary or advisable in order that any such sale may be made in compliance with law. Upon any such sale Secured Party shall have the right to deliver, assign and transfer to the buyer thereof the Collateral so sold. Each buyer at any such sale shall hold the Collateral so sold absolutely and free from any claim or right of whatsoever kind, including any equity or right of redemption of Pledgor that may be waived or any other right or claim of Pledgor, and Pledgor, to the extent permitted by law, hereby specifically waives all rights of redemption, stay or appraisal that Pledgor has or may have under any law now existing or hereafter adopted. The notice (if any) of such sale required by Section 9-611 of the UCC shall (1) in case of a public sale, state the time and place fixed for such sale, (2) in case of sale at a broker's board or on a securities exchange, state the board or exchange at which such sale is to be made and the day on which the Collateral, or the portion thereof so being sold, will first be offered for sale at such board or exchange, and (3) in the case of a private sale, state the day after which such sale may be consummated. Any such public sale shall be held at such time or times within ordinary business hours and at such place or places as Secured Party may fix in the notice of such sale. At any such sale the Collateral may be sold in one lot as an entirety or in separate parcels, as Secured Party may determine. Secured Party shall not be obligated to make any such sale pursuant to any such notice. Secured Party may, without notice or publication, adjourn any public or private sale or cause the same to be adjourned from time to time by announcement at the time and place fixed for the sale, and such sale may be made at any time or place to which the same may be so adjourned. In case of any sale of all or any part of the Collateral on credit or for future delivery, the Collateral so sold may be retained by Secured Party until the selling price is paid by the buyer thereof, but Secured Party shall not incur any liability in case of the failure of such buyer to take up and pay for the Collateral so sold and, in case of any such failure, such Collateral may again be sold upon like notice. Secured Party, instead of exercising the power of sale herein conferred upon it, may proceed by a suit or suits at law or in equity to foreclose the Security Interests and sell the Collateral, or any portion thereof, under a judgment or decree of a court or courts of competent jurisdiction. (b) Pledgor hereby irrevocably appoints Secured Party its true and lawful attorney, with full power of substitution, in the name of Pledgor, Secured Party or otherwise, for the sole use and benefit of Secured Party, but at the expense of Pledgor, to the extent permitted by law, to exercise, at any time and from time to time while an Enforcement Event has occurred and is continuing, all or any of the following powers with respect to all or any of the Collateral: i. to demand, sue for, collect, receive and give acquittance for any and all monies due or to become due upon or by virtue thereof, ii. to settle, compromise, compound, prosecute or defend any action or proceeding with respect thereto, iii. to sell, transfer, assign or otherwise deal in or with the same or the proceeds or avails thereof, as fully and effectually as if Secured Party were the absolute owner thereof (including, without limitation, the giving of instructions and entitlement orders in respect thereof), and B-8 iv. to extend the time of payment of any or all thereof and to make any allowance and other adjustments with reference thereto; provided that Secured Party shall give Pledgor not less than one day's prior written notice of the time and place of any sale or other intended disposition of any of the Collateral, except any Collateral that threatens to decline speedily in value, including, without limitation, equity securities, or is of a type customarily sold on a recognized market. (c) Upon any delivery or sale of all or any part of any Collateral made either under the power of delivery or sale given hereunder or under judgment or decree in any judicial proceedings for foreclosure or otherwise for the enforcement of this Pledge Agreement, Secured Party is hereby irrevocably appointed the true and lawful attorney of Pledgor, in the name and stead of Pledgor, to make all necessary deeds, bills of sale, instruments of assignment, transfer or conveyance of the property, and all instructions and entitlement orders in respect of the property, thus delivered or sold. For that purpose Secured Party may execute all such documents, instruments, instructions and entitlement orders. This power of attorney shall be deemed coupled with an interest and irrevocable, and Pledgor hereby ratifies and confirms that which Pledgor's attorney acting under such power, or such attorney's successors or agents, shall lawfully do by virtue of this Pledge Agreement. If so requested by Secured Party or by any buyer of the Collateral or a portion thereof, Pledgor shall further ratify and confirm any such delivery or sale by executing and delivering to Secured Party or to such buyer or buyers at the expense of Pledgor all proper deeds, bills of sale, instruments of assignment, conveyance or transfer, releases, instructions and entitlement orders as may be designated in any such request. (d) In the case of an Enforcement Event, Secured Party may proceed to realize upon the security interest in the Collateral against any one or more of the types of Collateral, at any time, as Secured Party shall determine in its sole discretion subject to the foregoing provisions of this Section 7. The proceeds of any sale of, or other realization upon, or other receipt from, any of the Collateral shall be applied by Secured Party in the following order of priorities: first, to the payment to Secured Party of the expenses of such sale or other realization, including reasonable compensation to the agents and counsel of Secured Party, and all expenses, liabilities and advances incurred or made by Secured Party in connection therewith, including brokerage fees in connection with the sale by Secured Party of any Collateral; second, to the payment to Secured Party of the aggregate amount (or the value of any delivery or other performance) owed by MBL to Secured Party under the Swap Agreement; finally, if all of the obligations of Pledgor hereunder and all of the Secured Obligations of MBL under the Swap Agreement have been fully discharged or sufficient funds have been set aside by Secured Party at the request of Pledgor for the discharge thereof, any remaining proceeds shall be released to Pledgor. 9. Miscellaneous. Whenever any of the parties hereto is referred to, such reference shall be deemed to include the successors and assigns of such party. All the covenants and agreements herein contained by or on behalf of Pledgor and Secured Party shall bind, and inure to the benefit B-9 of, Pledgor's respective successors and assigns whether so expressed or not, and shall be enforceable by and inure to the benefit of Secured Party and its successors and assigns. (a) To the extent permitted by law, the unenforceability or invalidity of any provision or provisions of this Pledge Agreement shall not render any other provision or provisions herein contained unenforceable or invalid. (b) Any provision of this Pledge Agreement may be amended or waived if, and only if, such amendment or waiver is in writing and signed, in the case of an amendment, by Pledgor and Secured Party or, in the case of a waiver, by the party against whom the waiver is to be effective. No failure or delay by either party in exercising any right, power or privilege hereunder shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege. The rights and remedies herein provided shall be cumulative and not exclusive of any rights or remedies provided by law. (c) 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 forms of telecommunication. Notices to Pledgor shall be directed to Pledgor at 600 Fifth Avenue, New York, New York 10020, Attention: President and Chief Executive Officer; notices to Secured Party shall be directed to it care of Macquarie Infrastructure Management (Asia) Pty Limited, 1 Martin Place, Sydney NSW 2000, Australia, Telecopy No. +(612) 8232 7780, Attention: Executive Director, Legal Risk Management Division and Investment Banking Group. (d) This Pledge Agreement shall in all respects be construed in accordance with and governed by the laws of the State of New York (without reference to its conflicts of laws rules). Pledgor and Secured Party hereby agree, and Secured Party shall procure Custodian's agreement, that Secured Party's and Custodian's jurisdiction, within the meaning of Section 8-110(e) of the UCC, insofar as it acts as a securities intermediary hereunder or in respect hereof, is the State of New York. (e) Each party hereby irrevocably and unconditionally submits to the non-exclusive jurisdiction of the Federal and state courts located in the Borough of Manhattan, in the City of New York in any suit or proceeding arising out of or relating to this Pledge Agreement or the transactions contemplated hereby. (f) Each party hereby irrevocably and unconditionally waives any and all right to trial by jury in any legal proceeding arising out of or related to this Pledge Agreement or the transactions contemplated hereby. (g) This Pledge Agreement may be executed, acknowledged and delivered in any number of counterparts and all such counterparts taken together shall be deemed to constitute one and the same agreement. 10. Termination of Pledge Agreement. This Pledge Agreement and the rights granted by Pledgor in the Collateral shall cease, terminate and be void upon fulfillment of all of the obligations of MBL and Pledgor under the Secured Obligations and hereunder. Any Collateral remaining at the B-10 time of such termination shall be fully released and discharged from the Security Interests and delivered to Pledgor by Secured Party, all at the request and expense of Pledgor. B-11 IN WITNESS WHEREOF, the parties have signed this Pledge Agreement as of the date and year first above written. MACQUARIE INFRASTRUCTURE MACQUARIE INTERNATIONAL MANAGEMENT (USA) INC. INFRASTRUCTURE FUND LIMITED By: /s/ Peter Stokes By: /s/ Michael Hamer ------------------------------ --------------------------- Name: Peter Stokes Name: Michael Hamer Title: President and Title: Director Chief Executive Officer B-12 Schedule 1 to Pledge Agreement PLEDGED SHARES - -------------------------- ---------------- ------------------- --------------- Class Stock Certificate Number of Issuer of Stock Numbers Shares - -------------------------- ---------------- ------------------- --------------- - -------------------------- ---------------- ------------------- --------------- Macquarie Infrastructure Trust stock MIC-060 600,000 Company Trust MIC-062 326,000 - -------------------------- ---------------- ------------------- --------------- B-13 -----END PRIVACY-ENHANCED MESSAGE-----