-----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, SSrXSl9LZOKDHzGSX6v/vDiuPXx8m4LoQZyYsGCwpvgkKzdvPNIMt++GYlFpnjVp /LY6cPNEpWVX80u8jnI71g== 0000950123-04-015247.txt : 20041227 0000950123-04-015247.hdr.sgml : 20041224 20041227162647 ACCESSION NUMBER: 0000950123-04-015247 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 6 CONFORMED PERIOD OF REPORT: 20041227 ITEM INFORMATION: Changes in Registrant.s Certifying Accountant ITEM INFORMATION: Other Events ITEM INFORMATION: Financial Statements and Exhibits FILED AS OF DATE: 20041227 DATE AS OF CHANGE: 20041227 FILER: COMPANY DATA: COMPANY CONFORMED NAME: Macquarie Infrastructure CO LLC CENTRAL INDEX KEY: 0001289790 IRS NUMBER: 206196808 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 8-K SEC ACT: 1934 Act SEC FILE NUMBER: 001-32384 FILM NUMBER: 041226719 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 LLC DATE OF NAME CHANGE: 20040510 FILER: 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: 8-K SEC ACT: 1934 Act SEC FILE NUMBER: 001-32385 FILM NUMBER: 041226720 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 8-K 1 y04134e8vk.txt FORM 8-K 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): December 27, 2004 MACQUARIE INFRASTRUCTURE COMPANY TRUST (Exact name of registrant as specified in its charter) Delaware 20-6196808 (State or other jurisdiction of (IRS Employer incorporation) Identification No.) 600 Fifth Avenue, 21st Floor, New York, New York 10020 (Address of principal executive offices) (Zip Code) Registrant's telephone number, including area code: (212) 548-6538 Not Applicable (Former name or former address, if changed since last report.) MACQUARIE INFRASTRUCTURE COMPANY LLC (Exact name of registrant as specified in its charter) Delaware 43-2052503 (State or other jurisdiction of (IRS Employer incorporation) Identification No.) Peter Stokes, 600 Fifth Avenue, 21st Floor, New York, New York 10020 (Address of principal executive offices) (Zip Code) Registrant's telephone number, including area code: (212) 548-6538 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 (see General Instruction A.2. below): [ ] Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) [ ] Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) [ ] Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) [ ] Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) 1 ITEM 4.01 CHANGES IN REGISTRANT'S CERTIFYING ACCOUNTANT. (a) Changing accountants. On December 22, 2004, Macquarie Infrastructure Company Trust (the "Trust") and Macquarie Infrastructure Company LLC (together with the Trust, the "Company") replaced WithumSmith+Brown, P.C. ("WSB"), who was previously engaged as the principal accountant to audit the Company's financial statements. The report issued by WSB on the financial statements for the period from inception to June 30, 2004 did not contain an adverse opinion or a disclaimer of opinion, nor was it qualified or modified as to uncertainty, audit scope, or accounting principles. During the period from inception to June 30, 2004 and subsequent interim periods through December 22, 2004, there were no disagreements between the Company and WSB on any matter of accounting principles or practices, financial statement disclosure, or auditing scope or procedure, which disagreement(s), if not resolved to the satisfaction of WSB would have caused it to make reference to the subject matter of the disagreement(s) in connection with its reports. Furthermore, there were no "reportable events," as that term is used in Item 304(a)(1)(v) of Regulation S-K, for the period from inception to June 30, 2004 and the subsequent interim periods through December 22, 2004. The decision to change independent accountants was recommended and approved by the Audit Committee of the Company's Board of Directors. On December 23, 2004, the Company provided a draft copy of the foregoing disclosures to WSB and requested that WSB provide a letter addressed to the Securities and Exchange Commission stating whether WSB agree with such disclosures. The confirming letter from WSB is attached hereto as Exhibit 16.1. (b) New independent accountants. On December 22, 2004, the Company engaged KPMG LLP as the Company's new independent registered public accountants to audit the Company's financial statements for the fiscal years ending December 31, 2004 and 2005. The appointment for the fiscal year ended December 31, 2005 will be submitted to the shareholders of the Trust for ratification at the 2005 Annual Meeting. Prior to the engagement of KPMG LLP, neither the Company nor anyone on the Company's behalf consulted with KPMG LLP regarding the application of accounting principles to a specified transaction, either completed or proposed, or the type of audit opinion that might be rendered on the Company's financial statements. ITEM 8.01 OTHER EVENTS. Attached as exhibits are the following executed agreements, forms of which were previously filed as exhibits to the registration statement on Form S-1 (Registration No. 333-116244): 1. Management Services Agreement, dated as of December 21, 2004, among Macquarie Infrastructure Company LLC, Macquarie Infrastructure Company Inc., Macquarie Yorkshire LLC, South East Water LLC, Communications Infrastructure LLC and Macquarie Infrastructure Management (USA) Inc.; 2. Amended and Restated Trust Agreement, dated as of December 21, 2004, among Macquarie Infrastructure Company LLC, Wells Fargo Delaware Trust Company, as Delaware Trustee, and Peter Stokes, as Regular Trustee; 3. Amended and Restated Operating Agreement, effective as of December 21, 2004, entered into by Macquarie Infrastructure Company Trust; and 4. Registration Rights Agreement, dated as of December 21, 2004, among Macquarie Infrastructure Company LLC, Macquarie Infrastructure Company Trust and Macquarie Infrastructure Management (USA) Inc. ITEM 9.01 FINANCIAL STATEMENTS AND EXHIBITS. (c) Exhibits.
EXHIBIT NO. DESCRIPTION ----------- ----------- 16.1 Confirming Letter from WithumSmith+Brown, P.C., dated December 27, 2004. 99.1 Management Services Agreement, dated as of December 21, 2004, among Macquarie Infrastructure Company LLC, Macquarie Infrastructure Company Inc., Macquarie Yorkshire LLC, South East Water LLC, Communications Infrastructure LLC and Macquarie Infrastructure Management (USA) Inc. 99.2 Amended and Restated Trust Agreement, dated as of December 21, 2004, among Macquarie Infrastructure Company LLC, Wells Fargo Delaware Trust Company, as Delaware Trustee, and Peter Stokes, as Regular Trustee. 99.3 Amended and Restated Operating Agreement, effective as of December 21, 2004, entered into by Macquarie Infrastructure Company Trust.
2 99.4 Registration Rights Agreement, dated as of December 21, 2004, among Macquarie Infrastructure Company LLC, Macquarie Infrastructure Company Trust and Macquarie Infrastructure Management (USA) Inc.
3 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. MACQUARIE INFRASTRUCTURE COMPANY TRUST Date: December 27, 2004 By: /s/ Peter Stokes ------------------- ---------------------------------- Name: Peter Stokes Title: Trustee 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. MACQUARIE INFRASTRUCTURE COMPANY LLC Date: December 27, 2004 By: /s/ Peter Stokes ------------------- ---------------------------------- Name: Peter Stokes Title: Chief Executive Officer EX-16.1 2 y04134exv16w1.txt LETTER TO THE S.E.C. Exhibit 16.1 December 27, 2004 United States Securities and Exchange Commission Washington, D.C. 20549 Concerning: Macquarie Infrastructure Company Trust, Form 8-K Gentlemen: We have read the statements made by Macquarie Infrastructure Company Trust (the copy of Form 8-K received by us via e-mail is attached), which we understand will be filed with Commission, pursuant to Item 4.01 of The Securities Exchange Act of 1934 and to Form 8-K Report during the month of December, 2004. We agree with the statements concerning our firm in such Form 8-K. Very truly yours, /s/ WithumSmith+Brown, P.C. - --------------------------- WithumSmith+Brown, P.C. EX-99.1 3 y04134exv99w1.txt MANAGEMENT SERVICES AGREEMENT EXHIBIT 99.1 EXECUTION VERSION MANAGEMENT SERVICES AGREEMENT AMONG MACQUARIE INFRASTRUCTURE COMPANY LLC, MACQUARIE INFRASTRUCTURE COMPANY INC., MACQUARIE YORKSHIRE LLC, SOUTH EAST WATER LLC, COMMUNICATIONS INFRASTRUCTURE LLC AND MACQUARIE INFRASTRUCTURE MANAGEMENT (USA) INC. Dated as of December 21, 2004 TABLE OF CONTENTS
Page ---- ARTICLE I DEFINITIONS ARTICLE II APPOINTMENT OF THE MANAGER Section 2.1 Appointment.......................................................... 15 Section 2.2 Initial Investment................................................... 15 Section 2.3 Agreement to Bind Subsidiaries....................................... 15 Section 2.4 Term................................................................. 15 ARTICLE III SERVICES TO BE PERFORMED BY THE MANAGER Section 3.1 Duties of the Manager................................................ 15 Section 3.2 Obligations of the Company and the Managed Subsidiaries.............. 20 ARTICLE IV POWERS OF THE MANAGER Section 4.1 Powers of the Manager................................................ 21 Section 4.2 Delegation........................................................... 22 Section 4.3 Manager's Duties Exclusive........................................... 22 ARTICLE V INSPECTION OF RECORDS Section 5.1 Books and Records.................................................... 22 ARTICLE VI AUTHORITY OF THE COMPANY, THE MANAGED SUBSIDIARIES AND THE MANAGER
i ARTICLE VII MANAGEMENT FEES Section 7.1 Structuring Fee...................................................... 23 Section 7.2 Base Management Fees................................................. 23 Section 7.3 Performance Fee...................................................... 24 Section 7.4 Registration Rights.................................................. 25 Section 7.5 Ability to Issue Trust Stock......................................... 25 ARTICLE VIII SECONDMENT OF PERSONNEL BY THE MANAGER Section 8.1 Secondment of CEO and CFO............................................ 25 Section 8.2 Remuneration of CEO and CFO.......................................... 25 Section 8.3 Secondment of Additional Personnel................................... 26 Section 8.4 Removal of Seconded Individuals...................................... 26 Section 8.5 Indemnification...................................................... 26 ARTICLE IX EXPENSE REIMBURSEMENT Section 9.1 Company Expenses..................................................... 26 ARTICLE X RESIGNATION AND REMOVAL OF THE MANAGER Section 10.1 Resignation by the Manager.......................................... 28 Section 10.2 Removal of the Manager.............................................. 29 Section 10.3 Withdrawal of Branding.............................................. 30 Section 10.4 Resignation of the Chairman and the Seconded Officers............... 31 Section 10.5 Directions.......................................................... 31 ARTICLE XI INDEMNITY Section 11.1 Indemnification of Manager.......................................... 31 Section 11.2 Indemnification of Company.......................................... 32 Section 11.3 Indemnification..................................................... 32 ARTICLE XII LIMITATION OF LIABILITY OF THE MANAGER
ii Section 12.1 Limitation of Liability............................................. 32 Section 12.2 Manager May Rely.................................................... 33 ARTICLE XIII LEGAL ACTIONS Section 13.1 Third Party Claims.................................................. 33 ARTICLE XIV MISCELLANEOUS Section 14.1 Obligation of Good Faith; No Fiduciary Duties....................... 34 Section 14.2 Compliance.......................................................... 34 Section 14.3 Effect of Termination............................................... 34 Section 14.4 Notices............................................................. 34 Section 14.5 Captions............................................................ 34 Section 14.6 Applicable Law...................................................... 35 Section 14.7 Amendment........................................................... 35 Section 14.8 Severability........................................................ 35 Section 14.9 Entire Agreement.................................................... 35 Schedule I - Priority Protocol
iii MANAGEMENT SERVICES AGREEMENT (this "AGREEMENT"), dated as of December 21, 2004, among Macquarie Infrastructure Company LLC, a Delaware limited liability company (the "COMPANY"), Macquarie Infrastructure Company Inc., a Delaware corporation, Macquarie Yorkshire LLC, a Delaware limited liability company, South East Water LLC, a Delaware limited liability company, Communications Infrastructure LLC, a Delaware limited liability company (each a "MANAGED SUBSIDIARY" and, together with any directly owned Subsidiary of the Company as from time to time may exist and that has executed a counterpart of this Agreement in accordance with Section 2.3 herein, collectively, the "MANAGED SUBSIDIARIES"), and Macquarie Infrastructure Management (USA) Inc., a Delaware corporation (the "MANAGER"). Individually, each party hereto shall be referred to as a "PARTY" and collectively as the "PARTIES." WHEREAS, the Company and the Managed Subsidiaries have agreed to appoint the Manager to manage their business and affairs as herein described; and WHEREAS, the Manager has agreed to act as Manager on the terms and subject to the conditions set forth herein; NOW, THEREFORE, in consideration of the mutual covenants herein contained, the Parties hereto agree as follows: ARTICLE I DEFINITIONS "ADDITIONAL OFFERING" means for any Fiscal Quarter in which a Performance Fee is being calculated any offering of shares of Trust Stock other than shares of Trust Stock issued in connection with the Trust's initial public offering or concurrent private placement to the Manager in which the total number of shares of Trust Stock issued in such offering equals or exceeds 15% of the total number of shares of Trust Stock issued and outstanding immediately prior to such offering; provided that "Additional Offering" shall not include: (i) any issuance of shares of Trust Stock to the Manager pursuant to Article VII hereof; (ii) the issuance of any shares of Trust Stock pursuant to any present or future plan providing for the reinvestment of dividends or interest payable on securities of the Company and the investment of additional optional amounts in shares of Common Stock under any such plan; or (iii) the issuance of any shares of Common Stock or options or rights to purchase those shares pursuant to any present or future employee, director or consultant benefit plan or program of, or any such plan or program assumed by the Company or any of its subsidiaries. "ADDITIONAL OFFERING FOREIGN NET EQUITY VALUE" means the aggregate USD amount of the total proceeds from any Additional Offering which is to be applied to increase Foreign Net Equity Value. "ADDITIONAL OFFERING MACQUARIE INFRASTRUCTURE COMPANY TRUST ACCUMULATION INDEX" means, with respect to the relevant Additional Shares, the Additional Offering Macquarie Infrastructure Company Trust Accumulation Index calculated by Morgan Stanley Capital International Inc., in accordance with the methodology used to calculate the indices used in the calculation of clause (ii) of the Benchmark Return for the relevant Fiscal Quarter; provided that, in the event that the Macquarie Infrastructure Company Trust Accumulation Index is not calculated by Morgan Stanley Capital International Inc., the Manager shall cause the institution then used to calculate the Macquarie Infrastructure Company Trust Accumulation Index to calculate the Additional Offering Macquarie Infrastructure Company Trust Accumulation Index in accordance with the methodology used to calculate the indices used in the calculation of clause (ii) of the Benchmark Return for the relevant Fiscal Quarter. "ADDITIONAL OFFERING U.S. NET EQUITY VALUE" means the aggregate USD amount of the total proceeds from any Additional Offering which is to be applied to increase U.S. Net Equity Value. "ADDITIONAL OFFERING WEIGHTED AVERAGE PERCENTAGE CHANGE OF THE MSCI EUROPE UTILITIES INDEX" means the change in percentage terms for a relevant Fiscal Quarter calculated according to the following formula: Z2 = N2 x (Q2 - P2) / P2 where Z2 = the Additional Offering Weighted Average Percentage Change Of The MSCI Europe Utilities Index; N2 = the percentage determined by dividing (i) the Additional Offering Foreign Net Equity Value by (ii) the sum of the Additional Offering Foreign Net Equity Value and the Additional Offering U.S. Net Equity Value; P2 = the average closing MSCI Europe Utilities Index over the last 15 Trading Days ending immediately prior to the first day of trading of the relevant Additional Shares; and Q2 = the average closing MSCI Europe Utilities Index over the last 15 Trading Days of the current Fiscal Quarter, or over such lesser number of Trading Days from and including the first day of trading with respect to the Additional Shares through and including the Fiscal Quarter End Date of such Fiscal Quarter. 2 "ADDITIONAL OFFERING WEIGHTED AVERAGE PERCENTAGE CHANGE OF THE MSCI U.S. IMI/UTILITIES INDEX" means the change in percentage terms for a relevant Fiscal Quarter calculated according to the following formula: Y2 = J2 x (L2 - K2) / K2 where Y2 = the Additional Offering Weighted Average Percentage Change Of The MSCI U.S. IMI/Utilities Index; J2 = the percentage determined by dividing (i) the Additional Offering U.S. Net Equity Value by (ii) the sum of the Additional Offering Foreign Net Equity Value and the Additional Offering U.S. Net Equity Value; K2 = the average closing MSCI U.S. IMI/Utilities Index over the last 15 Trading Days ending immediately prior to the first day of trading of the relevant Additional Shares; and L2 = the average closing MSCI U.S. IMI/Utilities Index over the last 15 Trading Days of the current Fiscal Quarter, or over such lesser number of Trading Days from and including the first day of trading with respect to the Additional Shares through and including the Fiscal Quarter End Date of such Fiscal Quarter. "ADDITIONAL SHARES" means the aggregate number of shares of Trust Stock issued in an Additional Offering (including any shares issued pursuant to the exercise of an over-allotment option). "AFFILIATE" means, with respect to any Person, (i) any Person directly or indirectly controlling, controlled by or under common control with such Person or (ii) any officer, director, general member, member or trustee of such Person. For purposes of this definition, the terms "controlling," "controlled by" or "under common control with" shall mean the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of a Person or entity, whether through the ownership of voting securities, by contract or otherwise, or the power to elect at least 50% of the directors, managers, general members, or Persons exercising similar authority with respect to such Person or entity. "AGREEMENT" or "MANAGEMENT SERVICES AGREEMENT" means this Management Services Agreement, including all Exhibits and Schedules attached hereto, as amended from time to time. Words such as "herein," "hereinafter," "hereof," "hereto" and "hereunder" refer to this Agreement as a whole, unless the context otherwise requires. "AUD" means the lawful currency of the Commonwealth of Australia. "BANKRUPTCY LAW" means title 11, United States Code or any similar federal or state law for the relief of debtors. 3 "BASE MANAGEMENT FEE" means in respect of a Fiscal Quarter: (i) where the Net Investment Value is less than or equal to USD500 million, 0.375% per Fiscal Quarter of the Net Investment Value, (ii) where the Net Investment Value is greater than USD500 million but less than or equal to USD1,500 million, USD1.875 million per Fiscal Quarter plus 0.3125% per Fiscal Quarter of such Net Investment Value exceeding USD500 million but not exceeding USD1,500 million, or (iii) where the Net Investment Value is greater than USD1,500 million, USD5.0 million per Fiscal Quarter plus 0.25% per Fiscal Quarter of such Net Investment Value exceeding USD1,500 million; adjusted on a pro rata basis if the Fiscal Quarter in respect of which the calculation is made is the Fiscal Quarter commencing on the Commencement Date; less (x) the USD amount of any fees paid by the Company or any of its Subsidiaries during the Fiscal Quarter to any individuals seconded to the Company pursuant to Article VIII, or to any officer, director, staff member or employee of the Manager or any Manager Affiliate, as compensation for serving as a director on the Board of Directors of the Company, any Subsidiary of the Company, or any company in which the Company or its Subsidiaries have invested, excluding amounts paid as reimbursement for expenses, in each case to the extent not subsequently paid to the Company or a Subsidiary of the Company; (y) the amount of any management fees other than performance-based management fees payable to the Manager or a Manager Affiliate for that Fiscal Quarter (adjusted, to the extent required, on a pro rata basis if the Fiscal Quarter in respect of which the calculation is made is the Fiscal Quarter commencing on the Commencement Date) in relation to the management of a Macquarie Managed Investment Vehicle (calculated in USD using the applicable exchange rate on the last Business Day of such Fiscal Quarter) multiplied by the Company's percentage ownership in the Macquarie Managed Investment Vehicle on the last Business Day of the Fiscal Quarter; provided that, to the extent that such management fee accrues over a period in excess of any Fiscal Quarter, such management fee for any Fiscal Quarter will be estimated by the Manager and will be adjusted to actual in the Fiscal Quarter such fee becomes payable. For the avoidance of doubt such management fees do not include expense reimbursements or indemnities for Costs; and (z) all Base Management Fees previously earned in any Fiscal Quarter in relation to any Future Investment if it was determined conclusively during the relevant Fiscal Quarter that such Future Investment would not be made. "BENCHMARK RETURN" means the amount expressed in USD in respect of a Fiscal Quarter in accordance with the following formula: 4 BR = BR1 + BR2 where BR = the Benchmark Return for the Fiscal Quarter; and (i) BR1 = X1 x (Y1 + Z1) where BR1 = the Benchmark Return for the Fiscal Quarter applicable to all shares of Trust Stock other than those included in the calculation of BR2; X1 = has the same meaning as "A1" in the definition of Return; Y1 = the Weighted Average Percentage Change of the MSCI U.S. IMI/Utilities Index over the Fiscal Quarter; and Z1 = the Weighted Average Percentage Change of the MSCI Europe Utilities Index over the Fiscal Quarter. (ii) BR2 = X2 x (Y2 + Z2) where BR2 = the Benchmark Return for the Fiscal Quarter applicable solely to the Additional Shares issued in an Additional Offering during the relevant Fiscal Quarter; X2 = has the same meaning as "A2" in the definition of Return; Y2 = the Additional Offering Weighted Average Percentage Change of the MSCI U.S. IMI/Utilities Index over the period from and including the first day of trading with respect to any Additional Shares issued during the Fiscal Quarter for which a Performance Fee is being calculated, through and including the Fiscal Quarter End Date of such Fiscal Quarter; and Z2 = the Additional Offering Weighted Average Percentage Change of the MSCI Europe Utilities Index over the period from and including the first day of trading with respect to any Additional Shares issued during the Fiscal Quarter for which a Performance Fee is being calculated, through and including the Fiscal Quarter End Date of such Fiscal Quarter. "BOARD" or "BOARD OF DIRECTORS" means, with respect to the Company, any Managed Subsidiary or any Subsidiary, as the case may be, the Board of Directors of the Company, such Managed Subsidiary or Subsidiary, or any committee of the Board of Directors that has been duly authorized by the Board of Directors to make a decision on the matter in 5 question or bind the Company, such Managed Subsidiary or such Subsidiary, as the case may be, as to the matter in question. "BUSINESS" means the business of owning and operating businesses and making investments in the United States and elsewhere, as may be conducted or made, directly and indirectly, by the Company from time to time. "BUSINESS DAY" means a day of the year on which banks are not required or authorized to close in The City of New York. "CAD" means the lawful currency of Canada. "CHAIRMAN" means the Chairman of the Board of Directors of the Company. "CHIEF EXECUTIVE OFFICER" means the Chief Executive Officer of the Company, including any interim Chief Executive Officer. "CHIEF FINANCIAL OFFICER" means the Chief Financial Officer of the Company, including any interim Chief Financial Officer. "COMMENCEMENT DATE" has the meaning set forth in Section 2.4. "COMPANY" has the meaning set forth in the first paragraph of this Agreement. "COMPANY OFFICERS" means the Chief Executive Officer and the Chief Financial Officer and any other officer of the Company hereinafter appointed by the Board of Directors of the Company. "COMPENSATION COMMITTEE" means the Compensation Committee of the Board of Directors of the Company. "CONTRACTED ASSETS" means businesses that derive a majority of their revenues from long-term contracts with other businesses or governments. "COSTS" includes costs, charges, fees, expenses, commissions, liabilities, losses, damages and Taxes and all amounts payable in respect of them or like amounts. "CUSTODIAN" means any receiver, trustee, assignee, liquidator or other similar official under any Bankruptcy Law. "DELISTING EVENT" means a transaction or series of related transactions involving the acquisition of Trust Stock by third parties in an amount that results in the Trust Stock ceasing to be listed on a nationally recognized U.S. exchange or on the Nasdaq National Market because the Trust Stock ceased to meet the distribution and trading criteria of such exchange or market. "DEFICIT" means the aggregate amounts in USD in respect of each Fiscal Quarter since a Performance Fee has become due and payable (or, if a Performance Fee has not been paid, since the Commencement Date), not including the Fiscal Quarter in respect of which a 6 calculation is being made, by which the Benchmark Return for each such Fiscal Quarter exceeds the Return for that Fiscal Quarter (if any). "EARNINGS RELEASE DAY" means any Business Day that the Company releases to the public quarterly or annual historical consolidated financial information. "EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended. "FISCAL QUARTER" means (i) the period commencing on the Commencement Date and ending on December 31, 2004, and (ii) any subsequent three-month period commencing on each of October 1, January 1, April 1 and July 1 and ending on the last day before the next such date. "FISCAL QUARTER END DATE" means the last day of a Fiscal Quarter. "FISCAL YEAR" means (i) the period commencing on the Commencement Date and ending on December 31, 2004 and (ii) any subsequent 12-month period commencing on January 1 and ending on December 31. "FOREIGN NET EQUITY VALUE" means the Net Equity Value for the portion of the Business held outside of the United States (measured in USD based on the then-applicable exchange rate) as determined by the Manager and approved by the Compensation Committee of the Company (which approval shall not be unreasonably withheld, delayed or conditioned). "FUTURE INVESTMENT" means a contractual commitment to invest represented by a definitive agreement. "GAAP" means generally accepted accounting principles in effect in the United States of America from time to time. "INDEPENDENT DIRECTOR" means a director who (a) (i) is not an officer or employee of the Company, or an officer, director or employee of any of the Managed Subsidiaries or any Subsidiary, (ii) was not appointed as a director pursuant to the terms of this Agreement and (iii) is not affiliated with the Manager or any Manager Affiliate; and (b) complies with the independence requirements under the Exchange Act and the NYSE Rules. "INITIAL INVESTMENT" has the meaning set forth in Section 2.2. "INITIAL LEVEL OF THE ADDITIONAL OFFERING MACQUARIE INFRASTRUCTURE COMPANY TRUST ACCUMULATION INDEX" means the initial value designated at the time of the establishment of the relevant Additional Offering Macquarie Infrastructure Company Trust Accumulation Index, which shall be based on the offering price of the Additional Shares issued in the relevant Additional Offering. "INITIAL LEVEL OF THE MACQUARIE INFRASTRUCTURE COMPANY TRUST ACCUMULATION INDEX" means the initial value designated at the time of the establishment of the Macquarie Infrastructure Company Trust Accumulation Index, which shall be based on the initial public offering price of the Trust Stock. 7 "ISF" has the meaning set forth in Section 3.1(b)(iii). "LIABILITIES" has the meaning set forth in Section 11.1. "LLC AGREEMENT" means the Amended and Restated Operating Agreement of Macquarie Infrastructure Company LLC dated as of December 21, 2004. "LLC INTEREST" means a limited liability company interest in the Company in accordance with the LLC Agreement. "MANAGER AFFILIATE" means any Affiliate of the Manager other than the Trust, the Company, any Subsidiary of the Company or any Person who would be deemed a Manager Affiliate solely as a result of such Person's association with the Trust, the Company or any Subsidiary of the Company. "MACQUARIE INFRASTRUCTURE COMPANY TRUST ACCUMULATION INDEX" means the Macquarie Infrastructure Company Trust Accumulation Index as calculated by Morgan Stanley Capital International Inc., in accordance with the methodology used to calculate the indices used in the calculation of clause (i) of the Benchmark Return from time to time. In the event that the indices used in the calculation of the Benchmark Return are not calculated by Morgan Stanley Capital International Inc., the Manager may select another institution of comparable recognized standing that is not a Manager Affiliate to calculate the Macquarie Infrastructure Company Trust Accumulation Index in a manner consistent with the methodology used to calculate the indices then used in the calculation of clause (i) of the Benchmark Return. "MACQUARIE MANAGED INVESTMENT VEHICLE" means an entity which is managed by the Manager or a Manager Affiliate where such Person receives remuneration, other than expense reimbursement or indemnity for Costs, for managing the entity. "MANAGED SUBSIDIARY" and "MANAGED SUBSIDIARIES" have the meanings set forth in the first paragraph of this Agreement. "MANAGER" has the meaning set forth in the first paragraph of this Agreement. "MARKET VALUE OF THE TRUST STOCK" means the product of (1) the average number of shares of Trust Stock issued and outstanding, other than treasury shares, during the last 15 Trading Days in the relevant Fiscal Quarter or, for the Fiscal Quarter commencing on the Commencement Date, over such lesser number of Trading Days from and including the first day of trading for the Trust Stock through and including the Fiscal Quarter End Date of such Fiscal Quarter, multiplied by (2) the volume weighted average trading price per share of Trust Stock traded on the NYSE over those 15 Trading Days or, for the Fiscal Quarter commencing on the Commencement Date, over such lesser number of Trading Days from and including the first day of trading for the Trust Stock through and including the Fiscal Quarter End Date of such Fiscal Quarter. "MEMBER" with respect to the Company means the Trust as original Member and any successor to the original Member, in accordance with the terms of the LLC Agreement. "MEMBERS" means all Persons that at any time are Members of the Company. 8 "MSCI EUROPE UTILITIES INDEX" means the total return equity index with that name calculated in USD and published by Morgan Stanley Capital International Inc. or, if that index ceases to be calculated or ceases to be publicly available, the nearest equivalent available index selected by the Manager and reasonably acceptable to the Compensation Committee of the Company that is (a) calculated by an institution of comparable recognized standing that is not a Manager Affiliate and (b) publicly available. "MSCI U.S. IMI/UTILITIES INDEX" means the total return equity index with that name calculated in USD and published by Morgan Stanley Capital International Inc. or, if that index ceases to be calculated or ceases to be publicly available, the nearest equivalent available index selected by the Manager and reasonably acceptable to the Compensation Committee of the Company that is (a) calculated by an institution of comparable recognized standing that is not a Manager Affiliate and (b) publicly available. "NET EQUITY VALUE" means the fair value of the equity of the Business (as measured in USD, based on the then-applicable exchange rates, if applicable) as determined by the Manager and approved by the Compensation Committee of the Company (which approval shall not be unreasonably withheld, delayed or conditioned). "NET INVESTMENT VALUE" means: (a) the Market Value of the Trust Stock; plus (b) the amount of any borrowings (other than intercompany borrowings) of the Company and its Managed Subsidiaries (but not including borrowings on behalf of any Subsidiary of the Managed Subsidiaries); plus (c) the value of Future Investments of the Company and/or any of its Subsidiaries other than cash or cash equivalents, as calculated by the Manager and approved by the Compensation Committee of the Company (which approval shall not be unreasonably withheld, delayed or conditioned); provided that such Future Investment has not been outstanding for more than two consecutive Fiscal Quarters; less (d) the aggregate amount held by the Company and its Managed Subsidiaries in cash or cash equivalents (but not including cash or cash equivalents held specifically for the benefit of any Subsidiary of a Managed Subsidiary). "NEW INVESTMENT VEHICLE" has the meaning set forth in Section 3.1(b)(iii). "NYSE" means the New York Stock Exchange, Inc. "NYSE RULES" means the rules of the New York Stock Exchange. "PERFORMANCE FEE" for a Fiscal Quarter means, if the Return for such Fiscal Quarter is greater than zero, 20% of the amount (if any) by which the Return for such Fiscal Quarter together with any Surplus exceeds the Benchmark Return for such Fiscal Quarter together with any Deficit. 9 "PERFORMANCE TEST RETURN" means the amount expressed in percentage terms in accordance with the following formula: (C1 - B1) / B1 where B1 and C1 are as defined in the definition of Return. "PERFORMANCE TEST BENCHMARK RETURN" means the amount expressed in percentage terms in accordance with the following formula: Y1 + Z1 where Y1 and Z1 are as defined in the definition of Benchmark Return. "PERSON" means any individual, company (whether general or limited), limited liability company, corporation, trust, estate, association, nominee or other entity. "REGULATED ASSETS" means businesses that are the sole or predominant providers of at least one essential service in their service areas and where the level of revenue earned or charges imposed are regulated by government entities. "RETURN" means the amount expressed in USD in respect of a Fiscal Quarter in accordance with the following formula: R = R1 + R2 where R = the Return for the Fiscal Quarter and (i) R1 = A1 x (C1 - B1) / B1 where R1 = the Return for the Fiscal Quarter applicable to all shares of Trust Stock other than those included in the calculation of R2; A1 = the average number of shares of Trust Stock issued and outstanding, other than treasury shares, during the last 15 Trading Days in the previous Fiscal Quarter (or, if the previous Fiscal Quarter was the Fiscal Quarter commencing on the Commencement Date, over such lesser number of Trading Days from and including the first day of trading for the Trust Stock through and including the Fiscal Quarter End Date of the previous Fiscal 10 Quarter) multiplied by the volume weighted average trading price per share of Trust Stock traded on the NYSE during such 15 Trading Days (or, if the previous Fiscal Quarter was the Fiscal Quarter commencing on the Commencement Date, over such lesser number of Trading Days from and including the first day of trading for the Trust Stock through and including the Fiscal Quarter End Date of the previous Fiscal Quarter) or, for the Fiscal Quarter commencing on the Commencement Date, the aggregate number of shares of Trust Stock issued and outstanding on the last closing date of the initial public offering (including the shares of Trust Stock issued to the Manager pursuant to Section 2.2) multiplied by the initial public offer price; B1 = the average of the daily closing Macquarie Infrastructure Company Trust Accumulation Index over the last 15 Trading Days of the previous Fiscal Quarter (or, if the previous Fiscal Quarter was the Fiscal Quarter commencing on the Commencement Date, over such lesser number of Trading Days from and including the first day of trading for the Trust Stock through and including the Fiscal Quarter End Date of the previous Fiscal Quarter) or, for the Fiscal Quarter Commencing on the Commencement Date, the Initial Level of the Macquarie Infrastructure Company Trust Accumulation Index; and C1 = the average of the daily closing Macquarie Infrastructure Company Trust Accumulation Index over the last 15 Trading Days of the current Fiscal Quarter or, for the Fiscal Quarter commencing on the Commencement Date, over such lesser number of Trading Days from and including the first day of trading for the Trust Stock through and including the Fiscal Quarter End Date of such Fiscal Quarter. (ii) R2 = A2 x (C2 - B2) / B2 where R2 = the Return for the Fiscal Quarter applicable solely to the Additional Shares issued during such Fiscal Quarter; A2 = the number of such Additional Shares times the per share offer price for those Additional Shares; B2 = the Initial Level of the Additional Offering Macquarie Infrastructure Company Trust Accumulation Index applicable to such Additional Shares; and C2 = the average of the daily closing Additional Offering Macquarie Infrastructure Company Trust Accumulation Index applicable to such Additional Shares over the last 15 Trading Days of the current Fiscal Quarter, or over such lesser number of Trading Days from and including the first day of trading with respect to the Additional Shares through and including the Fiscal Quarter End Date of such Fiscal Quarter. 11 "RULES AND REGULATIONS" means the rules and regulations promulgated under the Exchange Act or the Securities Act. "SECURITIES ACT" means the Securities Act of 1933, as amended. "SERVICES" has the meaning set forth in Section 3.1(b). "SHARE PRICE PERIOD" means the 15 Trading Days beginning on the Trading Day immediately following a record date with respect to the payment of cash dividends relating to the most recent Fiscal Quarter; provided, however, that if either (i) the Company has not declared a cash dividend with respect to such Fiscal Quarter on or prior to the relevant Earnings Release Date or (ii) the Company has set a record date with respect to such cash dividend that is more than 45 days after the relevant Earnings Release Date related to such Fiscal Quarter, the Share Price Period shall begin on the third Trading Day following the Earnings Release Date. "STRUCTURING FEE" has the meaning set forth in Section 7.1. "SUBSIDIARY" means, with respect to any Person, any corporation, company, joint venture, limited liability company, association or other entity in which such Person owns, directly or indirectly, more than 50% of the outstanding equity securities or interests, the holders of which are generally entitled to vote for the election of the Board of Directors or other governing body of such entity. "SURPLUS" means the aggregate amounts in USD in respect of each Fiscal Quarter since a Performance Fee has become due and payable (or, if a Performance Fee has not been paid, since the Commencement Date), not including the Fiscal Quarter in respect of which a calculation is being made, by which the Return for each such Fiscal Quarter exceeds the Benchmark Return for that Fiscal Quarter. "TAX" or "TAXES" means any and all taxes, fees, levies, duties, tariffs, imposts, and other charges of any kind (together with any and all interest, penalties, additions to tax and additional amounts imposed with respect thereto) imposed by any government or taxing authority, including taxes or other charges on or with respect to income, franchises, windfall or other profits, gross receipts, property, sales, use, capital stock, payroll, employment, social security, workers' compensation, unemployment compensation, or net worth; taxes or other charges in the nature of excise, withholding, ad valorem, stamp, transfer, value added, or gains taxes; license, registration and documentation fees; and customs' duties, tariffs, and similar charges. "TERMINATION DATE" means the date on which this Agreement and the obligations of the Manager hereunder terminate. "TERMINATION FEE" means the amount calculated as follows: the sum of (i) all accrued and unpaid Base Management Fees and Performance Fees for the period from the previous Fiscal Quarter End Date to the Delisting Event, using the volume weighted average price per share of Trust Stock paid by an acquiror in the transaction or series of transactions that led to the Delisting Event to calculate such fees, plus (ii)(a) if the price 12 per share of Trust Stock stated in (i) above multiplied by the aggregate number of shares of Trust Stock issued and outstanding, other than treasury shares, on the date of the Delisting Event, is less than or equal to $500 million, 10% of such value, or (b) if the price per share of Trust Stock stated in (i) above multiplied by the aggregate number of shares of Trust Stock issued and outstanding, other than treasury shares, on the date of the Delisting Event is greater than $500 million, $50 million plus 1.5% of the value in excess of $500 million. "THE MACQUARIE GROUP" means the Macquarie Group of companies, which comprises Macquarie Bank Limited and its subsidiaries and affiliates worldwide. "TRADING DAY" means a day during which trading in securities generally occurs on the NYSE or, if the Trust Stock is not listed on the NYSE, on the principal other national or regional securities exchange or interdealer quotation system on which the Trust Stock is then listed or quoted. "TRUST" means Macquarie Infrastructure Company Trust, which holds one hundred percent (100%) of the ownership interest in the Company. "TRUST CERTIFICATE" means the certificates representing shares of Trust Stock. "TRUST STOCK" means the shares of beneficial interest of the Trust; provided that, in the event that all outstanding shares of beneficial interest of the Trust are exchanged for LLC Interests in accordance with the terms of the LLC Agreement, all references herein to "Trust Stock" or "shares of Trust Stock" shall automatically be deemed to refer to LLC Interests upon such exchange. "USD" means the lawful currency of the United States of America. "USER PAYS ASSETS" means businesses that are transportation-related and derive a majority of their revenues from a per use fee or charge. "US NET EQUITY VALUE" means the Net Equity Value for the portion of the Business held inside the United States as determined by the Manager and approved by the Compensation Committee of the Company (which approval shall not be unreasonably withheld, delayed or conditioned). "WEIGHTED AVERAGE PERCENTAGE CHANGE OF THE MSCI EUROPE UTILITIES INDEX" means the change in percentage terms for a period calculated according to the following formula: Z1 = N1 x (Q1 - P1) / P1 where Z1 = the Weighted Average Percentage Change Of The MSCI Europe Utilities Index; N1 = the percentage of Net Equity Value attributable to the Foreign Net Equity Value on the last Business Day of the previous Fiscal Quarter, or where the 13 current Fiscal Quarter commenced on the Commencement Date, the Foreign Net Equity Value on the Commencement Date; P1 = the average closing MSCI Europe Utilities Index over the last 15 Trading Days of the previous Fiscal Quarter (or if the previous Fiscal Quarter was the Fiscal Quarter commencing on the Commencement Date, over such lesser number of Trading Days from and including the first day of trading for the Trust Stock through and including the Fiscal Quarter End Date of the previous Fiscal Quarter), or where the current Fiscal Quarter commenced on the Commencement Date, the average closing MSCI Europe Utilities Index over the last 15 Trading Days immediately prior to the Commencement Date; and Q1 = the average closing MSCI Europe Utilities Index over the last 15 Trading Days of the current Fiscal Quarter or, for the Fiscal Quarter commencing on the Commencement Date, over such lesser number of Trading Days from and including the first day of trading for the Trust Stock through and including the Fiscal Quarter End Date of such Fiscal Quarter. "WEIGHTED AVERAGE PERCENTAGE CHANGE OF THE MSCI U.S. IMI/UTILITIES INDEX" means the change in percentage terms for a Fiscal Quarter calculated according to the following formula: Y1 = J1 x (L1 - K1) / K1 where Y1 = the Weighted Average Percentage Change Of The MSCI U.S. IMI/Utilities Index; J1 = the percentage of Net Equity Value attributable to the U.S. Net Equity Value on the last Business Day of the previous Fiscal Quarter, or where the current Fiscal Quarter commenced on the Commencement Date, the U.S. Net Equity Value on the Commencement Date; K1 = the average closing MSCI U.S. IMI/Utilities Index over the last 15 Trading Days of the previous Fiscal Quarter (or if the previous Fiscal Quarter was the Fiscal Quarter commencing on the Commencement Date, over such lesser number of Trading Days from and including the first day of trading for the Trust Stock through and including the Fiscal Quarter End Date of the previous Fiscal Quarter) or, where the current Fiscal Quarter commenced on the Commencement Date, the average closing MSCI U.S. IMI/Utilities Index over the last 15 Trading Days immediately prior to the Commencement Date; and L1 = the average closing MSCI U.S. IMI/Utilities Index over the last 15 Trading Days of the current Fiscal Quarter or, for the Fiscal Quarter commencing on the Commencement Date, over such lesser number of Trading Days from and including the first day of trading for the Trust Stock through and including the Fiscal Quarter End Date of such Fiscal Quarter. 14 ARTICLE II APPOINTMENT OF THE MANAGER Section 2.1 Appointment. The Company and each of the Managed Subsidiaries hereby jointly and severally agree to appoint the Manager to manage their business and affairs under the supervision and control of the Board of Directors of the Company and such Managed Subsidiary and to perform the Services in accordance with the terms of this Agreement. Section 2.2 Initial Investment. The Manager will acquire from the Company the number of shares of Trust Stock having an aggregate purchase price of $50 million, concurrently with the initial public offering of the Trust Stock (the "INITIAL INVESTMENT") and at a per share purchase price equal to the per share initial public offering price. 30% of the Initial Investment may be disposed of at anytime. 70% of the Initial Investment will be held for a period of not less than 12 months from the Commencement Date. At any time from and after the first anniversary of the Commencement Date, the Manager may dispose of a further 35% of the Initial Investment and may dispose of the balance of the Initial Investment at any time from and after the third anniversary of the Commencement Date. Section 2.3 Agreement to Bind Subsidiaries. The Company covenants and agrees to cause any Managed Subsidiary created or acquired after the date of this Agreement to execute a counterpart of this Agreement agreeing to be bound by the terms hereunder. Section 2.4 Term. The Manager shall provide Services to the Company and its Managed Subsidiaries from the date of the closing of the initial public offering by the Trust and the Company (the "COMMENCEMENT DATE") until the termination of this Agreement in accordance with Article X. ARTICLE III SERVICES TO BE PERFORMED BY THE MANAGER Section 3.1 Duties of the Manager. (a) Subject always to the oversight and supervision of the Board of Directors of the Company, the Manager will manage the Company's and the Managed Subsidiaries' business and affairs. In the performance of its duties, the Manager will comply with the provisions of the LLC Agreement, as amended from time to time, and the operating objectives, policies and restrictions of the Company in existence from time to time. The Company will promptly provide the Manager with all amendments to the LLC Agreement and all stated operating objectives, policies and restrictions of the Company approved by the Board of Directors of the Company and any other available information requested by the Manager. (b) The Manager further agrees and covenants that it will perform the following, referred to herein as the "SERVICES:" 15 (i) cause the carrying out of all day-to-day management, secretarial, accounting, administrative, liaison, representative, regulatory and reporting functions and obligations of the Company and the Managed Subsidiaries, and any such obligations of the Company with respect to the Trust; (ii) establish and maintain books and records for the Company and the Managed Subsidiaries consistent with industry standards and in compliance with the Rules and Regulations and with GAAP; (iii) identify, evaluate and recommend, through the Company Officers, acquisitions or investment opportunities from time to time; if the Board of Directors of the Company approves any acquisition or investment, negotiate and manage such acquisitions or investments on behalf of the Company; and thereafter manage those acquisitions or investments, as a part of the Company's Business hereunder, on behalf of the Company and any relevant Managed Subsidiary in accordance with this Section 3.1. To the extent acquisition or investment opportunities covered by the priority protocol set forth in Schedule I to this Agreement are offered to the Manager or to entities that are managed by subsidiaries of Macquarie Bank Limited within the Infrastructure and Specialized Funds Division (or any successor thereto) of the Macquarie Group ("ISF"), the Manager will offer any such acquisition or investment opportunities to the Company in accordance with such priority protocol unless the Chief Executive Officer notifies the Manager in writing that the acquisition or investment opportunity does not meet the Company's acquisition criteria, as determined by the Board of Directors from time to time. The Company acknowledges and agrees that (i) no Manager Affiliate has any obligation to offer any acquisition or investment opportunities covered by the priority protocol set forth in Schedule I to this Agreement to the Manager or to ISF; (ii) any Manager Affiliate is permitted to establish further investment vehicles that will seek to invest in infrastructure businesses in the United States (a "NEW INVESTMENT VEHICLE"); provided that the then-existing rights of the Company and the Managed Subsidiaries pursuant to this Agreement are preserved; and (iii) in the event that an acquisition or investment opportunity is offered to the Company by the Manager and the Company determines that it does not wish to pursue the acquisition or investment opportunity in full, any portion of the opportunity which the Company does not wish to pursue may be offered to any other Person, including a New Investment Vehicle or any other Macquarie Managed Investment Vehicle, in the sole discretion of the Manager or any Manager Affiliate; (iv) attend to all matters necessary to ensure the professional management of any Business controlled by the Company; (v) identify, evaluate and recommend the sale of all or any part of the Business owned by the Company from time to time in accordance with the Company's criteria and policies then in effect and, if such proposed sale is approved by the Boards of Directors of the Company and any relevant Managed Subsidiary, negotiate and manage the execution of the sale on behalf of the Company and such relevant Managed Subsidiary; 16 (vi) recommend and, if approved by the Board of Directors of the Company, use its reasonable efforts to procure the raising of funds whether by way of debt, equity or otherwise, including the preparation, review, distribution and promotion of any prospectus or offering memorandum in respect thereof, but without any obligation to provide such funds; (vii) recommend to the Board of Directors of the Company amendments and modifications to the LLC Agreement and this Agreement; (viii) recommend to the Board of Directors of the Company capital reductions including repurchases of LLC Interests and corresponding Trust Stock; (ix) recommend to the Board of Directors of the Company and, as applicable, the Board of Directors of the Managed Subsidiaries the appointment, hiring and dismissal (including all material terms related thereto) of officers, staff and consultants to the Company, the Managed Subsidiaries and any of their Subsidiaries, as the case may be; (x) cause the carrying out of maintenance to, or development of, any part of the Business or any asset of the Company or any Managed Subsidiary approved by the Board of Directors of the Company; (xi) when appropriate, recommend to the Board of Directors of the Company nominees of the Company as directors of the Managed Subsidiaries and any of their Subsidiaries or companies in which the Company, the Managed Subsidiaries or any of their Subsidiaries has made an investment; (xii) recommend to the Board of Directors of the Company the payment of dividends and interim dividends to its Members; (xiii) prepare all necessary budgets for submission to the Board of Directors of the Company for approval; (xiv) make recommendations to the Board of Directors of the Company and the Managed Subsidiaries for the appointment of auditors, accountants, legal counsel and other accounting, financial or legal advisers and technical, commercial, marketing or other independent experts; (xv) make recommendations with respect to the exercise of the voting rights to which the Company or any of the Managed Subsidiaries is entitled in respect of its investments; (xvi) recommend and, subject to approval of the Company's Board of Directors, provide or procure all necessary technical, business management and other resources for Subsidiaries of the Company, including the Managed Subsidiaries, and any other entities in which the Company has made an investment; (xvii) do all things necessary on its part to enable compliance by the Company and each Managed Subsidiary, as applicable, with: 17 (A) the requirements of applicable law, including the Rules and Regulations or the rules, regulations or procedures of any foreign, federal, state or local governmental, judicial, regulatory or administrative authority, agency or commission; and (B) any contractual obligations by which the Company or any Managed Subsidiary is bound; (xviii) prepare and, subject to the approval of the Company's Board of Directors (which approval shall not be unreasonably withheld, delayed or conditioned), arrange to be filed on behalf of the Company with the Securities and Exchange Commission, any other applicable regulatory body, the NYSE or any other applicable stock exchange or automated quotation system, in a timely manner, all annual, quarterly, current and other reports the Company is required to file with the Securities and Exchange Commission pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act; (xix) attend to all matters necessary for any reorganization, bankruptcy proceedings, dissolution or winding up of the Company or any Managed Subsidiary, subject to approval by the relevant Board of Directors of the Company or any such Managed Subsidiary; (xx) attend to the timely calculation and payment of Taxes payable, and the filing of all Tax returns due, by the Company and each of its Subsidiaries; (xxi) attend to the opening, closing, operation and management of all the Company and Managed Subsidiary bank accounts and the Company and Managed Subsidiary accounts held with other financial institutions, including making any deposits and withdrawals reasonably necessary for the management of the Company's and the Managed Subsidiaries' day-to-day operations; (xxii) cause the consolidated financial statements of the Company and its Subsidiaries for each Fiscal Year to be prepared and quarterly interim financial statements to be prepared in accordance with applicable accounting principles for review and audit at least to such extent and with such frequency as may be required by law or regulation; (xxiii) recommend the arrangements for the holding and safe custody of the Company's property including the appointment of custodians or nominees; (xxiv) manage litigation in which the Company or any Managed Subsidiary is sued or commence litigation after consulting with, and subject to the approval of, the Board of Directors of the Company or such Managed Subsidiary; (xxv) carry out valuations of any of the assets of the Company or any of its Subsidiaries or arrange for such valuation to occur as and when the Manager deems necessary or desirable in connection with the performance of its obligations hereunder, or as otherwise approved by the Board of Directors of the Company; 18 (xxvi) make recommendations in relation to and effect the entry into insurance of the assets of the Company, the Managed Subsidiaries and their Subsidiaries, together with other insurances against other risks, including directors and officers insurance, as the Manager and the Board of Directors of the Company or any Managed Subsidiary, as applicable, may from time to time agree; and (xxvii) provide all such other services as may from time to time be agreed with the Company, including any and all accounting and investor relations services (such as the preparation and organization of communications with shareholders and shareholder meetings) and all other duties reasonably related to the day-to-day operations of the Company and the Managed Subsidiaries. (c) In addition, the Manager must: (i) obtain professional indemnity insurance and fraud and other insurance and maintain such coverage as is reasonable having regard to the nature and extent of the Manager's obligations under this Agreement; (ii) exercise all due care, loyalty, skill and diligence in carrying out its duties under this Agreement as required by applicable law; (iii) provide the Board of Directors of the Company and/or the Compensation Committee with all information in relation to the performance of the Manager's obligations under this Agreement as the Board of Directors and/or the Compensation Committee may reasonably request; (iv) promptly deposit all amounts payable to the Company or the Managed Subsidiaries, as the case may be, to a bank account held in the name of the Company or the Managed Subsidiaries, as applicable; (v) ensure that all property of the Company and the Managed Subsidiaries is clearly identified as such, held separately from property of the Manager and, where applicable, in safe custody; (vi) ensure that all property of the Company and the Managed Subsidiaries (other than money to be deposited to any bank account of the Company or the Managed Subsidiaries, as the case may be) is transferred to or otherwise held in the name of the Company or the Managed Subsidiaries, as the case may be, or any nominee or custodian appointed by the Company or the Managed Subsidiaries, as the case may be; (vii) prepare detailed papers and agendas for scheduled meetings of the Boards of Directors (and all committees thereof) of the Company and the Managed Subsidiaries that, where applicable, contain such information as is reasonably available to the Manager to enable the Boards of Directors (and any such committees) to base their opinion; and (viii) in conjunction with the papers referred to in paragraph (vii) above, prepare or cause to be prepared reports to be considered by the Boards of Directors of the 19 Company or the Managed Subsidiaries (or any applicable committee thereof) in accordance with the Company's internal policies and procedures (1) on any acquisition, investment or sale of any part of the Business proposed for consideration by any such Board of Directors (or any applicable committee thereof), (2) on the management of the Business and (3) otherwise in respect of the performance of the Manager's obligations under this Agreement, in each case that the Company may require and in such form that the Company and the Manager agree or as otherwise reasonably requested by any such Board of Directors (or any applicable committee thereof). (d) In connection with the performance of its obligations under this Agreement, the Manager shall obtain approval of the Company's and any relevant Managed Subsidiary's Board of Directors, in each case in accordance with the Company's internal policy regarding action requiring Board approval or as otherwise determined by any such Board of Directors (or any applicable committee thereof) or the Company Officers. Section 3.2 Obligations of the Company and the Managed Subsidiaries. (a) The Company and the Managed Subsidiaries will do all things reasonably necessary on their part as requested by the Manager consistent with the terms of this Agreement to enable the Company, the Managed Subsidiaries and the Manager, as the case may be, to fulfill their obligations under this Agreement. (b) The Company and the Managed Subsidiaries must ensure that: (i) each of their officers and employees, each of their Subsidiaries and each of their Subsidiaries' officers and employees act in accordance with the terms of this Agreement and the reasonable directions of the Manager in fulfilling its obligations and exercising its powers under this Agreement; and (ii) the Company, the Managed Subsidiaries and each of their Subsidiaries provide to the Manager all reports (including monthly management reports and all other relevant reports) which the Manager may reasonably require and on such dates as the Manager may reasonably require. (c) During the term of this Agreement, the Company must not (i) issue LLC Interests or cause the Trust to issue or sell Trust Stock, (ii) amend the LLC Agreement, (iii) make a decision to or effect a purchase or sale of any assets of the Company or any Managed Subsidiary, or (iv) effect any capital reduction, including a repurchase of Trust Stock or LLC Interests, in each case without requesting and considering a recommendation from the Manager in relation to the same. Notwithstanding the foregoing, without the prior written consent of the Manager, the Company will not (x) make a decision to acquire or purchase, or effect the acquisition or purchase of, any assets or businesses unless in the reasonable opinion of the Board of Directors of the Company the acquisition or purchase could not be expected to negatively affect the ability of the Trust to maintain its dividend per share of Trust Stock in accordance with the then existing dividend policy of the Company, or (y) amend any provision of the LLC Agreement that affects the rights of the Manager thereunder or hereunder. 20 (d) The Company agrees that it will, and will cause each of its wholly owned Subsidiaries to, give Manager Affiliates preferred provider status in respect of any financial advisory services to be contracted for by the Company or any of its wholly owned Subsidiaries, including, but not limited to, asset acquisitions, refinancings, advice on mergers and acquisitions, debt and equity raising, hedging activities and the like. Such services will be contracted for on an arm's-length basis on market terms and will be subject to approval by the Independent Directors (or a committee thereof, comprised of at least three independent directors) in accordance with the Company's internal policies related to conflicts of interest and related party transactions. The Independent Directors (or a committee thereof, comprised of at least three independent directors) may take whatever measures they deem prudent to confirm the arm's length basis of any fees to be paid to any Manager Affiliate. Any fees payable to any Manager Affiliate in respect of such financial advisory services will be in addition to all amounts owing under Article VII. (e) The Company agrees that, in connection with the performance of its obligations hereunder, the Manager may recommend to the Company, and on behalf of the Company may engage, in transactions with Manager Affiliates, provided that any such transactions will be subject to the Company's internal policies regarding conflicts of interest and related party transactions. (f) The Company will ensure that it maintains at least three Independent Directors. (g) The Company will take any and all actions necessary to ensure that it does not become an "investment company" as defined in Section 3(a)(1) of the Investment Company Act of 1940, as amended, as such Section may be amended from time to time, or any successor provision thereto. (h) The Company shall grant rights to indemnification, and rights to be paid by the Company the expenses incurred in defending any proceeding in advance of its final disposition, to each person seconded to the Company by the Manager, in their respective capacities at the Company, in each case to the fullest extent of the provisions of the LLC Agreement with respect to the indemnification and advancement of expenses of directors and officers of the Company, and shall maintain adequate directors and officers insurance customary for publicly traded companies with comparable market capitalization, at its expense. ARTICLE IV POWERS OF THE MANAGER Section 4.1 Powers of the Manager. (a) The Manager shall have no power to enter into any contract or subject the Company or the Managed Subsidiaries to any obligation, such power to be the sole right and obligation of the Company, acting through its Board of Directors and/or Company Officers, or of the applicable Managed Subsidiary, acting through its Board of Directors and/or officers. 21 (b) In accordance with the terms of the LLC Agreement, for so long as the Manager or any Manager Affiliate holds shares of Trust Stock with an aggregate value of no less than $5.0 million, based on the per share price of the shares sold in the initial public offering (as adjusted to reflect any subsequent stock splits or similar recapitalizations), the Manager shall have the right to appoint one suitably qualified person as a director of the Company's Board of Directors and an alternate for such appointee, and such director, or alternate if applicable, shall serve as the Chairman. The Company shall cause such appointees to be appointed as Chairman of the Board of Directors and as alternate therefor, as soon as reasonably practicable after notice of such appointment has been given to the Company by the Manager. (c) The Manager shall have the power to engage any agents (including real estate agents and managing agents), valuers, contractors and advisers (including accounting, financial, tax and legal advisers) that it deems necessary or desirable in connection with the performance of its obligations hereunder, which costs therefor will be subject to reimbursement under Section 9.1(k), subject to applicable law. Section 4.2 Delegation. The Manager may delegate or appoint (a) any Manager Affiliate as an agent, at its expense, in respect of all or any of its duties and powers to manage the Business and affairs of the Company or (b) any other Person as agent, at its expense, in respect of any of its duties and powers to manage the Business and affairs of the Company which, in its sole discretion, are not critical to the ability of the Manager to perform its obligations hereunder; provided, however, that in either case the Manager shall not be relieved of any of its responsibilities or obligations to the Company as a result of such delegation. The Manager shall be permitted to share Company information with its appointed agents subject to appropriate confidentiality arrangements. Section 4.3 Manager's Duties Exclusive. The Company and the Managed Subsidiaries agree that during the term of this Agreement the duties and obligations imposed on the Manager under Article III are to be performed exclusively by the Manager or its delegates or agents and the Company and the Managed Subsidiaries will not, through the exercise of the powers of their employees, Boards of Directors or their shareholders or members, as the case may be, perform the duties and obligations to be performed by the Manager except in circumstances where it is necessary to do so to comply with applicable law or as otherwise agreed by the Manager in writing. ARTICLE V INSPECTION OF RECORDS Section 5.1 Books and Records. At all reasonable times and on reasonable notice, any person authorized by the Company or by any of the Managed Subsidiaries may inspect and audit the records and books of the Manager kept pursuant to this Agreement. 22 ARTICLE VI AUTHORITY OF THE COMPANY, THE MANAGED SUBSIDIARIES AND THE MANAGER Each Party represents to the others that it is duly authorized with full power and authority to execute, deliver and perform this Agreement. The Company and each Managed Subsidiary represents that the engagement of the Manager has been duly authorized by the Company and each Managed Subsidiary and is in accordance with all governing documents of the Company and each Managed Subsidiary. ARTICLE VII MANAGEMENT FEES For the services provided and the expenses assumed pursuant to this Agreement, the Company and the Managed Subsidiaries will pay the Manager, and the Manager agrees to accept as full compensation therefor, the fees set forth in this Article VII. Section 7.1 Structuring Fee. Within five Business Days of the Commencement Date, the Company and the Managed Subsidiaries will pay the Manager in cash a fee (the "STRUCTURING FEE") in the total amount of USD8,000,000. The Structuring Fee will be allocated between the Company and the Managed Subsidiaries in accordance with the Company's corporate allocation policy and otherwise in accordance with GAAP. Section 7.2 Base Management Fees. (a) The Manager is entitled to receive a Base Management Fee in respect of each Fiscal Quarter. (b) The Base Management Fee for a Fiscal Quarter is to be calculated by the Manager as of the Fiscal Quarter End Date for the relevant Fiscal Quarter and notice of such Base Management Fee calculation shall be provided to the Company and the Compensation Committee within 20 Business Days after that Fiscal Quarter End Date. (c) The Base Management Fee calculated pursuant to Section 7.2(b) above will be allocated between the Company and the Managed Subsidiaries in accordance with the Company's corporate allocation policy and otherwise in accordance with GAAP. (d) The Base Management Fee to which the Manager is entitled under this Section 7.2 is due at the Fiscal Quarter End Date of the relevant Fiscal Quarter and is payable in cash by the Company and the Managed Subsidiaries (in accordance with the allocation pursuant to Section 7.2(c) above) to the Manager within 10 Business Days of receipt by the Company of notification pursuant to Section 7.2(b), subject to Section 7.2(e). (e) The Manager has the right but not the obligation to invest all or a portion of the Base Management Fee to which the Manager is entitled under this Section 7.2 in Trust Stock. 23 (i) If the Manager determines to invest all or any portion of its Base Management Fee with respect to a Fiscal Quarter in Trust Stock, the Manager shall be entitled to purchase, upon payment, that number of shares of Trust Stock equal to such amount of the Base Management Fee divided by the volume weighted average trading price of a share of Trust Stock during the Share Price Period beginning after the relevant Fiscal Quarter. (ii) In the event the Manager determines to invest all or any portion of its Base Management Fee in Trust Stock, it shall notify the Company and the Compensation Committee at the time of the notification pursuant to Section 7.2(b) and the Trust Stock shall be issued to the Manager on the Business Day immediately following the last day of the relevant Share Price Period. The Manager may apply amounts owing to it pursuant to this Section 7.2 against amounts payable by the Manager in relation to the subscription for Trust Stock. Section 7.3 Performance Fee. (a) The Manager shall be entitled to receive the applicable Performance Fee, if any, in respect of each Fiscal Quarter. (b) The Performance Fee, Performance Test Return and Performance Test Benchmark Return for a Fiscal Quarter is to be calculated by the Manager as of the Fiscal Quarter End Date for the relevant Fiscal Quarter and notice of such Performance Fee, Performance Test Return and Performance Test Benchmark Return, including the calculation thereof, shall be provided to the Company and the Compensation Committee within 20 Business Days after that Fiscal Quarter End Date. (c) The Performance Fee calculated pursuant to Section 7.3(b) above will be allocated between the Company and the Managed Subsidiaries in accordance with the Company's corporate allocation policy and otherwise in accordance with GAAP. (d) The Performance Fee, if any, to which the Manager is entitled under this clause is due at the Fiscal Quarter End Date of the relevant Fiscal Quarter and is payable in cash by the Company and the Managed Subsidiaries (in accordance with the allocation pursuant to Section 7.3(c) above) to the Manager within 10 Business Days of receipt by the Company of notification pursuant to Section 7.3(b), subject to Section 7.3(e). (e) The Manager has the right but not the obligation to invest all or a portion of the Performance Fee to which the Manager is entitled under this Section 7.3 in Trust Stock. (i) If the Manager determines to invest all or any portion of its Performance Fee with respect to a Fiscal Quarter in Trust Stock, the Manager shall be entitled to purchase, upon payment, that number of shares of Trust Stock equal to such amount of the Performance Fee divided by the volume weighted average trading price of a share of Trust Stock during the Share Price Period beginning after the relevant Fiscal Quarter End Date. (ii) In the event the Manager determines to invest all or any portion of its Performance Fee in Trust Stock, it shall notify the Company and the Compensation Committee at the time of the notification pursuant to Section 7.3(b) and the Trust Stock 24 shall be issued to the Manager on the Business Day immediately following the last day of the relevant Share Price Period. The Manager may apply amounts owing pursuant to this Section 7.3 against amounts payable by the Manager in relation to the subscription for Trust Stock. (f) The Manager will notify the Company and the Compensation Committee of the Net Equity Value, Foreign Net Equity Value and U.S. Net Equity Value, and the calculations thereof, to be applied in the calculation of the Performance Fees payable in the then current Fiscal Quarter within 30 Business Days of the Fiscal Quarter End Date for the immediately prior Fiscal Quarter or, in the case of the initial Fiscal Quarter, within 30 Business Days of the Commencement Date. (g) The Manager will notify the Company and the Compensation Committee of the Additional Offering Foreign Net Equity Value and Additional Offering U.S. Net Equity Value, and the calculations thereof, to be applied in the calculation of the Performance Fees payable in the then current Fiscal Quarter within 30 Business Days of the first day of trading of the relevant Additional Offering. Section 7.4 Registration Rights. On the Commencement Date, the Company and the Manager will enter into a registration rights agreement whereby the Company shall undertake to register with the Securities and Exchange Commission the offer and resale of any shares of Trust Stock purchased by the Manager, including but not limited to shares of Trust Stock purchased as the Initial Investment pursuant to Section 2.2 and shares of Trust Stock purchased pursuant to this Article VII. Section 7.5 Ability to Issue Trust Stock. The Company will, and will cause the Trust to, at all times have reserved a sufficient number of LLC Interests and shares of Trust Stock, respectively, to enable the Manager to invest all reasonably foreseeable fees received in shares of Trust Stock. ARTICLE VIII SECONDMENT OF PERSONNEL BY THE MANAGER Section 8.1 Secondment of CEO and CFO. The Manager will arrange for the secondment to the Company on a wholly dedicated basis of individuals acceptable to the Company's Board of Directors to serve as Chief Executive Officer and Chief Financial Officer. The Company's Board of Directors will elect the seconded Chief Executive Officer and Chief Financial Officer as Officers of the Company in accordance with the terms of the LLC Agreement. Section 8.2 Remuneration of CEO and CFO. (a) The Chief Executive Officer and Chief Financial Officer seconded to the Company pursuant to this Article VIII will, at all times, remain employees of, and be remunerated by, the Manager or a Manager Affiliate. The services performed by the Chief Executive Officer and the Chief Financial Officer will be provided at the cost of the Manager or a Manager Affiliate. 25 (b) In establishing the level of remuneration for each of the Chief Executive Officer and the Chief Financial Officer, the Manager or a Manager Affiliate will reflect the following considerations: (i) the standard remuneration guidelines as adopted by the Manager or a Manager Affiliate from time to time; (ii) assessment by the Manager or a Manager Affiliate of the respective individual's performance, the Manager's performance and the performance, financial or otherwise, of the Company and its Subsidiaries; and (iii) assessment by the Board of Directors of the Company of the respective individual's performance and the performance of the Manager. (c) The Manager will disclose the amount of remuneration of the Chief Executive Officer and Chief Financial Officer to the Board of Directors of the Company to the extent required for the Company to comply with the requirements of applicable law, including the Rules and Regulations. Section 8.3 Secondment of Additional Personnel. The Manager and the Board of Directors of the Company may agree from time to time that the Manager will second to the Company one or more additional individuals to serve as officers or otherwise of the Company, upon such terms as the Manager and the Board of Directors of the Company may mutually agree. Any such individuals will have such titles and fulfill such functions as the Manager and the Company may mutually agree. Section 8.4 Removal of Seconded Individuals. The Board of Directors of the Company, after due consultation with the Manager, may at any time request that the Manager replace any individual seconded to the Company as provided in this Article VIII and the Manager shall, as promptly as practicable, replace any individual with respect to whom the Board of Directors shall have made its request. Section 8.5 Indemnification. The Company shall grant rights to indemnification, and rights to be paid by the Company the expenses incurred in defending any proceeding in advance of its final disposition, to any individuals seconded to the Company as provided in this Article VIII in their respective capacities and in each case to the fullest extent of the provisions of the LLC Agreement. ARTICLE IX EXPENSE REIMBURSEMENT Section 9.1 Company Expenses. The Company and the Managed Subsidiaries agree, jointly and severally, to indemnify and reimburse the Manager for, or pay on demand, all Costs incurred in relation to the proper performance of its powers and duties under this Agreement or in relation to the administration or management of the Company. All Costs 26 incurred by the Manager to be reimbursed hereunder shall be included in the annual budget for the Company to be approved by the Company's Board of Directors and shall be subject to review and approval by the Audit Committee of the Board of Directors of the Company. This includes, but is not limited to, Costs incurred by the Manager with respect to: (a) the performance by the Manager of its obligations under this Agreement; (b) all fees required to be paid to the Securities and Exchange Commission; (c) the acquisition, disposition, insurance, custody and any other transaction in connection with assets of the Company or any Managed Subsidiary, provided that no reimbursement will be made except for Costs that have been authorized by the Company and the relevant Managed Subsidiary; (d) any proposed acquisition, disposition or other transaction in connection with an investment provided that no reimbursement will be made except for Costs that have been authorized by the Company and the relevant Managed Subsidiary; (e) the administration or management of the Company, the Managed Subsidiaries and the Business, including travel and accommodation expenses and all expenses of the relevant Boards of Directors and committees thereof, including Director compensation and out of pocket reimbursement. The Manager appointed member of the Company's Board of Directors shall only receive out of pocket reimbursement for Board participation; (f) financing arrangements on behalf of the Company or any Managed Subsidiary or guarantees in connection with the Company or any Managed Subsidiary, including hedging Costs; (g) stock exchange listing fees; (h) underwriting of any offer and sale of Trust Stock, including underwriting fees, handling fees, costs and expenses, amounts payable under indemnification or reimbursement provisions in the underwriting agreement and any amounts becoming payable in respect of any breach (other than for negligence, fraud or breach of duty) by the Manager of its obligations, representations or warranties (if any) under any such underwriting agreement; (i) convening and holding meetings of holders of Trust Stock, Members or shareholders, as the case may be, the implementation of any resolutions and communications with holders of Trust Stock or Members or shareholders, as the case may be, and attending any meetings of shareholders, Members, Boards of Directors or committees of the Company or the Managed Subsidiaries; (j) Taxes incurred by the Manager on behalf of the Company or any Subsidiary (including any amount charged by a supplier of goods or services or both to the Manager by way of or as a reimbursement for value added taxes) and financial institution fees; 27 (k) the engagement of agents (including real estate agents and managing agents), valuers, contractors and advisers (including accounting, financial, tax and legal advisers) whether or not the agents, valuers, contractors or advisers are associates of the Manager; (l) engagement of accountants for the preparation and/or audit of financial information, financial statements and tax returns of the Company and the Managed Subsidiaries; (m) termination of this Agreement and the retirement or removal of the Manager and the appointment of a replacement; (n) any court proceedings, arbitration or other dispute concerning the Company or any of the Managed Subsidiaries, including proceedings against the Manager, except to the extent that the Manager is found by a court to have acted with gross negligence, willful misconduct, bad faith or reckless disregard of its duties in carrying out its obligations under this Agreement, or engaged in fraudulent or dishonest acts, in which case any expenses paid or reimbursed under this Section 9.1(n) must be repaid; (o) advertising Costs of the Company or any of the Managed Subsidiaries generally; (p) any Costs related to promoting the Company, including Costs associated with investor relations activities; and (q) complying with any other applicable law or regulation. ARTICLE X RESIGNATION AND REMOVAL OF THE MANAGER Section 10.1 Resignation by the Manager. (a) The Manager may resign from its appointment as Manager and terminate this Agreement upon 90 days' written notice to the Company. If the Manager resigns pursuant to this Section 10.1(a), until the date on which the resignation becomes effective, the Manager will, upon request of the Board of Directors of the Company, use reasonable efforts to assist the Board of Directors of the Company to find replacement management. (b) If there is a Delisting Event, then (i) unless otherwise approved in writing by the Manager: (A) any proceeds from the sale, lease or exchange of the assets of the Company or any of its Subsidiaries, subsequent to the Delisting Event, in one or more transactions, which in aggregate exceeded 15% of the value of the Trust (as calculated by multiplying the price per share of Trust Stock stated in clause (i) of the definition of Termination Fee by the aggregate 28 number of shares of Trust Stock issued and outstanding, other than treasury shares, on the date of the Delisting Event) shall be reinvested in new assets of the Company (other than cash or cash equivalents) within six months of the date on which the aggregate proceeds from such transaction or transactions exceeded 15% of the value of the Trust; (B) neither the Company nor any of its Subsidiaries shall incur any new indebtedness or engage in any transactions with the shareholders of the Trust, the Company or Affiliates of shareholders of the Trust or the Company; and (C) the Macquarie Group shall no longer have any obligation to provide investment opportunities to the Company pursuant to the Priority Protocol on Schedule 1 hereto, which Priority Protocol shall terminate immediately; and (ii) the Manager shall, as soon as practicable, provide a proposal for an alternate method to calculate fees to act as Manager on substantially similar terms as set forth in this Agreement to the Board of Directors for approval, which approval shall not be unreasonably withheld or delayed; or (iii) the Manager may elect to resign from its appointment as Manager and terminate this Agreement upon 30 days' written notice to the Company and be paid the Termination Fee within 45 days of such notice. Section 10.2 Removal of the Manager. (a) The Manager's appointment and this Agreement may be terminated upon notice of the Board of Directors of the Company only if: (i) the Performance Test Return (as calculated by the Manager and approved by the Compensation Committee as of a Fiscal Quarter End Date (which approval shall not be unreasonably withheld, delayed or conditioned)) is both: (A) less than the number calculated by: i) multiplying the Performance Test Benchmark Return (as calculated by the Manager and approved by the Compensation Committee as of such Fiscal Quarter End Date (which approval shall not be unreasonably withheld, delayed or conditioned) by 0.7 if such Performance Test Benchmark Return is greater than 0 or ii) multiplying the Performance Test Benchmark Return (as calculated by the Manager and approved by the Compensation Committee as of such Fiscal Quarter End Date) by 1.3 if such Performance Test Benchmark Return is less than 0; and (B) less than the number calculated by subtracting 0.025 (2.5 percent) from the Performance Test Benchmark Return (as calculated by the Manager and approved by the Compensation Committee as of such Fiscal Quarter End Date (which approval shall not be unreasonably withheld, delayed or conditioned)) 29 in 16 out of 20 consecutive Fiscal Quarters prior to and including the most recent full Fiscal Quarter and the holders of a minimum of 66 2/3% of Trust Stock, excluding from such calculation any Trust Stock owned by the Manager or any Manager Affiliate, vote to remove the Manager; (ii) the Manager pursuant to or within the meaning of any Bankruptcy Law: (A) commences a voluntary case; (B) consents to the entry of an order for relief against it in an involuntary case; (C) consents to the appointment of a Custodian of it or for all or substantially all of its property; or (D) makes a general assignment for the benefit of its creditors; (iii) a court of competent jurisdiction enters an order or decree under any Bankruptcy Law that: (A) is for relief against the Manager in an involuntary case; (B) appoints a Custodian of the Manager or for all or substantially all of its property; or (C) orders the liquidation of the Manager; and the order or decree remains unstayed and in effect for 90 days; (iv) the Manager is in material breach of its obligations under this Agreement and such breach continues for a period of 60 days after notice thereof is given; or (v) the Manager shall have (A) acted with gross negligence, willful misconduct, bad faith or reckless disregard of its duties in carrying out its obligations under this Agreement or (B) engaged in fraudulent or dishonest acts. (b) If the Manager's appointment is terminated pursuant to this Section 10.2, all directors, executives, employees, representatives, secondees, assignees and delegates of the Manager and Manager Affiliates within ISF who are performing the services that are the subject of this Agreement will cease work at the date of the Manager's termination or at any other time as determined by the Manager. Section 10.3 Withdrawal of Branding. Upon termination of this Agreement pursuant to Section 10.1(a), within 30 days of notice of resignation of the Manager pursuant to Section 10.1(b)(iii) or within 30 days of termination pursuant to Section 10.2, the Company and the Managed Subsidiaries will cease to use, and will cause their Subsidiaries to cease to use, the Macquarie brand entirely including (without limitation) changing their respective names, and causing the Trust to change its name, to remove any reference to "Macquarie", provided that, to 30 the extent the Board of Directors of the Company deems it necessary or advisable, the Trust, the Company and the Managed Subsidiaries may use "Macquarie" when referencing their previous names. Section 10.4 Resignation of the Chairman and the Seconded Officers. Upon the termination of this Agreement, each of the Chairman, his or her alternate, the Chief Executive Officer, the Chief Financial Officer and any other individuals seconded to the Company pursuant to Article VIII shall resign his or her respective position with the Company. Section 10.5 Directions. After a written notice of termination has been given under this Article X, the Company may direct the Manager to undertake any actions necessary to transfer any aspect of the ownership or control of the assets of the Company to the Company or to any nominee of the Company and to do all other things necessary to bring the appointment of the Manager to an end, and the Manager will comply with all such reasonable directions. In addition, the Manager must at the Company's expense deliver to new management or the Company any books or records held by the Manager under this Agreement and must execute and deliver such instruments and do such things as may reasonably be required to permit new management of the Company to effectively assume its responsibilities. ARTICLE XI INDEMNITY Section 11.1 Indemnification of Manager. The Company and each Managed Subsidiary, jointly and severally, agrees to indemnify the Manager, any controlling person of the Manager, and each of their respective directors, officers, employees, agents, Affiliates and representatives (each, an "INDEMNIFIED PARTY") and hold each of them harmless against any and all losses, (including lost profits) claims, damages, expenses or liabilities, joint or several (collectively, "LIABILITIES"), to which the Indemnified Parties may become liable, directly or indirectly, arising out of, or relating to, this Agreement, unless it is finally judicially determined that the Liabilities resulted from the gross negligence, willful misconduct, bad faith or reckless disregard of duty of any Indemnified Party or fraudulent or dishonest acts of such Indemnified Party. The Company and the Managed Subsidiaries further agree to reimburse each Indemnified Party immediately upon request for all expenses (including reasonable attorneys' fees and expenses) as they are incurred in connection with the investigation of, preparation for, defense of, or providing evidence in any action, claim, suit, proceeding or investigation, directly or indirectly, arising out of, or relating to, this Agreement or the Manager's services hereunder, whether or not pending or threatened and whether or not any Indemnified Party is a party to such proceeding. The Company and the Managed Subsidiaries also agree that no Indemnified Party shall have any liability (whether direct or indirect, in contract or tort or otherwise) to the Company, the Managed Subsidiaries, or any person asserting claims on behalf of or in right of the Company or the Managed Subsidiaries, directly or indirectly, arising out of, or relating to, this Agreement or the Manager's services thereunder, unless it is finally judicially determined that such Liability resulted from the gross negligence, willful misconduct, bad faith or reckless disregard of duty of such Indemnified Party or fraudulent or dishonest acts of such Indemnified 31 Party. Moreover, in no event, regardless of the legal theory advanced, shall any Indemnified Party be liable to the Company, the Managed Subsidiaries, or any person asserting claims on behalf of or in the right of the Company or the Managed Subsidiaries for any consequential, indirect, incidental or special damages of any nature. In the event that an Indemnified Party is requested or required to appear as a witness in any action brought by or on behalf of or against the Company or the Managed Subsidiaries or any Affiliate of the Company or the Managed Subsidiaries in which such Indemnified Party is not named as a defendant, the Company and the Managed Subsidiaries agree to reimburse the Manager for all expenses incurred by it in connection with such Indemnified Party's appearing and preparing to appear as such a witness, including, without limitation, the reasonable fees and disbursements of its legal counsel. The Company and the Managed Subsidiaries agree that, without the Manager's prior written consent, they will not settle, compromise or consent to the entry of any judgment in or otherwise seek to terminate any claim, action, suit, proceeding or investigation in respect of which indemnification could be sought hereunder (whether or not the Manager or any other Indemnified Party is an actual or potential party to such claim, action, suit, proceeding or investigation), unless (a) such settlement, compromise, consent or termination includes an unconditional release of each Indemnified Party from any liabilities arising out of such claim action, suit, proceeding or investigation and (b) the parties agree that the terms of such settlement shall remain confidential. Section 11.2 Indemnification of Company. The Manager agrees to indemnify the Company and the Trust and hold each of them harmless against any Liabilities to the same extent as the foregoing indemnity from the Company and the Managed Subsidiaries to the Manager, but only insofar as it is finally judicially determined that the Liabilities arose out of or were based on the gross negligence, willful misconduct, bad faith or reckless disregard of duty of the Manager in the performance of its duties under this Agreement or its fraudulent or dishonest acts. Section 11.3 Indemnification. The rights of the Indemnified Parties referred to above shall be in addition to any rights that any Indemnified Party may otherwise have. The indemnities referred to in this Article XI survive the termination of this Agreement. ARTICLE XII LIMITATION OF LIABILITY OF THE MANAGER Section 12.1 Limitation of Liability. The Manager shall not be liable for, and the Company and the Managed Subsidiaries will not take any action against the Manager to hold the Manager liable for, any error of judgment or mistake of law or for any loss suffered by the Company and the Managed Subsidiaries (including, without limitation, by reason of the purchase, sale or retention of any security) in connection with the performance of the Manager's duties under this Agreement, except for a loss resulting from gross negligence, willful misconduct or bad faith on the part of the Manager in the performance of its duties under this Agreement, or by reason of its reckless disregard of its obligations and duties under this Agreement or its fraudulent or dishonest acts. 32 Section 12.2 Manager May Rely. The Manager may take and may act upon: (a) the opinion or advice of legal counsel, which may be in-house counsel to the Company or the Manager, any U.S.-based law firm of recognized standing, or other legal counsel reasonably acceptable to the Board of Directors of the Company, in relation to the interpretation of this Agreement or any other document (whether statutory or otherwise) or generally in connection with the Company; (b) advice, opinions, statements or information from bankers, accountants, auditors, valuation consultants and other persons consulted by the Manager who are in each case believed by the Manager in good faith to be expert in relation to the matters upon which they are consulted; (c) a document which the Manager believes in good faith to be the original or a copy of an appointment by a Member in respect of an LLC Interest or holder of a Trust Certificate in respect of a share of Trust Stock of a person to act as their agent for any purpose connected with the Company; and (d) any other document provided to the Manager in connection with the Company upon which it is reasonable for the Manager to rely; and the Manager will not be liable for anything done, suffered or omitted by it in good faith in reliance upon such opinion, advice, statement, information or document. ARTICLE XIII LEGAL ACTIONS Section 13.1 Third Party Claims. (a) The Manager will notify the Company promptly of any claim made by any third Party in relation to the assets of the Company and will send to the Company any notice, claim, summons or writ served on the Manager concerning the Company. (b) The Manager will not without the express written consent of the Board of Directors of the Company purport to accept any claims or liabilities of which it receives notification pursuant to Section 13.1(a) above on behalf of the Company or any Managed Subsidiaries or make any settlement or compromise with any third Party in respect of the Company. 33 ARTICLE XIV MISCELLANEOUS Section 14.1 Obligation of Good Faith; No Fiduciary Duties. The Manager must perform its duties under this Agreement in good faith and for the benefit of the Company. The relationship of the Manager to the Company and the Managed Subsidiaries is as an independent contractor and nothing in this Agreement shall be construed to impose on the Manager an express or implied fiduciary duty. Section 14.2 Compliance. (a) The Manager must (and must ensure that each of its officers and agents) comply with any law, including the Rules and Regulations and the NYSE Rules, to the extent that it concerns the functions of the Manager under this Agreement. (b) The Manager must maintain management systems, policies, procedures and internal contracts that reasonably ensure that the Manager observes its duties and obligations under this Agreement. Section 14.3 Effect of Termination. Termination of this Agreement shall not affect (i) the right of the Manager to receive payments on any unpaid balance of the compensation described in Article VII hereof earned prior to such termination and for any additional period during which the Manager serves as such for the Company or the Managed Subsidiaries or to receive reimbursement of expenses pursuant to Article IX hereof, in each case subject to applicable law or (ii) the obligations of the parties hereto under Sections 10.3 and 10.5. Section 14.4 Notices. Any notice under this Agreement shall be sufficient in all respects if given in writing and delivered by commercial courier providing proof of delivery or sent by facsimile and addressed as follows or addressed to such other person or address as such Party may designate in writing for receipt of such notice. If to the Company or the Managed Subsidiaries: 600 Fifth Avenue, 21st Floor New York, New York, 10020 Facsimile: (212) 581-8037 Attention: David Mitchell If to the Manager: Macquarie Infrastructure Management (USA) Inc. 600 Fifth Avenue, 21st Floor New York, New York, 10020 Facsimile: (212) 581-8037 Attention: David Mitchell Section 14.5 Captions. The captions in this Agreement are included for convenience of reference only and in no way define or delimit any of the provisions hereof or 34 otherwise affect their construction or effect. This Agreement will be binding upon and shall inure to the benefit of the Parties hereto and their respective successors. Section 14.6 Applicable Law. This Agreement shall be construed in accordance with the laws of the State of New York. Section 14.7 Amendment. This Agreement may only be amended, or its provisions modified or waived, in a writing signed by the Party against which such amendment, modification or waiver is sought to be enforced. Section 14.8 Severability. Each provision of this Agreement is intended to be severable from the others so that if, any provision or term hereof is illegal or invalid for any reason whatsoever, such illegality or invalidity shall not affect the validity of the remaining provisions and terms hereof, provided, however, that the provisions governing payment of the Management Fee described in Article VII hereof are not severable. Section 14.9 Entire Agreement. This Agreement constitutes the sole and entire agreement of the Parties with regards to the subject matter of this Agreement. Any written or oral agreements, statements, promises, negotiations or representations not expressly set forth in this Agreement are of no force and effect. [REMAINDER OF PAGE LEFT INTENTIONALLY BLANK] 35 IN WITNESS WHEREOF, the Company, the Managed Subsidiaries and the Manager have caused this Agreement to be executed as of the day and year first above written. MACQUARIE INFRASTRUCTURE MACQUARIE INFRASTRUCTURE COMPANY LLC MANAGEMENT (USA) INC. /s/ Peter Stokes /s/ John B. Mullin By: ----------------------------------- By: -------------------------------- Name: Peter Stokes Name: John B. Mullin Title: Chief Executive Officer Title: Secretary/Treasurer MACQUARIE INFRASTRUCTURE COMPANY INC By: /s/ Peter Stokes ----------------------------------- Name: Peter Stokes Title: Chief Executive Officer MACQUARIE YORKSHIRE LLC By: Macquarie Infrastructure Company LLC, as Managing Member of Macquarie Yorkshire LLC By: /s/ Peter Stokes ----------------------------------- Name: Peter Stokes Title: Chief Executive Officer SOUTH EAST WATER LLC By: Macquarie Infrastructure Company LLC, as Managing Member of South East Water LLC By: /s/ Peter Stokes ----------------------------------- Name: Peter Stokes Title: Chief Executive Officer COMMUNICATIONS INFRASTRUCTURE LLC By: Macquarie Infrastructure Company LLC, as Managing Member of Communications Infrastructure LLC By: /s/ Peter Stokes ----------------------------------- Name: Peter Stokes Title: Chief Executive Officer Acknowledged: for purposes of Article VII. MACQUARIE INFRASTRUCTURE COMPANY TRUST By: MACQUARIE INFRASTRUCTURE COMPANY LLC, as Sponsor By: /s/ Peter Stokes ----------------------------------- Name: Peter Stokes Title: Chief Executive Officer SCHEDULE I PRIORITY PROTOCOL The Company has first priority ahead of all current and future entities managed by the Manager or by members of the Macquarie Group within the ISF in each of the following infrastructure acquisition opportunities that are within the United States: - airport fixed base operations, - district energy, - airport parking and - User Pays Assets, Contracted Assets and Regulated Assets that represent an investment of greater than AUD 40 million, subject to the Existing Qualifications set forth below. The above priority of the Company in User Pays Assets, Contracted Assets and Regulated Assets is subject to the following (collectively, the "EXISTING QUALIFICATIONS"): Roads: The Company has second priority after Macquarie Infrastructure Group. Airport Ownership: The Company has second priority after Macquarie Airports (consisting of Macquarie Airports Group (MAG) and Macquarie Airports (MAp)). Communications: The Company has second priority after Macquarie Communications Infrastructure Group. Regulated Assets (including, but not limited to, The Company has second electricity and gas transmission and distribution priority after Macquarie and water services): Essential Assets Partnership (MEAP) until such time as MEAP has invested a further CAD 45 million in the United States. Thereafter, the Company will have first priority.
The Company has first priority ahead of all current and future entities managed by the Manager or any Manager Affiliate in all investment opportunities originated by a party other than the Manager or any Manager Affiliate where such party offers the opportunity exclusively to the Company and not to any other entity under the management of the Manager or any Manager Affiliate within ISF. 38 EX-99.2 4 y04134exv99w2.txt AMENDED AND RESTATED TRUST AGREEMENT EXHIBIT 99.2 EXECUTION VERSION AMENDED AND RESTATED TRUST AGREEMENT OF MACQUARIE INFRASTRUCTURE COMPANY TRUST AMONG MACQUARIE INFRASTRUCTURE COMPANY LLC as Sponsor, WELLS FARGO DELAWARE TRUST COMPANY as Delaware Trustee, AND THE REGULAR TRUSTEE NAMED HEREIN Dated as of December 21, 2004 TABLE OF CONTENTS
Page(s) ------- ARTICLE I DEFINED TERMS.......................................................................................... 1 Section 1.01 Definitions............................................................................... 1 ARTICLE II ESTABLISHMENT OF THE TRUST............................................................................ 6 Section 2.01 Name...................................................................................... 6 Section 2.02 Office of the Delaware Trustee; Principal Place of Business............................... 6 Section 2.03 Initial Issuance of Shares................................................................ 7 Section 2.04 Trust to Be Sole Member of Sponsor........................................................ 7 Section 2.05 Authorized Shares......................................................................... 7 Section 2.06 Issuance of Additional Shares............................................................. 7 Section 2.07 Repurchase of Shares at Direction of the Sponsor.......................................... 7 Section 2.08 Agreement of Trust........................................................................ 8 Section 2.09 Authorization to Enter into Certain Transactions.......................................... 8 Section 2.10 Title to Trust Property................................................................... 9 Section 2.11 Certain Covenants of the Sponsor.......................................................... 9 ARTICLE III DIVIDENDS AND DISTRIBUTIONS.......................................................................... 9 Section 3.01 Dividends................................................................................. 9 Section 3.02 Payment Procedures........................................................................ 10 Section 3.03 Tax Returns and Reports................................................................... 10 ARTICLE IV SHARE CERTIFICATES.................................................................................... 10 Section 4.01 Initial Ownership......................................................................... 10 Section 4.02 Share Certificates........................................................................ 10 Section 4.03 Share Register............................................................................ 11 Section 4.04 Transfer of Shares........................................................................ 11 Section 4.05 Mutilated, Lost, Destroyed or Stolen Share Certificates................................... 11 Section 4.06 Rights of Shareholders.................................................................... 12 ARTICLE V MEETINGS; VOTING....................................................................................... 12 Section 5.01 Annual Meetings of Shareholders........................................................... 12 Section 5.02 Special Meetings of Shareholders.......................................................... 12 Section 5.03 Place of Meeting.......................................................................... 12 Section 5.04 Notice of Meeting......................................................................... 12 Section 5.05 Quorum and Adjournment.................................................................... 14 Section 5.06 Voting.................................................................................... 14 Section 5.07 Proxies................................................................................... 14 Section 5.08 Notice of Shareholder Business and Nominations............................................ 15 Section 5.09 Procedure for Election of Directors; Voting............................................... 17 Section 5.10 Inspectors of Elections; Opening and Closing the Polls.................................... 18 Section 5.11 Confidential Shareholder Voting........................................................... 18 Section 5.12 Waiver of Notice.......................................................................... 18
Section 5.13 Remote Communication...................................................................... 18 Section 5.14 Inspection of Records..................................................................... 19 ARTICLE VI DISCLOSURE REQUIREMENTS FOR TEN PERCENT HOLDERS....................................................... 20 ARTICLE VII RIGHT OF SHAREHOLDERS TO ENFORCE PROVISIONS OF SPONSOR AGREEMENTS AND BRING DERIVATIVE ACTION........ 20 ARTICLE VIII SHAREHOLDER VOTE REQUIRED IN CONNECTION WITH CERTAIN BUSINESS COMBINATIONS OR TRANSACTIONS.......... 20 Section 8.01 Vote Generally Required................................................................... 20 Section 8.02 Vote for Business Combinations............................................................ 24 Section 8.03 Power of Continuing Directors............................................................. 24 Section 8.04 No Effect on Fiduciary Obligations........................................................ 24 Section 8.05 Miscellaneous............................................................................. 24 ARTICLE IX THE TRUSTEES.......................................................................................... 24 Section 9.01 Certain Duties and Responsibilities....................................................... 24 Section 9.02 Not Responsible for Recitals or Issuance of Shares........................................ 26 Section 9.03 May Hold Shares........................................................................... 26 Section 9.04 Compensation; Indemnity; Fees............................................................. 26 Section 9.05 Delaware Trustee Required; Eligibility of Trustees........................................ 27 Section 9.06 Resignation and Removal; Appointment of Successor......................................... 27 Section 9.07 Acceptance of Appointment by Successor.................................................... 28 Section 9.08 Merger, Conversion, Consolidation or Succession to Business............................... 28 Section 9.09 Number of Trustees........................................................................ 28 Section 9.10 Delegation of Power....................................................................... 29 Section 9.11 Appointment of Regular Trustees........................................................... 29 ARTICLE X TERMINATION AND DISSOLUTION............................................................................ 29 Section 10.01 Termination or Dissolution................................................................ 29 Section 10.02 Circumstances Under Which Shares Will Be Exchanged for Sponsor Shares..................... 29 Section 10.03 Right to Acquisition Exchange............................................................. 30 Section 10.04 Early Termination......................................................................... 30 Section 10.05 Termination of Obligations................................................................ 31 ARTICLE XI MISCELLANEOUS PROVISIONS.............................................................................. 31 Section 11.01 Limitation of Rights of Shareholders...................................................... 31 Section 11.02 Amendment................................................................................. 31 Section 11.03 Separability.............................................................................. 32 Section 11.04 Specific Performance...................................................................... 32 Section 11.05 Governing Law............................................................................. 32 Section 11.06 Successors................................................................................ 33 Section 11.07 Headings.................................................................................. 33 Section 11.08 Reports, Notices and Demands.............................................................. 33 Section 11.09 Counterparts.............................................................................. 33
EXHIBITS Exhibit A - Form of Share Certificate............................................................................ A-1 Exhibit B - Form of Economic Disclosure Statement and Affidavit.................................................. B-1
AMENDED AND RESTATED TRUST AGREEMENT, dated as of December 21, 2004 among (i) Macquarie Infrastructure Company LLC, a Delaware limited liability company (the "Sponsor"), (ii) Wells Fargo Delaware Trust Company, a Delaware banking corporation, as Delaware trustee (in such capacity, the "Delaware Trustee"), and (iii) Peter Stokes, an individual, whose address is c/o Macquarie Infrastructure Company LLC, 600 Fifth Avenue, 21st Floor, New York, New York 10020 (the "Regular Trustee" and, collectively with the Delaware Trustee, the "Trustees"). The Sponsor and the Trustees hereby agree as follows: W I T N E S S E T H: WHEREAS, the Sponsor, the Delaware Trustee and Peter Stokes and Stephen Peet (the then "Regular Trustees"), heretofore duly declared and established a statutory trust pursuant to the Delaware Statutory Trust Act by entering into a trust agreement, dated as of April 13, 2004 (the "Original Agreement"), and by executing and filing a certificate of trust with the Secretary of State of the State of Delaware on April 13, 2004, for the purpose of owning the Sponsor Shares and issuing Shares (as defined herein) of stock of the Trust (as defined herein), each Share representing an undivided beneficial interest in one underlying Sponsor Share (as defined herein); WHEREAS, the Sponsor and the Trustees desire to amend and restate the Original Agreement in its entirety as set forth herein to provide for, among other things, the operation of the Trust; NOW, THEREFORE, in consideration of the agreements and obligations set forth herein and for other good and valuable consideration, the sufficiency of which is hereby acknowledged, each party, for the benefit of the other party, hereby amends and restates the Original Agreement in its entirety and agrees as follows: ARTICLE I DEFINED TERMS Section 1.01 Definitions For all purposes of this Agreement, except as otherwise expressly provided or unless the context otherwise requires: (a) the terms defined in this Article have the meanings assigned to them in this Article and include the plural as well as the singular; (b) unless the context otherwise requires, any reference to an "Article," "Section" or "Exhibit" refers to an Article, Section or Exhibit, as the case may be, of this Agreement; and (c) the words "herein," "hereof" and "hereunder" and other words of similar import refer to this Agreement as a whole and not to any particular Article, Section or other subdivision. "Acquirer" has the meaning specified in Section 10.03. "Acquisition Exchange" has the meaning specified in Section 10.03. "Affiliate" means, with respect to any Person, (i) any Person directly or indirectly controlling, controlled by or under common control with such Person, (ii) any officer, director, general partner, manager or trustee of such Person or (iii) any Person who is an officer, director, general partner, manager or trustee of any Person described in clause (i) or (ii) of this sentence. For purposes of this definition, the terms "controlling," "controlled by" or "under common control with" shall mean the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of a Person or entity, whether through the ownership of voting securities, by contract or otherwise, or the power to elect at least fifty percent (50%) of the directors, managers, general partners, trustees or Persons exercising similar authority with respect to such Person or entity. "Agreement" means this Amended and Restated Trust Agreement, as the same may be modified, amended or supplemented in accordance with the applicable provisions hereof, including all exhibits hereto. "Associate" has the meaning set forth in Section 8.01 hereof. "Authorized Officer" of a Person means any Person that is authorized to bind such Person. "Beneficial Holder" has the meaning ascribed to such term in Rule 13d-3 of the rules promulgated under the Exchange Act. "Board" or "Board of Directors" means either the board of directors of the Sponsor or any committee of such Board duly authorized to act hereunder, as applicable. "Business Day" means a day of the year on which banks are not required or authorized by law or executive order to close in The City of New York. "Chairman" means the director appointed or nominated and elected, as the case may be, Chairman of the Board of Directors, in accordance with the terms of the Sponsor Agreement with such powers and duties as are set forth in the Sponsor Agreement. "Commission" means the Securities and Exchange Commission. "Delaware Statutory Trust Act" means chapter 38 of title 12 of the Delaware Code, 12 Del. C. Sections 3801 et seq., as it may be amended from time to time. "Delaware Trustee" means the Person identified as the "Delaware Trustee" in the preamble to this Agreement solely in its capacity as Delaware Trustee of the Trust continued hereunder and not in its individual capacity, or its successor in interest in such capacity, or any successor Delaware Trustee appointed as herein provided. "Dividends" means amounts payable in respect of the Shares as provided in Section 3.01. "Early Termination Event" has the meaning specified in Section 10.04. "Exchange Act" means the Securities Exchange Act of 1934, as amended. "Fair Market Value" has the meaning set forth in Section 8.01 hereof. "Fiscal Quarter" means (i) the period commencing on April 13, 2004 and ending on June 30, 2004, (ii) any subsequent three (3)-month period commencing on each of July 1, October 1, January 1 and April 1 and ending on the last date before the next such date, or (iii) the period commencing on the immediately preceding January 1, April 1, July 1 or October 1, as the case may be, and ending on the date on which the trust is terminated or dissolved in accordance with Article X of this Agreement. "Fiscal Year" means (i) the period commencing April 13, 2004 and ending on December 31, 2004, (ii) any subsequent twelve (12)-month period commencing on January 1 and ending on December 31, or (iii) the period commencing on the immediately preceding January 1 and ending on the date on which the Trust is terminated or dissolved in accordance with Article X of this Agreement. "Future Investment" has the meaning set forth in Section 8.01 hereof. "GAAP" means generally accepted accounting principles in effect in the United States of America from time to time. "Initial Board" has the meaning specified in the Sponsor Agreement. "Interested Shareholder" has the meaning set forth in Section 8.01 hereof. "Limited Liability Company Act" means the Delaware Limited Liability Company Act, 6 Del. C. Sections 18-101 et seq., as amended from time to time (or any corresponding provisions of succeeding law). "Managed Subsidiary" has the meaning set forth in Section 8.01 hereof. "Management Services Agreement" means the Management Services Agreement, as may be amended from time to time, to be entered into by and among the Sponsor, certain wholly owned Subsidiaries of the Sponsor, and the Manager, which will provide the terms on which the Manager will assume its duties with respect to the management of the Sponsor and its Subsidiaries. "Manager" means Macquarie Infrastructure Management (USA) Inc., party to the Management Services Agreement. "Mandatory Exchange" has the meaning specified in Section 10.02. "Market Value of the Trust Stock" has the meaning set forth in Section 8.01 hereof. "Member" of the Sponsor means the Trust and any successor to the Trust in accordance with the terms of this Agreement and the Sponsor Agreement. "Members" means all such Persons. "Net Investment Value" has the meaning set forth in Section 8.01 hereof. "1940 Act" means the Investment Company Act of 1940, as amended. "1933 Act Registration Statement" has the meaning specified in Section 2.09(a)(i). "1934 Act Registration Statement" has the meaning specified in Section 2.09(a)(i). "Original Agreement" has the meaning specified in the recitals to this Agreement. "Outstanding Shares," when used with respect to Shares, means, as of the date of determination, all Shares theretofore executed and delivered under this Agreement, except: (a) Shares theretofore cancelled or delivered for cancellation; and (b) Shares in exchange for or in lieu of which other Shares have been executed and delivered pursuant to Section 4.05. "Person" means any individual, corporation, partnership, joint venture, trust, limited liability company, unincorporated organization or government or any agency or political subdivision thereof or any other entity. "Property" means all real and personal property acquired by the Trust, including cash, and any improvements thereto, and shall include both tangible and intangible property. "Regular Trustee" means Peter Stokes in his capacity as Regular Trustee of the Trust continued hereunder and not in his individual capacity, or such Regular Trustee's successor in interest in such capacity, or any successor in interest in such capacity, or any successor Regular Trustee appointed as herein provided. "Relevant Trustee" has the meaning specified in Section 9.06(a). "Rules and Regulations" means the rules and regulations promulgated under the Exchange Act or the Securities Act. "Secretary" means the Secretary of the Sponsor with such powers and duties as set forth in the Sponsor Agreement. "Securities Act" means the Securities Act of 1933, as amended. "Share Certificate" means a certificate evidencing ownership of Shares, substantially in the form attached hereto as Exhibit A. "Share Register" has the meaning specified in Section 4.03. "Shareholder" means a Person in whose name a Share Certificate representing a Share is registered, such Person being a beneficial owner within the meaning of the Delaware Statutory Trust Act. "Shares" means the shares of trust stock, each share of trust stock representing one undivided beneficial interest in the Trust, issued by the Trust and corresponding to one underlying Sponsor Share owned by the Trust. "Sponsor" has the meaning specified in the preamble to this Agreement. "Sponsor Agreement" means the Amended and Restated Operating Agreement of the Sponsor, including all exhibits and schedules attached thereto, as amended from time to time. "Sponsor Share" means a limited liability company interest in the Sponsor within the meaning of the Delaware Limited Liability Company Act, 6 Del. C. Sections 18-101 et seq., as amended from time to time, and includes any and all benefits to which the holder of Sponsor Shares may be entitled as provided in the Sponsor Agreement, together with all obligations of such Person to comply with the terms and provisions of the Sponsor Agreement. "Subsidiary" means any corporation, partnership, joint venture, limited liability company, association or other entity in which the Sponsor owns, directly or indirectly, more than 50% of the outstanding equity securities or interests, the holders of which are generally entitled to vote for the election of the board of directors or other governing body of such entity. "Successor Delaware Trustee" has the meaning specified in Section 9.06(b). "Ten Percent Holder" has the meaning specified in Article VI. "Trading Day" means a day on which the Shares (A) are not suspended from trading on any national or regional securities exchange or association or over-the-counter market at the close of business and (B) have traded at least once on the national or regional securities exchange or association or over-the-counter market that is the primary market for the trading of the Shares. "Transfer Agent and Registar" means, with respect to the Shares and the Sponsor Shares, The Bank of New York, or any successor(s) thereto. "Trust" means the Delaware statutory trust continued hereby and identified on the cover page of this Agreement. "Trust Property" means the Sponsor Shares. "Trustees" has the meaning specified in the preamble to this Agreement. "Use Agreement" means the District Cooling System Use Agreement dated as of October 1, 1994 between the City of Chicago, Illinois and MDE Thermal Technologies, Inc. (formerly known as Exelon Thermal Technologies, Inc. and formerly before that known as Unicom Thermal Technologies, Inc. and Northwind, Incorporated), as amended on June 1, 1995, July 15, 1995, February 1, 1996, April 1, 1996, October 1, 1996, November 7, 1996, January 15, 1997, May 1, 1997, August 1, 1997, October 1, 1997, March 12, 1998, June 1, 1998, October 8, 1998, April 21, 1999, March 1, 2000, March 15, 2000, June 1, 2000, August 1, 2001, November 1, 2001, June 1, 2002, June 30, 2004 and as further amended from time to time. ARTICLE II ESTABLISHMENT OF THE TRUST Section 2.01 Name (a) The Trust continued by this Agreement shall be known as "Macquarie Infrastructure Company Trust" and all business of the Trust shall be conducted in such name. The Sponsor, acting through the Board of Directors, may change the name of the Trust upon ten (10) Business Days' written notice to the Shareholders and the Trustees. (b) Upon the Manager's resignation and the termination of the Management Services Agreement or within thirty (30) days of the delisting of the Shares as provided in the Management Services Agreement unless otherwise approved in writing by the Manager, the Sponsor, acting through the Board of Directors, shall within thirty (30) days of such resignation and termination or such date, cause the Trust to cease using the Macquarie brand entirely, including, without limitation, changing its name to remove any reference to "Macquarie"; provided that, to the extent the Sponsor, acting through the Board of Directors, deems it necessary or advisable, the Trust may use "Macquarie" in referencing its previous name. (c) Upon the termination of the Management Services Agreement and the removal of the Manager by the Board of Directors of the Sponsor in accordance with the terms of the Management Services Agreement, the Sponsor, acting through the Board of Directors, shall cause the Trust to cease using the Macquarie brand entirely, including, without limitation, changing its name to remove any reference to "Macquarie"; provided that, to the extent the Sponsor, acting through the Board of Directors, deems it necessary or advisable, the Trust may use "Macquarie" in referencing its previous name. Section 2.02 Office of the Delaware Trustee; Principal Place of Business The address of the Delaware Trustee in the State of Delaware is c/o Wells Fargo Delaware Trust Company, 919 N. Market Street, Suite 700, Wilmington, Delaware 19801, Attention: Corporate Trust Services, or such other address in the State of Delaware as the Delaware Trustee may designate by written notice to the Shareholders and the Sponsor. The principal executive office of the Trust is 600 Fifth Avenue, 21st Floor, New York, New York 10020. Section 2.03 Initial Issuance of Shares On April 13, 2004, the Sponsor issued to the Trust, as Member of the Sponsor, one hundred (100) Sponsor Shares representing all of the issued and outstanding Sponsor Shares as of such date. The then Regular Trustees acknowledged receipt of such Sponsor Shares in trust from the Sponsor, which constitute the Trust Property. In exchange for the Sponsor Shares, the then Regular Trustees caused the Trust to issue one hundred (100) Shares of the Trust to the Sponsor. At all times, the Trust will have outstanding the identical number of Shares as the number of Sponsor Shares that have been issued and are outstanding. At all times, the Sponsor Shares shall comprise the Trust Property. Section 2.04 Trust to Be Sole Member of Sponsor The Trust shall be the sole owner of the ownership interests of the Sponsor represented by one hundred percent (100%) of the Sponsor Shares. For so long as the Trust remains in existence, the Trust shall not sell or otherwise transfer any of its Sponsor Shares to any Person. Every holder of Share Certificates, by holding and receiving the same, agrees with the Trust to be bound by the terms of this Agreement. Section 2.05 Authorized Shares The Trust shall be authorized to issue one class of Shares in an aggregate amount of up to five hundred million (500,000,000) of such Shares. The Trust is prohibited from issuing any other class of equity securities, any debt securities or any derivative securities. The aggregate number of Shares that are authorized may be increased from time to time by the Sponsor, by an amendment of this Agreement upon the adoption of a resolution by the affirmative vote of at least a majority of the Board of Directors declaring such amendment to be advisable and the approval of such amendment by the affirmative vote of the holders of a majority of the Shares present in person or represented by proxy at a meeting of the Shareholders. Section 2.06 Issuance of Additional Shares The Sponsor shall have authority to authorize the issuance, from time to time, of authorized but unissued Shares and cause the Trust to issue such additional Shares in exchange for and upon receipt of an equal number of Sponsor Shares. Upon the issuance of such additional Shares, the Regular Trustee shall execute in accordance with Section 4.02 one or more Share Certificates in certificated, fully registered form and shall deliver such Share Certificates to the Transfer Agent. The Sponsor may sell or distribute the Shares in any manner, subject to applicable law, that the Board of Directors in its sole discretion deems appropriate and advisable. Section 2.07 Repurchase of Shares at Direction of the Sponsor (a) From time to time and at the direction of the Sponsor, acting through the Board of Directors, the Trust shall conduct a capital reduction, including the repurchase of any number of Shares issued and outstanding, on similar terms to the capital reduction simultaneously conducted by the Sponsor and shall ensure that an identical number of Sponsor Shares and Shares are issued and outstanding at any one time. (b) Any Shares tendered and repurchased by the Trust in accordance with this Section 2.07 shall be deemed to be authorized and issued, but not outstanding, and may subsequently be sold or transferred for due consideration. Section 2.08 Agreement of Trust The purposes of the Trust are to (i) issue Shares represented by the Share Certificates, each such Share representing an undivided beneficial interest in one underlying Sponsor Share owned by the Trust, in exchange for Sponsor Shares, (ii) own the Sponsor Shares and (iii) engage in such other activities as are set forth in this Agreement. Each person or entity in whose name a Share is registered on the books of the Trust shall be a "beneficial owner" within the meaning of the Delaware Statutory Trust Act. It is intended that the Trust shall qualify as a grantor trust for U.S. federal income tax purposes; consistent with such treatment the Trustees shall have no power under this Agreement to vary the investment of the beneficial owners of the Trust. There shall be no implied duties or obligations of the Trustees hereunder. Any action by the Trustees in accordance with their respective powers shall constitute the act of and serve to bind the Trust. The Delaware Trustee shall be a trustee for purposes of fulfilling the requirements of Section 3807 of the Delaware Statutory Trust Act. Notwithstanding any other provision of this Agreement, the Delaware Trustee shall not be entitled to exercise any of the powers, nor shall the Delaware Trustee have any of the duties and responsibilities, of the Regular Trustee, the Manager or the Board of Directors described in this Agreement. Notwithstanding anything herein to the contrary, the Delaware Trustee shall not be liable for the acts or omissions of the Trust, the Regular Trustee, the Manager or the Board of Directors. Section 2.09 Authorization to Enter into Certain Transactions (a) The Sponsor is hereby authorized and directed, on behalf of the Trust, to engage in the following activities: (i) to prepare and file with the Commission and execute, in each case on behalf of the Trust, (a) a Registration Statement on Form S-1, Form S-2 or Form S-3, as applicable (a "1933 Act Registration Statement"), including any pre-effective or post-effective amendments thereto, relating to the registration of the Shares under the Securities Act, and (b) as applicable, a Registration Statement on Form 8-A (a "1934 Act Registration Statement") (including any pre-effective or post-effective amendments thereto) relating to the registration of the Shares under Section 12(b) or (g) of the Exchange Act; (ii) to prepare and file with the New York Stock Exchange and/or any other exchange or quotation service and execute, in each case on behalf of the Trust, an application therewith and all other applications, statements, certificates, agreements and other instruments as shall be necessary or desirable to cause the Shares to be listed on the New York Stock Exchange and/or any other exchange or quotation service; (iii) to prepare and file and execute, in each case on behalf of the Trust, such applications, reports, surety bonds, irrevocable consents, appointments of attorney for service of process and other papers and documents as shall be necessary or desirable to register the Shares under the securities or "blue sky" laws of such jurisdictions as the Sponsor, on behalf of the Trust, may deem necessary or desirable; (iv) to negotiate the terms of, and execute on behalf of the Trust, any underwriting agreements, purchase agreements or other agreements relating to the initial public offering or any future issuance of the Shares in exchange for Sponsor shares; (v) to execute and deliver, in each case on behalf of the Trust, such certifications or reports required by the Sarbanes-Oxley Act of 2002 from time to time as may be necessary or proper to the conduct of the business of the Trust; and (vi) to execute and deliver, in each case on behalf of the Trust, such agreements, instruments, certificates and documents, and to make filings with or representations on behalf of the Trust, to the City of Chicago as may be necessary in connection with the potential acquisition of Macquarie District Energy Holdings LLC. (b) It is hereby acknowledged and agreed that in connection with any execution, filing or document referred to in clauses (i) - (vi) above, (A) the Regular Trustee (or his or her attorneys-in-fact and agents or the Sponsor as permitted herein) is authorized on behalf of the Trust to file and execute such document on behalf of the Trust and (B) the Delaware Trustee shall not be required to join in any such filing or execute on behalf of the Trust any such document. Section 2.10 Title to Trust Property Legal title to all Trust Property shall be vested at all times in the Trust and shall be held and administered by the Regular Trustee for the benefit of the Trust and the Shareholders in accordance with this Agreement. Each Shareholder shall not have legal title to any part of the Trust Property, but shall have an undivided beneficial interest in the Sponsor Shares owned by the Trust. Section 2.11 Certain Covenants of the Sponsor The Sponsor will use its best efforts, consistent with the terms and provisions of this Agreement, to cause the Trust to remain classified as a "grantor trust" for U.S. federal income tax purposes. ARTICLE III DIVIDENDS AND DISTRIBUTIONS Section 3.01 Dividends (a) The Regular Trustee shall distribute to the Shareholders all distributions or dividends received by the Trust with respect to the Sponsor Shares from the Sponsor within two (2) Business Days of receipt. Any such distributions or dividends shall be allocated to Shareholders in the same amounts as any such allocations were made per Sponsor Share by the Sponsor. (b) Dividends or distributions on the Shares shall be payable to the Shareholders thereof as they appear on the Share Register for the Shares on the relevant record date. Section 3.02 Payment Procedures Payments of Dividends in respect of the Shares shall be made by (i) check mailed to the address of the Person entitled thereto as such address shall appear on the Share Register or (ii) wire transfer of immediately available funds to an account maintained by the Person entitled thereto as specified in the Share Register. Section 3.03 Tax Returns and Reports The Sponsor shall prepare (or cause to be prepared), at the Sponsor's expense, and file or provide (or cause to be filed or provided) all U.S. federal, state and local tax and information returns and reports required to be filed or provided to Shareholders by or in respect of the Trust. In this regard, the Sponsor shall (a) prepare and file (or cause to be prepared or filed) Form 1041 or the appropriate Internal Revenue Service form required to be filed in respect of the Trust in each taxable year of the Trust and (b) prepare and furnish (or cause to be prepared and furnished) a tax information statement or such other form or statement, if any, required to be furnished in respect of the Trust in each taxable year of the Trust. The Sponsor shall use all reasonable efforts to comply in all material respects with U.S. federal, state and local withholding and backup withholding tax laws and information reporting requirements with respect to any payments to Shareholders upon the Shares. To the extent that the Trust is required to withhold and pay over any amounts to any authority with respect to Dividends or allocations to any Shareholder, the amount withheld shall be deemed to be a distribution in the amount of the withholding to the Shareholder. In the event of any claimed over-withholding, Shareholders shall be limited to an action against the applicable taxing jurisdiction. If the amount required to be withheld was not withheld from actual Dividends paid, the Trust must reduce subsequent Dividends by the amount of such withholding (but not by the amount of any liability imposed on the Trust as withholding agent). ARTICLE IV SHARE CERTIFICATES Section 4.01 Initial Ownership Upon the formation of the Trust, the Sponsor was, and as of the date hereof continues to be, the sole beneficial owner of the Trust. The Sponsor shall have the right to sell or distribute Shares in any manner, subject to applicable law, that the Board of Directors in its sole discretion deems appropriate and advisable. Section 4.02 Share Certificates The Share Certificates shall be issued substantially in the form of Exhibit A hereto. Each Share Certificate shall bear a serial number, shall exhibit the Shareholder's name and the number of Shares evidenced thereby and shall be executed on behalf of the Trust by manual or facsimile signature of the Regular Trustee and countersigned by the Transfer Agent by manual or facsimile signature of the Transfer Agent. Share Certificates bearing the manual or facsimile signatures of individuals who were, at the time when such signatures shall have been affixed, authorized to sign on behalf of the Trust or the Transfer Agent or Registrar shall be validly issued and entitled to the benefit of this Agreement, notwithstanding that such individuals or any of them shall have ceased to be so authorized prior to the delivery of such Share Certificates or did not hold such offices at the date of delivery of such Share Certificates. A transferee of a Share Certificate shall become a Shareholder, and shall be entitled to the rights and subject to the obligations of a Shareholder hereunder, upon due registration of such Share Certificate in such transferee's name pursuant to Section 4.04. Section 4.03 Share Register The Sponsor shall retain the Transfer Agent to keep a register or registers (herein referred to as the "Share Register"), the Transfer Agent, in such capacity shall be known as the Registrar, in which shall be recorded the name and address of each Person owning the Shares evidenced by each Share Certificate evidencing Shares issued by the Trust, the number of Shares evidenced by each such Share Certificate, the date of issuance thereof and, in the case of cancellation, the date of cancellation. Except as otherwise expressly required by law, the Person in whose name Shares stand on the Share Register of the Trust shall be deemed the owner and Shareholder of record thereof for all purposes. Section 4.04 Transfer of Shares Registration of transfers of Shares shall be made only in the Share Register of the Trust upon request of the registered Shareholder of such Shares, or of his attorney thereunto authorized by power of attorney duly executed and filed with Registrar, and upon the surrender of the Share Certificate or Share Certificates evidencing such Shares properly endorsed or accompanied by a stock power duly executed, together with such proof of authenticity of signatures as the Registrar may reasonably require. All Share Certificates surrendered for transfer shall be cancelled before new Share Certificates for the transferred Shares shall be issued. Upon surrender for registration of transfer, and cancellation, of any Share Certificate, the Regular Trustee shall execute in the name of the designated transferee or transferees, one or more new Share Certificates. Section 4.05 Mutilated, Lost, Destroyed or Stolen Share Certificates Each Shareholder of record of Shares shall promptly notify the Trust of any mutilation, loss or destruction of any Share Certificate of which such Shareholder is the recordholder. The Sponsor may, in its discretion, cause the Transfer Agent to issue a new Share Certificate in place of any Share Certificate theretofore issued by it and alleged to have been mutilated, lost, stolen or destroyed, upon surrender of the mutilated Share Certificate or, in the case of loss, theft or destruction of the Share Certificate, upon satisfactory proof of such loss, theft or destruction, and the Sponsor may, in its discretion, require the Shareholder of record of the Shares evidenced by the lost, stolen or destroyed Share Certificate, or his legal representative, to give the Transfer Agent a bond sufficient to indemnify the Transfer Agent against any claim made against it on account of the alleged loss, theft or destruction of any such Share Certificate or the issuance of such new Share Certificate. Section 4.06 Rights of Shareholders The legal title to the Trust Property is vested exclusively in the Trust in accordance with Section 2.10, and the Shareholders shall not have any right or title therein other than the undivided beneficial interest in the Sponsor Shares owned by the Trust conferred by their Shares and they shall have no right to call for any partition or division of property, profits or rights of the Trust except as described below. The Shares shall be personal property giving only the rights specifically set forth therein and in this Agreement. The Shares shall have no preemptive or similar rights and, when issued and delivered to Shareholders against payment of the purchase price therefor and otherwise in accordance with this Agreement, shall be deemed validly issued, fully paid and nonassessable undivided beneficial interests in the Sponsor Shares owned by the Trust. Shareholders, in their capacities as such, shall be entitled to the benefits provided in this Agreement and to the same limitation of personal liability extended to stockholders of private corporations for profit organized under the General Corporation Law of the State of Delaware. Members of the Board of Directors shall owe the same duties to Shareholders, in their capacities as such, as they owe to the Trust, as Member of the Sponsor pursuant to the Sponsor Agreement. ARTICLE V MEETINGS; VOTING Section 5.01 Annual Meetings of Shareholders The annual meeting of Shareholders to direct the voting of the Trust, as Member of the Sponsor, shall be held at such date, at such time and at such place (if any) within or without the State of Delaware as may be fixed by resolution of the Board of Directors. Section 5.02 Special Meetings of Shareholders Special meetings of Shareholders shall be held on such date, at such time and at such place (if any) within or without the State of Delaware as shall be designated from time to time by the Board of Directors and stated in the notice of the meeting. Special meetings of Shareholders may be called at any time only by the Secretary either at the direction of the Board of Directors pursuant to a resolution adopted by the Board of Directors or by the Chairman of the Board. Section 5.03 Place of Meeting The Board of Directors may designate the place (if any) of meeting for any meeting of Shareholders. If no designation is made by the Board of Directors, the place of meeting shall be the principal office of the Sponsor. In lieu of holding any meeting of Shareholders at a designated place, the Board of Directors may, in its sole discretion, determine that any meeting of Shareholders may be held solely by means of remote communication. Section 5.04 Notice of Meeting (a) A notice of meeting, stating the place (if any), day and hour of the meeting, and the means of remote communication, if any, by which Shareholders and proxy holders may be deemed to be present in person and vote at such meeting, shall be prepared and delivered by the Sponsor not less than twenty (20) days and not more than sixty (60) days before the date of the meeting, either personally, by mail or, to the extent and in the manner permitted by applicable law, electronically, to each Shareholder of record. In the case of special meetings, the notice shall state the purpose or purposes for which such special meeting is called. Such further notice shall be given as may be required by law. Only such business shall be conducted at a special meeting of Shareholders as shall have been brought before the meeting pursuant to the Trust's notice of meeting. Any previously scheduled meeting of the Shareholders may be postponed, and (unless this Agreement otherwise provides) any special meeting of the Shareholders may be cancelled, by resolution of the Board of Directors upon public notice given prior to the time previously scheduled for such meeting of Shareholders. (b) Notice to Shareholders shall be given personally, by mail or, to the extent and in the manner permitted by applicable law, electronically to each Shareholder of record. If mailed, such notice shall be delivered by postage prepaid envelope directed to each holder at such Shareholder's address as it appears in the records of the Trust and shall be deemed given when deposited in the United States mail. Notice given by electronic transmission pursuant to this subsection shall be deemed given: (1) if by facsimile telecommunication, when directed to a facsimile telecommunication number at which the Shareholder has consented to receive notice; (2) if by electronic mail, when directed to an electronic mail address at which the Shareholder has consented to receive notice; (3) if by posting on an electronic network together with separate notice to the Shareholder of such specific posting, upon the later of (A) such posting and (B) the giving of such separate notice; and (4) if by any other form of electronic transmission, when directed to the Shareholder. An affidavit of the Secretary or an assistant Secretary or of the Transfer Agent or other agent of the Sponsor that the notice has been given by personal delivery, mail or a form of electronic transmission shall, in the absence of fraud, be prima facie evidence of the facts stated therein. (c) Notice of any meeting of Shareholders need not be given to any Shareholder if waived by such Shareholder either in a writing signed by such Shareholder or by electronic transmission, whether such waiver is given before or after such meeting is held. If such a waiver is given by electronic transmission, the electronic transmission must either set forth or be submitted with information from which it can be determined that the electronic transmission was authorized by the Shareholder. (d) In order that the Trust may determine the Shareholders entitled to notice of or to vote at any meeting of Shareholders or any adjournment thereof, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board of Directors, and which record date shall not be more than sixty (60) or fewer than ten (10) days before the date of such meeting. If no record date is fixed by the Board of Directors, the record date for determining Shareholders entitled to notice of or to vote at any meeting of Shareholders or any adjournment thereof shall be at the close of business on the day next preceding the day on which notice is given or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held. Section 5.05 Quorum and Adjournment Except as otherwise provided by law or by this Agreement, the Shareholders present in person or by proxy holding a majority of the outstanding Shares entitled to vote, shall constitute a quorum at a meeting of Shareholders. The Chairman of the Board or the holders of a majority of the Shares entitled to vote so represented may adjourn the meeting from time to time, whether or not there is such a quorum. The Shareholders present at a duly organized meeting at which a quorum is present in person or by proxy may continue to transact business until adjournment, notwithstanding the withdrawal of enough Shareholders to leave less than a quorum. When a meeting is adjourned to another time and place, if any, unless otherwise provided by this Agreement, notice need not be given of the reconvened meeting if the date, time and place, if any, thereof and the means of remote communication, if any, by which Shareholders and proxyholders may be deemed to be present in person and vote at such reconvened meeting are announced at the meeting at which the adjournment is taken. At the reconvened meeting, the Shareholders may transact any business that might have been transacted at the original meeting. A determination of Shareholders of record entitled to notice of or to vote at a meeting of Shareholders shall apply to any adjournment of such meeting; provided, however, that the Board of Directors may fix a new record date for the reconvened meeting. If an adjournment is for more than thirty (30) days or if, after an adjournment, a new record date is fixed for the reconvened meeting, a notice of the reconvened meeting shall be given to each Shareholder entitled to vote at the meeting. Section 5.06 Voting (a) Subject to the provisions of this Section 5.06 and Section 5.07, the Shareholders shall have the exclusive and absolute right to direct the Regular Trustee with respect to voting of the Trust, as Member of the Sponsor, with respect to the Sponsor Shares at all times during the term of the Trust. (b) When the Trust is required or permitted to vote with respect to the Sponsor Shares, the Sponsor shall prepare and deliver to the Trustees the form of proxy materials to enable the Regular Trustee to solicit from the Shareholders the manner in which they direct the Regular Trustee to vote their Shares. Shareholders shall be entitled to one vote for each Share in respect of any matter as to which Members are entitled to vote as provided in the Sponsor Agreement. (c) All Shares shall to the extent practicable under the circumstances be voted or deemed to have been voted (to the extent that Shares are not voted) in the same proportion as the Shares are directed to be voted by the Shareholders, including for purposes of determining a quorum, in favor of, in opposition to or abstaining from the matter. If such calculation of votes would require a fractional vote, the Regular Trustee shall vote the next lower number of whole Shares. Section 5.07 Proxies At all meetings of Shareholders, a Shareholder may vote by proxy as provided by the Exchange Act; provided that no proxy shall be voted after three (3) years from its date, unless the proxy provides for a longer period in accordance with this Agreement. Any proxy to be used at a meeting of Shareholders must be filed with the Secretary of the Sponsor or his or her representative at or before the time of the meeting. Section 5.08 Notice of Shareholder Business and Nominations (a) Annual Meetings of Shareholders (i) Except in the case of the Initial Board, nominations of individuals for election to the Board of Directors of the Sponsor, other than the Chairman, for so long as the Manager is entitled to appoint a director of the Board of Directors to serve as Chairman pursuant to the terms of the Management Services Agreement, and the proposal of business to be considered by Shareholders, may be made at an annual meeting of Shareholders (A) pursuant to the Trust's notice of meeting delivered pursuant to Section 5.04 hereof, (B) by or at the direction of the Board of Directors or (C) by any Shareholder who is entitled to vote at the meeting, who complies with the notice procedures set forth in clause (ii) of this Section 5.08(a). In addition to any other applicable requirements, for a nomination for election of a director to be made by a Shareholder or for business to be properly brought before an annual meeting by a Shareholder, such Shareholder must (A) be a Shareholder of record on both (1) the date of the delivery of such nomination or the date of the giving of the notice provided for in this Section 5.08(a) and (2) the record date for the determination of Shareholders entitled to vote at such annual meeting and (B) have given timely notice thereof in proper written form in accordance with the requirements of this Section 5.08 (a) to the Secretary. (ii) For nominations or other business to be properly brought before an annual meeting by a Shareholder pursuant to clause (C) of paragraph (a)(i) of this Section 5.08, a Shareholder must have given timely notice thereof in writing to the Secretary and, in the case of business other than nominations, such other business must otherwise be a proper matter for Shareholder action. To be timely, a Shareholder's notice shall be delivered to the Secretary at the principal executive offices of the Sponsor not less than one hundred and twenty (120) days nor more than one hundred and fifty (150) days prior to the first anniversary of the preceding year's annual meeting; provided, however, that, in the case of the first annual meeting of Shareholders, a Shareholder's notice shall be timely if it is delivered to the Secretary at the principal executive offices of the Sponsor not earlier than the one hundred and twentieth (120th) day prior to such annual meeting and not later than the close of business on the later of the ninetieth (90th) day prior to such annual meeting or the tenth (10th) day following the day on which public announcement of the date of such meeting is first made. In no event shall the public announcement or an adjournment or postponement of an annual meeting commence a new time period for the giving of a Shareholder's notice as described in this Section 5.08(a). Subject to Section 5.08(a)(i), such Shareholder's notice shall set forth: (A) as to each individual whom such Shareholder proposes to nominate for election or reelection as a director, all information relating to such individual that is required to be disclosed in solicitations of proxies for election of directors in an election contest, or is otherwise required, in Regulation 14A under the Exchange Act, including such individual's written consent to being named in the proxy statement as a nominee and to serving as a director if elected; (B) as to any other business that such Shareholder proposes to bring before the meeting, a brief description of the business desired to be brought before the meeting, the reasons for conducting such business at the meeting and any material interest in such business of such Shareholder and the beneficial owner or holder of Shares, if any, on whose behalf the proposal is made; and (C) as to such Shareholder giving the notice and the beneficial owner, if any, on whose behalf the nomination or proposal is made, (1) the name and address of such Shareholder as they appear on the Trust's books and of such beneficial owner and (2) the number of Shares which are owned beneficially and of record by such Shareholder and such beneficial owner. Notwithstanding anything in the second sentence of clause (ii) of this Section 5.08(a) to the contrary, in the event that the number of directors to be elected to the Board of Directors is increased and there is no public announcement naming all of the nominees for director or specifying the size of the increased Board of Directors made by the Sponsor, on behalf of the Trust at least one hundred (100) days prior to the first anniversary of the preceding year's annual meeting, a Shareholder's notice required by this Section 5.08 shall also be considered timely, but only with respect to nominees for any new positions created by such increase, if it shall be delivered to the Secretary at the principal executive offices of the Sponsor not later than the close of business on the tenth (10th) day following the day on which such public announcement is first made by the Sponsor, on behalf of the Trust. (b) Special Meeting of Shareholders Only such business shall be conducted at a special meeting of Shareholders as shall have been brought before the meeting pursuant to the Trust's notice of meeting pursuant to Section 5.04 of this Agreement. Nominations of individuals for election to the Board of Directors, other than the Chairman, for so long as the Manager is entitled to appoint a director of the Board of Directors to serve as Chairman pursuant to the terms of the Management Services Agreement, may be made at a special meeting of Shareholders at which directors are to be elected pursuant to the Trust's notice of meeting (i) by or at the direction of the Board of Directors or (ii) by any Shareholder who is entitled to vote at the meeting who complies with the notice procedures set forth in this Section 5.08. In addition to any other applicable requirements, for a nomination for election of a director to be made by a Shareholder, such Shareholder must (A) be a Shareholder of record on both (1) the date of the delivery of such nomination and (2) the record date for the determination of Shareholders entitled to vote at such special meeting and (B) have given timely notice thereof in proper written form in accordance with the requirements of this Section 5.08(b) to the Secretary. In the event the Sponsor on behalf of the Trust calls a special meeting of Shareholders for the purpose of electing one or more directors to the Board of Directors, any such Shareholder may nominate such number of individuals for election to such position(s) as are specified in the Trust's Notice of Meeting, if Shareholder's notice as required by clause (ii) of Section 5.08(a) of this Agreement shall be delivered to the Secretary at the principal executive offices of the Sponsor not earlier than the one hundred and twentieth (120th) day prior to such special meeting and not later than the close of business on the later of the ninetieth (90th) day prior to such special meeting or the tenth (10th) day following the day on which public announcement is first made of the date of the special meeting and of the nominees proposed by the Board of Directors to be elected at such meeting. In no event shall the public announcement of an adjournment or postponement of a special meeting commence a new time period for the giving of a Shareholder's notice as described above. (c) General (i) Only individuals who are nominated in accordance with the procedures set forth in this Section 5.08 shall be eligible to be elected as directors at a meeting of Shareholders and only such business shall be conducted at a meeting of Shareholders as shall have been brought before the meeting in accordance with the procedures set forth in this Section 5.08. Except as otherwise provided by applicable law or this Section 5.08, the Chairman shall have the power and duty to determine whether a nomination or any business proposed to be brought before the meeting was made in accordance with the procedures set forth in this Section 5.08 and, if any proposed nomination or business is not in compliance with this Section 5.08, to declare that such defective proposal or nomination shall be disregarded. (ii) For purposes of this Section 5.08, "public announcement" shall mean disclosure in a press release reported by the Dow Jones News Service, Associated Press or comparable national news service or in a document publicly filed by the Trust with the Securities and Exchange Commission pursuant to Section 13, 14 or 15(d) of the Exchange Act. (iii) Notwithstanding the foregoing provisions of this Section 5.08, a Shareholder shall also comply with all applicable requirements of the Exchange Act and the Rules and Regulations thereunder with respect to the matters set forth in this Section 5.08. Nothing in this Section 5.08 shall be deemed to affect any rights of Shareholders to request inclusion of proposals in the Trust's proxy statement pursuant to Rule 14a-8 under the Exchange Act. Section 5.09 Procedure for Election of Directors; Voting The election of directors submitted to Shareholders at any meeting shall be decided by a plurality of the votes cast thereon. Except as otherwise provided by law or this Agreement, all matters other than the election of directors submitted to Shareholders at any meeting shall be decided by the affirmative vote of a majority of the Shares present in person or represented by proxy at the meeting of Shareholders. The vote on any matter at a meeting, including the election of directors, shall be by written ballot. Each ballot shall be signed by Shareholder voting, or by such Shareholder's proxy, and shall state the number of Shares voted. Section 5.10 Inspectors of Elections; Opening and Closing the Polls The Board of Directors by resolution shall appoint one or more inspectors, which inspector or inspectors shall not be directors, officers or employees of the Sponsor, to act at the meeting and make a written report thereof. One or more individuals may be designated as alternate inspectors to replace any inspector who fails to act. If no inspector or alternate has been so appointed to act, or if all inspectors or alternates who have been appointed are unable to act, at a meeting of Shareholders, the Chairman of the Board shall appoint one or more inspectors to act at the meeting. Each such inspector, before discharging his or her duties, shall take and sign an oath faithfully to execute the duties of inspector with strict impartiality and according to the best of his or her ability. The inspectors shall have the duties prescribed by the General Corporation Law of the State of Delaware as if the Trust were a Delaware corporation. Section 5.11 Confidential Shareholder Voting All proxies, ballots and votes, in each case to the extent they disclose the specific vote of an identified Shareholder, shall be tabulated and certified by an independent tabulator, inspector of elections and/or other independent parties and shall not be disclosed to any director, officer or employee of the Sponsor or Trustee; provided, however, that, notwithstanding the foregoing, any and all proxies, ballots and voting tabulations may be disclosed: (a) as necessary to meet legal requirements or to assist in the pursuit or defense of legal action; (b) if the Sponsor concludes in good faith that a bona fide dispute exists as to the authenticity of one or more proxies, ballots or votes, or as to the accuracy of any tabulation of such proxies, ballots or votes; (c) in the event of a proxy, consent or other solicitation in opposition to the voting recommendation of the Board of Directors; and (d) if a Shareholder requests or consents to disclosure of such Shareholder's vote or writes comments on such Shareholder's proxy card or ballot. Section 5.12 Waiver of Notice Whenever any notice is required to be given to any Shareholder by the terms of this Agreement, a waiver thereof in writing, signed by the Person or Persons entitled to such notice, or a waiver thereof by electronic transmission by the Person or Persons entitled to notice, whether before or after the time stated therein, shall be deemed equivalent to the giving of such notice. Neither the business to be transacted at, nor the purpose of, any annual or special meeting of Shareholders need be specified in any written waiver of notice or any waiver by electronic transmission of such meeting. Section 5.13 Remote Communication For the purposes of this Agreement, if authorized by the Board of Directors in its sole discretion, and subject to such guidelines and procedures as the Board of Directors may adopt, Shareholders and proxyholders may, by means of remote communication: (a) participate in a meeting of Shareholders; and (b) be deemed present in person and vote at a meeting of Shareholders, whether such meeting is to be held at a designated place or solely by means of remote communication, provided, however, that (i) the Sponsor, on behalf of the Trust, shall implement reasonable measures to verify that each Person deemed present and permitted to vote at the meeting by means of remote communication is a Shareholder or proxyholder, (ii) the Sponsor, on behalf of the Trust, shall implement reasonable measures to provide such Shareholders and proxyholders a reasonable opportunity to participate in the meeting and to vote on matters submitted to Shareholders, including an opportunity to read or hear the proceedings of the meeting substantially concurrently with such proceedings, and (iii) if any Shareholder or proxyholder votes or takes other action at the meeting by means of remote communication, a record of such vote or other action shall be maintained by the Sponsor, on behalf of the Trust. Section 5.14 Inspection of Records (a) The Sponsor, on behalf of the Trust, shall keep or cause to be kept at the principal place of business of the Trust appropriate books and records with respect to the Trust, including, without limitation, all books and records necessary to provide to the Shareholders any information, lists and copies of documents required to be provided pursuant to applicable law. Any books and records maintained by or on behalf of the Trust in the regular course of its business, including, without limitation, the record of the Shareholders, books of account and records of Trust proceedings, may be kept in electronic or any other form, provided that the books and records so maintained are convertible into clearly legible written form within a reasonable period of time. (b) The Sponsor shall make, at least ten (10) days before every meeting of Shareholders, a complete list of the Shareholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each Shareholder and the number of Shares registered in the name of each Shareholder. Such list shall be open to the examination of any Shareholder, for any purpose germane to the meeting for a period of at least ten (10) days prior to the meeting: (i) on a reasonably accessible electronic network, provided that the information required to gain access to such list is provided with the notice of the meeting, or (ii) during ordinary business hours, at the principal place of business of the Trust. In the event that the Sponsor determines to make the list available on an electronic network, the Sponsor may take reasonable steps to ensure that such information is available only to Shareholders. The list shall be produced and kept at the time and place of the meeting during the whole time thereof, and may be inspected by any Shareholder who is present. Any Shareholder, in person or by attorney or other agent, shall, upon written demand stating the purpose thereof, have the right during the usual business hours to inspect for any proper purpose, and to make copies and extracts from: (1) the Trust's Share Register, a list of the Shareholders, and its other books and records; (2) the Sponsor's books and records; or (3) a Subsidiary's books and records or copies thereof in electronic form; to the extent that (i) the Sponsor has actual possession and control of such records of such Subsidiary or (ii) the Sponsor could obtain such records through the exercise of control over such Subsidiary, provided that as of the date of the making of the demand (A) Shareholder inspection of such books and records of the Subsidiary of the Sponsor would not constitute a breach of an agreement between the Sponsor or the Subsidiary and a Person or Persons not Affiliated with the Sponsor, and (B) the Subsidiary would not have the right under the law applicable to it to deny the Sponsor access to such books and records upon demand by the Sponsor. In every instance where the beneficial holder of Shares is not a holder of record, the demand shall state the Person's status as a beneficial holder of Shares, be accompanied by documentary evidence of beneficial ownership of Shares, and state that such documentary evidence is a true and correct copy of what it purports to be. A proper purpose shall mean a purpose reasonably related to such Person's interest as a Shareholder or beneficial holder of Shares. ARTICLE VI DISCLOSURE REQUIREMENTS FOR TEN PERCENT HOLDERS To ensure the Trust's compliance with its obligations under the Use Agreement, in the event the Sponsor or any Subsidiary, or both, is required to obtain the approval of the City of Chicago (or any department or agency thereof) for any specific matter, including, but not limited to, the amendment of the Use Agreement, or otherwise determines to request that the City of Chicago (or any department or agency thereof) take action with respect to any matter, the Sponsor shall deliver to the Transfer Agent notice of such approval requirement or request for action and a copy of the then current form of the City of Chicago Economic Disclosure Statement and Affidavit and cause the Transfer Agent to mail a copy of such notice to any Beneficial Holder holding ten percent or more of the then issued and outstanding Shares (each, a "Ten Percent Holder"). Within thirty (30) days of the mailing of such notice, each Ten Percent Holder shall provide to the Sponsor for filing with the City of Chicago a completed City of Chicago Economic Disclosure Statement and Affidavit, a standard form of which is attached hereto as Exhibit B. Each Ten Percent Holder shall provide any supplemental statements, affidavits or material required to update any Economic Disclosure Statement and Affidavit filed with the City of Chicago as required by the City of Chicago and as requested by the Sponsor from time to time. ARTICLE VII RIGHT OF SHAREHOLDERS TO ENFORCE PROVISIONS OF SPONSOR AGREEMENTS AND BRING DERIVATIVE ACTION (a) Each Shareholder shall have the right to institute any legal proceeding against the Sponsor to enforce the provisions of the Sponsor Agreement. (b) Shareholders holding at least ten percent (10%) or more of the Shares shall have the right to cause the Trust to institute any legal proceeding for any remedy available to the Trust as the sole Member of the Sponsor, including bringing a derivative action under the Limited Liability Company Act, and such Shareholders may direct the time, method and place of conducting any such legal proceeding brought by the Trust. ARTICLE VIII SHAREHOLDER VOTE REQUIRED IN CONNECTION WITH CERTAIN BUSINESS COMBINATIONS OR TRANSACTIONS Section 8.01 Vote Generally Required. Except as provided in Sections 10.02 and 10.03 and subject to the provisions of Section 8.03 hereof, neither the Trust or the Sponsor shall: (a) merge or consolidate with or into any limited liability company, corporation, statutory trust, business trust or association, real estate investment trust, common-law trust or any other unincorporated business, including a partnership, or (b) sell, lease or exchange all or substantially all of its Property and assets, unless the Sponsor, acting through the Board of Directors, adopts a resolution approving such action and unless such action shall be approved by the affirmative vote of the holders of a majority of the Shares outstanding and entitled to vote thereon; provided, however, that any Shares held by the Manager or an Affiliate or Associate of the Manager shall not be entitled to vote to approve any merger or consolidation with or into, or sale, lease or exchange to, the Manager or an Affiliate or Associate thereof. The notice of the meeting at which such resolution is to be considered will so state. For the purposes of this Article VIII, the following terms have the following meanings: "Associate" has the meaning ascribed to such term in Rule 12b-2 of the General rules promulgated under the Exchange Act. "Business Combination" means: (i) any merger or consolidation of the Trust, the Sponsor or any Subsidiary thereof with (A) an Interested Shareholder, or (B) any other Person (whether or not itself an Interested Shareholder) that is, or after such merger or consolidation would be, an Affiliate or Associate of an Interested Shareholder; or (ii) any sale, lease, exchange, mortgage, pledge, transfer or other disposition (in one transaction or a series of transactions) to or with, or proposed by or on behalf of, an Interested Shareholder or an Affiliate or Associate of an Interested Shareholder of any assets of the Trust, the Sponsor or any Subsidiary thereof having an aggregate Fair Market Value of not less than ten percent (10%) of the Net Investment Value of the Trust; or (iii) the issuance or transfer by the Trust, the Sponsor or any Subsidiary thereof (in one transaction or a series of transactions) of any securities of the Trust, the Sponsor or any Subsidiary to, or proposed by or on behalf of, an Interested Shareholder or an Affiliate or Associate of an Interested Shareholder in exchange for cash, securities or other property (or a combination thereof) having an aggregate Fair Market Value of not less than ten percent (10%) of the Net Investment Value of the Trust; or (iv) any spinoff or split-up of any kind of the Trust, the Sponsor or any Subsidiary thereof, proposed by or on behalf of an Interested Shareholder or an Affiliate or Associate of an Interested Shareholder; or (v) any reclassification of the Shares (including any reverse split of Shares) or recapitalization of the Trust, or any merger or consolidation of the Trust with any Subsidiary thereof, or any other transaction (whether or not with or into or otherwise involving an Interested Shareholder), that has the effect, directly or indirectly, of increasing the percentage of the outstanding shares of (A) the Shares or any class of equity securities of any Subsidiary thereof or (B) any class of securities of any Subsidiary convertible into or exchangeable for Shares or equity securities of any Subsidiary, that are directly or indirectly owned by an Interested Shareholder and its Affiliates and Associates; or (vi) any agreement, contract or other arrangement providing for any one or more of the actions specified in clauses (i) through (v) above. "Continuing Director" means (i) any director of the Board of Directors who (A) is neither the Interested Shareholder involved in the Business Combination as to which a determination of Continuing Directors is provided hereunder, nor an Affiliate, Associate, employee, agent or nominee of such Interested Shareholder, or a relative of any of the foregoing, and (B) was a member of the Board of Directors prior to the time that such Interested Shareholder became an Interested Shareholder, or (ii) any successor of a Continuing Director described in clause (i) above who is recommended or elected to succeed a Continuing Director by the affirmative vote of a majority of Continuing Directors then on the Board of Directors. "Fair Market Value" means: (i) in the case of equity securities, the average of the closing sale prices during the ten (10)-day period immediately preceding the date in question of such equity securities: (1) on the New York Stock Exchange (regular way); (2) if such equity securities are not listed for trading on the NYSE, as reported in the composite transactions for the principal U.S. national or regional securities exchange on which such equity securities are so listed; (3) if such equity securities are not so listed on a principal U.S. national or regional securities exchange, the price as reported by the Nasdaq National Market; (4) if such equity securities are not so reported, the last quoted bid price for such equity securities, in the over-the-counter market as reported by the National Quotation Bureau or a similar organization; or (5) if such equity securities are not so quoted, the fair market value of such equity securities, as determined by a majority of the Continuing Directors in good faith; and (ii) in the case of Property other than cash or equity securities, the fair market value of such Property on the date in question as determined by a majority of the Continuing Directors in good faith. "Future Investment" means a contractual commitment to invest represented by a definitive agreement. "Interested Shareholder" means any Person (other than the Manager, the Trust, the Sponsor or any Subsidiary of the Sponsor, any employee benefit plan maintained by the Sponsor, any Subsidiary or any trustee or fiduciary with respect to any such plan when acting in such capacity) that: (i) is, or was at any time within the three-year period immediately prior to the date in question, the Beneficial Owner of fifteen percent (15%) or more of the then outstanding Shares and who did not become the Beneficial Owner of such amount of Shares pursuant to a transaction that was approved by the Sponsor, acting through the Board of Directors; or (ii) is an assignee of, or has otherwise succeeded to, any Shares of which an Interested Shareholder was the Beneficial Owner at any time within the three-year period immediately prior to the date in question, if such assignment or succession shall have occurred in the course of a transaction, or series of transactions, not involving a public offering within the meaning of the Securities Act. For the purpose of determining whether a Person is an Interested Shareholder, the Shares that may be issuable or exchangeable by the Trust to the Interested Shareholder pursuant to any agreement, arrangement or understanding, or upon the exercise of conversion rights, warrants or options, or otherwise, shall be included, but not any other Shares that may be issuable or exchangeable by the Trust pursuant to any agreement, arrangement or understanding, or upon the exercise of conversion rights, warrants or options, or otherwise, to any Person who is not the Interested Shareholder. "Managed Subsidiary" means Macquarie Infrastructure Company Inc., Macquarie Yorkshire LLC, South East Water LLC, Communications Infrastructure LLC, and, any directly owned Subsidiary of the Sponsor that becomes party to the Management Services Agreement, from time to time. "Market Value of the Trust Stock" means the product of (1) the average number of shares of Trust Stock issued and outstanding, other than treasury Shares during the last fifteen (15) Trading Days in the most recent full Fiscal Quarter multiplied by (2) the volume weighted average trading price per share of Trust Stock traded on the NYSE over those fifteen (15) Trading Days. "Net Investment Value" means: (a) the Market Value of the Trust Stock; plus (b) the amount of any borrowings (other than intercompany borrowings) of the Sponsor and its Managed Subsidiaries (but not including borrowings on behalf of any Subsidiary of the Managed Subsidiaries); plus (c) the value of Future Investments of the Sponsor and/or any of its Subsidiaries other than cash or cash equivalents, as calculated by the Manager and approved by a majority of the Continuing Directors; provided that such Future Investment has not been outstanding for more than two consecutive full Fiscal Quarters; less (d) the aggregate amount held by the Sponsor and its Managed Subsidiaries in cash or cash equivalents (but not including cash or cash equivalents held specifically for the benefit of any Subsidiary of a Managed Subsidiary). Section 8.02 Vote for Business Combinations. The affirmative vote of the holders of record of outstanding Shares represented by at least sixty-six and two-thirds percent (66 2/3%) of the then outstanding Shares (excluding Shares held by the Interested Shareholder or any Affiliate or Associate of an Interested Shareholder) shall be required to approve any Business Combination. Such affirmative vote shall be required notwithstanding the fact that no vote may be required, or that a lesser percentage may be specified, by law or in any agreement with any securities exchange or otherwise. Section 8.03 Power of Continuing Directors. The Continuing Directors shall have the power and duty to determine, on the basis of information known to them after reasonable inquiry, all facts necessary to determine compliance with this Article VIII, including, without limitation, (a) whether a Person is an Interested Shareholder, (b) the number of Shares beneficially owned by any Person, (c) whether a Person is an Affiliate or Associate of another and (d) the Fair Market Value of the Shares, the Sponsor Shares or the equity securities of any Subsidiary thereof; and the good faith determination of the Continuing Directors on such matters shall be conclusive and binding for all the purposes of this Article VIII. Section 8.04 No Effect on Fiduciary Obligations. Nothing contained in this Article shall be construed to relieve the members of the Board of Directors or an Interested Shareholder from any fiduciary obligation imposed by law. Section 8.05 Miscellaneous. In addition to any affirmative vote required by law or by this Agreement, the affirmative vote of a majority of the then outstanding Shares held by the Shareholders that are not held by the Interested Shareholder or an Affiliate or Associate of an Interested Shareholder shall be required to approve the sale or transfer by an Interested Shareholder or an Affiliate or Associate of an Interested Shareholder to the Trust, the Sponsor or any Subsidiary (in one transaction or a series of transactions) of any Shares, securities of the Sponsor or any Subsidiary in exchange for cash, securities of the Sponsor or any Subsidiary. Such affirmative vote shall be required notwithstanding the fact that no vote may be required, or that a lesser percentage may be specified, by law or in any agreement with any securities exchange or otherwise. ARTICLE IX THE TRUSTEES Section 9.01 Certain Duties and Responsibilities (a) In addition to the duties and responsibilities provided for in Sections 3.01 and 5.05, the Regular Trustee shall have the following exclusive duties: (i) to maintain bank accounts, brokerage accounts and other custody accounts that receive Trust income and receipts from which Trust expenditures and distributions are disbursed; (ii) to maintain evidence of intangible Trust assets; (iii) to maintain Trust records; (iv) to maintain an office for Trust business; (v) to originate, facilitate and review Trust reports and other Trust communications; (vi) to execute documents and authorize Trust account transactions; (vii) to retain accountants, attorneys, agents and other advisors in connection with its duties under this Agreement; (viii) to file reports and returns on behalf of the Trust with government agencies to the extent required by law and as specifically directed in writing by the Sponsor; and (ix) to perform such other actions as are necessary to effect any of the foregoing duties; provided, however, that no action may be taken by the Regular Trustee to the extent that such action would cause the Regular Trustee to be considered to have the power to vary the investment of the beneficial owners or otherwise to cause the Trust no longer to qualify as a grantor trust for U.S. federal income tax purposes. (b) The duties and responsibilities of the Trustees shall be as provided by this Agreement. Except as provided in Section 2.09(a), the Sponsor hereby acknowledges and agrees that the Trustees are authorized, directed and instructed to act, only as specifically authorized in writing by the Sponsor. Any written instructions, notwithstanding any error in the transmission thereof or that such instructions may not be genuine, shall, as against the Sponsor and in favor of the Trustees, be conclusively deemed to be valid instructions from the Sponsor to the Trustees for the purposes of this Agreement, if reasonably believed by the Trustees to be genuine and if not otherwise insufficient on the face of such written instructions; provided, however, that a Trustee in its discretion may decline to act upon any instructions where they are not received by such Trustee in sufficient time for such Trustee to act upon or in accordance with such instructions, where such Trustee has reasonable grounds for concluding that the same have not been accurately transmitted or are not genuine or where such Trustee believes in good faith that complying with such instructions is contrary to law or might subject such Trustee to any liability. If a Trustee declines to act upon any instructions for any reason set out in the preceding sentence, it shall notify the Sponsor and the other Trustees in writing forthwith after it so declines. (c) The Trustees shall not be liable for any act or omission in the course of or connected with their performance hereunder, except only that each Trustee shall be subject to liability and assume the entire responsibility for direct damages suffered by the Sponsor or any other Person occasioned by such Trustee's own gross negligence or willful misconduct or the gross negligence or willful misconduct of any of such Trustee's directors, officers or employees in the rendering of its performance hereunder, as determined by a court of competent jurisdiction. (d) The Trustees shall incur no liability to anyone in acting upon any document reasonably believed by them to be genuine (which is not insufficient on its face) and to have been signed by the proper Person or Persons. The Trustees may accept a certified copy of a resolution of the board of directors or other governing body of any corporate party as conclusive evidence that such resolution has been duly adopted by such body and that the same is in full force and effect. As to any fact or matter the manner of ascertainment of which is not specifically prescribed herein, the Trustees may for all purposes hereof rely on a certificate, signed by the Sponsor, as to such fact or matter, and such certificate, if relied upon by the Trustees in good faith, shall constitute full protection to the Trustees for any action taken or omitted to be taken by them in good faith in reliance thereon. In no event shall the Trustees be liable for (A) acting in accordance with instructions from the Sponsor, (B) special or consequential damages or (C) the acts or omissions of their nominees, correspondents, designees, agents or subagents appointed by them in good faith. (e) In the event that the Trustees are unsure of the course of action to be taken by them hereunder, the Trustees may request instructions from the Sponsor and, to the extent the Trustees follow such instructions in good faith, they shall not be liable to any Person. In the event that no instructions are provided within the time requested by the Trustees, they shall have no duty or liability for their failure to take any action or for any action they take in good faith and in accordance with the terms hereof. Section 9.02 Not Responsible for Recitals or Issuance of Shares The recitals contained herein and in the Share Certificates shall not be taken as the statements of the Trustees, and the Trustees do not assume any responsibility for their correctness. Section 9.03 May Hold Shares Any Trustee or any other agent of any Trustee or the Trust, in its individual or any other capacity, may become the owner or pledgee of Shares and may otherwise deal with the Trust with the same rights it would have if it were not a Trustee or such other agent. Section 9.04 Compensation; Indemnity; Fees The Sponsor agrees: (a) to pay the Delaware Trustee from time to time such compensation for all services rendered by them hereunder as the parties shall agree from time to time in writing (which compensation shall not be limited by any provision of law in regard to the compensation of a trustee of an express trust); (b) except as otherwise expressly provided herein, to reimburse the Delaware Trustee upon request for all reasonable expenses, disbursements and advances incurred or made by the Delaware Trustee in accordance with any provision of this Agreement (including the reasonable compensation and the expenses and disbursements of its agents and counsel), except any such expense, disbursement or advance determined by a court of competent jurisdiction to have been caused by its own gross negligence or willful misconduct; and (c) the Sponsor agrees, to the fullest extent permitted by applicable law, to indemnify and hold harmless (i) the Trustees, (ii) any officer, director, shareholder, employee, representative or agent of the Trustees, and (iii) any employee or agent of the Trust (referred to herein as an "Indemnified Person") from and against any loss, damage, liability, tax, penalty, expense or claim of any kind or nature whatsoever incurred by such Indemnified Person by reason of the creation, operation or termination of the Trust or any act or omission performed or omitted by such Indemnified Person in good faith on behalf of the Trust and in a manner such Indemnified Person reasonably believed to be within the scope of authority conferred on such Indemnified Person by this Agreement, except that no Indemnified Person shall be entitled to be indemnified in respect of any loss, damage or claim incurred by such Indemnified Person by reason of gross negligence or willful misconduct with respect to such acts or omissions. Section 9.05 Delaware Trustee Required; Eligibility of Trustees (a) There shall at all times be a Delaware Trustee hereunder with respect to the Shares. The Delaware Trustee shall be either (i) a natural person who is at least 21 years of age and a resident of the State of Delaware or (ii) a legal entity with its principal place of business in the State of Delaware and that otherwise meets the requirements of applicable Delaware law that shall act through one or more persons authorized to bind such entity. If at any time the Delaware Trustee with respect to the Shares shall cease to be eligible in accordance with the provisions of this Section 9.05, it shall resign immediately in the manner and with the effect hereinafter specified in this Article IX. (b) There shall at all times be one Regular Trustee hereunder with respect to the Shares. The Regular Trustee shall be either a natural person who is at least 21 years of age or a legal entity that shall act through one or more persons authorized to bind that entity. Section 9.06 Resignation and Removal; Appointment of Successor (a) Subject to Sections 9.06(b) and 9.06(c), any Trustee (the "Relevant Trustee") may be appointed or removed without cause at any time by the Sponsor. (b) The Trustee that acts as Delaware Trustee shall not be removed in accordance with Section 9.06(a) until a successor possessing the qualifications to act as Delaware Trustee under Section 9.05 (a "Successor Delaware Trustee") has been appointed and has accepted such appointment by instrument executed by such Successor Delaware Trustee and delivered to the Trust, the Sponsor and the removed Delaware Trustee. (c) A Trustee appointed to office shall hold office until his, her or its successor shall have been appointed or until his, her or its death, removal, resignation, dissolution or liquidation. Any Trustee may resign from office (without need for prior or subsequent accounting) by an instrument in writing with thirty (30) days' notice signed by the Trustee and delivered to the Sponsor and the Trust, which resignation shall take effect upon such later date as is specified therein; provided, however, that no such resignation of the Trustee that acts as the Delaware Trustee shall be effective until a Successor Delaware Trustee has been appointed and has accepted such appointment by instrument executed by such Successor Delaware Trustee and delivered to the Trust, the Sponsor and the resigning Delaware Trustee. (d) If no Successor Delaware Trustee shall have been appointed and accepted appointment as provided in this Section 9.06 within sixty (60) days after delivery pursuant to this Section 9.06 of an instrument of resignation or removal, the Delaware Trustee resigning or being removed, as applicable, may petition, at the expense of the Sponsor, any court of competent jurisdiction for appointment of a Successor Delaware Trustee. Such court may thereupon, after prescribing such notice, if any, as it may deem proper, appoint a Successor Delaware Trustee. (e) No Delaware Trustee shall be liable for the acts or omissions to act of any Successor Delaware Trustee, as the case may be. (f) Notwithstanding the foregoing or any other provision of this Agreement, in the event a Regular Trustee or a Delaware Trustee who is a natural person dies or becomes, solely in the opinion of the Sponsor, incompetent or incapacitated, the vacancy created by such death, incompetence or incapacity may be filled by the Sponsor (with the successor in each case being a Person who satisfies the eligibility requirement for the Regular Trustee or the Delaware Trustee, as the case may be, set forth in Section 9.05). (g) The indemnity provided to a Trustee under Section 9.04 shall survive any Trustee's resignation or removal and the termination of this Agreement. Section 9.07 Acceptance of Appointment by Successor (a) In case of the appointment hereunder of a Successor Trustee, such Successor Trustee so appointed shall execute, acknowledge and deliver to the Trust and to the retiring Trustee an instrument accepting such appointment, and thereupon the resignation or removal of the retiring Trustee shall become effective and such successor Trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers and duties of the retiring Trustee; but, on the request of the Sponsor or the Successor Trustee, such retiring Trustee shall, upon payment of its charges, execute and deliver an instrument transferring to such Successor Trustee all the rights and powers of the retiring Trustee. (b) No Successor Trustee shall accept its appointment unless at the time of such acceptance such Successor Trustee shall be qualified and eligible under this Article IX. Section 9.08 Merger, Conversion, Consolidation or Succession to Business Any Person into which the Delaware Trustee or the Regular Trustee that is not a natural person may be merged or converted or with which it may be consolidated, or any Person resulting from any merger, conversion or consolidation to which such Relevant Trustee shall be a party, or any Person succeeding to all or substantially all the corporate trust business of such Relevant Trustee, shall be the successor of such Relevant Trustee hereunder, provided that such Person shall be otherwise qualified and eligible under this Article IX, without the execution or filing of any paper or any further act on the part of any of the parties hereto. Section 9.09 Number of Trustees (a) The number of Trustees shall be two, provided that the Sponsor may increase or decrease the number of Regular Trustees. (b) If a Trustee ceases to hold office for any reason and the number of Regular Trustees is not reduced pursuant to Section 9.09(a), or if the number of Trustees is increased pursuant to Section 9.09(a), a vacancy shall occur. The vacancy shall be filled by a Successor Trustee appointed in accordance with Section 9.06. (c) The death, resignation, retirement, removal, bankruptcy, incompetence or incapacity to perform the duties of a Trustee shall not operate to annul the Trust. Section 9.10 Delegation of Power (a) Any Regular Trustee may, by power of attorney consistent with applicable law, delegate to any other natural person over the age of 21 his or her power for the purpose of executing any documents contemplated in Section 2.09(a). (b) The Regular Trustee shall have power to delegate from time to time to such of their number or to the Sponsor the doing of such things and the execution of such instruments either in the name of the Trust or the names of the Regular Trustee or otherwise as the Regular Trustee may deem expedient, to the extent such delegation is not prohibited by applicable law or contrary to the provisions of the Trust, as set forth herein. Section 9.11 Appointment of Regular Trustees (a) The Regular Trustee shall be Peter Stokes, an individual and his successor shall be appointed by the Sponsor. Upon any resignation or removal, the Sponsor shall appoint a successor Regular Trustee. (b) Whenever a vacancy in the number of Regular Trustees shall occur, until such vacancy is filled by the appointment of a Regular Trustee in accordance with this Section 9.11 or Section 9.06, the Regular Trustees in office, if any, regardless of their number (and not withstanding any other provision of this Agreement), shall have all the powers granted to the Regular Trustee and shall discharge all the duties imposed upon the Regular Trustee by this Agreement. ARTICLE X TERMINATION AND DISSOLUTION Section 10.01 Termination or Dissolution Unless terminated as provided herein, the Trust shall continue without limitation of time. If an Early Termination Event specified in Section 10.04 occurs, the Trust shall be dissolved, and one Sponsor Share shall be distributed to each Shareholder in exchange for each outstanding Share. Section 10.02 Circumstances Under Which Shares Will Be Exchanged for Sponsor Shares In the event that the Sponsor, acting through the Board of Directors, (i) determines that either (A) the Trust or the Sponsor, or both, is, or is reasonably likely to be, treated as a corporation for U.S. federal income tax purposes, (B) the Trust is, or is reasonably likely to be, required to issue Schedules K-1 to Shareholders or (C) the existence of the Trust otherwise results, or is reasonably likely to result, in a material tax detriment to the Trust, Shareholders, the Sponsor or any Member of the Sponsor and (ii) obtains an opinion of counsel of national reputation to such effect, the Sponsor, acting through the Board of Directors (a) shall declare a record date and deliver a mandatory instruction to the Regular Trustee, together with any opinions of counsel or officers' certificates of the Sponsor as the Regular Trustee may reasonably request, directing the Regular Trustee to (i) deliver one Sponsor Share to each Shareholder in exchange for such outstanding Share (the "Mandatory Exchange") and (ii) dissolve the Trust and (b) shall deliver to the Transfer Agent notice of such Mandatory Exchange and shall cause the Transfer Agent to mail a copy of such notice to the Shareholders at least thirty (30) days prior to the Mandatory Exchange. Simultaneously with the completion of such Mandatory Exchange, each Shareholder immediately prior to the completion of the Mandatory Exchange shall be admitted to the Sponsor as a Shareholder in respect of an equal number of Sponsor Shares previously held by the Trust and each Shareholder shall be issued a certificate evidencing the same, in accordance with the provisions of the Sponsor Agreement. Immediately whereafter, the Trust shall be deemed withdrawn from the Sponsor as a Shareholder in respect of such Sponsor Share(s), and the Trust shall tender its certificates evidencing Sponsor Shares to the Transfer Agent for cancellation. Section 10.03 Right to Acquisition Exchange If at any time one Person is the beneficial holder of more than ninety percent (90%) of the then outstanding Shares (the "Acquirer"), such Acquirer shall then have the right to direct the Sponsor, acting through the Board of Directors, to (i) declare a record date and deliver a mandatory instruction to the Regular Trustee directing the Regular Trustee to (A) deliver the Sponsor Shares to Shareholders, including the Acquirer, in exchange for all of the outstanding Shares (the "Acquisition Exchange") and (B) dissolve the Trust and (ii) deliver to the Transfer Agent notice of such Acquisition Exchange and cause the Transfer Agent to mail a copy of such notice to Shareholders at least thirty (30) days prior to the Acquisition Exchange. Simultaneously with the completion of such Acquisition Exchange, each Shareholder immediately prior to the completion of the Acquisition Exchange shall be admitted to the Sponsor as a Shareholder in respect of an equal number of Sponsor Shares previously held by the Trust and shall be issued a certificate evidencing the same, in accordance with the provisions of the Sponsor Agreement, immediately whereafter the Trust shall be deemed withdrawn from the Sponsor as a Shareholder in respect of such Sponsor Share(s), and the Trust shall tender its certificates evidencing Sponsor Shares to the Sponsor for cancellation. Section 10.04 Early Termination The Trust shall dissolve upon the first to occur of any of the following events (each an "Early Termination Event"): (a) the occurrence of a Mandatory Exchange or an Acquisition Exchange; (b) the dissolution or liquidation of the Sponsor; (c) receipt by the Regular Trustee of written notice from the Sponsor at any time (which notice is optional and wholly within the discretion of the Sponsor) of its intention to dissolve the Trust and distribute the Sponsor Shares in exchange for the Shares; or (d) an order for dissolution of the Trust shall have been entered by a court of competent jurisdiction. Section 10.05 Termination of Obligations The respective obligations and responsibilities of the Trustees and the Trust continued hereby shall terminate upon the latest to occur of the following: (a) the payment of all expenses owed by the Trust; (b) the discharge of all administrative duties of the Regular Trustee; and (c) the filing of a certificate of cancellation cancelling the Trust's certificate of trust with the Secretary of State of the State of Delaware by the Regular Trustee. ARTICLE XI MISCELLANEOUS PROVISIONS Section 11.01 Limitation of Rights of Shareholders The death or incapacity of any person having an interest, beneficial or otherwise, in Shares shall not operate to terminate this Agreement, nor entitle the legal representatives or heirs of such person or any Shareholder for such person to claim an accounting, take any action or bring any proceeding in any court for a partition or winding-up of the arrangements contemplated hereby, nor otherwise affect the rights, obligations and liabilities of the parties hereto or any of them. Section 11.02 Amendment This Agreement may be amended from time to time by the Sponsor, acting through the Board of Directors, and by the Regular Trustee at the direction of the Sponsor, acting through the Board of Directors; provided, however, that no such amendment shall alter the rights, powers or immunities of the Delaware Trustee without its written consent. Notwithstanding any other provisions of this Agreement, the Sponsor shall not, and no Trustee shall, (i) enter into or consent to any amendment to this Agreement which would cause the Trust to fail or cease to qualify for the exemption from the status of an "investment company" under the 1940 Act or be classified as other than a grantor trust for U.S. federal income tax purposes, (ii) cause the Trust to issue a class of equity securities other than the Shares or issue any debt securities or any derivative securities or amend the provision of Section 2.05 of this Agreement prohibiting such issuance or (iii) enter into or consent to any amendment to this Agreement that would affect the exclusive and absolute right of the Shareholders to direct the voting of the Trust, as Member of the Sponsor, pursuant to Section 5.05 of this Agreement, with respect to all matters reserved for the vote of Members pursuant to the provisions of the Sponsor Agreement; provided, however, that Article VIII, Section 2.05 and this Section 11.02 of this Agreement may not be amended without the affirmative vote of a majority of the Shares present in person or represented by proxy at a meeting of Shareholders. Section 11.03 Separability In case any provision in this Agreement or in the Share Certificates shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby. Section 11.04 Specific Performance The Sponsor and the Trustees agree that each party to this Agreement would be irreparably damaged if any of the provisions of this Agreement were not performed in accordance with their specific terms and that monetary damages would not provide an adequate remedy in such event. Accordingly, it is agreed that, in addition to any other remedy to which the nonbreaching party may be entitled, at law or in equity, each nonbreaching party shall be entitled to injunctive relief to prevent breaches of the provisions of this Agreement and specifically to enforce the terms and provisions hereof in any action instituted in any court of the United States or any state thereof having subject matter jurisdiction thereof. Section 11.05 Governing Law This Agreement and the rights of the parties hereunder shall be governed by and interpreted in accordance with the laws of the State of Delaware; PROVIDED, HOWEVER, THAT THERE SHALL NOT BE APPLICABLE TO THE PARTIES HEREUNDER OR THIS AGREEMENT ANY PROVISION OF THE LAWS (COMMON OR STATUTORY) OF THE STATE OF DELAWARE PERTAINING TO TRUSTS THAT RELATE TO OR REGULATE, IN A MANNER INCONSISTENT WITH THE TERMS HEREOF, (A) THE FILING WITH ANY COURT OR GOVERNMENTAL BODY OR AGENCY OF TRUSTEE ACCOUNTS OR SCHEDULES OF TRUSTEE FEES AND CHARGES, (B) AFFIRMATIVE REQUIREMENTS TO POST BONDS FOR TRUSTEES, OFFICERS, AGENTS OR EMPLOYEES OF A TRUST, (C) THE NECESSITY FOR OBTAINING COURT OR OTHER GOVERNMENTAL APPROVAL CONCERNING THE ACQUISITION, HOLDING OR DISPOSITION OF REAL OR PERSONAL PROPERTY, (D) FEES OR OTHER SUMS PAYABLE TO TRUSTEES, OFFICERS, AGENTS OR EMPLOYEES OF A TRUST, (E) THE ALLOCATION OF RECEIPTS AND EXPENDITURES TO INCOME OR PRINCIPAL, (F) RESTRICTIONS OR LIMITATIONS ON THE PERMISSIBLE NATURE, AMOUNT OR CONCENTRATION OF TRUST INVESTMENTS OR REQUIREMENTS RELATING TO THE TITLING, STORAGE OR OTHER MANNER OF HOLDING OR INVESTING TRUST ASSETS OR (G) THE ESTABLISHMENT OF FIDUCIARY OR OTHER STANDARDS OF RESPONSIBILITY OR LIMITATIONS ON THE ACTS OR POWERS OF TRUSTEES THAT ARE INCONSISTENT WITH THE LIMITATIONS OR AUTHORITIES AND POWERS OF THE TRUSTEES HEREUNDER AS SET FORTH OR REFERENCED IN THIS AGREEMENT. SECTION 3540 OF TITLE 12 OF THE DELAWARE CODE SHALL NOT APPLY TO THE TRUST. Section 11.06 Successors This Agreement shall be binding upon and shall inure to the benefit of any successor to the Sponsor, the Trust or the Relevant Trustee, including any successor by operation of law. Section 11.07 Headings The Article and Section headings are for convenience only and shall not affect the construction of this Agreement. Section 11.08 Reports, Notices and Demands (a) Any report, notice, demand or other communications which by any provision of this Agreement is required or permitted to be given or served to or upon any Shareholder or the Sponsor may be given or served in writing by deposit thereof, first-class postage prepaid, in the United States mail, hand delivery or facsimile transmission, in each case, addressed, (a) in the case of a Shareholder, to such Shareholder as such Shareholder's name and address may appear on the Share Register; with a copy to Potter Anderson & Corroon LLP, P.O. Box 951, Wilmington, DE 19899; Attention: Scott E. Waxman and (b) in the case of the Sponsor, to Macquarie Infrastructure Company LLC, 600 Fifth Avenue, 21st Floor, New York, New York 10020; Attention: David Mitchell or to such other address as such Person may from time to time specify by notice to the other parties hereto. Such notice, demand or other communication to or upon a Shareholder shall be deemed to have been sufficiently given, or made, for all purposes, upon hand delivery, mailing or transmission. (b) Any notice, demand or other communication which by any provision of this Agreement is required or permitted to be given or served to or upon the Trust, the Delaware Trustee or the Regular Trustee shall be given in writing (which may be by facsimile transmission) addressed (until another address is published by the Trust) as follows: (a) with respect to the Delaware Trustee, to Wells Fargo Delaware Trust Company, 919 N. Market Street, Wilmington, Delaware 19801, Attention: Corporate Trust Services, and (b) with respect to the Regular Trustee, to him at the address for notices to the Sponsor, marked "Attention: Peter Stokes." Such notice, demand or other communication to or upon the Trust shall be deemed to have been sufficiently given or made only upon actual receipt of the writing by the Trust. Section 11.09 Counterparts This Agreement may contain more than one counterpart of the signature page and this Agreement may be executed by the affixing of the signature of each of the Trustees to one of such counterpart signature pages. All of such counterpart signature pages shall be read as though one, and they shall have the same force and effect as though all of the signers had signed a single signature page. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of the day and year first above written. MACQUARIE INFRASTRUCTURE COMPANY LLC, as Sponsor By: /s/ Peter Stokes ____________________________________ Name: Peter Stokes ______________________________ Title: Chief Executive Officer _____________________________ WELLS FARGO DELAWARE TRUST COMPANY, as Delaware Trustee By: /s/ Edward L. Truitt, Jr. ____________________________________ Name: Edward L. Truitt, Jr. ______________________________ Title: Vice President _____________________________ /s/ Peter Stokes ________________________________________ Peter Stokes, as Regular Trustee EXHIBIT A FORM OF SHARE CERTIFICATE EXHIBIT B FORM OF ECONOMIC DISCLOSURE STATEMENT AND AFFIDAVIT B-1 EX-99.3 5 y04134exv99w3.txt AMENDED AND RESTATED OPERATING AGREEMENT EXHIBIT 99.3 EXECUTION VERSION AMENDED AND RESTATED OPERATING AGREEMENT OF MACQUARIE INFRASTRUCTURE COMPANY LLC Dated as of December 21, 2004 TABLE OF CONTENTS
Page ARTICLE 1 THE COMPANY......................................................................................... 1 Section 1.1 Formation................................................................................ 1 Section 1.2 Name..................................................................................... 1 Section 1.3 Purpose; Powers; Company Not to Be an Investment Company; Prior Authorization of Actions Valid....................................................... 2 Section 1.4 Principal Place of Business; Registered Office; Registered Agent......................... 2 Section 1.5 Term..................................................................................... 3 Section 1.6 Filings; Agent for Service of Process.................................................... 3 Section 1.7 Title to Property........................................................................ 3 Section 1.8 Payments of Individual Obligations....................................................... 3 Section 1.9 Definitions.............................................................................. 3 ARTICLE 2 THE TRUST........................................................................................... 13 Section 2.1 Trust to Be Sole Member.................................................................. 13 Section 2.2 Trust Stock to Represent LLC Interests................................................... 14 Section 2.3 Circumstances Under Which Trust Stock Will Be Exchanged for LLC Interests................ 14 Section 2.4 Right to Acquire Outstanding LLC Interests............................................... 14 Section 2.5 Right of Holders of Trust Stock to Enforce Provisions of this Amended Agreement and Bring Derivative Action................................................ 15 ARTICLE 3 ADMISSION OF MEMBERS................................................................................ 16 Section 3.1 LLC Interests............................................................................ 16 Section 3.2 Issuance of Additional LLC Interests..................................................... 16 Section 3.3 LLC Interest Certificates; Admission of Additional Members............................... 16 Section 3.4 Repurchase of LLC Interests by the Company............................................... 17 ARTICLE 4 ALLOCATIONS......................................................................................... 17 Section 4.1 Profits.................................................................................. 17 Section 4.2 Losses................................................................................... 17 Section 4.3 Special Allocations...................................................................... 18 Section 4.4 Curative Allocations..................................................................... 19 Section 4.5 Loss Limitation.......................................................................... 20 Section 4.6 Other Allocation Rules................................................................... 20 Section 4.7 Tax Allocations: Code Section 704(c).................................................... 20 ARTICLE 5 DIVIDENDS AND DISTRIBUTIONS......................................................................... 21 Section 5.1 Net Cash Flow............................................................................ 21 Section 5.2 Amounts Withheld......................................................................... 21
i Section 5.3 Limitations on Dividends and Distributions............................................... 21 ARTICLE 6 BOARD OF DIRECTORS.................................................................................. 21 Section 6.1 Initial Board............................................................................ 21 Section 6.2 General Powers........................................................................... 22 Section 6.3 Duties of Directors...................................................................... 22 Section 6.4 Number, Tenure and Qualifications........................................................ 22 Section 6.5 Election of Directors.................................................................... 23 Section 6.6 Removal.................................................................................. 23 Section 6.7 Resignations............................................................................. 23 Section 6.8 Vacancies and Newly Created Directorships................................................ 23 Section 6.9 Appointment of or Nomination and Election of Chairman; Appointment of Alternate Chairman................................................................... 23 Section 6.10 Chairman of the Board................................................................... 24 Section 6.11 Regular Meetings........................................................................ 24 Section 6.12 Special Meetings........................................................................ 24 Section 6.13 Notice for Special Meetings............................................................. 24 Section 6.14 Waiver of Notice........................................................................ 25 Section 6.15 Action Without Meeting.................................................................. 25 Section 6.16 Conference Telephone Meetings........................................................... 25 Section 6.17 Quorum.................................................................................. 25 Section 6.18 Committees.............................................................................. 26 Section 6.19 Committee Members....................................................................... 28 Section 6.20 Committee Secretary..................................................................... 29 Section 6.21 Compensation............................................................................ 29 Section 6.22 Indemnification, Advances and Insurance................................................. 29 Section 6.23 Reliance; Limitations in Liability...................................................... 31 ARTICLE 7 OFFICERS............................................................................................ 32 Section 7.1 General................................................................................. 32 Section 7.2 Duties of Officers...................................................................... 33 Section 7.3 Election and Term of Office............................................................. 33 Section 7.4 Chief Executive Officer................................................................. 33 Section 7.5 Chief Financial Officer................................................................. 33 Section 7.6 General Counsel......................................................................... 34 Section 7.7 Secretary............................................................................... 34 Section 7.8 Resignations............................................................................ 34 Section 7.9 Vacancies............................................................................... 34 ARTICLE 8 MANAGEMENT.......................................................................................... 34 Section 8.1 Duties of the Manager................................................................... 34 Section 8.2 Secondment of the Chief Executive Officer and Chief Financial Officer................... 34 Section 8.3 Secondment of Additional Officers....................................................... 34 Section 8.4 Election of the Secondees as Officers of the Company.................................... 34
ii Section 8.5 Removal of Seconded Officers............................................................. 35 Section 8.6 Replacement Manager...................................................................... 35 ARTICLE 9 THE MEMBERS......................................................................................... 35 Section 9.1 Rights or Powers......................................................................... 35 Section 9.2 Annual Meetings of Members............................................................... 35 Section 9.3 Special Meetings of Members.............................................................. 35 Section 9.4 Place of Meeting......................................................................... 35 Section 9.5 Notice of Meeting........................................................................ 35 Section 9.6 Quorum and Adjournment................................................................... 36 Section 9.7 Proxies.................................................................................. 37 Section 9.8 Notice of Member Business and Nominations................................................ 37 Section 9.9 Procedure for Election of Directors; Voting.............................................. 40 Section 9.10 Inspectors of Elections; Opening and Closing the Polls.................................. 40 Section 9.11 Confidential Member Voting.............................................................. 40 Section 9.12 Waiver of Notice........................................................................ 41 Section 9.13 Remote Communication.................................................................... 41 Section 9.14 Member Action Without a Meeting......................................................... 41 Section 9.15 Return on Capital Contribution.......................................................... 42 Section 9.16 Member Compensation..................................................................... 42 Section 9.17 Member Liability........................................................................ 42 Section 9.18 Disclosure Requirements for Members Holding Ten Percent or More of the Outstanding LLC Interests............................................................ 42 ARTICLE 10 MEMBER VOTE REQUIRED IN CONNECTION WITH CERTAIN BUSINESS COMBINATIONS OR TRANSACTIONS............. 43 Section 10.1 Vote Generally Required................................................................. 43 Section 10.2 Vote for Business Combinations.......................................................... 46 Section 10.3 Power of Continuing Directors........................................................... 46 Section 10.4 No Effect on Fiduciary Obligations...................................................... 46 Section 10.5 Miscellaneous........................................................................... 46 ARTICLE 11 BOOKS AND RECORDS.................................................................................. 47 Section 11.1 Books and Records; Inspection by Members................................................ 47 Section 11.2 Reports................................................................................. 48 Section 11.3 Preparation of Tax Returns.............................................................. 48 Section 11.4 Tax Elections........................................................................... 49 Section 11.5 Tax Information......................................................................... 49 ARTICLE 12 AMENDMENTS......................................................................................... 49 Section 12.1 Amendments.............................................................................. 49
iii ARTICLE 13 TRANSFERS; MONTHLY ALLOCATIONS..................................................................... 50 Section 13.1 Distributions and Allocations in Respect of LLC Interests............................... 50 ARTICLE 14 DISSOLUTION AND WINDING-UP......................................................................... 50 Section 14.1 Dissolution Events...................................................................... 50 Section 14.2 Winding-Up.............................................................................. 51 Section 14.3 Compliance with Certain Requirements of Regulations; Deficit Capital Accounts........... 52 Section 14.4 Deemed Distribution and Recontribution.................................................. 52 Section 14.5 Rights of Members....................................................................... 53 Section 14.6 Notice of Dissolution/Termination....................................................... 53 Section 14.7 Allocations During Period of Liquidation................................................ 53 Section 14.8 Character of Liquidating Distributions.................................................. 53 Section 14.9 The Liquidator.......................................................................... 53 Section 14.10 Form of Liquidating Distributions...................................................... 54 ARTICLE 15 MISCELLANEOUS...................................................................................... 54 Section 15.1 Notices................................................................................. 54 Section 15.2 Binding Effect.......................................................................... 55 Section 15.3 Construction............................................................................ 55 Section 15.4 Time.................................................................................... 55 Section 15.5 Headings................................................................................ 55 Section 15.6 Severability............................................................................ 55 Section 15.7 Incorporation by Reference.............................................................. 55 Section 15.8 Variation of Terms...................................................................... 55 Section 15.9 Governing Law and Consent to Jurisdiction/Service of Process............................ 56 Section 15.10 Waiver of Jury Trial................................................................... 56 Section 15.11 Counterpart Execution.................................................................. 56 Section 15.12 Specific Performance................................................................... 56 Exhibit A -- Specimen LLC Interest Certificate................................................................ A-1 Exhibit B -- Form of Economic Disclosure Statement and Affidavit............................................... B-1
iv This AMENDED AND RESTATED OPERATING AGREEMENT (the "Amended Agreement") shall be effective as of the 21st day of December, 2004 and is entered into by Macquarie Infrastructure Company Trust (the "ORIGINAL MEMBER") as a Member pursuant to the provisions of the Act (as defined below) as in effect on the date hereof. The Original Member hereby agrees to the amendment and restatement of the Operating Agreement dated as of April 13, 2004 (the "ORIGINAL OPERATING AGREEMENT") as provided herein. ARTICLE 1 THE COMPANY Section 1.1 Formation. Pursuant to the terms of the Original Operating Agreement, the Original Member formed the Company as a limited liability company under and pursuant to the provisions of the Act and upon the terms and conditions set forth in the Original Operating Agreement. The fact that the Certificate is on file in the office of the Secretary of State of the State of Delaware shall constitute notice that the Company is a limited liability company. Simultaneously with the execution of the Original Operating Agreement and the formation of the Company, the Original Member was admitted as a Member of the Company. The rights and liabilities of the Members shall be as provided under the Act, the Certificate and this Amended Agreement. Macquarie Infrastructure Management (USA) Inc. is an "authorized person" within the meaning of the Act for purposes of filing the Certificate with the office of the Secretary of State of the State of Delaware. Section 1.2 Name. (a)The name of the Company shall continue to be Macquarie Infrastructure Company LLC and all business of the Company shall be conducted in such name. The Board of Directors may change the name of the Company upon ten (10) Business Days' written notice to the Members, which name change shall be effective upon the filing of a certificate of amendment with the Secretary of State of the State of Delaware. (b)Upon the Manager's resignation and the termination of the Management Services Agreement or within thirty (30) days of the delisting of the shares of Trust Stock as provided in the Management Services Agreement unless otherwise approved in writing by the Manager, the Board of Directors of the Company shall, within thirty (30) days of such resignation and termination or such date, cause the Company and any of its Subsidiaries to cease using the Macquarie brand entirely, including, without limitation, changing their respective names, and cause the Trust to change its name to remove any reference to "Macquarie"; provided that, to the extent the Board of Directors deems it necessary or advisable, the Trust, the Company and its Subsidiaries may use "Macquarie" in referencing their previous names. (c)Upon the termination of the Management Services Agreement and the removal of the Manager by the Board of Directors in accordance with the terms of the Management Services Agreement, the Board of Directors of the Company shall cause the Company and its Managed Subsidiaries to cease using the Macquarie brand entirely, including, without limitation, changing their respective names, and cause the Trust to change its name to remove any reference to "Macquarie"; provided that, to the extent the Board of Directors deems it necessary or advisable, the Trust, the Company and its Subsidiaries may use "Macquarie" in referencing their previous names. Section 1.3 Purpose; Powers; Company Not to Be an Investment Company; Prior Authorization of Actions Valid. (a) The purposes of the Company are (i) to conduct or promote any lawful business, purpose or activity permitted for a limited liability company of the State of Delaware under the Act, including, without limitation, any business purpose or activity permitted for a corporation under the General Corporation Law of the State of Delaware, (ii) to make such additional investments and engage in such additional activities as the Board of Directors may approve, and (iii) to engage in any and all activities related or incidental to the purposes set forth in clauses (i) and (ii); provided, however, that the Company is not permitted to engage in any activities that would cause it to become an "investment company" as defined in Section 3(a)(1) of the Investment Company Act of 1940, as amended and as may be amended from time to time, or any successor provision thereto. (b) The Company has the power to do any and all acts necessary, appropriate, proper, advisable, incidental or convenient to or in furtherance of the purposes of the Company set forth in this Section 1.3 and has, without limitation, any and all powers that may be exercised on behalf of the Company by the Board of Directors pursuant to Article 6 hereof. (c) Notwithstanding anything in this Amended Agreement to the contrary, any actions and things (including the entering into and performance of any agreements or other documents) properly authorized, in the name and on behalf of the Company, by the Board of Directors as constituted at the time of any such authorization, whether prior to the date of this Amended Agreement (under the Original Operating Agreement) or under and in accordance with this Amended Agreement, were, are and shall continue to be valid and duly authorized, and the Company shall continue to have the power and authority to take and do all such actions and things (including to enter into and perform all such agreements or other documents), whether or not such actions or things have already been taken or done (or such agreements or other documents entered into and/or performed), and regardless of whether the composition of the Board of Directors has changed, the fact that the Original Operating Agreement has been amended by this Amended Agreement, whether the initial public offering of the shares of Trust Stock by the Trust has closed or otherwise prior to the actual taking or doing of any such actions or things (including the entering into or performance of any such documents) by the Company. Section 1.4 Principal Place of Business; Registered Office; Registered Agent. The principal executive offices of the Company are at 600 Fifth Avenue, 21st Floor, New York, New York 10020. The Board of Directors may change the principal executive offices of the Company to any other place within or without the State of Delaware upon written notice to the Members. The address of the Company's registered office in the State of Delaware is Corporation Trust Center, 1209 Orange Street, in the City of Wilmington, County of New Castle. The name of its registered agent at such address is The Corporation Trust Company. The Company may have such offices, either within or without the State of Delaware, as the Board of Directors may designate or as the business of the Company may from time to time require. Section 1.5 Term. The term of the Company commenced on the date the Certificate was first filed in the Office of the Secretary of State of the State of Delaware in accordance with the Act and shall continue until the winding-up and liquidation of the Company and its business are completed following a Dissolution Event, as provided in Article 14 hereof. Section 1.6 Filings; Agent for Service of Process. (a) The Board of Directors shall take any and all other actions, as may be reasonably necessary, to perfect and maintain the status of the Company as a limited liability company or similar type of entity under the laws of the State of Delaware and under the laws of any other jurisdictions in which the Company engages in business, including causing the Company to prepare, execute and file such amendments to the Certificate and such other assumed name certificates, documents, instruments and publications as may be required by law, including, without limitation, action to reflect: (i) a change in the Company name; or (ii) a correction of false or erroneous statements in the Certificate to accurately represent the agreement among the Members. (b) The registered agent for service of process on the Company in the State of Delaware shall be The Corporation Trust Company or any successor registered agent for service of process as shall be appointed by the Board of Directors in accordance with the Act. (c) Upon the dissolution and completion of the winding-up and liquidation of the Company in accordance with Article 14, the Board of Directors shall cause the Company to promptly execute and file a Certificate of Cancellation in accordance with the Act and the laws of any other jurisdiction in which the Board of Directors deems such filing necessary or advisable. Section 1.7 Title to Property. All Property owned by the Company shall be owned by the Company as an entity and no Member shall have any ownership interest in such Property in its individual name, and each Member's interest in the Company shall be personal property for all purposes. At all times after the Effective Date, the Company shall hold title to all of its Property in the name of the Company and not in the name of any Member. Section 1.8 Payments of Individual Obligations. The Company's credit and assets shall be used solely for the benefit of the Company, and no asset of the Company shall be Transferred or encumbered for, or in payment of, any individual obligation of any Member. Section 1.9 Definitions. Capitalized words and phrases used in this Amended Agreement have the following meanings: "ACQUIRER" has the meaning set forth in Section 2.4(a) hereof. "ACQUISITION EXCHANGE" has the meaning set forth in Section 2.4(a) hereof. "ACT" means the Delaware Limited Liability Company Act, 6 Del. C. Sections 18-101 et seq., as amended from time to time (or any corresponding provisions of succeeding law). "ADJUSTED CAPITAL ACCOUNT DEFICIT" means, with respect to any Member, the deficit balance, if any, in such Member's Capital Account as of the end of the relevant Allocation Year, after giving effect to the following adjustments: (i)credit to such Capital Account any amounts which such Member is deemed to be obligated to restore pursuant to the penultimate sentence in each of Sections 1.704-2(g)(1) and 1.704-2(i)(5) of the Regulations; and (ii) debit to such Capital Account the items described in Sections 1.704-1(b)(2)(ii)(d)(4), 1.704-1(b)(2)(ii)(d)(5) and 1.704-1(b)(2)(ii)(d)(6) of the Regulations. The foregoing definition of "Adjusted Capital Account Deficit" is intended to comply with the provisions of Section 1.704-1(b)(2)(ii)(d) of the Regulations and shall be interpreted consistently therewith. "AFFILIATE" means, with respect to any Person, (i) any Person directly or indirectly controlling, controlled by or under common control with such Person, (ii) any officer, director, general partner, manager or trustee of such Person or (iii) any Person who is an officer, director, general partner, manager or trustee of any Person described in clause (i) or (ii) of this sentence. For purposes of this definition, the terms "CONTROLLING," "CONTROLLED BY" or "UNDER COMMON CONTROL WITH" mean the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of a Person or entity, whether through the ownership of voting securities, by contract or otherwise, or the power to elect at least fifty percent (50%) of the directors, managers, general partners, trustees or Persons exercising similar authority with respect to such Person or entity. "ALLOCATION YEAR" means (i) the period commencing on the Effective Date and ending on December 31, 2004, (ii) any subsequent twelve (12)-month period commencing on January 1 and ending on December 31, or (iii) any portion of the period described in clause (i) or (ii) above for which the Company is required to allocate Profits, Losses and other items of Company income, gain, loss or deduction pursuant to Article 4 hereof. "AMENDED AGREEMENT" means this Amended and Restated Operating Agreement of Macquarie Infrastructure Company LLC, including all Exhibits and Schedules attached hereto, as amended from time to time. Words such as "herein," "hereinafter," "hereof," "hereto" and "hereunder" refer to this Amended Agreement as a whole, unless the context otherwise requires. "APPLICABLE LISTING RULES" means the applicable rules, if any, of the principal U.S. securities exchange or the Nasdaq National Market, as the case may be, on which the Trust Stock or LLC Interests, as applicable, are listed or quoted, as the case may be. "ASSOCIATE" has the meaning set forth in Section 10.1 hereof. "BANKRUPTCY" means, with respect to any Person, a "VOLUNTARY BANKRUPTCY" or an "INVOLUNTARY BANKRUPTCY." A "VOLUNTARY BANKRUPTCY" means, with respect to any Person, (i) the inability of such Person generally to pay its debts as such debts become due or an admission in writing by such Person of its inability to pay its debts generally, or a general assignment by such Person for the benefit of creditors; (ii) the filing of any petition or answer by such Person seeking to adjudicate itself as bankrupt or insolvent, or seeking any liquidation, winding-up, reorganization, arrangement, adjustment, protection, relief or composition of such Person or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors, or seeking, consenting to, or acquiescing in the entry of an order for relief or the appointment of a receiver, trustee, custodian or other similar official for such Person or for any substantial part of its Property; or (iii) corporate action taken by such Person to authorize any of the actions set forth above. An "INVOLUNTARY BANKRUPTCY" means, with respect to any Person, without the consent or acquiescence of such Person, the entering of an order for relief or approving a petition for relief or reorganization or any other petition seeking any reorganization, arrangement, composition, readjustment, liquidation, dissolution or other similar relief under any present or future bankruptcy, insolvency or similar statute, law or regulation, or the filing of any such petition against such Person, which petition shall not be dismissed within ninety (90) days, or, without the consent or acquiescence of such Person, the entering of an order appointing a trustee, custodian, receiver or liquidator of such Person or of all or any substantial part of the Property of such Person which order shall not be dismissed within ninety (90) days. It is the intent of the Members that these definitions supersede those set forth in Section 18-304 of the Act. "BENEFICIAL OWNER" has the meaning set forth in Section 10.1 hereof. "BOARD" or "BOARD OF DIRECTORS" means, with respect to the Company, the Board of Directors referred to in Article 6 hereof. "BUSINESS DAY" means a day of the year on which banks are not required or authorized by law or executive order to close in The City of New York. "CAPITAL ACCOUNT" means, with respect to any Member, the Capital Account established and maintained for such Member by the Company in accordance with the following provisions: (i)to each Member's Capital Account there shall be credited (A) such Member's Capital Contributions, and (B) such Member's distributive share of Profits and any items in the nature of income or gain which are specially allocated pursuant to Section 4.3 or Section 4.4 hereof; (ii) to each Member's Capital Account there shall be debited (A) the amount of money and the Gross Asset Value of any Property distributed to such Member pursuant to any provision of this Amended Agreement, and (B) such Member's distributive share of Losses and any items in the nature of expenses or losses which are specially allocated pursuant to Section 4.3 or Section 4.4 hereof; (iii) in the event LLC Interests are Transferred in accordance with the terms of this Amended Agreement, the transferee shall succeed to the Capital Account of the transferor to the extent it relates to the Transferred LLC Interests; and (iv) in determining the amount of any liability for purposes of subparagraphs (i) and (ii) above, there shall be taken into account Code Section 752(c) and any other applicable provisions of the Code and the Regulations. The foregoing provisions and the other provisions of this Amended Agreement relating to the maintenance of Capital Accounts are intended to comply with Regulations Section 1.704-1(b) and shall be interpreted and applied in a manner consistent with such Regulations. In the event the Board of Directors shall determine that it is prudent to modify the manner in which the Capital Accounts or any debits or credits thereto (including, without limitation, debits or credits relating to liabilities which are secured by contributed or distributed property or which are assumed by the Company or any Members) are computed in order to comply with such Regulations, the Board of Directors may make such modification, provided that it is not likely to have a material effect on the amounts distributed to any Person pursuant to Article 14 hereof upon the dissolution of the Company. The Board of Directors also shall (i) make any adjustments that are necessary or appropriate to maintain equality among the Capital Accounts of the Members and the amount of capital reflected on the Company's balance sheet, as computed for book purposes, in accordance with Regulations Section 1.704-1(b)(2)(iv)(q), and (ii) make any appropriate modifications in the event unanticipated events might otherwise cause this Amended Agreement not to comply with Regulations Section 1.704-1(b). "CAPITAL CONTRIBUTIONS" means, with respect to any Member, the amount of money and the initial Gross Asset Value of any Property (other than money) contributed to the Company with respect to the LLC Interests of the Company held or subscribed for by such Member. "CERTIFICATE" means the certificate of formation filed with the Secretary of State of the State of Delaware pursuant to the Act to form the Company, as originally executed and amended, modified, supplemented or restated from time to time as the context requires. "CERTIFICATE OF CANCELLATION" means a certificate filed in accordance with 6 Del. C. Section 18-203. "CHAIRMAN" means the director appointed or nominated and elected, as the case may be, Chairman of the Board of Directors of the Company, in accordance with Section 6.9, with such powers and duties as are set forth in Section 6.10 hereof. "CHIEF EXECUTIVE OFFICER" means the Chief Executive Officer of the Company, including any interim Chief Executive Officer, with such powers and duties as are set forth in Section 7.4 hereof. "CHIEF FINANCIAL OFFICER" means the Chief Financial Officer of the Company, including any interim Chief Financial Officer, with such powers and duties as are set forth in Section 7.5 hereof. "CLOSING PRICE" has the meaning set forth in Section 2.4(b) hereof. "CODE" means the United States Internal Revenue Code of 1986, as amended and in effect from time to time. Any reference herein to a specific section of the Code shall be deemed to include a reference to any corresponding provision of law in effect in the future. "COMPANY" means the limited liability company formed pursuant to the Original Operating Agreement and the Certificate and continued pursuant to this Amended Agreement. "COMPANY MINIMUM GAIN" has the same meaning as the term "partnership minimum gain" in Sections 1.704-2(b)(2) and 1.704-2(d) of the Regulations. "DEBT" means (i) any indebtedness for borrowed money or the deferred purchase price of property as evidenced by a note, bonds or other instruments, (ii) obligations as lessee under capital leases, (iii) obligations secured by any mortgage, pledge, security interest, encumbrance, lien or charge of any kind existing on any asset owned or held by the Company, whether or not the Company has assumed or become liable for the obligations secured thereby, (iv) any obligation under any interest rate swap agreement, (v) accounts payable, and (vi) obligations under direct or indirect guarantees of (including obligations, contingent or otherwise, to assure a creditor against loss in respect of) indebtedness or obligations of the kinds referred to in clauses (i), (ii), (iii), (iv) and (v) above, provided that Debt shall not include obligations in respect of any accounts payable that are incurred in the ordinary course of the Company's business and are not delinquent or are being contested in good faith by appropriate proceedings. "DISSOLUTION EVENT" has the meaning set forth in Section 14.1 hereof. "EFFECTIVE DATE" means April 13, 2004, being the date of the effectiveness of the Original Operating Agreement. "ENTIRE BOARD OF DIRECTORS" has the meaning set forth in Section 6.17 hereof. "EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended. "FAIR MARKET VALUE" has the meaning set forth in Section 10.1 hereof. "FISCAL QUARTER" means (i) the period commencing on the Effective Date and ending on June 30, 2004, (ii) any subsequent three (3)-month period commencing on each of July 1, October 1, January 1 and April 1 and ending on the last date before the next such date, or (iii) the period commencing on the immediately preceding January 1, April 1, July 1 or October 1, as the case may be, and ending on the date on which all Property is distributed to the Members pursuant to Article 14 hereof. "FISCAL YEAR" means (i) the period commencing on the Effective Date and ending on December 31, 2004, (ii) any subsequent twelve (12)-month period commencing on January 1 and ending on December 31, or (iii) the period commencing on the immediately preceding January 1 and ending on the date on which all Property is distributed to the Members pursuant to Article 14 hereof. "FUTURE INVESTMENT" has the meaning set forth in Section 10.1 hereof. "GAAP" means generally accepted accounting principles in effect in the United States of America from time to time. "GENERAL CORPORATION LAW OF THE STATE OF DELAWARE" means Del. C Sections 101 et seq. and, for the avoidance of any doubt, includes all applicable jurisprudence thereunder. "GENERAL COUNSEL" means the General Counsel of the Company, if any, including any interim General Counsel, with such powers and duties as are set forth in Section 7.6 hereof. "GROSS ASSET VALUE" means, with respect to any asset, the asset's adjusted basis for U.S. federal income tax purposes, except as follows: (i)the initial Gross Asset Value of any asset contributed by a Member to the Company shall be the gross fair market value of such asset, as determined by the Board of Directors; (ii) the Gross Asset Values of all Company assets shall be adjusted to equal their respective gross fair market values (taking Code Section 7701(g) into account), as determined by the Board of Directors as of the following times: (A) the acquisition of an additional interest in the Company by any new or existing Member in exchange for more than a de minimis Capital Contribution; (B) the distribution by the Company to a Member of more than a de minimis amount of Company Property as consideration for an interest in the Company; and (C) the liquidation of the Company within the meaning of Regulations Section 1.704-1(b)(2)(ii)(g); provided that an adjustment described in clauses (A) and (B) of this subparagraph (ii) shall be made only if the Board of Directors reasonably determines that such adjustment is necessary to reflect the relative economic interests of the Members in the Company; (iii) the Gross Asset Value of any item of Company assets distributed to any Member shall be adjusted to equal the gross fair market value (taking Code Section 7701(g) into account) of such asset on the date of distribution, as determined by the Board of Directors; and (iv) the Gross Asset Values of Company assets shall be increased (or decreased) to reflect any adjustments to the adjusted basis of such assets pursuant to Code Section 734(b) or Code Section 743(b), but only to the extent that such adjustments are taken into account in determining Capital Accounts pursuant to Regulations Section 1.704-1(b)(2)(iv)(m) and subparagraph (vi) of the definition of "Profits" and "Losses"; provided, however, that Gross Asset Values shall not be adjusted pursuant to this subparagraph (iv) to the extent that an adjustment pursuant to subparagraph (ii) is required in connection with a transaction that would otherwise result in an adjustment pursuant to this subparagraph (iv). If the Gross Asset Value of an asset has been determined or adjusted pursuant to subparagraph (ii) or (iv), such Gross Asset Value shall thereafter be adjusted by depreciation taken into account with respect to such asset for purposes of computing Profits and Losses. "INDEPENDENT DIRECTOR" means a director who (i) is not an officer or employee of the Company, or an officer, director or employee of any Subsidiary of the Company, (ii) was not appointed as a director pursuant to the terms of the Management Services Agreement, (iii) for so long as the Management Services Agreement is in effect, is not affiliated with the Manager or Macquarie Bank Limited, and (iv) who complies with the independence requirements under the Exchange Act, the Rules and Regulations and the Applicable Listing Rules. "INITIAL BOARD" has the meaning set forth in Section 6.1 hereof. "INITIAL DIRECTOR" has the meaning set forth in Section 6.1 hereof. "INTERESTED SHAREHOLDER" has the meaning set forth in Section 10.1 hereof. "INVOLUNTARY BANKRUPTCY" has the meaning set forth in the definition of "Bankruptcy." "ISSUANCE ITEMS" has the meaning set forth in Section 4.3(h) hereof. "LIQUIDATION PERIOD" has the meaning set forth in Section 14.7 hereof. "LIQUIDATOR" has the meaning set forth in Section 14.9(a) hereof. "LLC INTEREST" means a limited liability company interest in the Company within the meaning of the Act and includes any and all benefits to which a holder of LLC Interests may be entitled as provided in this Amended Agreement, together with all obligations of such holder to comply with the terms and provisions of this Amended Agreement. The holder of each LLC Interest shall have one vote per LLC Interest in accordance with the terms of this Amended Agreement. "LLC INTEREST CERTIFICATES" has the meaning set forth in Section 3.3 hereof. "LOSSES" has the meaning set forth in the definition of "Profits" and "Losses." "MANAGEMENT SERVICES AGREEMENT" means the Management Services Agreement, as may be amended from time to time, to be entered into by and among the Company, certain wholly owned Subsidiaries of the Company and the Manager, which will provide the terms on which the Manager will assume its duties with respect to the management of the Company and its Subsidiaries. "MANAGED SUBSIDIARY" has the meaning set forth in Section 10.1 hereof. "MANAGER" means Macquarie Infrastructure Management (USA) Inc., a party to the Management Services Agreement. For the avoidance of doubt, Macquarie Infrastructure Management (USA), Inc. is not a manager within the meaning of Section 18-402 of the Act. "MANDATORY EXCHANGE" has the meaning set forth in Section 2.3 hereof. "MARKET VALUE OF THE TRUST STOCK OR LLC INTERESTS" has the meaning set forth in Section 10.1 hereof. "MEMBER" means the Trust as the Original Member and any successor to the Original Member in accordance with the terms of this Amended Agreement. "MEMBERS" means all Persons that at any time are Members of the Company. "MEMBER NONRECOURSE DEBT" has the same meaning as the term "partner nonrecourse debt" in Section 1.704-2(b)(4) of the Regulations. "MEMBER NONRECOURSE DEBT MINIMUM GAIN" means an amount, with respect to each Member Nonrecourse Debt, equal to the Company Minimum Gain that would result if such Member Nonrecourse Debt were treated as a Nonrecourse Liability, determined in accordance with Section 1.704-2(i)(3) of the Regulations. "MEMBER NONRECOURSE DEDUCTIONS" has the same meaning as the term "partner nonrecourse deductions" in Sections 1.704-2(i)(1) and 1.704-2(i)(2) of the Regulations. "NET CASH FLOW" means, for any period, the gross cash proceeds of the Company for such period less the portion thereof used to pay or establish reserves for all Company expenses, debt payments, capital improvements, replacements and contingencies, all as determined by the Board of Directors. "Net Cash Flow" shall not be reduced by depreciation, amortization, cost recovery deductions or similar allowances, but shall be increased by any reductions of reserves previously established pursuant to the first sentence of this definition. "NET INVESTMENT VALUE" has the meaning set forth in Section 10.1 hereof. "NONRECOURSE DEDUCTIONS" has the meaning set forth in Section 1.704-2(b)(1) of the Regulations. "NONRECOURSE LIABILITY" has the meaning set forth in Section 1.704-2(b)(3) of the Regulations. "NYSE" means the New York Stock Exchange. "OFFER PRICE" has the meaning set forth in Section 2.4(b) hereof. "ORIGINAL MEMBER" has the meaning set forth in the preamble to this Amended Agreement. "ORIGINAL OPERATING AGREEMENT" has the meaning set forth in the preamble to this Amended Agreement. "PERCENTAGE INTEREST" means, with respect to any Member as of any date, the ratio (expressed as a percentage) of the number of LLC Interests held by such Member on such date to the aggregate number of LLC Interests held by all Members on such date. "PERSON" means any individual, partnership (whether general or limited), limited liability company, corporation, trust, estate, association, nominee or other entity as well as any syndicate or group deemed to be a person under Section 14(d)(2) of the Exchange Act. "PROFITS" and "LOSSES" mean, for each Allocation Year, an amount equal to the Company's taxable income or loss for such Allocation Year, determined in accordance with Code Section 703(a) (for this purpose, all items of income, gain, loss or deduction required to be stated separately pursuant to Code Section 703(a)(1) shall be included in taxable income or loss), with the following adjustments (without duplication): (i)any income of the Company that is exempt from U.S. federal income tax and not otherwise taken into account in computing Profits or Losses pursuant to this definition of "Profits" and "Losses" shall be added to such taxable income or loss; (ii) any expenditures of the Company described in Code Section 705(a)(2)(B) or treated as Code Section 705(a)(2)(B) expenditures pursuant to Regulations Section 1.704-1(b)(2)(iv)(i) and not otherwise taken into account in computing Profits or Losses pursuant to this definition of "Profits" and "Losses" shall be subtracted from such taxable income or loss; (iii) in the event the Gross Asset Value of any Company asset is adjusted pursuant to subparagraph (ii) or (iii) of the definition of Gross Asset Value, the amount of such adjustment shall be treated as an item of gain (if the adjustment increases the Gross Asset Value of the asset) or an item of loss (if the adjustment decreases the Gross Asset Value of the asset) from the disposition of such asset and shall be taken into account for purposes of computing Profits or Losses; (iv) gain or loss resulting from any disposition of Property with respect to which gain or loss is recognized for U.S. federal income tax purposes shall be computed by reference to the Gross Asset Value of the Property disposed of, notwithstanding that the adjusted tax basis of such Property differs from its Gross Asset Value; (v) to the extent an adjustment to the adjusted tax basis of any Company asset pursuant to Code Section 734(b) is required, pursuant to Regulations Section 1.704-1(b)(2)(iv)(m)(4), to be taken into account in determining Capital Accounts as a result of a distribution other than in liquidation of a Member's interest in the Company, the amount of such adjustment shall be treated as an item of gain (if the adjustment increases the basis of the asset) or loss (if the adjustment decreases such basis) from the disposition of such asset and shall be taken into account for purposes of computing Profits or Losses; and (vi) notwithstanding any other provision of this definition, any items which are specially allocated pursuant to Section 4.3 or Section 4.4 hereof shall not be taken into account in computing Profits or Losses. The amounts of the items of Company income, gain, loss or deduction available to be specially allocated pursuant to Sections 4.3 and 4.4 hereof shall be determined by applying rules analogous to those set forth in subparagraphs (i) through (v) above. "PROPERTY" means all real and personal property acquired by the Company, including cash, and any improvements thereto, and shall include both tangible and intangible property. "RECONSTITUTION PERIOD" has the meaning set forth in Section 14.1(b) hereof. "REGISTER" has the meaning set forth in Section 3.1 hereof. "REGULAR TRUSTEES" means the regular trustees identified in the Trust Agreement, as amended from time to time. "REGULATIONS" means the income tax regulations, including temporary regulations, promulgated under the Code, as such regulations are amended from time to time. "REGULATORY ALLOCATIONS" has the meaning set forth in Section 4.4 hereof. "RULES AND REGULATIONS" means the rules and regulations promulgated under the Exchange Act or the Securities Act. "SECRETARY" means the Secretary of the Company, with such powers and duties as set forth in Section 7.7 of this Amended Agreement. "SECURITIES ACT" means the Securities Act of 1933, as amended. "SUBSIDIARY" means any corporation, partnership, joint venture, limited liability company, association or other entity in which any Person owns, directly or indirectly, more than fifty percent (50%) of the outstanding equity securities or interests, the holders of which are generally entitled to vote for the election of the board of directors or other governing body of such entity. "TAX MATTERS MEMBER" has the meaning set forth in Section 11.4(a) hereof. "TEN PERCENT HOLDER" has the meaning set forth in Section 9.18 hereof. "TRADING DAY" means a day on which the Trust Stock or the LLC Interests, as applicable, (i) have not been suspended from trading on any national or regional securities exchange or association or over-the-counter market at the close of business and (ii) have traded at least once on the national or regional securities exchange or association or over-the-counter market that is the primary market for the trading of the Trust Stock or the LLC Interests, as applicable. "TRANSFER" means, as a noun, any voluntary or involuntary transfer, sale, pledge or hypothecation or other disposition and, as a verb, voluntarily or involuntarily to transfer, sell, pledge or hypothecate or otherwise dispose of. "TRANSFER AGENT AND REGISTRAR" means, with respect to the LLC Interests and the Trust Stock, The Bank of New York, or any successor(s) thereto. "TRUST" means Macquarie Infrastructure Company Trust (formerly known as Macquarie Infrastructure Assets Trust). "TRUST AGREEMENT" means the Amended and Restated Trust Agreement to be entered into by the Company and Wells Fargo Delaware Trust Company, a Delaware banking corporation, as property trustee, and the Regular Trustees. "TRUST STOCK" means the shares of trust stock, each share of trust stock representing one undivided beneficial interest in the Trust, issued by the Trust and outstanding at the relevant time of determination. "USE AGREEMENT" means the District Cooling System Use Agreement dated as of October 1, 1994 between the City of Chicago, Illinois and MDE Thermal Technologies, Inc. (formerly known as Exelon Thermal Technologies, Inc. and formerly before that known as Unicom Thermal Technologies, Inc. and Northwind, Incorporated), as amended on June 1, 1995, July 15, 1995, February 1, 1996, April 1, 1996, October 1, 1996, November 7, 1996, January 15, 1997, May 1, 1997, August 1, 1997, October 1, 1997, March 12, 1998, June 1, 1998, October 8, 1998, April 21, 1999, March 1, 2000, March 15, 2000, June 1, 2000, August 1, 2001, November 1, 2001, June 1, 2002, June 30, 2004 and as further amended from time to time. "VOLUNTARY BANKRUPTCY" has the meaning set forth in the definition of "Bankruptcy." "WHOLLY OWNED AFFILIATE" of any Person means (i) an Affiliate of such Person one hundred percent (100%) of the voting stock or beneficial ownership of which is owned directly by such Person, or by any Person who, directly or indirectly, owns one hundred percent (100%) of the voting stock or beneficial ownership of such Person, (ii) an Affiliate of such Person who, directly or indirectly, owns one hundred percent (100%) of the voting stock or beneficial ownership of such Person, and (iii) any Wholly Owned Affiliate of any Affiliate described in clause (i) or (ii) above. ARTICLE 2 THE TRUST Section 2.1 Trust to Be Sole Member. Simultaneously with the execution of the Original Operating Agreement, the Company issued one hundred (100) fully paid and nonassessable LLC Interests to the Trust as Original Member, which was admitted as a Member of the Company in respect thereof. Following such issuance, the Trust was and on the date hereof continues to be the sole owner of the LLC Interests. For so long as the Trust remains in existence, subject to Sections 2.3 and 2.4(a) it is intended that the Trust shall be the sole owner of one hundred percent (100%) of the LLC Interests and the Company shall not issue, sell or otherwise transfer any of its LLC Interests to any Person other than the Trust. Every holder of LLC Interests, by holding and receiving the LLC Interest Certificates representing the same, agrees with the Company to be bound by the terms of this Amended Agreement. Section 2.2 Trust Stock to Represent LLC Interests. Each share of Trust Stock represents one undivided beneficial interest in the Trust and each share of Trust Stock corresponds to one underlying LLC Interest. At all times, the Company will have outstanding the identical number of LLC Interests as the number of shares of Trust Stock that have been issued and are outstanding. Section 2.3 Circumstances Under Which Trust Stock Will Be Exchanged for LLC Interests. In the event: (i) the Board of Directors (A) determines that either (1) the Trust or the Company, or both, is, or is reasonably likely to be, treated as a corporation for U.S. federal income tax purposes, (2) the Trust is, or is reasonably likely to be, required to issue Schedules K-1 to holders of Trust Stock, or (3) the existence of the Trust otherwise results, or is reasonably likely to result, in a material tax detriment to the Trust, the holders of Trust Stock, the Company or any of the Members, and (B) obtains an opinion of counsel of national reputation to such effect, or (ii) a Dissolution Event occurs, the Board of Directors (a) shall declare a record date and deliver a mandatory instruction to the Regular Trustee, together with any opinions of counsel or certificates of officers of the Company as the Regular Trustee may reasonably request, directing the Regular Trustee to (i) deliver LLC Interests to each holder of record of shares of Trust Stock on such record date in exchange for such outstanding shares of Trust Stock (the "MANDATORY EXCHANGE"), and (ii) dissolve the Trust, and (b) shall deliver to the Transfer Agent notice of such Mandatory Exchange and shall cause the Transfer Agent to mail a copy of such notice to the holders of record of the Trust Stock at least thirty (30) days prior to the Mandatory Exchange. Simultaneously with the completion of such Mandatory Exchange, each holder of shares of Trust Stock immediately prior to the completion of the Mandatory Exchange shall be admitted to the Company as a Member in respect of an equal number of LLC Interests previously held by the Trust and each holder of record shall be issued an LLC Interest Certificate evidencing the same pursuant to Section 3.1, immediately whereafter the Trust shall be deemed to have withdrawn from the Company as a Member in respect of such LLC Interest(s), and the Trust shall tender its LLC Interest Certificates to the Company for cancellation. Section 2.4 Right to Acquire Outstanding LLC Interests. (a) Right to Acquisition Exchange. If at any time one Person is the beneficial holder of more than ninety percent (90%) of the then outstanding shares of Trust Stock (the "ACQUIRER"), such Acquirer shall then have the right to direct the Board of Directors to (i) declare a record date and deliver a mandatory instruction to the Regular Trustee directing the Regular Trustee to (A) deliver the LLC Interests to the holders of record of the Trust Stock, including the Acquirer, in exchange for all of the outstanding shares of Trust Stock (the "ACQUISITION EXCHANGE"), and (B) dissolve the Trust, and (ii) deliver to the Transfer Agent notice of such Acquisition Exchange and cause the Transfer Agent to mail a copy of such notice to the holders of record of the Trust Stock at least thirty (30) days prior to the Acquisition Exchange. Simultaneously with the completion of such Acquisition Exchange, each holder of record of shares of Trust Stock immediately prior to the completion of the Acquisition Exchange shall be admitted to the Company as a Member in respect of an equal number of LLC Interests previously held by the Trust and each holder of record shall be issued an LLC Interest Certificate evidencing the same pursuant to Section 3.1, immediately whereafter the Trust shall be deemed to have withdrawn from the Company as a Member in respect of such LLC Interest(s), and the Trust shall tender its LLC Interest Certificates to the Company for cancellation. (b) Right to Acquire LLC Interests of Remaining Holders for Cash. Following the completion of an Acquisition Exchange, the Acquirer shall have the right to purchase, solely for cash, and Members other than the Acquirer shall be required to sell, all, but not less than all, of the outstanding LLC Interests not then held by the Acquirer, at the Offer Price (as defined below). The Acquirer may exercise its right to effect such purchase by delivering written notice to the Company and the Transfer Agent of its election to make the purchase not less than sixty (60) days prior to the date which it selects for such purchase. Promptly after receipt of such notice the Board of Directors shall declare a record date. The Company will use reasonable efforts to cause the Transfer Agent to mail a copy of such notice to the Members at least thirty (30) days prior to such purchase. As used in this Section 2.4(b), "OFFER PRICE" means the average Closing Price (as defined below) per share of Trust Stock or LLC Interest, as applicable, on the twenty (20) Trading Days (as defined below) immediately prior to, but not including, the date of the Acquisition Exchange. The "CLOSING PRICE" of the Trust Stock or LLC Interests, as applicable, on any date of determination means: (i)the closing sale price (or, if no closing price is reported, the last reported sale price) of a share of Trust Stock or an LLC Interest, as applicable (regular way), on the NYSE on such date; (ii) if the Trust Stock or the LLC Interests are not listed for trading on the NYSE on any such date, the closing sale price as reported in the composite transactions for the principal U.S. securities exchange on which the Trust Stock or the LLC Interests, as applicable, are so listed; (iii) if the Trust Stock or the LLC Interests, as applicable, are not so listed on a U.S. national or regional securities exchange, the price as reported by the Nasdaq National Market; (iv) if the Trust Stock or the LLC Interests, as applicable, are not so reported, the last quoted bid price for the Trust Stock or the LLC Interests, as applicable, in the over-the-counter market as reported by the National Quotation Bureau or a similar organization; or (v) if the Trust Stock or the LLC Interests, as applicable, are not so quoted, the average of the midpoint of the last bid and ask prices for the Trust Stock or the LLC Interests, as applicable, from at least three nationally recognized investment firms that the Company selects for such purpose. Section 2.5 Right of Holders of Trust Stock to Enforce Provisions of this Amended Agreement and Bring Derivative Action. (a) Any Member, and, so long as the Trust remains the sole Member, each holder of record of Trust Stock, shall have the right to institute any legal proceeding against the Company to enforce the provisions of this Amended Agreement. (b) For so long as the Trust remains the sole Member, holders of record holding at least ten percent (10%) or more of the shares of Trust Stock shall have the right to cause the Trust to institute any legal proceeding for any remedy available to the Trust as the sole Member of the Company, including bringing a derivative action under the Act, and such holders of Trust Stock may direct the time, method and place of conducting any such legal proceeding brought by the Trust. (c) Nothing in this Amended Agreement, express or implied, shall give to any Person, other than a Member and a holder of the Trust Stock, if any, any benefit or any legal or equitable right, remedy or claim under this Amended Agreement. ARTICLE 3 ADMISSION OF MEMBERS Section 3.1 LLC Interests. The Company shall be authorized to issue one class of limited liability company interests (the "LLC INTERESTS") in an aggregate amount of up to five hundred million (500,000,000) of such LLC Interests. The aggregate number of LLC Interests that are authorized may be increased, from time to time, by an amendment of this Amended Agreement upon the adoption of a resolution by the affirmative vote of at least a majority of the Entire Board of Directors declaring such amendment to be advisable and the approval of such amendment by the affirmative vote of the holders of a majority of the LLC Interests present in person or represented by proxy at the meeting of the Members. Section 3.2 Issuance of Additional LLC Interests. The Board of Directors shall have authority to authorize the issuance, from time to time without any vote or other action by the Members, of any or all LLC Interests of the Company at any time authorized. While the Trust remains the sole holder of the LLC Interests, the Company will issue additional LLC Interests to the Trust in exchange for an equal number of shares of Trust Stock which the Company may sell or distribute in any manner, subject to applicable law, that the Board of Directors in its sole discretion deems appropriate and advisable. Section 3.3 LLC Interest Certificates; Admission of Additional Members. The LLC Interests shall be represented by certificates in the form attached hereto as Exhibit A (the "LLC INTEREST CERTIFICATES"). The LLC Interest Certificates shall be conclusive evidence of ownership of the related LLC Interests. Every holder of record of LLC Interests of the Company shall be entitled to one or more LLC Interest Certificates representing the number of LLC Interests held by such holder of record. The LLC Interest Certificates of the Company shall be issued under the seal of the Company, or a facsimile thereof, and shall be numbered and shall be entered in the books of the Company as they are issued. Each LLC Interest Certificate shall bear a serial number, shall exhibit the holder's name and the number of LLC Interests evidenced thereby and shall be signed by the Chief Executive Officer or the Chief Financial Officer. Any or all of the signatures on the LLC Interest Certificates may be facsimiles. If any officer, Transfer Agent or Registrar who has signed or whose facsimile signature has been placed upon an LLC Interest Certificate shall have ceased to be such officer, Transfer Agent or Registrar before such LLC Interest Certificate is issued, the LLC Interest Certificate may be issued by the Company with the same effect as if such Person or entity were such officer, Transfer Agent or Registrar at the date of issue. From the time of the closing of the initial public offering of the Trust Stock by the Trust, the Company shall retain the Transfer Agent to maintain a register of the LLC Interests (the "REGISTER"), the Transfer Agent, in such capacity shall be known as the Registrar, and cause such Registrar to register thereon any transfer of LLC Interest Certificates. Transfer of LLC Interests of the Company shall be made on the Register only upon surrender to the Transfer Agent of the LLC Interest Certificates duly endorsed or accompanied by proper evidence of succession, assignment or authority to transfer; provided, however, that such succession, assignment or transfer is not prohibited by the LLC Interest Certificates, this Amended Agreement, applicable law or contract. Thereupon, the Company shall issue a new LLC Interest Certificate (if requested) to the Person entitled thereto, cancel the old LLC Interest Certificate, and shall instruct the Registrar to record the transaction upon the Register. Section 3.4 Repurchase of LLC Interests by the Company. (a) The Board of Directors shall have authority to cause the Company to conduct a capital reduction, including the repurchase of any number of issued and outstanding LLC Interests; provided, however, that the Company shall not purchase or redeem its LLC Interests for cash or other property if any such purchase or redemption would be inconsistent with the requirements of Section 18-607 or Section 18-804 of the Act and provided further that so long as the Trust remains the sole Member, the Company, as sponsor of the Trust, acting through its Board of Directors, shall cause the Trust to conduct a capital reduction on similar terms and shall ensure that an identical number of LLC Interests and shares of Trust Stock are issued and outstanding at any one time. (b) At any time after the closing of the initial public offering of the Trust Stock by the Trust, in the event the Board of Directors determines that the Company shall make an offer to repurchase any number of issued and outstanding LLC Interests, the Board of Directors shall deliver to the Transfer Agent notice of such offer to repurchase and shall cause the Transfer Agent to mail a copy of such notice to the Members and holders of Trust Stock, as the case may be, at least thirty (30) days prior to such offer to repurchase. Any LLC Interests tendered and repurchased by the Company, in accordance with this Section 3.4, shall be deemed to be authorized and issued, but not outstanding and, subject to Section 2.1, may subsequently be sold or Transferred for due consideration. ARTICLE 4 ALLOCATIONS Section 4.1 Profits. After giving effect to the special allocations set forth in Sections 4.3 and 4.4 below, Profits for any Allocation Year shall be allocated to the Members in proportion to their Percentage Interests. Section 4.2 Losses. After giving effect to the special allocations set forth in Sections 4.3 and 4.4 and subject to Section 4.5, Losses for any Allocation Year shall be allocated to the Members in proportion to their Percentage Interests. Section 4.3 Special Allocations. The following special allocations shall be made in the following order: (a) Minimum Gain Chargeback. Except as otherwise provided in Section 1.704-2(f) of the Regulations, notwithstanding any other provision of this Article 4, if there is a net decrease in Company Minimum Gain during any Allocation Year, each Member shall be specially allocated items of Company income and gain for such Allocation Year (and, if necessary, subsequent Allocation Years) in an amount equal to such Member's share of the net decrease in Company Minimum Gain, determined in accordance with Regulations Section 1.704-2(g). Allocations pursuant to the previous sentence shall be made in proportion to the respective amounts required to be allocated to each Member pursuant thereto. The items to be so allocated shall be determined in accordance with Sections 1.704-2(f)(6) and 1.704-2(j)(2) of the Regulations. This Section 4.3(a) is intended to comply with the minimum gain chargeback requirement in Section 1.704-2(f) of the Regulations and shall be interpreted consistently therewith. (b) Member Minimum Gain Chargeback. Except as otherwise provided in Section 1.704-2(i)(4) of the Regulations, notwithstanding any other provision of this Article 4, if there is a net decrease in Member Nonrecourse Debt Minimum Gain attributable to a Member Nonrecourse Debt during any Allocation Year, each Member who has a share of the Member Nonrecourse Debt Minimum Gain attributable to such Member Nonrecourse Debt, determined in accordance with Section 1.704-2(i)(5) of the Regulations, shall be specially allocated items of Company income and gain for such Allocation Year (and, if necessary, subsequent Allocation Years) in an amount equal to such Member's share of the net decrease in Member Nonrecourse Debt, determined in accordance with Regulations Section 1.704-2(i)(4). Allocations pursuant to the previous sentence shall be made in proportion to the respective amounts required to be allocated to each Member pursuant thereto. The items to be so allocated shall be determined in accordance with Sections 1.704-2(i)(4) and 1.704-2(j)(2) of the Regulations. This Section 4.3(b) is intended to comply with the minimum gain chargeback requirement in Section 1.704-2(i)(4) of the Regulations and shall be interpreted consistently therewith. (c) Qualified Income Offset. In the event any Member unexpectedly receives any adjustments, allocations or distributions described in Section 1.704-1(b)(2)(ii)(d)(4), 1.704-1(b)(2)(ii)(d)(5) or 1.704-1(b)(2)(ii)(d)(6) of the Regulations, items of Company income and gain shall be specially allocated to such Member in an amount and manner sufficient to eliminate, to the extent required by the Regulations, the Adjusted Capital Account Deficit of the Member as quickly as possible, provided that an allocation pursuant to this Section 4.3(c) shall be made only if and to the extent that the Member would have an Adjusted Capital Account Deficit after all other allocations provided for in this Article 4 have been tentatively made as if this Section 4.3(c) were not in this Amended Agreement. (d) Gross Income Allocation. In the event any Member has a deficit Capital Account at the end of any Allocation Year which is in excess of the sum of the amount such Member is obligated to restore pursuant to the penultimate sentence of each of Regulations Sections 1.704-2(g)(1) and 1.704-2(i)(5), each such Member shall be specially allocated items of Company income and gain in the amount of such excess as quickly as possible, provided that an allocation pursuant to this Section 4.3(d) shall be made only if and to the extent that such Member would have a deficit Capital Account in excess of such sum after all other allocations provided for in this Article 4 have been made as if Section 4.3(c) hereof and this Section 4.3(d) were not in this Amended Agreement. (e) Nonrecourse Deductions. Nonrecourse Deductions for any Allocation Year shall be specially allocated to the Members in proportion to their respective Percentage Interests. (f) Member Nonrecourse Deductions. Any Member Nonrecourse Deductions for any Allocation Year shall be specially allocated to the Member who bears the economic risk of loss with respect to the Member Nonrecourse Debt to which such Member Nonrecourse Deductions are attributable in accordance with Regulations Section 1.704-2(i)(1). (g) Section 754 Adjustments. To the extent an adjustment to the adjusted tax basis of any Company asset, pursuant to Code Section 734(b) or Code Section 743(b), is required, pursuant to Regulations Section 1.704-1(b)(2)(iv)(m)(2) or 1.704-1(b)(2)(iv)(m)(4), to be taken into account in determining Capital Accounts as the result of a distribution to a Member in complete liquidation of such Member's interest in the Company, the amount of such adjustment to Capital Accounts shall be treated as an item of gain (if the adjustment increases the basis of the asset) or loss (if the adjustment decreases such basis) and such gain or loss shall be specially allocated to the Members in accordance with their interests in the Company in the event Regulations Section 1.704-1(b)(2)(iv)(m)(2) applies or to the Member to whom such distribution was made in the event Regulations Section 1.704-1(b)(2)(iv)(m)(4) applies. (h) Allocations Relating to Taxable Issuance of Company LLC Interests. Any income, gain, loss or deduction realized as a direct or indirect result of the issuance of LLC Interests by the Company to a Member (the "ISSUANCE ITEMS") shall be allocated among the Members so that, to the extent possible, the net amount of such Issuance Items, together with all other allocations made under this Amended Agreement to each Member, shall be equal to the net amount that would have been allocated to each such Member if the Issuance Items had not been realized. Section 4.4 Curative Allocations. The allocations set forth in Sections 4.3(a), 4.3(b), 4.3(c), 4.3(d), 4.3(e), 4.3(f), 4.3(g) and 4.5 hereof (the "REGULATORY ALLOCATIONS") are intended to comply with certain requirements of the Regulations. It is the intent of the Members that, to the extent possible, all Regulatory Allocations shall be offset either with other Regulatory Allocations or with special allocations of other items of Company income, gain, loss or deduction pursuant to this Section 4.4. Therefore, notwithstanding any other provision of this Article 4 (other than the Regulatory Allocations), the Board of Directors shall make such offsetting special allocations of Company income, gain, loss or deduction in whatever manner it determines appropriate so that, after such offsetting allocations are made, each Member's Capital Account balance is, to the extent possible, equal to the Capital Account balance such Member would have had if the Regulatory Allocations were not part of this Amended Agreement and all Company items were allocated pursuant to Sections 4.1, 4.2 and 4.3(h) hereof. Section 4.5 Loss Limitation. Losses allocated pursuant to Section 4.2 hereof shall not exceed the maximum amount of Losses that can be allocated without causing any Member to have an Adjusted Capital Account Deficit at the end of any Allocation Year. In the event some but not all of the Members would have Adjusted Capital Account Deficits as a consequence of an allocation of Losses pursuant to Section 4.2 hereof, the limitation set forth in this Section 4.5 shall be applied on a Member-by-Member basis, and Losses not allocable to any Member as a result of such limitation shall be allocated to the other Members in accordance with the positive balances in such Members' Capital Accounts so as to allocate the maximum permissible Losses to each Member under Section 1.704-1(b)(2)(ii)(d) of the Regulations. Section 4.6 Other Allocation Rules. (a) For purposes of determining the Profits and Losses or any other items allocable to any period, Profits, Losses, and any other such items shall be determined on a monthly or other basis, as determined by the Company using any method permissible under Code Section 706 and the Regulations thereunder. (b) The Members are aware of the income tax consequences of the allocations made by this Article 4 and hereby agree to be bound by the provisions of this Article 4 in reporting their shares of Company income and loss for income tax purposes. (c) Solely for purposes of determining a Member's proportionate share of the "excess nonrecourse liabilities" of the Company within the meaning of Regulations Section 1.752-3(a)(3), the Members' interests in Company profits are in proportion to their Percentage Interests. (d) To the extent permitted by Section 1.704-2(h)(3) of the Regulations, the Manager shall endeavor to treat distributions as having been made from the proceeds of a Nonrecourse Liability or a Member Nonrecourse Debt only to the extent that such distributions would cause or increase an Adjusted Capital Account Deficit for any Member. Section 4.7 Tax Allocations: Code Section 704(c). In accordance with Code Section 704(c) and the Regulations thereunder, income, gain, loss and deduction with respect to any Property contributed to the capital of the Company shall, solely for tax purposes, be allocated among the Members so as to take account of any variation between the adjusted basis of such Property to the Company for U.S. federal income tax purposes and its initial Gross Asset Value (computed in accordance with the definition of Gross Asset Value) using a method, selected in the discretion of the Board of Directors in accordance with Section 1.704-3 of the Regulations. In the event the Gross Asset Value of any Company asset is adjusted pursuant to subparagraph (ii) of the definition of Gross Asset Value, subsequent allocations of income, gain, loss and deduction with respect to such asset shall take account of any variation between the adjusted basis of such asset for U.S. federal income tax purposes and its Gross Asset Value in the same manner as under Code Section 704(c) and the Regulations thereunder. Any elections or other decisions relating to such allocations shall be made by the Company in any manner that reasonably reflects the purpose and intention of this Amended Agreement. Allocations pursuant to this Section 4.7 are solely for purposes of U.S. federal, state and local taxes and shall not affect, or in any way be taken into account in computing, any Member's Capital Account or share of Profits, Losses, other items or distributions pursuant to any provision of this Amended Agreement. ARTICLE 5 DIVIDENDS AND DISTRIBUTIONS Section 5.1 Net Cash Flow. Except as otherwise provided in Section 5.3 and Section 14 hereof, the Board of Directors may, in its sole discretion and at any time, declare and pay dividends and make and pay distributions with respect to the LLC Interests from Net Cash Flow to the Members in proportion to their Percentage Interests. Section 5.2 Amounts Withheld. All amounts withheld pursuant to the Code or any provision of any state, local or foreign tax law with respect to any payment, dividend or other distribution or allocation to the Company or the Members shall be treated as amounts paid, as the case may be, to the Members with respect to which such amounts were withheld pursuant to this Article 5.2 for all purposes under this Amended Agreement. The Company is authorized to withhold from payments or with respect to allocations to the Members, and to pay over to any U.S. federal, state and local government or any foreign government, any amounts required to be so withheld pursuant to the Code or any provisions of any other U.S. federal, state or local law or any foreign law, and shall allocate any such amounts to the Members with respect to which such amounts were withheld. For so long as the Trust is a Member, all amounts withheld in accordance with this Section 5.2 will be treated as amounts paid, as the case may be, to holders of the Trust Stock and any such amounts shall be allocated to the holders of the Trust Stock in the same amounts as any such allocations were made per LLC Interest. Section 5.3 Limitations on Dividends and Distributions. (a) The Company shall make no dividend or other distributions to the Members except as provided in this Article 5 and Section 14 hereof. (b) A Member may not receive dividends or other distributions from the Company to the extent such dividend or other distribution is inconsistent with, or in violation of, the Act or any provision of this Amended Agreement. ARTICLE 6 BOARD OF DIRECTORS Section 6.1 Initial Board. Initially, the Board of Directors shall be comprised of the following individuals: John Roberts, Peter Stokes and Shemara Wikramanayake (each, an "INITIAL DIRECTOR" and, collectively, the "INITIAL BOARD"). Each Initial Director shall hold office until his successor is elected or appointed and qualified, or until his or her earlier death, resignation or removal in accordance with this Article 6. The Initial Board shall have all of the powers and authorities accorded to the Board of Directors, and each Initial Director shall have all of the powers and authorities accorded the directors of the Company under the terms of this Amended Agreement. Section 6.2 General Powers. The business and affairs of the Company shall be managed by or under the direction of its Board of Directors. Each director of the Company, when acting in such capacity, is a manager within the meaning of Section 18-402 of the Act and as such is vested with the powers and authorities necessary for the management of the Company, subject to the terms of this Amended Agreement and the Management Services Agreement and provided that no director is authorized to act individually on behalf of the Company and the Board of Directors shall only take action in accordance with the quorum and other requirements provided by this Amended Agreement. In addition to the powers and authorities expressly conferred upon it by this Amended Agreement, the Board of Directors may exercise all such powers of the Company and do all such lawful acts and things as are not by applicable law, including the Rules and Regulations, or by this Amended Agreement required to be exercised or done by the Members. Without limiting the generality of the foregoing, it shall be the responsibility of the Board of Directors to establish broad objectives and the general course of the business, determine basic policies, appraise the adequacy of overall results, and generally represent and further the interests of the Members. Section 6.3 Duties of Directors. Except as provided in this Amended Agreement and the Management Services Agreement, the fiduciary duties of the directors of the Company are intended to be consistent with the fiduciary duties applicable to directors of a corporation incorporated under the General Corporation Law of the State of Delaware, as if such directors were directors of a corporation incorporated under the General Corporation Law of the State of Delaware. Except as provided in this Amended Agreement and the Management Services Agreement, the fiduciary duties of the directors of the Company shall be interpreted consistently with the jurisprudence regarding such fiduciary duties of directors of a corporation under the General Corporation Law of the State of Delaware. It shall be expressly understood that no director of the Company has any fiduciary duties with respect to any action or inaction of the Manager pursuant to the terms of the Management Services Agreement, and that any actions or inactions of the directors of the Company, to cause the Company to act in compliance or in accordance with the Management Services Agreement, are consistent with the fiduciary duties of such directors. For the avoidance of doubt, the directors of the Company shall have no additional fiduciary duties by virtue of their status as managers under the Act. Section 6.4 Number, Tenure and Qualifications. As provided by Section 6.1, the Initial Board shall be comprised of three (3) Initial Directors and at all times from and after the closing of the initial public offering of the shares of Trust Stock by the Trust the composition of the Board of Directors shall consist of at least a majority of Independent Directors. Subject to this Section 6.4, the number of directors shall be fixed from time to time exclusively pursuant to a resolution adopted by the Board of Directors, but shall consist of not less than four (4) nor more than twelve (12) directors. However, no decrease in the number of directors constituting the Board of Directors shall shorten the term of any incumbent director. The term of each director shall be the period from the effective date of such director's election to the next annual meeting of Members until such director's successor is duly elected and qualified or until such director's earlier death, resignation or removal. Directors need not be residents of the State of Delaware or Members. Section 6.5 Election of Directors. Except as provided in Sections 6.1 and 6.8 and with respect to any director to be appointed by the Manager to serve as Chairman, or Alternate Chairman (defined below), in accordance with Section 6.9, the directors shall be elected at the annual meeting of Members. At any meeting of Members duly called and held for the election of directors at which a quorum is present, directors shall be elected by a plurality of the LLC Interests present in person or represented by proxy at the meeting of Members. Section 6.6 Removal. With the exception of the director appointed by the Manager to serve as the Chairman of the Company pursuant to the Management Services Agreement, any director may be removed from office, but only for cause, by the affirmative vote of the Members holding at least sixty-six and two-thirds percent (66 2/3%) of the issued and outstanding LLC Interests. If any directors are so removed, new directors may be elected by the Members at the same meeting in accordance with Section 6.5 hereof. For so long as the Manager is entitled to appoint a director of the Board of Directors to serve as Chairman pursuant to the terms of the Management Services Agreement, the Manager may, it its sole discretion, remove the Chairman from office and as a director, with or without cause. If the Chairman is so removed, a new Chairman shall be appointed in accordance with Section 6.9. Section 6.7 Resignations. Any director, whether elected or appointed, may resign at any time upon notice of such resignation to the Company. An Independent Director who ceases to be independent shall promptly resign to the extent required for the Company or the Manager to comply with applicable laws, rules and regulations. Section 6.8 Vacancies and Newly Created Directorships. Subject to Section 6.9, and except as otherwise provided in Section 6.6, vacancies and newly created directorships resulting from any increase in the authorized number of directors may be filled by a majority vote of the directors then in office, although less than a quorum, or by a sole remaining director. Unless otherwise provided in this Amended Agreement, when one or more directors, other than a director appointed by the Manager pursuant to Section 6.9 hereof, shall resign from the Board, a majority of directors then in office shall have the power to fill such vacancy or vacancies, the vote thereon to take effect when such resignation or resignations shall become effective. For so long as the Manager is entitled to appoint a director of the Board of Directors to serve as Chairman pursuant to the terms of the Management Services Agreement, the Manager shall be entitled to appoint the successor to the Chairman upon resignation or removal by the Manager of the Chairman. Section 6.9 Appointment of or Nomination and Election of Chairman; Appointment of Alternate Chairman. For so long as the Manager is entitled to appoint a director of the Board of Directors to serve as Chairman pursuant to the terms of the Management Services Agreement, the Manager shall appoint one director of the Board of Directors to serve as Chairman, and one alternate therefor to serve in such capacity in the absence of the appointed Chairman (the "ALTERNATE CHAIRMAN"). The Alternate Chairman shall be entitled to attend all regular and special meetings of the Board of Directors and, in the absence of the Chairman, shall have all the rights, privileges and responsibilities, including the voting rights, of the Chairman and shall have all the rights, privileges and responsibilities of a director of the Board of Directors. In all other cases, the nomination of a director to serve as Chairman of the Board of Directors and the election of such director by the Members at a Members' meeting shall be conducted in accordance with Sections 9.8 and 9.9. Section 6.10 Chairman of the Board. The Chairman of the Board shall be a member of the Board of Directors. The Chairman is not required to be an employee of the Company. The Chairman of the Board, if present, or the Alternate Chairman, shall preside at all meetings of the Board of Directors. For so long as the Manager is entitled to appoint the director of the Board of Directors to serve as Chairman pursuant to the terms of the Management Services Agreement and if the appointed Chairman and any Alternative Chairman is unavailable for any reason, the duties of the Chairman of the Board shall be performed, and the Chairman of the Board's authority may be exercised, by a director designated for this purpose by the remaining members of the Board of Directors. The Chairman of the Board shall perform such other duties and have such other powers as may be prescribed by the Board of Directors or this Amended Agreement, all in accordance with basic policies as may be established by the Company, and subject to the approval and oversight of the Board of Directors. Section 6.11 Regular Meetings. A regular meeting of the Board of Directors shall be held without any other notice than this Amended Agreement, immediately after, and at the same place (if any) as, each annual meeting of Members. The Board of Directors may, by resolution, provide the time and place (if any) for the holding of additional regular meetings without any other notice than such resolution. Unless otherwise determined by the Board of Directors, the Secretary of the Company shall act as Secretary at all regular meetings of the Board of Directors and in the Secretary's absence a temporary Secretary shall be appointed by the chairman of the meeting. Section 6.12 Special Meetings. Special meetings of the Board of Directors shall be called at the request of the Chief Executive Officer, the Chairman of the Board or a majority of the Board of Directors. The Person or Persons authorized to call special meetings of the Board of Directors may fix the place and time of the meetings. Unless otherwise determined by the Board of Directors, the Secretary of the Company shall act as Secretary at all special meetings of the Board of Directors and in the Secretary's absence a temporary Secretary shall be appointed by the chairman of the meeting. Section 6.13 Notice for Special Meetings. Notice of any special meeting of the Board of Directors shall be mailed by first class mail, postage paid, to each director at his or her business or residence not later than three (3) days before the day on which such meeting is to be held or shall be sent to either of such places by telegraph, express courier service (including, without limitation, Federal Express) or facsimile (directed to the facsimile number to which the director has consented to receive notice) or other electronic transmission (including, but not limited to, an e-mail address at which the director has consented to receive notice), or be communicated to each director personally or by telephone not later than one (1) day before such day of meeting; provided, however, that if the business to be transacted at such special meeting includes a proposed amendment to this Amended Agreement, notice shall be communicated to each director personally or by telephone not later than three (3) days before such day of meeting. Except in the case where the business to be transacted at such special meeting includes a proposed amendment to this Amended Agreement, neither the business to be transacted at, nor the purpose of, any regular or special meeting of the Board of Directors need be specified in the notice of such meeting. A meeting may be held at any time without notice if all the directors are present or if those not present waive notice of the meeting in accordance with Section 9.12 hereof, either before or after such meeting. Section 6.14 Waiver of Notice. Whenever any notice is required to be given to any director of the Company under the terms of this Amended Agreement, a waiver thereof in writing, signed by the Person or Persons entitled to such notice, or a waiver thereof by electronic transmission by the Person or Persons entitled to notice, whether before or after the time stated in such notice, shall be deemed equivalent to the giving of such notice. Neither the business to be transacted at, nor the purpose of, any meeting of the Board of Directors or committee thereof need be specified in any written waiver of notice or any waiver by electronic transmission of notice of such meeting. Section 6.15 Action Without Meeting. Any action required or permitted to be taken at any meeting by the Board of Directors or any committee or subcommittee thereof, as the case may be, may be taken without a meeting if a consent thereto is signed or transmitted electronically, as the case may be, by all members of the Board or of such committee or subcommittee, as the case may be, and the writing or writings or electronic transmission or transmissions are filed with the minutes of proceedings of the Board of Directors or such committee or subcommittee; provided, however, that such electronic transmission or transmissions must either set forth or be submitted with information from which it can be determined that the electronic transmission or transmissions were authorized by the director. Such filing shall be in paper form if the minutes are maintained in paper form and shall be in electronic form if the minutes are maintained in electronic form. Section 6.16 Conference Telephone Meetings. Members of the Board of Directors, or any committee or subcommittee thereof, may participate in a meeting of the Board of Directors or such committee or subcommittee by means of conference telephone or other communications equipment by means of which all Persons participating in the meeting can hear each other, and such participation in a meeting shall constitute presence in person at such meeting. Section 6.17 Quorum. At all meetings of the Board of Directors, at least fifty percent (50%) of the then total number of directors in office (such total number of directors, the "ENTIRE BOARD OF DIRECTORS") shall constitute a quorum for the transaction of business. At all meetings of any committee of the Board of Directors, the presence of a majority of the total number of members of such committee (assuming no vacancies) shall constitute a quorum. The act of a majority of the directors or committee members present at any meeting at which there is a quorum shall be the act of the Board of Directors or such committee, as the case may be. If a quorum shall not be present at any meeting of the Board of Directors or any committee, a majority of the directors or members, as the case may be, present thereat may adjourn the meeting from time to time without further notice other than announcement at the meeting. The members of the Board of Directors present at a duly organized meeting at which a quorum is present may continue to transact business until adjournment, notwithstanding the withdrawal of enough members of the Board of Directors to leave less than a quorum. Section 6.18 Committees. (a) Following the election of the successors to each of the members of the Initial Board, the Company shall have three standing committees: the Nominating and Governance Committee, the Audit Committee and the Compensation Committee, as set out below. Each of the Nominating and Governance Committee, the Audit Committee and the Compensation Committee shall adopt by resolution a charter to establish the rules and responsibilities of such committee in accordance with applicable law, including the Rules and Regulations and the Applicable Listing Rules. (i) Nominating and Governance Committee. The Board of Directors, by resolution adopted by a majority of the Entire Board of Directors, will designate a Nominating and Governance Committee comprised solely of Independent Directors, which Committee shall oversee the Company's commitment to good corporate governance and develop and recommend to the Board a set of corporate governance principles and oversee the evaluation of the performance of the Board of Directors. In addition, the Nominating and Governance Committee shall recommend to the Board of Directors specific policies or guidelines concerning criteria for directors and shall also recommend to the Board of Directors nominees for election to the Board in connection with any meeting of Members at which directors are to be elected or in connection with any meeting of the Board of Directors to fill any vacancy which the Board of Directors is authorized under this Amended Agreement to fill. The Nominating and Governance Committee will solicit recommendations for director nominees from the Chairman and the Chief Executive Officer of the Company. The Nominating and Governance Committee may also recommend to the Board specific policies or guidelines concerning the structure and composition of the Board of Directors or committees of the Board of Directors, the size and composition of the Board of Directors and the selection, tenure and retirement of directors and matters related thereto. (ii) Audit Committee. The Board of Directors, by resolution adopted by a majority of the Entire Board of Directors, will designate an Audit Committee comprised of not fewer than three (3) nor more than seven (7) Independent Directors, all of whom meet the financial literacy requirements of law and of the Applicable Listing Rules. At least one member of the Audit Committee will meet the accounting or related financial management expertise required to be established by the Board of Directors. The Audit Committee shall review and make recommendations to the Board of Directors with respect to: the independence, qualifications and services of the independent public accountants employed by the Company from time to time to audit the books of the Company, the scope of their audits, the adequacy of their audit reports, and recommendations made by them. The Audit Committee shall also make such reviews of internal financial audits and controls as the Audit Committee considers desirable. The Audit Committee, in its capacity as a committee of the Board of Directors, shall be directly responsible for the appointment, compensation, retention and oversight of the work of any registered public accounting firm engaged for the purposes of preparing or issuing an audit report or performing any other audit review (including resolution of disagreements between management, including the Manager, and the auditor regarding financial reporting), or attestation services for the Company, and each such registered public accounting firm shall report directly to the Audit Committee. The Audit Committee shall review the Company's financial disclosure documents, significant developments in accounting principles and significant proposed changes in financial statements and any auditors' attestation report on management's assessment of the Company's internal controls and financial reporting to be included in the Company's annual report to be filed with the Securities and Exchange Commission in accordance with the Exchange Act and the Rules and Regulations. The Audit Committee shall also review and monitor the Company's codes of conduct to guard against significant conflicts of interest and dishonest, unethical or illegal activities. The Audit Committee shall review periodically the performance of the Company's accounting and financial personnel and shall review material litigation and regulatory proceedings and other issues relating to potentially significant corporate liability. The Audit Committee will also be designated as and serve as the qualified legal compliance committee for the Company in accordance with the provisions of Section 307 of the Sarbanes-Oxley Act of 2002 and the Rules and Regulations and will be responsible, upon receipt of a report of evidence of a material legal violation, for notifying the Chief Executive Officer or General Counsel of such report, investigating and recommending appropriate measures to the Board of Directors and, if the Company does not appropriately respond, taking further appropriate action, including notification to the Securities and Exchange Commission. The Audit Committee shall establish procedures for: (a) the receipt, retention and treatment of complaints received by the Company regarding accounting, internal accounting controls or auditing matters, and (b) the submission by employees of the Company and others, on a confidential and anonymous basis, of concerns regarding questionable accounting or auditing matters. The Audit Committee shall have the authority to engage independent counsel and other advisors, as it determines necessary, to carry out its duties. The Company shall provide appropriate funding, as determined by the Audit Committee, in its capacity as a committee of the Board of Directors for payment of: (A) compensation to any registered public accounting firm engaged for the purpose of preparing or issuing an audit report or performing other audit, review or attest services for the Company; (B) compensation to independent counsel and other advisors engaged pursuant to the above paragraph; and (C) ordinary administrative expenses of the Audit Committee that are necessary or appropriate in carrying out its duties. (iii) Compensation Committee. The Board of Directors, by resolution adopted by a majority of the Entire Board of Directors, will designate a Compensation Committee comprised solely of Independent Directors. The Compensation Committee shall be responsible for reviewing the performance of the Manager pursuant to the terms of the Management Services Agreement, the remuneration of the Manager and the compensation of directors elected by the Members. (b) In addition, the Board of Directors may designate one or more additional committees or subcommittees, with each such committee or subcommittee consisting of such number of directors of the Company and having such powers and authority as shall be determined by resolution of the Board of Directors. (c) All acts done by any committee or subcommittee within the scope of its powers and authority pursuant to this Amended Agreement and the resolutions adopted by the Board of Directors in accordance with the terms hereof shall be deemed to be, and may be certified as being, done or conferred under authority of the Board of Directors. The Secretary is empowered to certify that any resolution duly adopted by any such committee is binding upon the Company and to execute and deliver such certifications from time to time as may be necessary or proper to the conduct of the business of the Company. (d) Regular meetings of committees shall be held at such times as may be determined by resolution of the Board of Directors or the committee or subcommittee in question and no notice shall be required for any regular meeting other than such resolution. A special meeting of any committee or subcommittee shall be called by resolution of the Board of Directors or by the Secretary upon the request of the Chief Executive Officer, the Chairman or a majority of the members of any committee. Notice of special meetings shall be given to each member of the committee in the same manner as that provided for in Section 6.13 hereof. Section 6.19 Committee Members. (a) Each member of any committee of the Board of Directors shall hold office until such member's successor is elected and has qualified, unless such member sooner dies, resigns or is removed. (b) For so long as the Manager is entitled to appoint the director of the Board of Directors to serve as Chairman pursuant to the terms of the Management Services Agreement, and subject to the applicable qualifications or requirements of the membership of any committee, the Manager may designate one director to serve as the Chairman of such committee if the appointed Chairman, and any Alternate Chairman, is unavailable for any reason. In all other cases, the Board of Directors may designate one or more directors as alternate members of any committee to fill any vacancy on a committee and to fill a vacant chairmanship of a committee, occurring as a result of a member or chairman leaving the committee, whether through death, resignation, removal or otherwise. Section 6.20 Committee Secretary. The Secretary of the Company shall act as Secretary of any committee or subcommittee, unless otherwise provided by the Board of Directors or the committee or subcommittee, as applicable. Section 6.21 Compensation. The directors may be paid their expenses, if any, incurred with respect to their attendance at each meeting of the Board of Directors and may be paid compensation as director or chairman of any committee or subcommittee, as the case may be, as determined by the Initial Board or the Compensation Committee, as the case may be. Members of special or standing committees may be allowed like compensation and payment of expenses for attending committee meetings. For so long as the Manager is entitled to appoint a director of the Board of Directors to serve as Chairman pursuant to the terms of the Management Services Agreement, the Chairman shall not receive any compensation from the Company for his or her service as Chairman of the Board, but shall be entitled to the payment of all out-of-pocket expenses incurred in attending regular or special meetings of the Board of Directors. Section 6.22 Indemnification, Advances and Insurance. (a) Each Person who was or is made a party or is threatened to be made a party to or is involved in any manner in any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (hereinafter, a "PROCEEDING"), by reason of the fact that he, she or a Person of whom he or she is the legal representative is or was a director or officer of the Company, or is or was serving at the request of the Company as a director or officer of a Subsidiary of the Company, if the Person acted in good faith and in a manner the Person reasonably believed to be in or not opposed to the best interests of the Company, and, with respect to any criminal action or proceeding, had no reasonable cause to believe the Person's conduct was unlawful, shall be indemnified against expenses (including attorneys' fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by the Person in connection with such proceeding, and held harmless by the Company to the fullest extent permitted from time to time by the General Corporation Law of the State of Delaware as the same exists or may hereafter be amended (but, if permitted by applicable law, in the case of any such amendment, only to the extent that such amendment permits the Company to provide broader indemnification rights than said law permitted the Company to provide prior to such amendment) or any other applicable laws as presently or hereafter in effect, and such indemnification shall continue as to a Person who has ceased to be a director or officer and shall inure to the benefit of his or her heirs, executors and administrators; provided, however, that the Company shall indemnify any such Person seeking indemnification in connection with a proceeding (or part thereof) initiated by such Person only if such proceeding (or part thereof) was authorized by the Board of Directors or is a proceeding to enforce such Person's claim to indemnification pursuant to the rights granted by this Amended Agreement. The Company shall pay the expenses (including attorneys' fees) incurred by such Person in defending any such proceeding in advance of its final disposition upon receipt (unless the Company upon authorization of the Board of Directors waives such requirement to the extent permitted by applicable law) of an undertaking by or on behalf of such Person to repay such amount if it shall ultimately be determined by final judicial decision from which there is no further right of appeal that such Person is not entitled to be indemnified by the Company as authorized in this Amended Agreement or otherwise. With respect to any Person who is a present or former director of the Company, the undertaking required by this Section 6.22(a) shall be an unlimited general obligation but need not be secured and shall be accepted without reference to financial ability to make repayment, provided, however, that such present or former director of the Company does not transfer assets with the intent of avoiding such repayment. With respect to any Person who is a present or former director of the Company, the provisions of Section 6.22(b) relating to a determination that indemnification is proper in the circumstances shall not be a condition to such Person's right to receive advances pursuant to this Section 6.22(a). (b) Any indemnification of a present or former director or officer under this Section 6.22 shall be made by the Company only as authorized in the specific case upon a determination that indemnification of the present or former director or officer is proper in the circumstances because the Person has met the applicable standard of conduct set forth in Section 6.3 or the applicable section of Article 7, as the case may be, and acted in good faith and in a manner the Person reasonably believed to be in, or not opposed to, the best interests of the Company and, with respect to any criminal action or proceeding, had no reasonable cause to believe that its conduct was unlawful. Such determination shall be made, with respect to a Person who is a director or officer at the time of such determination, (1) by a majority vote of the directors who are not parties to such action, suit or proceeding, even though less than a quorum, (2) by a committee of such directors designated by a majority vote of such directors, even though less than a quorum, (3) if there are no such directors, or if a majority, even though less than a quorum, of such directors so direct, by independent legal counsel in a written opinion, or (4) by the Members. The indemnification and the advancement of expenses incurred in defending a proceeding prior to its final disposition provided by or granted pursuant to this Amended Agreement shall not be exclusive of any other right which any Person may have or hereafter acquire under any statute, provision of the Certificate, other provision of this Amended Agreement, vote of Members or Disinterested Directors (as defined below) or otherwise. No repeal, modification or amendment of, or adoption of any provision inconsistent with, this Section 6.22, nor, to the fullest extent permitted by applicable law, any modification of law, shall adversely affect any right or protection of any Person granted pursuant hereto existing at, or with respect to any events that occurred prior to, the time of such repeal, amendment, adoption or modification. (c) The Company may maintain insurance, at its expense, to protect itself and any Person who is or was a director, officer, partner, Member, employee or agent of the Company or a Subsidiary of the Company or of another corporation, partnership, limited liability company, joint venture, trust or other enterprise against any expense, liability or loss, whether or not the Company would have the power to indemnify such Person against such expense, liability or loss under the General Corporation Law of the State of Delaware or the Act. (d) The Company may, to the extent authorized from time to time by the Board of Directors, grant rights to indemnification, and rights to be paid by the Company the expenses incurred in defending any proceeding in advance of its final disposition, to any Person who is or was an employee or agent of the Company or any Subsidiary of the Company (other than those Persons indemnified pursuant to clause (a) of this Section 6.22) and to any Person who is or was serving at the request of the Company or a Subsidiary of the Company as a director, officer, partner, member, employee or agent of another corporation, partnership, limited liability company, joint venture, trust or other enterprise, including service with respect to employee benefit plans maintained or sponsored by the Company or a Subsidiary of the Company, to the fullest extent of the provisions of this Amended Agreement with respect to the indemnification and advancement of expenses of directors and officers of the Company. The payment of any amount to any Person pursuant to this clause (d) shall subrogate the Company to any right such Person may have against any other Person or entity. (e) The indemnification provided in this Section 6.22 is intended to comply (subject to the limitations expressly provided in this Amended Agreement) with the requirements of the General Corporation Law of the State of Delaware as it relates to the indemnification of officers, directors, employees and agents of a Delaware corporation and, as such (except as expressly provided in this Amended Agreement), should be interpreted consistently with the provisions of, and jurisprudence regarding, the General Corporation Law of the State of Delaware. (f) Any notice, request or other communications required or permitted to be given to the Company under this Section 6.22 shall be in writing and either delivered in person or sent by facsimile, telex, telegram, overnight mail or courier service, or certified or registered mail, postage prepaid, return receipt requested, to the General Counsel or the Secretary of the Company and shall be effective only upon receipt by the General Counsel or the Secretary, as the case may be. (g) To the fullest extent permitted by the law of the State of Delaware, each Member, director, officer, employee and agent of the Company agrees that all actions for the advancement of expenses or indemnification brought under this Section 6.22 or under any vote of Members or Disinterested Directors or otherwise shall be a matter to which Section 18-111 of the Act shall apply and which shall be brought in the Court of Chancery of the State of Delaware. The Court of Chancery may summarily determine the Company's obligations to advance expenses (including attorneys' fees). (h) For purposes of this Section 6.22, "DISINTERESTED DIRECTOR" means a director of the Company who is not and was not a party to the proceeding or matter in respect of which indemnification is sought by the claimant. Section 6.23 Reliance; Limitations in Liability. (a) Each director of the Company shall, in the performance of such director's duties, be fully protected in relying in good faith upon the records of the Company and upon such information, opinions, reports or statements presented to the Company by the Manager, or employees of the Manager, or any of the officers of the Company, or committees of the Board of Directors, or by any other Person as to matters the director reasonably believes are within such other Person's professional or expert competence and who has been selected with reasonable care by or on behalf of the Company, including, without limitation, information, opinions, reports or statements as to the value and amount of the assets, liabilities, profits or losses of the Company or any other facts pertinent to the existence and amount of the assets, liabilities, profits or losses of the Company from which distributions to Members might properly be paid. (b) No director shall be liable to the Company or the Members for monetary damages for any breach of fiduciary duty by such director as a director; provided, however, that a director shall be liable to the same extent as if he or she were a director of a Delaware corporation pursuant to the General Corporation Law of the State of Delaware (i) for breach of the director's duty of loyalty to the Company or its Members, (ii) for acts or omissions not in good faith or a knowing violation of applicable law, or (iii) for any transaction for which the director derived an improper benefit. (c) A director of the Company shall not be liable to the Company, the Manager, any Member, the Trust or any other Person for: (i) any action taken or not taken as required by this Amended Agreement; (ii) any action taken or not taken as permitted by this Amended Agreement and, with respect to which, such director acted on an informed basis, in good faith and with the honest belief that such action, taken or not taken, was in the best interests of the Company; or (iii) the Company's compliance with an obligation incurred or the performance of any agreement entered into prior to such director having become a director of the Company. (d) Any director shall not be liable to the Company or to any other director or Member of the Company or any such other Person for the director's good faith reliance on the provisions of this Amended Agreement. (e) The debts, obligations and liabilities of the Company shall be solely the debts, obligations and liabilities of the Company and no director shall be obligated personally for any such debt, obligation or liability of the Company solely by reason of being a director. ARTICLE 7 OFFICERS Section 7.1 General. (a) The officers of the Company shall be elected by the Board of Directors, subject to Section 7.1(b) and Article 8. Initially, the officers of the Company shall consist of a Chief Executive Officer, Chief Financial Officer and Secretary. Thereafter, the officers of the Company shall consist of a Chief Executive Officer, a Chief Financial Officer and a Secretary and, subject to clause (b) of this Section 7.1, such other officers as in the judgment of the Board of Directors may be necessary or desirable, including a General Counsel. All officers elected by the Board of Directors shall have such powers and duties as generally pertain to their respective offices, subject to the specific provisions of this Article 7. Such officers shall also have powers and duties as from time to time may be conferred by the Board of Directors or any committee thereof. Any number of offices may be held by the same Person, unless otherwise prohibited by law or this Amended Agreement. The officers of the Company need not be Members or directors of the Company. (b) For so long as the Management Services Agreement is in effect, the Manager shall, subject at all times to the supervision of the Board of Directors, provide and be responsible for the day-to-day management of the Company, including the secondment of personnel nominated to serve as the Chief Executive Officer and the Chief Financial Officer. In accordance with the terms of the Management Services Agreement, only the Manager will have the right to nominate officers of the Company, including the Secretary and the General Counsel, if any. The Board of Directors shall elect nominated personnel as officers of the Company in accordance with this Article 7. In the event that the appointment of the Manager is terminated pursuant to the terms of the Management Services Agreement and no replacement manager is retained, the Nominating and Governance Committee shall nominate and the Board of Directors shall elect the officers of the Company. Section 7.2 Duties of Officers. Except as provided in this Amended Agreement and the Management Services Agreement, the fiduciary duties of the officers of the Company are intended to be consistent with the fiduciary duties applicable to officers of a corporation incorporated under the General Corporation Law of the State of Delaware, as if such officers were officers of a corporation incorporated under the General Corporation Law of the State of Delaware. Except as provided in this Amended Agreement and the Management Services Agreement, the fiduciary duties of the officers of the Company shall be interpreted consistently with the jurisprudence regarding such fiduciary duties of officers of a corporation under the General Corporation Law of the State of Delaware. It shall be expressly understood that no officer of the Company owes any fiduciary duties to the Members or the Company with respect to any action or inaction of the Manager pursuant to the terms of the Management Services Agreement. Section 7.3 Election and Term of Office. Subject to Section 7.1(b) above, the elected officers of the Company shall be elected annually by the Board of Directors at the regular meeting of the Board of Directors held after each annual meeting of the Members. If the election of officers shall not be held at such meeting, such election shall be held as soon thereafter as is convenient. Each officer shall hold office until his or her successor shall have been duly elected and qualified or until his or her death or resignation or removal. Section 7.4 Chief Executive Officer. The Chief Executive Officer of the Company shall, subject to the oversight of the Board of Directors, supervise, coordinate and manage the Company's business and operations, and supervise, coordinate and manage its activities, operating expenses and capital allocation, shall have general authority to exercise all the powers necessary for the Chief Executive Officer of the Company and shall perform such other duties and have such other powers as may be prescribed by the Board of Directors or this Amended Agreement, all in accordance with basic policies as may be established by the Board of Directors. Section 7.5 Chief Financial Officer. The Chief Financial Officer shall have responsibility for the financial affairs of the Company, including the preparation of financial reports, managing financial risk and overseeing accounting and internal control over financial reporting, subject to the responsibilities of the Audit Committee. In the absence of a General Counsel, the Chief Financial Officer shall be responsible for the performance of the duties of Secretary. The Chief Financial Officer shall perform such other duties and have such other powers as may be prescribed by the Board of Directors or this Amended Agreement, all in accordance with basic policies as may be established by the Board of Directors and subject to the oversight of the Board of Directors and the Chief Executive Officer. Section 7.6 General Counsel. The General Counsel, if any, shall have responsibility for the legal affairs of the Company and for the performance of the duties of the Secretary. The General Counsel shall perform such other duties and have such other powers as may be prescribed by the Board of Directors or this Amended Agreement, all in accordance with basic policies as may be established by the Board of Directors and subject to the oversight of the Board of Directors and the Chairman and Chief Executive Officer. Section 7.7 Secretary. The Secretary shall act as secretary of all meetings of Members and the Board of Directors and any meeting of any committee of the Board of Directors. The Secretary shall prepare and keep or cause to be kept in books provided for the purpose minutes of all meetings of Members and the Board of Directors and any meeting of any committee of the Board of Directors; shall see that all notices are duly given in accordance with the provisions of this Amended Agreement and applicable law; and shall perform all duties incident to the office of Secretary and as required by law and such other duties as may be assigned to him or her from time to time by the Board of Directors. Section 7.8 Resignations. Any officer of the Company may resign at any time upon notice of such resignation to the Company. Section 7.9 Vacancies. Subject to Section 7.1(b) above, a newly created office and a vacancy in any office because of death, resignation or removal may be filled by the Board of Directors for the unexpired portion of the term at any meeting of the Board of Directors. ARTICLE 8 MANAGEMENT Section 8.1 Duties of the Manager. For so long as the Management Services Agreement is in effect and subject at all times to the oversight of the Board of Directors, the Manager will manage the business of the Company and provide its services to the Company in accordance with the terms of the Management Services Agreement. Section 8.2 Secondment of the Chief Executive Officer and Chief Financial Officer. Pursuant to the terms of the Management Services Agreement, the Manager will arrange for the secondment to the Company, on a wholly dedicated basis, individuals acceptable to the Board of Directors to serve as the Chief Executive Officer and Chief Financial Officer. Section 8.3 Secondment of Additional Officers. Pursuant to the terms of the Management Services Agreement, the Manager and the Company may agree from time to time that the Manager will second to the Company one or more additional individuals to serve as officers of the Company, upon such terms as the Manager and the Company may mutually agree. Any such individuals will have such titles and fulfill such functions as the Manager and the Company may mutually agree. Section 8.4 Election of the Secondees as Officers of the Company. The Board of Directors will elect the seconded Chief Executive Officer and Chief Financial Officer, and any additional individuals seconded to the Company by the Manager to serve as officers of the Company, as officers of the Company in accordance with Article 7 hereof. Section 8.5 Removal of Seconded Officers. For so long as the Management Services Agreement is in effect, the officers of the Company seconded by the Manager may only be removed pursuant to the terms of the Management Services Agreement. Section 8.6 Replacement Manager. In the event that the Management Services Agreement is terminated and the Board of Directors determines that a replacement manager should be retained to provide for the management of the Company pursuant to a management or other services agreement, the affirmative vote of a majority of the holders of LLC Interests present in person or represented by proxy at the meeting of Members shall be required to retain such replacement manager. ARTICLE 9 THE MEMBERS Section 9.1 Rights or Powers. The Members shall not have any right or power to take part in the management or control of the Company or its business and affairs or to act for or bind the Company in any way. Notwithstanding the foregoing, the Members have all the rights and powers specifically set forth in this Amended Agreement, including, without limitation, those rights and powers set forth in Section 12.1 and, to the extent not inconsistent with this Amended Agreement, in the Act. Section 9.2 Annual Meetings of Members. The annual meeting of the Members of the Company shall be held at such date, at such time and at such place (if any) within or without the State of Delaware as may be fixed by resolution of the Board of Directors. Section 9.3 Special Meetings of Members. Special meetings of the Members of the Company shall be held on such date, at such time and at such place (if any) within or without the State of Delaware as shall be designated from time to time by the Board of Directors and stated in the notice of the meeting. Special meetings of the Members may be called at any time only by the Secretary, either at the direction of the Board of Directors pursuant to a resolution adopted by the Board of Directors or by the Chairman of the Board. Section 9.4 Place of Meeting. The Board of Directors may designate the place (if any) of meeting for any meeting of the Members. If no designation is made by the Board of Directors, the place of meeting shall be the principal office of the Company. In lieu of holding any meeting of Members at a designated place, the Board of Directors may, in its sole discretion, determine that any meeting of Members may be held solely by means of remote communication. Section 9.5 Notice of Meeting. (a) A notice of meeting, stating the place (if any), day and hour of the meeting, and the means of remote communication, if any, by which Members and proxy holders may be deemed to be present in person and vote at such meeting, shall be prepared and delivered by the Company not less than twenty (20) days and not more than sixty (60) days before the date of the meeting, either personally, by mail or, to the extent and in the manner permitted by applicable law, electronically, to each Member of record. In the case of special meetings, the notice shall state the purpose or purposes for which such special meeting is called. Such further notice shall be given as may be required by law. Only such business shall be conducted at a special meeting of Members as shall have been brought before the meeting pursuant to the Company's notice of meeting. Any previously scheduled meeting of the Members may be postponed, and (unless this Amended Agreement otherwise provides) any special meeting of the Members may be canceled, by resolution of the Board of Directors upon public notice given prior to the time previously scheduled for such meeting of Members. (b) Notice to Members shall be given personally, by mail or, to the extent and in the manner permitted by applicable law, electronically to each Member of record. If mailed, such notice shall be delivered by postage prepaid envelope directed to each holder at such Member's address as it appears in the records of the Company and shall be deemed given when deposited in the United States mail. Notice given by electronic transmission pursuant to this subsection shall be deemed given: (1) if by facsimile telecommunication, when directed to a facsimile telecommunication number at which the Member has consented to receive notice; (2) if by electronic mail, when directed to an electronic mail address at which the Member has consented to receive notice; (3) if by posting on an electronic network together with separate notice to the Member of such specific posting, upon the later of (A) such posting and (B) the giving of such separate notice; and (4) if by any other form of electronic transmission, when directed to the Member. An affidavit of the Secretary or an assistant Secretary or of the Transfer Agent or other agent of the Company that the notice has been given by personal delivery, mail or a form of electronic transmission shall, in the absence of fraud, be prima facie evidence of the facts stated therein. (c) Notice of any meeting of Members need not be given to any Member if waived by such Member either in a writing signed by such Member or by electronic transmission, whether such waiver is given before or after such meeting is held. If such a waiver is given by electronic transmission, the electronic transmission must either set forth or be submitted with information from which it can be determined that the electronic transmission was authorized by the Member. (d) In order that the Company may determine the Members entitled to notice of or to vote at any meeting of Members or any adjournment thereof, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board of Directors, and which record date shall not be more than sixty (60) or fewer than ten (10) days before the date of such meeting. If no record date is fixed by the Board of Directors, the record date for determining Members entitled to notice of or to vote at any meeting of Members or any adjournment thereof shall be at the close of business on the day next preceding the day on which notice is given or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held. Section 9.6 Quorum and Adjournment. Except as otherwise provided by law or by the Certificate or this Amended Agreement, the Members present in person or by proxy holding a majority of the outstanding LLC Interests entitled to vote, shall constitute a quorum at a meeting of Members. The Chairman of the Board or the holders of a majority of the LLC Interests entitled to vote so represented may adjourn the meeting from time to time, whether or not there is such a quorum. The Members present at a duly organized meeting at which a quorum is present in person or by proxy may continue to transact business until adjournment, notwithstanding the withdrawal of enough Members to leave less than a quorum. When a meeting is adjourned to another time and place, if any, unless otherwise provided by this Amended Agreement, notice need not be given of the reconvened meeting if the date, time and place, if any, thereof and the means of remote communication, if any, by which Members and proxyholders may be deemed to be present in person and vote at such reconvened meeting are announced at the meeting at which the adjournment is taken. At the reconvened meeting, the Members may transact any business that might have been transacted at the original meeting. A determination of Members of record entitled to notice of or to vote at a meeting of Members shall apply to any adjournment of such meeting; provided, however, that the Board of Directors may fix a new record date for the reconvened meeting. If an adjournment is for more than thirty (30) days or if, after an adjournment, a new record date is fixed for the reconvened meeting, a notice of the reconvened meeting shall be given to each Member entitled to vote at the meeting. Section 9.7 Proxies. For so long as the Trust is the sole Member, actions by Members required to be taken hereunder will be taken by the Trust pursuant to instructions given to the Trust by the holders of the Trust Stock in accordance with the Trust Agreement or otherwise pursuant to terms set forth in the Trust Agreement. At all meetings of Members, a Member may vote by proxy as may be permitted by law; provided that no proxy shall be voted after three (3) years from its date, unless the proxy provides for a longer period in accordance with the Trust Agreement. Any proxy to be used at a meeting of Members must be filed with the Secretary of the Company or his or her representative at or before the time of the meeting. Section 9.8 Notice of Member Business and Nominations. (a) Annual Meetings of Members. (i) Except in the case of the Initial Board, nominations of individuals for election to the Board of Directors of the Company, other than the Chairman, for so long as the Manager is entitled to appoint a director of the Board of Directors to serve as Chairman pursuant to the terms of the Management Services Agreement, and the proposal of business to be considered by the Members, may be made at an annual meeting of Members (A) pursuant to the Company's notice of meeting delivered pursuant to Section 9.5 hereof, (B) by or at the direction of the Board of Directors or (C) by any Member of the Company who is entitled to vote at the meeting, who complies with the notice procedures set forth in clauses (ii) and (iii) of this Section 9.8(a). In addition to any other applicable requirements, for a nomination for election of a director to be made by a Member or for business to be properly brought before an annual meeting by a Member, such Member must (A) be a Member of record on both (1) the date of the delivery of such nomination or the date of the giving of the notice provided for in this Section 9.8(a) and (2) the record date for the determination of Members entitled to vote at such annual meeting, and (B) have given timely notice thereof in proper written form in accordance with the requirements of this Section 9.8 (a) to the Secretary. (ii) For nominations or other business to be properly brought before an annual meeting by a Member pursuant to clause (C) of paragraph (a)(i) of this Section 9.8, the Member must have given timely notice thereof in writing to the Secretary of the Company and, in the case of business other than nominations, such other business must otherwise be a proper matter for Member action. To be timely, a Member's notice shall be delivered to the Secretary at the principal executive offices of the Company not less than one hundred and twenty (120) days nor more than one hundred and fifty (150) days prior to the first anniversary of the preceding year's annual meeting; provided, however, that, in the case of the first annual meeting of Members of the Company, a Member's notice shall be timely if it is delivered to the Secretary at the principal executive offices of the Company not earlier than the one hundred and twentieth (120th) day prior to such annual meeting and not later than the close of business on the later of the ninetieth (90th) day prior to such annual meeting or the tenth (10th) day following the day on which public announcement of the date of such meeting is first made. In no event shall the public announcement or an adjournment or postponement of an annual meeting commence a new time period for the giving of a Member's notice as described in this Section 9.8(a). Subject to Section 9.8(a)(i), such Member's notice shall set forth: (A) as to each individual whom the Member proposes to nominate for election or reelection as a director, all information relating to such individual that is required to be disclosed in solicitations of proxies for election of directors in an election contest, or is otherwise required, in Regulation 14A under the Exchange Act, including such individual's written consent to being named in the proxy statement as a nominee and to serving as a director if elected; (B) as to any other business that the Member proposes to bring before the meeting, a brief description of the business desired to be brought before the meeting, the reasons for conducting such business at the meeting and any material interest in such business of such Member and the beneficial owner or holder of shares of Trust Stock, if any, on whose behalf the proposal is made; and (C) as to the Member giving the notice and the beneficial owner, if any, on whose behalf the nomination or proposal is made, (1) the name and address of such Member as they appear on the Company's books and of such beneficial owner, and (2) the number of LLC Interests of the Company which are owned beneficially and of record by such Member and such beneficial owner. (iii) Notwithstanding anything in the second sentence of clause (ii) of this Section 9.8(a) to the contrary, in the event that the number of directors to be elected to the Board of Directors of the Company is increased and there is no public announcement naming all of the nominees for director or specifying the size of the increased Board of Directors made by the Company at least one hundred (100) days prior to the first anniversary of the preceding year's annual meeting, a Member's notice required by this Section 9.8 shall also be considered timely, but only with respect to nominees for any new positions created by such increase, if it shall be delivered to the Secretary at the principal executive offices of the Company not later than the close of business on the tenth (10th) day following the day on which such public announcement is first made by the Company. (b) Special Meeting of Members. Only such business shall be conducted at a special meeting of Members as shall have been brought before the meeting pursuant to the Company's notice of meeting pursuant to Section 9.5 of this Amended Agreement. Nominations of individuals for election to the Board of Directors, other than the Chairman, for so long as the Manager is entitled to appoint a director of the Board of Directors to serve as Chairman pursuant to the terms of the Management Services Agreement, may be made at a special meeting of Members at which directors are to be elected pursuant to the Company's notice of meeting (i) by or at the direction of the Board of Directors, or (ii) by any Member of the Company who is entitled to vote at the meeting who complies with the notice procedures set forth in this Section 9.8. In addition to any other applicable requirements, for a nomination for election of a director to be made by a Member, such Member must (A) be a Member of record on both (1) the date of the delivery of such nomination, and (2) the record date for the determination of Members entitled to vote at such special meeting, and (B) have given timely notice thereof in proper written form in accordance with the requirements of this Section 9.8(b) to the Secretary. In the event the Company calls a special meeting of Members for the purpose of electing one or more directors to the Board of Directors, any such Member may nominate such number of individuals for election to such position(s) as are specified in the Company's Notice of Meeting, if the Member's notice as required by clause (ii) of Section 9.8(a) of this Amended Agreement shall be delivered to the Secretary at the principal executive offices of the Company not earlier than the one hundred and twentieth (120th) day prior to such special meeting and not later than the close of business on the later of the ninetieth (90th) day prior to such special meeting or the tenth (10th) day following the day on which public announcement is first made of the date of the special meeting and of the nominees proposed by the Board of Directors to be elected at such meeting. In no event shall the public announcement of an adjournment or postponement of a special meeting commence a new time period for the giving of a Member's notice as described above. (c) General. (i) Only individuals who are nominated in accordance with the procedures set forth in this Section 9.8 shall be eligible to be elected as directors at a meeting of Members and only such business shall be conducted at a meeting of Members as shall have been brought before the meeting in accordance with the procedures set forth in this Section 9.8. Except as otherwise provided by applicable law or this Section 9.8, the Chairman shall have the power and duty to determine whether a nomination or any business proposed to be brought before the meeting was made in accordance with the procedures set forth in this Section 9.8 and, if any proposed nomination or business is not in compliance with this Section 9.8, to declare that such defective proposal or nomination shall be disregarded. (ii) For purposes of this Section 9.8, "PUBLIC ANNOUNCEMENT" shall mean disclosure in a press release reported by the Dow Jones News Service, Associated Press or comparable national news service or in a document publicly filed by the Company with the Securities and Exchange Commission pursuant to Section 13, 14 or 15(d) of the Exchange Act. (iii) Notwithstanding the foregoing provisions of this Section 9.8, a Member shall also comply with all applicable requirements of the Exchange Act and the Rules and Regulations thereunder with respect to the matters set forth in this Section 9.8. Nothing in this Section 9.8 shall be deemed to affect any rights of Members to request inclusion of proposals in the Company's proxy statement pursuant to Rule 14a-8 under the Exchange Act. Section 9.9 Procedure for Election of Directors; Voting. The election of directors submitted to Members at any meeting shall be decided by a plurality of the votes cast thereon. Except as otherwise provided by law or this Amended Agreement, all matters other than the election of directors submitted to the Members at any meeting shall be decided by the affirmative vote of a majority of the LLC Interests present in person or represented by proxy at the meeting of Members. The vote on any matter at a meeting, including the election of directors, shall be by written ballot. Each ballot shall be signed by the Member voting, or by such Member's proxy, and shall state the number of LLC Interests voted. Section 9.10 Inspectors of Elections; Opening and Closing the Polls. (a) If the Trust is not the sole owner of LLC Interests, the Board of Directors by resolution shall appoint one or more inspectors, which inspector or inspectors shall not be directors, officers or employees of the Company, to act at the meeting and make a written report thereof. One or more individuals may be designated as alternate inspectors to replace any inspector who fails to act. If no inspector or alternate has been so appointed to act, or if all inspectors or alternates who have been appointed are unable to act, at a meeting of Members, the Chairman of the Board shall appoint one or more inspectors to act at the meeting. Each such inspector, before discharging his or her duties, shall take and sign an oath faithfully to execute the duties of inspector with strict impartiality and according to the best of his or her ability. The inspectors shall have the duties prescribed by the General Corporation Law of the State of Delaware as if the Company were a Delaware corporation. (b) If the Trust is not the sole owner of LLC Interests, the Chairman of the Board shall fix and announce at the meeting the date and time of the opening and the closing of the polls for each matter upon which the Members will vote at the meeting. Section 9.11 Confidential Member Voting. If the Trust is not the sole owner of the LLC Interests, all proxies, ballots and votes, in each case to the extent they disclose the specific vote of an identified Member, shall be tabulated and certified by an independent tabulator, inspector of elections and/or other independent parties and shall not be disclosed to any director, officer or employee of the Company; provided, however, that, notwithstanding the foregoing, any and all proxies, ballots and voting tabulations may be disclosed: (a) as necessary to meet legal requirements or to assist in the pursuit or defense of legal action; (b) if the Company concludes in good faith that a bona fide dispute exists as to the authenticity of one or more proxies, ballots or votes, or as to the accuracy of any tabulation of such proxies, ballots or votes; (c) in the event of a proxy, consent or other solicitation in opposition to the voting recommendation of the Board of Directors; and (d) if a Member requests or consents to disclosure of such Member's vote or writes comments on such Member's proxy card or ballot. Section 9.12 Waiver of Notice. Whenever any notice is required to be given to any Member by the terms of this Amended Agreement, a waiver thereof in writing, signed by the Person or Persons entitled to such notice, or a waiver thereof by electronic transmission by the Person or Persons entitled to notice, whether before or after the time stated therein, shall be deemed equivalent to the giving of such notice. Neither the business to be transacted at, nor the purpose of, any annual or special meeting of the Members need be specified in any written waiver of notice or any waiver by electronic transmission of such meeting. Section 9.13 Remote Communication. For the purposes of this Amended Agreement, if authorized by the Board of Directors in its sole discretion, and subject to such guidelines and procedures as the Board of Directors may adopt, Members and proxyholders may, by means of remote communication: (a) participate in a meeting of Members; and (b) be deemed present in person and vote at a meeting of Members, whether such meeting is to be held at a designated place or solely by means of remote communication, provided, however, that (i) the Company shall implement reasonable measures to verify that each Person deemed present and permitted to vote at the meeting by means of remote communication is a Member or proxyholder, (ii) the Company shall implement reasonable measures to provide such Members and proxyholders a reasonable opportunity to participate in the meeting and to vote on matters submitted to the Members, including an opportunity to read or hear the proceedings of the meeting substantially concurrently with such proceedings, and (iii) if any Member or proxyholder votes or takes other action at the meeting by means of remote communication, a record of such vote or other action shall be maintained by the Company. Section 9.14 Member Action Without a Meeting. For so long as the Trust remains the sole Member of the Company, the Trust shall take any action required or permitted to be taken at any meeting of Members, by executing a written consent that shall reflect the vote of the holders of Trust Stock as required by the terms of the Trust Agreement, without such meeting, without prior notice, and without a vote. Upon request by the Company, proxy materials completed by the holders of Trust Stock with at least the minimum number of votes required to constitute an affirmative vote of the holders of Trust Stock under the Trust Agreement shall be delivered to the Company indicating the vote or action being approved or disapproved by such holders with respect to those matters reserved to the Members of the Company by this Amended Agreement. If the Trust is not the sole owner of the LLC Interests, Members of the Company shall take any action required or permitted only at a meeting of Members duly called and noticed. Section 9.15 Return on Capital Contribution. Except as otherwise provided in Article 14 hereof, no Member shall demand a return on or of its Capital Contributions. Section 9.16 Member Compensation. No Member shall receive any interest, salary or drawing with respect to its Capital Contributions or its Capital Account or for services rendered on behalf of the Company, or otherwise, in its capacity as a Member, except as otherwise provided in this Amended Agreement. Section 9.17 Member Liability. No Member shall be liable under a judgment, decree or order of a court, or in any other manner, for the Debts or any other obligations or liabilities of the Company. A Member shall be liable only to make its Capital Contributions and shall not be required to restore a deficit balance in its Capital Account or to lend any funds to the Company or, after its Capital Contributions have been made, to make any additional contributions, assessments or payments to the Company, provided, however, that a Member may be required to repay any dividend or other distribution made to it in contravention of Section 5.3 hereof or Sections 18-607 or 18-804 of the Act. The Manager shall not have any personal liability for the repayment of any Capital Contributions of any Member. Section 9.18 Disclosure Requirements for Members Holding Ten Percent or More of the Outstanding LLC Interests. To ensure the Company's compliance with its obligations under the Use Agreement, in the event the Company or any Subsidiary thereof, or both, is required to obtain the approval of the City of Chicago (for any department or agency thereof) for any specific matter, including, but not limited to, the amendment of the Use Agreement, or otherwise determines to request that the City of Chicago (or any department or agency thereof) take action with respect to any matter, the Company shall deliver to the Transfer Agent notice of such approval requirement or request for action and a copy of the then current form of the City of Chicago Economic Disclosure Statement and Affidavit and cause the Transfer Agent to mail a copy of such notice to the Members holding ten (10) percent or more of the then issued and outstanding LLC Interests or, for so long as the Trust is the sole Member, to holders of record of ten (10) percent or more of the then issued and outstanding shares of Trust Stock (each, a "TEN PERCENT HOLDER"). Within thirty (30) days of the mailing of such notice, each Ten Percent Holder shall provide to the Company for filing with the City of Chicago a completed City of Chicago Economic Disclosure Statement and Affidavit, a standard form of which is attached hereto as Exhibit B. Each Ten Percent Holder shall provide any supplemental statements, affidavits or material required to update any Economic Disclosure Statement and Affidavit filed with the City of Chicago as required by the City of Chicago and as requested by the Company from time to time. ARTICLE 10 MEMBER VOTE REQUIRED IN CONNECTION WITH CERTAIN BUSINESS COMBINATIONS OR TRANSACTIONS Section 10.1 Vote Generally Required. Except as provided in Sections 2.3 and 2.4 and subject to the provisions of Section 10.3 hereof, the Company shall not (a) merge or consolidate with or into any limited liability company, corporation, statutory trust, business trust or association, real estate investment trust, common-law trust or any other unincorporated business, including a partnership, or (b) sell, lease or exchange all or substantially all of its Property and assets, unless the Board of Directors shall adopt a resolution, by the affirmative vote of at least a majority of the Entire Board of Directors, approving such action and unless such action shall be approved by the affirmative vote of the holders of a majority of the LLC Interests outstanding and entitled to vote thereon; provided, however, that any LLC Interests held by the Manager or an Affiliate or Associate of the Manager, shall not be entitled to vote to approve any merger or consolidation with or into, or sale, lease or exchange to, the Manager or an Affiliate or Associate thereof. The notice of the meeting at which such resolution is to be considered will so state. For the purposes of this Article 10, the following terms have the following meanings: "ASSOCIATE" has the meaning ascribed to such term in Rule 12b-2 of the rules promulgated under the Exchange Act. "BENEFICIAL OWNER" has the meaning ascribed to such term in Rule 13d-3 of the rules promulgated under the Exchange Act. "BUSINESS COMBINATION" means: (i) any merger or consolidation of the Company or any Subsidiary thereof with (A) an Interested Shareholder, or (B) any other Person (whether or not itself an Interested Shareholder) that is, or after such merger or consolidation would be, an Affiliate or Associate of an Interested Shareholder; or (ii) any sale, lease, exchange, mortgage, pledge, transfer or other disposition (in one transaction or a series of transactions) to or with, or proposed by or on behalf of, an Interested Shareholder or an Affiliate or Associate of an Interested Shareholder of any assets of the Company or any Subsidiary thereof having an aggregate Fair Market Value of not less than ten percent (10%) of the Net Investment Value of the Company; or (iii) the issuance or transfer by the Company or any Subsidiary thereof (in one transaction or a series of transactions) of any securities of the Company or any Subsidiary thereof to, or proposed by or on behalf of, an Interested Shareholder or an Affiliate or Associate of an Interested Shareholder in exchange for cash, securities or other property (or a combination thereof) having an aggregate Fair Market Value of not less than ten percent (10%) of the Net Investment Value of the Company; or (iv) any spinoff or split-up of any kind of the Company or any Subsidiary thereof, proposed by or on behalf of an Interested Shareholder or an Affiliate or Associate of an Interested Shareholder; or (v) any reclassification of the LLC Interests (including any reverse split of LLC Interests) or recapitalization of the Company, or any merger or consolidation of the Company with any Subsidiary thereof, or any other transaction (whether or not with or into or otherwise involving an Interested Shareholder), that has the effect, directly or indirectly, of increasing the percentage of the outstanding shares of (A) any class of equity securities of the Company or any Subsidiary thereof or (B) any class of securities of the Company or any Subsidiary thereof convertible into or exchangeable for LLC Interests or equity securities of any Subsidiary of the Company, that are directly or indirectly owned by an Interested Shareholder and its Affiliates and Associates; or (vi) any agreement, contract or other arrangement providing for any one or more of the actions specified in clauses (i) through (v) above. "CONTINUING DIRECTOR" means (i) any director of the Company who (A) is neither the Interested Shareholder involved in the Business Combination as to which a determination of Continuing Directors is provided hereunder, nor an Affiliate, Associate, employee, agent or nominee of such Interested Shareholder, or a relative of any of the foregoing, and (B) was a member of the Board of Directors prior to the time that such Interested Shareholder became an Interested Shareholder, or (ii) any successor of a Continuing Director described in clause (i) above who is recommended or elected to succeed a Continuing Director by the affirmative vote of a majority of Continuing Directors then on the Board of Directors. "FAIR MARKET VALUE" means: (i) in the case of equity securities, the average of the closing sale prices during the 10-day period immediately preceding the date in question of such equity securities: (1) on the NYSE (regular way); (2) if such equity securities are not listed for trading on the NYSE, as reported in the composite transactions for the principal U.S. national or regional securities exchange on which such equity securities are so listed; (3) if such equity securities are not so listed on a principal U.S. national or regional securities exchange, the price as reported by the Nasdaq National Market; (4) if such equity securities are not so reported, the last quoted bid price for such equity securities, in the over-the-counter market as reported by the National Quotation Bureau or a similar organization; or (5) if such equity securities are not so quoted, the fair market value of such equity securities, as determined by a majority of the Continuing Directors in good faith; and (ii) in the case of Property other than cash or equity securities, the fair market value of such Property on the date in question as determined by a majority of the Continuing Directors in good faith. "FUTURE INVESTMENT" means a contractual commitment to invest represented by a definitive agreement. "INTERESTED SHAREHOLDER" means any Person (other than the Manager, the Trust, the Company or any Subsidiary of the Company, any employee benefit plan maintained by the Company or any Subsidiary thereof or any trustee or fiduciary with respect to any such plan when acting in such capacity) that: (i) is, or was at any time within the three-year period immediately prior to the date in question, the Beneficial Owner of fifteen percent (15%) or more of the then outstanding LLC Interests of the Company and who did not become the Beneficial Owner of such amount of LLC Interests pursuant to a transaction that was approved by the affirmative vote of a majority of the Entire Board of Directors; or (ii) is an assignee of, or has otherwise succeeded to, any LLC Interests of the Company of which an Interested Shareholder was the Beneficial Owner at any time within the three-year period immediately prior to the date in question, if such assignment or succession shall have occurred in the course of a transaction, or series of transactions, not involving a public offering within the meaning of the Securities Act. For the purpose of determining whether a Person is an Interested Shareholder, the LLC Interests that may be issuable or exchangeable by the Company to the Interested Shareholder pursuant to any agreement, arrangement or understanding, or upon the exercise of conversion rights, warrants or options, or otherwise, shall be included, but not any other LLC Interests that may be issuable or exchangeable by the Company pursuant to any agreement, arrangement or understanding, or upon the exercise of conversion rights, warrants or options, or otherwise, to any Person who is not the Interested Shareholder. "MANAGED SUBSIDIARY" means Macquarie Infrastructure Company Inc., Macquarie Yorkshire LLC, South East Water LLC, Communications Infrastructure LLC, and, any directly owned Subsidiary of the Company that becomes party to the Management Services Agreement, from time to time. "MARKET VALUE OF THE TRUST STOCK OR LLC INTERESTS" means the product of (1) the average number of shares of Trust Stock or LLC Interests, as applicable, issued and outstanding, other than treasury shares or treasury LLC Interests, as applicable, during the last fifteen (15) Trading Days in the most recent full Fiscal Quarter multiplied by (2) the volume weighted average trading price per share of Trust Stock or per LLC Interests, as applicable, traded on the NYSE over those fifteen (15) Trading Days. "NET INVESTMENT VALUE" means: (a) the Market Value of the Trust Stock or LLC Interests, as applicable; plus (b) the amount of any borrowings (other than intercompany borrowings) of the Company and its Managed Subsidiaries (but not including borrowings on behalf of any Subsidiary of the Managed Subsidiaries); plus (c) the value of Future Investments of the Company and/or any of its Subsidiaries other than cash or cash equivalents, as calculated by the Manager and approved by a majority of the Continuing Directors; provided that such Future Investment has not been outstanding for more than two consecutive full Fiscal Quarters; less (d) the aggregate amount held by the Company and its Managed Subsidiaries in cash or cash equivalents (but not including cash or cash equivalents held specifically for the benefit of any Subsidiary of a Managed Subsidiary). Section 10.2 Vote for Business Combinations. The affirmative vote of the holders of record of outstanding LLC Interests representing at least sixty-six and two-thirds percent (66?%) of the then outstanding LLC Interests of the Company (excluding LLC Interests held by, or LLC Interests represented by Trust Stock held by, the Interested Shareholder or any Affiliate or Associate of an Interested Shareholder) shall be required to approve any Business Combination. Such affirmative vote shall be required notwithstanding the fact that no vote may be required, or that a lesser percentage may be specified, by law or in any agreement with any securities exchange or otherwise. Section 10.3 Power of Continuing Directors. The Continuing Directors shall have the power and duty to determine, on the basis of information known to them after reasonable inquiry, all facts necessary to determine compliance with this Article 10, including, without limitation, (a) whether a Person is an Interested Shareholder, (b) the number of LLC Interests of the Company beneficially owned by any Person, (c) whether a Person is an Affiliate or Associate of another, and (d) the Fair Market Value of the equity securities of the Company or any Subsidiary thereof, and the good faith determination of the Continuing Directors on such matters shall be conclusive and binding for all the purposes of this Article 10. Section 10.4 No Effect on Fiduciary Obligations. Nothing contained in this Article shall be construed to relieve the members of the Board of Directors or an Interested Shareholder from any fiduciary obligation imposed by law. Section 10.5 Miscellaneous. In addition to any affirmative vote required by law or by this Amended Agreement, the affirmative vote of a majority of the then outstanding LLC Interests of the Company held by the holders of record of outstanding LLC Interests (excluding LLC Interests held by, or LLC Interests represented by Trust Stock held by, the Interested Shareholder or an Affiliate or Associate of an Interested Shareholder) shall be required to approve the sale or transfer by an Interested Shareholder or an Affiliate or Associate of an Interested Shareholder to the Company or any Subsidiary of the Company (in one transaction or a series of transactions) of any securities of the Company or any Subsidiary of the Company in exchange for cash, securities of the Company or any Subsidiary of the Company. Such affirmative vote shall be required notwithstanding the fact that no vote may be required, or that a lesser percentage may be specified, by law or in any agreement with any securities exchange or otherwise. ARTICLE 11 BOOKS AND RECORDS Section 11.1 Books and Records; Inspection by Members. (a) The Company, other than as provided in the Management Services Agreement, shall keep or cause to be kept at its principal office appropriate books and records with respect to the Company's business, including, without limitation, all books and records necessary to provide to the Members any information, lists and copies of documents required to be provided pursuant to applicable law. Any books and records maintained by or on behalf of the Company in the regular course of its business, including, without limitation, the record of the Members, books of account and records of Company proceedings, may be kept in electronic or any other form, provided that the books and records so maintained are convertible into clearly legible written form within a reasonable period of time. (b) The Secretary shall make, at least ten (10) days before every meeting of Members, a complete list of the Members entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each Member and the number of LLC Interests registered in the name of each Member. Such list shall be open to the examination of any Member, for any purpose germane to the meeting for a period of at least ten (10) days prior to the meeting: (i) on a reasonably accessible electronic network, provided that the information required to gain access to such list is provided with the notice of the meeting, or (ii) during ordinary business hours, at the principal place of business of the Company. In the event that the Company determines to make the list available on an electronic network, the Company may take reasonable steps to ensure that such information is available only to Members. The list shall be produced and kept at the time and place of the meeting during the whole time thereof, and may be inspected by any Member who is present. Any Member, in person or by attorney or other agent, shall, upon written demand stating the purpose thereof, have the right during the usual business hours to inspect for any proper purpose, and to make copies and extracts from: (1) the Register, a list of the Members, and its other books and records; and (2) a Subsidiary of the Company's books and records or copies thereof in electronic form, to the extent that (i) the Company has actual possession and control of such records of such Subsidiary, or (ii) the Company could obtain such records through the exercise of control over such Subsidiary, provided that as of the date of the making of the demand (A) Member inspection of such books and records of such Subsidiary would not constitute a breach of an agreement between the Company or such Subsidiary and a Person or Persons not Affiliated with the Company, and (B) such Subsidiary would not have the right under the law applicable to it to deny the Company access to such books and records upon demand by the Company. In every instance where the beneficial holder of LLC Interests is not a holder of record, the demand shall state the Person's status as a beneficial holder of LLC Interests, be accompanied by documentary evidence of beneficial ownership of LLC Interests, and state that such documentary evidence is a true and correct copy of what it purports to be. A proper purpose shall mean a purpose reasonably related to such Person's interest as a Member or beneficial holder of LLC Interests. Section 11.2 Reports. (a) In General. The Chief Financial Officer of the Company shall be responsible for causing the preparation of financial reports of the Company and the coordination of financial matters of the Company with the Company's accountants. (b) Periodic and Other Reports. The Company shall cause to be delivered to each Member the financial statements listed in clauses (i) and (ii) below, prepared in each case (other than with respect to Members' Capital Accounts, which shall be prepared in accordance with this Amended Agreement) in accordance with GAAP consistently applied (and, if required by any Member or its controlled Affiliates for purposes of reporting thereunder, Regulation S-X of the Exchange Act). The monthly and quarterly financial statements referred to in clause (ii) below may be subject to normal year-end audit adjustments. (i) As soon as practicable following the end of each Fiscal Year (and in any event not later than the date on which the Rules and Regulations provide) and at such time as distributions are made to the Members pursuant to Article 14 hereof following the occurrence of a Dissolution Event, a balance sheet of the Company as of the end of such Fiscal Year and the related statements of operations, Members' Capital Accounts and changes therein, and cash flows for such Fiscal Year, together with appropriate notes to such financial statements and supporting schedules, all of which shall be audited and certified by the Company's accountants, and in each case, to the extent the Company was in existence, setting forth in comparative form the corresponding figures for the immediately preceding Fiscal Year end (in the case of the balance sheet) and the two (2) immediately preceding Fiscal Years (in the case of the statements); and (ii) As soon as practicable following the end of each of the first three Fiscal Quarters of each Fiscal Year (and in any event not later than the date on which the Rules and Regulations require), a balance sheet of the Company as of the end of such Fiscal Quarter and the related statements of operations and cash flows for such Fiscal Quarter and for the Fiscal Year to date, in each case, to the extent the Company was in existence, setting forth in comparative form the corresponding figures for the prior Fiscal Year's Fiscal Quarter and the interim period corresponding to the Fiscal Quarter and the interim period just completed. The quarterly statements described in clause (ii) above shall be accompanied by such written certifications as the Rules and Regulations require. Section 11.3 Preparation of Tax Returns. The Company shall arrange for the preparation and timely filing of all returns of Company income, gains, deductions, losses and other items required of the Company for U.S. federal and state income tax purposes. The classification, realization and recognition of income, gains, deductions, losses and other items shall be on the accrual method of accounting for U.S. federal income tax purposes. The taxable year of the Company shall be the calendar year. Section 11.4 Tax Elections. (a) The Board of Directors shall, without any further consent of the Members being required (except as specifically required herein), make (i) the election to adjust the basis of Property pursuant to Code Sections 754, 734(b) and 743(b), or comparable provisions of state, local or foreign law, in connection with Transfers of LLC Interests and Company dividend or other distributions; and (ii) any and all other elections for U.S. federal, state, local and foreign tax purposes, including, without limitation, any election, if permitted by applicable law: (x) to extend the statute of limitations for assessment of tax deficiencies against the Members with respect to adjustments to the Company's U.S. federal, state, local or foreign tax returns; and (y) to the extent provided in Code Sections 6221 through 6231 and similar provisions of U.S. federal, state, local or foreign law, to represent the Company and the Members before taxing authorities or courts of competent jurisdiction in tax matters affecting the Company or the Members in their capacities as Members, and to file any tax returns and execute any agreements or other documents relating to or affecting such tax matters, including agreements or other documents that bind the Members with respect to such tax matters or otherwise affect the rights of the Company and the Members. The Manager is specifically authorized to act as the "TAX MATTERS MEMBER" under the Code and in any similar capacity under state or local law. (b) In circumstances where the Trust has been dissolved, the Board of Directors may, by the affirmative vote of at least a majority of the Entire Board of Directors, and without any further consent of the Members being required, cause the Company to elect to be treated as a corporation for U.S. federal income tax purposes, provided, however, that such action shall be taken only if (i) the Board of Directors first obtains an opinion from a nationally recognized financial advisor to the effect that it expects the market valuation of the Company to be significantly lower as a result of the Company continuing to be treated as a partnership for U.S. federal income tax purposes than if the Company instead elected to be treated as a corporation for U.S. federal income tax purposes and (ii) the effective date for such election is no earlier than the date on which the Trust has been dissolved pursuant to clause (i) of Section 10.02 of the Trust Agreement. Section 11.5 Tax Information. Necessary tax information shall be delivered to each Member as soon as practicable after the end of the Fiscal Year of the Company but not later than February 15. ARTICLE 12 AMENDMENTS Section 12.1 Amendments. The Board of Directors is authorized to amend the terms of this Amended Agreement by resolution adopted by the affirmative vote of a majority of the Entire Board of Directors; provided, however, that Sections 1.3, 2.4, 2.5, 3.1, 8.6, 14.1(a)(i), this Section 12.1 and Article 10 hereof may not be amended without the affirmative vote of a majority of the LLC Interests present in person or represented by proxy at a meeting of Members; provided further, however, that for so long as the Management Services Agreement is in effect, Section 6.9 and Article 8 and this Section 12.1 may not be amended without the prior written consent of the Manager. ARTICLE 13 TRANSFERS; MONTHLY ALLOCATIONS Section 13.1 Distributions and Allocations in Respect of LLC Interests. Profits, Losses, each item thereof and all other items attributable to LLC Interests for any Allocation Year shall, for U.S. federal income tax purposes, be determined on an annual basis and prorated on a monthly basis and the pro rata portion for each month shall be allocated to those Persons who are Members as of the close of the NYSE on the last day of the preceding month. With respect to any LLC Interest that was not treated as outstanding as of the close of the NYSE on the last day of the preceding month, the first Person who is treated as the Member with respect to such LLC Interest will be treated as the Member with respect to such LLC Interest for this purpose as of the close of the NYSE on the last day of the preceding month. All dividends or other distributions on or before the date of a Transfer of LLC Interests shall be made to the transferor, and all dividends or other distributions thereafter shall be made to the transferee. The Board of Directors may revise, alter or otherwise modify such methods of allocation as it determines necessary, to the extent permitted or required by Code Section 706 and the Regulations or rulings promulgated thereunder. ARTICLE 14 DISSOLUTION AND WINDING-UP Section 14.1 Dissolution Events. (a) Dissolution. The Company shall dissolve and shall commence winding up and liquidating upon the first to occur of any of the following (each a "DISSOLUTION EVENT"): (i) the Board of Directors adopts a resolution, by the affirmative vote of at least a majority of the Entire Board of Directors, approving the dissolution, winding-up and liquidation of the Company and such action has been approved by the affirmative vote of the holders of a majority of the LLC Interests outstanding and entitled to vote thereon; (ii) the unanimous vote of the Members to dissolve, wind up and liquidate the Company; or (iii) a judicial determination that an event has occurred that makes it unlawful, impossible or impractical to carry on the business of the Company as then currently operated as determined in accordance with Section 18-802 of the Act. The Members hereby agree that, notwithstanding any provision of the Act, the Company shall not dissolve prior to the occurrence of a Dissolution Event. (b) Reconstitution. If it is determined by a court of competent jurisdiction that the Company has dissolved prior to the occurrence of a Dissolution Event, then, within an additional ninety (90) days after such determination (the "RECONSTITUTION PERIOD"), all of the Members may elect to reconstitute the Company and continue its business on the same terms and conditions set forth in this Amended Agreement by forming a new limited liability company on terms identical to those set forth in this Amended Agreement. Unless such an election is made within the Reconstitution Period, the Company shall liquidate and wind up its affairs in accordance with Section 14.2 hereof. If such an election is made within the Reconstitution Period, then: (i) the reconstituted limited liability company shall continue until the occurrence of a Dissolution Event as provided in Section 14.1(a) hereof; and (ii) unless otherwise agreed to by a majority of the Members, the Certificate, and this Amended Agreement shall automatically constitute the Certificate and Amended Agreement of such new Company; all of the assets and liabilities of the dissolved Company shall be deemed to have been automatically assigned, assumed, conveyed and transferred to the new Company; and no bond, collateral, assumption or release of any Member's or the Company's liabilities shall be required; provided that the right of the Members to select replacement managers and to reconstitute and continue the business shall not exist and may not be exercised unless the Company has received an opinion of counsel that the exercise of such right would not result in the loss of limited liability of any Member and neither the Company nor the reconstituted limited liability company would cease to be treated as a partnership for U.S. federal income tax purposes upon the exercise of such right to continue. Section 14.2 Winding-Up. Upon the occurrence of (i) a Dissolution Event or (ii) the determination by a court of competent jurisdiction that the Company has dissolved prior to the occurrence of a Dissolution Event (unless the Company is reconstituted pursuant to Section 14.1(b) hereof), the Company shall continue solely for the purposes of winding up its affairs in an orderly manner, liquidating its assets, and satisfying the claims of its creditors and Members, and no Member shall take any action that is inconsistent with, or not necessary to or appropriate for, the winding-up of the Company's business and affairs, provided, however, that all covenants contained in this Amended Agreement and obligations provided for in this Amended Agreement shall continue to be fully binding upon the Members until such time as the Property has been distributed pursuant to this Section 14.2 and the Certificate has been canceled pursuant to the Act. The Liquidator shall be responsible for overseeing the winding-up and dissolution of the Company, which winding-up and dissolution shall be completed no later than ninety (90) days after the later of (i) the occurrence of the Dissolution Event and (ii) the last day on which the Company may be reconstituted pursuant to Section 14.1(b) hereof. The Liquidator shall take full account of the Company's liabilities and Property and shall cause the Property or the proceeds from the sale thereof (as determined pursuant to Section 14.9 hereof), to the extent sufficient therefor, to be applied and distributed, to the maximum extent permitted by law, in the following order: (a) First, to creditors (including the Manager and the Members who are creditors, to the extent otherwise permitted by law) in satisfaction of all of the Company's Debts and other liabilities (whether by payment or the making of reasonable provision for payment thereof), other than liabilities for which reasonable provision for payment has been made and liabilities for distribution to Members under Section 18-601 or 18-604 of the Act; (b) Second, except as provided in this Amended Agreement, to Members and former Members of the Company in satisfaction of liabilities for distribution under Section 18-601 or 18-604 of the Act; and (c) The balance, if any, to the Members in accordance with the positive balance in their Capital Accounts, after giving effect to all contributions, distributions and allocations for all periods. No Member or Manager shall receive additional compensation for any services performed pursuant to this Article 14. Section 14.3 Compliance with Certain Requirements of Regulations; Deficit Capital Accounts. In the event the Company is "liquidated" within the meaning of Regulations Section 1.704-1(b)(2)(ii)(g), distributions shall be made pursuant to this Article 14 to the Members who have positive Capital Accounts in compliance with Regulations Section 1.704-1(b)(2)(ii)(b)(2). If any Member has a deficit balance in its Capital Account (after giving effect to all contributions, distributions and allocations for all Allocation Years, including the Allocation Year during which such liquidation occurs), such Member shall have no obligation to make any contribution to the capital of the Company with respect to such deficit, and such deficit shall not be considered a debt owed to the Company or to any other Person for any purpose whatsoever. In the discretion of the Liquidator, a pro rata portion of the distributions that would otherwise be made to the Members pursuant to this Article 14 may be: (a) Distributed to a trust established for the benefit of the Members for the purposes of liquidating Company assets, collecting amounts owed to the Company, and paying any contingent or unforeseen liabilities or obligations of the Company; the assets of any such trust shall be distributed to the Members from time to time, in the reasonable discretion of the Liquidator, in the same proportions as the amount distributed to such trust by the Company would otherwise have been distributed to the Members pursuant to Section 14.2 hereof; or (b) Withheld to provide a reasonable reserve for Company liabilities (contingent or otherwise) and to reflect the unrealized portion of any installment obligations owed to the Company, provided, however, that such withheld amounts shall be distributed to the Members as soon as practicable. Section 14.4 Deemed Distribution and Recontribution. Notwithstanding any other provision of this Article 14, in the event the Company is liquidated within the meaning of Regulations Section 1.704-1(b)(2)(ii)(g) but no Dissolution Event has occurred, the Property shall not be liquidated, the Company's Debts and other Liabilities shall not be paid or discharged, and the Company's affairs shall not be wound up. Instead, solely for U.S. federal income tax purposes, the Company shall be deemed to have contributed all its Property and liabilities to a new limited liability company in exchange for an interest in such new company and, immediately thereafter, the Company will be deemed to liquidate by distributing interests in the new company to the Members. Section 14.5 Rights of Members. Except as otherwise provided in this Amended Agreement, each Member shall look solely to the Property of the Company for the return of its Capital Contribution and has no right or power to demand or receive Property other than cash from the Company. If the assets of the Company remaining after payment or discharge of the debts or liabilities of the Company are insufficient to return such Capital Contribution, the Members shall have no recourse against the Company or any other Member or the Manager. Section 14.6 Notice of Dissolution/Termination. (a) In the event a Dissolution Event occurs or an event occurs that would, but for the provisions of Section 14.1 hereof, result in a dissolution of the Company, the Board of Directors shall, within thirty (30) days thereafter, provide written notice thereof to each of the Members and to all other parties with whom the Company regularly conducts business (as determined in the discretion of the Board of Directors) and shall publish notice thereof in a newspaper of general circulation in each place in which the Company regularly conducts business (as determined in the discretion of the Board of Directors). (b) Upon completion of the distribution of the Company's Property as provided in this Article 14, the Company shall be terminated, and the Board of Directors shall cause the filing of the Certificate of Cancellation pursuant to Section 18-203 of the Act and shall take all such other actions as may be necessary to terminate the Company. Section 14.7 Allocations During Period of Liquidation. During the period commencing on the first day of the Fiscal Year during which a Dissolution Event occurs and ending on the date on which all of the assets of the Company have been distributed to the Members pursuant to Section 14.2 hereof (the "LIQUIDATION PERIOD"), the Members shall continue to share Profits, Losses, gain, loss and other items of Company income, gain, loss or deduction in the manner provided in Article 4 hereof. Section 14.8 Character of Liquidating Distributions. All payments made in liquidation of the interest of a Member in the Company shall be made in exchange for the interest of such Member in Property pursuant to Section 736(b)(1) of the Code, including the interest of such Member in Company goodwill. Section 14.9 The Liquidator. (a) Definition. The "LIQUIDATOR" shall mean a Person appointed by the Board of Directors to oversee the liquidation of the Company. (b) Fees. The Company is authorized to pay a reasonable fee to the Liquidator for its services performed pursuant to this Article 14 and to reimburse the Liquidator for its reasonable costs and expenses incurred in performing those services. (c) Indemnification. The Company shall indemnify, hold harmless and pay all judgments and claims against the Liquidator or any officers, directors, agents or employees of the Liquidator relating to any liability or damage incurred by reason of any act performed or omitted to be performed by the Liquidator or any officers, directors, agents or employees of the Liquidator in connection with the liquidation of the Company, including reasonable attorneys' fees incurred by the Liquidator, officer, director, agent or employee in connection with the defense of any action based on any such act or omission, which attorneys' fees may be paid as incurred, except to the extent such liability or damage is caused by the fraud or intentional misconduct of, or a knowing violation of the laws by, the Liquidator which was material to the cause of action. Section 14.10 Form of Liquidating Distributions. For purposes of making distributions required by Section 14.2 hereof, the Liquidator may determine whether to distribute all or any portion of the Property in kind or to sell all or any portion of the Property and distribute the proceeds therefrom. ARTICLE 15 MISCELLANEOUS Section 15.1 Notices. Subject to Sections 6.11, 6.13, 9.5 and 9.8, any notice, payment, demand or communication required or permitted to be given by any provision of this Amended Agreement shall be in writing and delivered personally, or, when the same is actually received, if sent either by registered or certified mail, postage and charges prepaid, or by facsimile, if such facsimile is followed by a hard copy of the facsimile communication sent promptly thereafter by registered or certified mail, postage and charges prepaid, addressed as follows, or to such other address as such Person may from time to time specify by notice to the Members and the Manager: (a) If to the Company: 600 Fifth Avenue, 21st Floor New York, New York 10020 Attention: David Mitchell Facsimile No.: (212) 581-8037 (b) If to the Manager: 600 Fifth Avenue, 21st Floor New York, New York 10020 Attention: David Mitchell Facsimile No.: (212) 581-8037 (c) If to the Trust: 600 Fifth Avenue, 21st Floor New York, New York 10020 Attention: David Mitchell Facsimile No.: (212) 581-8037 Section 15.2 Binding Effect. Except as otherwise provided in this Amended Agreement, every covenant, term and provision of this Amended Agreement shall be binding upon and inure to the benefit of the Members and their respective successors, transferees and assigns. Section 15.3 Construction. Every covenant, term and provision of this Amended Agreement shall be construed simply according to its fair meaning and not strictly for or against any Member. Section 15.4 Time. In computing any period of time pursuant to this Amended Agreement, the day of the act, event or default from which the designated period of time begins to run shall not be included, but the time shall begin to run on the next succeeding day. The last day of the period so computed shall be included, unless it is a Saturday, Sunday or any other day on which banks in The City of New York are required or authorized by law or executive order to close, in which event the period shall run until the end of the next day which is not a Saturday, Sunday or any other day on which banks in The City of New York are required or authorized by law or executive order to close. Section 15.5 Headings. Section and other headings contained in this Amended Agreement are for reference purposes only and are not intended to describe, interpret, define or limit the scope, extent or intent of this Amended Agreement or any provision hereof. Section 15.6 Severability. Except as otherwise provided in the succeeding sentence, every provision of this Amended Agreement is intended to be severable, and, if any term or provision of this Amended Agreement is illegal or invalid for any reason whatsoever, such illegality or invalidity shall not affect the validity or legality of the remainder of this Amended Agreement. The preceding sentence of this Section 15.6 shall be of no force or effect if the consequence of enforcing the remainder of this Amended Agreement without such illegal or invalid term or provision would be to cause any Member to lose the material benefit of its economic bargain. Section 15.7 Incorporation by Reference. Every exhibit, schedule and other appendix attached to this Amended Agreement and referred to herein is not incorporated in this Amended Agreement by reference unless this Amended Agreement expressly otherwise provides. Section 15.8 Variation of Terms. All terms and any variations thereof shall be deemed to refer to masculine, feminine or neuter, singular or plural, as the identity of the Person or Persons may require. Section 15.9 Governing Law and Consent to Jurisdiction/Service of Process. The laws of the State of Delaware shall govern the validity of this Amended Agreement, the construction of its terms and the interpretation of the rights and duties arising hereunder. Each party hereto and any Person acquiring an LLC Interest, from time to time, (i) irrevocably submits to the non-exclusive jurisdiction and venue of any Delaware state court or U.S. federal court sitting in Wilmington, Delaware in any action arising out of this Amended Agreement and (ii) consents to the service of process by mail. Nothing herein shall affect the right of any party to serve legal process in any manner permitted by law or affect its right to bring any action in any other court. Section 15.10 Waiver of Jury Trial. Each of the Members irrevocably waives, to the extent permitted by law, all rights to trial by jury and all rights to immunity by sovereignty or otherwise in any action, proceeding or counterclaim arising out of or relating to this Amended Agreement. Section 15.11 Counterpart Execution. This Amended Agreement may be executed in any number of counterparts with the same effect as if all of the Members had signed the same document. All counterparts shall be construed together and shall constitute one agreement. Section 15.12 Specific Performance. Each Member agrees with the other Members that the other Members would be irreparably damaged if any of the provisions of this Amended Agreement were not performed in accordance with their specific terms and that monetary damages would not provide an adequate remedy in such event. Accordingly, it is agreed that, in addition to any other remedy to which the nonbreaching Members may be entitled, at law or in equity, the nonbreaching Members shall be entitled to injunctive relief to prevent breaches of the provisions of this Amended Agreement and specifically to enforce the terms and provisions hereof in any action instituted in any court of the United States or any state thereof having subject matter jurisdiction thereof. IN WITNESS WHEREOF, the Original Member has executed and entered into this Amended and Restated Operating Agreement of the Company as of the day first above set forth. MACQUARIE INFRASTRUCTURE COMPANY TRUST By: /s/ Peter Stokes ------------------------------------ Name: Peter Stokes Title: Regular Trustee EXHIBIT A SPECIMEN LLC INTEREST CERTIFICATE NUMBER __ ___ LLC INTERESTS ORGANIZED UNDER THE LAWS OF THE STATE OF DELAWARE MACQUARIE INFRASTRUCTURE COMPANY LLC .........................................................................* This Certifies that _________________________ is the owner of ___ LLC Interests of the Company with such rights and privileges as are set forth in the Amended and Restated Operating Agreement of the Company dated _______________ (the "Amended Agreement"), as it may be amended from time to time. [THE LLC INTERESTS REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), THE SECURITIES LAWS OF ANY STATE (THE "STATE ACTS") OR THE SECURITIES LAWS OF ANY OTHER JURISDICTION, AND ARE BEING OFFERED AND SOLD IN RELIANCE ON EXEMPTIONS FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND SUCH LAWS. THE LLC INTERESTS HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND EXCHANGE COMMISSION, BY ANY STATE SECURITIES COMMISSION OR BY ANY OTHER REGULATORY AUTHORITY OF ANY OTHER JURISDICTION. ANY REPRESENTATION TO THE CONTRARY IS UNLAWFUL.] THE LLC INTERESTS REPRESENTED BY THIS CERTIFICATE EVIDENCE THE PROPORTIONATE PORTION OF SUCH HOLDER'S LIMITED LIABILITY COMPANY INTEREST IN THE COMPANY. THE LLC INTERESTS REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO THE TRANSFER RESTRICTIONS CONTAINED IN SECTION 13 OF THE AMENDED AGREEMENT. EVERY HOLDER OF THIS CERTIFICATE, BY HOLDING AND RECEIVING THE SAME, AGREES WITH THE COMPANY TO BE BOUND BY THE TERMS OF THE AMENDED AGREEMENT. A STATEMENT OF THE RELATIVE RIGHTS AND PREFERENCES OF THE COMPANY'S LLC INTERESTS WILL BE FURNISHED BY THE COMPANY TO THE HOLDER HEREOF UPON REQUEST WITHOUT CHARGE. ................................... IN WITNESS WHEREOF, said Company has caused this Certificate to be signed by its Chief Executive Officer this ____ day of ______, A.D. ____. ------------------------------, .............................................................AS CHIEF EXECUTIVE OFFICER EXHIBIT B FORM OF ECONOMIC DISCLOSURE STATEMENT AND AFFIDAVIT B-1 EX-99.4 6 y04134exv99w4.txt REGISTRATION RIGHTS AGREEMENT EXHIBIT 99.4 EXECUTION VERSION --------------------------------- REGISTRATION RIGHTS AGREEMENT AMONG MACQUARIE INFRASTRUCTURE COMPANY LLC, MACQUARIE INFRASTRUCTURE COMPANY TRUST AND MACQUARIE INFRASTRUCTURE MANAGEMENT (USA) INC. Dated as of December 21, 2004 --------------------------------- This REGISTRATION RIGHTS AGREEMENT (this "Agreement"), dated as of December 21, 2004, is among Macquarie Infrastructure Company LLC, a Delaware limited liability company (the "LLC"), Macquarie Infrastructure Company Trust, a Delaware statutory trust (the "Trust" and, together with the LLC, the "Company"), and Macquarie Infrastructure Management (USA) Inc., a Delaware corporation (the "Manager"), and a holder of Trust Stock (as defined below). RECITALS WHEREAS, the Company has resolved to issue and sell in an underwritten registered initial public offering up to a determined number of shares representing beneficial interests in the Trust; WHEREAS, pursuant to the terms of a Management Services Agreement (the "Management Services Agreement") dated as of the date hereof among the Manager, the LLC, Macquarie Infrastructure Company Inc. and certain directly wholly owned subsidiaries of the LLC (each, a "Managed Subsidiary"; together, the "Managed Subsidiaries"), the LLC and each Managed Subsidiary have agreed to appoint the Manager to manage their respective businesses and affairs as therein described; WHEREAS, in connection with the formation of the Trust and the Company, the Manager purchased one hundred (100) shares of Trust Stock (the "Formation Shares"); WHEREAS, the Manager has agreed to purchase from the LLC, in a separate private placement closing concurrently with the Offering (defined below), 2,000,000 of shares of Trust Stock having an aggregate purchase price of $50 million (the "Manager's Private Placement"), at a per share price equal to the initial public offering price, consisting of (i) 1,400,000 of shares of Trust Stock comprising 70% of the Manager's Private Placement (the "Initial Investment") and (ii) 600,000 shares of Trust Stock comprising 30% of the Manager's Private Placement (the "Additional Initial Investment"). WHEREAS, pursuant to the terms of the Management Services Agreement, the Manager has the right but not the obligation to invest all or a portion of the management fees it receives from the LLC and the Managed Subsidiaries, from time to time, in Trust Stock in accordance with the terms therein (each, a "Management Fee Investment"; together, the "Management Fee Investments"); WHEREAS, as a condition to the Manager's obligation to purchase shares of Trust Stock in the Initial Investment and the Additional Initial Investment, the Company has agreed to enter into this Agreement; WHEREAS, the Company desires to provide the Manager with the rights set forth herein in order to induce the Manager to make Management Fee Investments; and WHEREAS, the parties hereto desire to enter into this Agreement with respect to certain rights and obligations of the Manager in connection with its ownership of the Trust Stock. 2 NOW, THEREFORE, in consideration of the foregoing and the covenants contained herein, the parties agree as follows: SECTION 1 DEFINITIONS 1.1 Definitions. The following terms, when used in this Agreement, shall, except where the context otherwise requires, have the following meanings (such definitions to be equally applicable to the singular and plural forms thereof): "Additional Initial Investment" shall have the meaning set forth in the Recitals hereto. "Business Day" means each Monday, Tuesday, Wednesday, Thursday and Friday that is not a day on which banking institutions in The City of New York are authorized or obligated by law or executive order to close. "Commission" means the Securities and Exchange Commission. "Company Registration Statement" shall have the meaning set forth in Section 3.1. "Deferral Notice" shall have the meaning set forth in Section 4.2. "Effective Period" means, with respect to a Registration Statement, the period commencing from the time such Registration Statement becomes or is declared effective until all Registrable Shares registered under such Registration Statement shall have been sold pursuant thereto or shall have otherwise ceased to be Registrable Shares. "Exchange Act" means the Securities Exchange Act of 1934, as amended. "Formation Shares" shall have the meaning set forth in the Recitals hereto. "Initial Investment" shall have the meaning set forth in the Recitals hereto. "LLC Agreement" means the Amended and Restated Operating Agreement of Macquarie Infrastructure Company LLC dated as of the date hereof. "LLC Interest" means a limited liability company interest in the Company with the terms specified in the LLC Agreement. "Managed Subsidiary" shall have the meaning set forth in the Recitals hereto. "Management Fee Investment" shall have the meaning set forth in the Recitals hereto. 3 "Management Services Agreement" shall have the meaning set forth in the Recitals hereto. "Manager's Private Placement" shall have the meaning set forth in the Recitals hereto. "Material Event" shall have the meaning set forth in Section 4.1(iv). "NASD" means the National Association of Securities Dealers, Inc. "Notice and Questionnaire" shall have the meaning set forth in Section 2.3. "Offering" means the initial public offering of the Trust Stock by the Company. "Person" means any natural person, corporation, firm, partnership, association, government, governmental agency or other entity, whether acting in an individual, fiduciary or other capacity. "Prospectus" means the prospectus included in any Shelf Registration Statement filed in accordance with Section 2 or a Company Registration Statement described in Section 3, as amended or supplemented by any amendment or prospectus supplement, including post-effective amendments, and all materials incorporated by reference or explicitly deemed to be incorporated by reference in such Prospectus. "Public Offering" means the closing of a firm commitment, underwritten registered public offering of the Trust Stock (following the Offering and other than an offering covered by a registration statement relating solely to a sale of securities of the Company pursuant to a stock purchase or other equity plan or a transaction within the scope of Rule 145 promulgated under the Securities Act). "Registrable Shares" means (i) at any time from and after the closing of the Offering, the Formation Shares and all shares of Trust Stock purchased by the Manager as the Additional Initial Investment, (ii) at any time from and after the date that is the first anniversary of the closing of the Offering, 50% of the number of shares of Trust Stock purchased by the Manager as the Initial Investment, (iii) at any time from and after the third anniversary of such closing, the balance of such shares of Trust Stock purchased by the Manager as the Initial Investment and (iv) at any time from and after the closing of the Offering, the number of shares of Trust Stock purchased by the Manager in connection with Management Fee Investments, all shares of Trust Stock purchased by the Manager as the Additional Initial Investment; provided, however, that Registrable Shares shall not include any shares of Trust Stock that have been sold to the public either pursuant to a registration statement or Rule 144 or that have been sold in a private transaction in which the transferor's rights under this Agreement were not assigned. "Registration Expenses" shall have the meaning set forth in Section 6. 4 "Registration Statement" means any Shelf Registration Statement or any Company Registration Statement. "Rule 144" means Rule 144 promulgated under the Securities Act. "Securities Act" means the Securities Act of 1933, as amended. "Shelf Registration Statement" means any of the shelf registration statements referred to in Section 2.1, as amended or supplemented by any amendment or supplement, including post-effective amendments, and all materials incorporated by reference or explicitly deemed to be incorporated by reference in each such Shelf Registration Statement. "Trust Stock" means the shares of beneficial interest of the Trust; provided that in the event that all outstanding shares of beneficial interest of the Trust are exchanged for LLC Interests in accordance with the terms of the LLC Agreement, all references herein to "Trust Stock" or "Shares of Trust Stock" shall automatically be deemed to refer to LLC Interests upon such exchange. Other terms defined herein shall have the meanings assigned to them herein, and capitalized terms used herein without definition shall have the meanings ascribed thereto in the Management Services Agreement. SECTION 2 REGISTRATION UNDER THE SECURITIES ACT 2.1 The Company agrees to file under the Securities Act, as soon as reasonably possible after the first anniversary of the closing of the Offering or, with respect to the offer and sale of the Formation Shares, the Additional Initial Investment or any Management Fee Investments, at such earlier time as the Manager reasonably requests, a Shelf Registration Statement (the "Initial Shelf Registration Statement") providing for the registration, and the sale on a continuous or delayed basis (including through brokers and dealers) by the Manager, of the Registrable Shares it owns on such filing date, pursuant to Rule 415 or any similar rule that may be adopted by the Commission. The Company agrees to use its best efforts to cause the Initial Shelf Registration Statement to become or be declared effective as soon as possible after the filing of the Initial Shelf Registration Statement and to keep the Initial Shelf Registration Statement continuously effective throughout the Effective Period subject to Section 4.2. So long as the Manager holds Registrable Shares or can be reasonably foreseen to acquire Registrable Shares pursuant to future Management Fee Investments that have not been previously registered pursuant hereto the Company agrees, upon request of the Manager, to use its best efforts to file one or more subsequent Shelf Registration Statements (each, a "Subsequent Shelf Registration Statement") (which may include Registrable Securities covered by a prior Shelf Registration Statement) providing for the registration, and the sale on a continuous or delayed basis (including through brokers and dealers) by the Manager, of all such Registrable Shares, pursuant to Rule 415 or any similar rule that may be adopted by the Commission; 5 provided, however, that the Company shall not be obligated to file more than four (4) such subsequent Shelf Registration Statements in any twelve-month period. The Company agrees to use its best efforts to cause each Subsequent Shelf Registration Statement to become or be declared effective as soon as possible after the filing of the Subsequent Shelf Registration Statement and to keep the Subsequent Shelf Registration Statement continuously effective throughout the Effective Period subject to Section 4.2. The Manager shall be named as a selling security holder in such Shelf Registration Statement and the related Prospectus in such a manner as to permit the Manager to deliver such Prospectus to purchasers of Registrable Shares in accordance with applicable law. 2.2 The Company further agrees that it shall cause each Shelf Registration Statement and the related Prospectus, and any amendment or supplement thereto, as of the effective date of such Shelf Registration Statement or such amendment or supplement, (i) to comply in all material respects with the applicable requirements of the Securities Act; and (ii) not to contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein (in the case of the related Prospectus, in light of the circumstances under which they were made) not misleading. If any Shelf Registration Statement, as amended or supplemented from time to time, ceases to be effective for any reason at any time during an Effective Period (other than because all Registrable Shares registered thereunder shall have been sold pursuant thereto or shall have otherwise ceased to be Registrable Shares), the Company shall use its best efforts to obtain the prompt withdrawal of any order suspending the effectiveness thereof. 2.3 The Manager agrees that if it wishes to sell Registrable Shares pursuant to a Shelf Registration Statement and related Prospectus, it will do so only in accordance with this Section 2.3. The Manager agrees to deliver a Notice and Questionnaire, a form of which is attached as Schedule 1 to this Agreement (the "Notice and Questionnaire"), to the Company at least ten (10) Business Days prior to the filing of any Shelf Registration Statement. SECTION 3 PIGGYBACK REGISTRATION 3.1 Right to Piggyback. (a) Subject to the terms and conditions hereof, at any time after the closing of the Offering, whenever the Company proposes to register, either for its own account or the account of a security holder or holders, any shares of Trust Stock under the Securities Act and the form of registration statement (the "Company Registration Statement") to be used, may be used for the registration of Registrable Shares (a "Piggyback Registration"), the Company shall give prompt written notice to the Manager of the Company's intention to effect such a registration and shall include in the Company Registration Statement all Registrable Shares with respect to which the Manager has provided the Company with a written request for inclusion therein within twenty (20) calendar days after the receipt of the Company's notice. 6 (b) Notwithstanding the foregoing, the Company shall not be required to notify the Manager or include Registrable Shares in any registration on (i) Form S-1, S-3 or S-8, or their successor forms, under the Securities Act relating solely to stock purchase or other equity plans, (ii) Form S-4 or successor forms relating solely to a transaction within the scope of Rule 145, or (iii) any other form (other than Form S-1, S-2, S-3, SB-1 or SB-2, or their successor forms) that does not include substantially the same information as would be required to be included in a Shelf Registration Statement covering a registration pursuant to Section 2 above. (c) The Company shall have the right to terminate or withdraw any Company Registration Statement initiated by it under this Section 3 prior to the effectiveness of such Company Registration Statement, whether or not the Manager has elected to include securities in such Company Registration Statement. 3.2 Underwriting. If the Company Registration Statement with respect to which the Company gives notice is for a public offering involving an underwriting, the Company shall so advise the Manager as a part of the written notice given pursuant to Section 3.1(a). In such event, the right of the Manager to be named selling security holder in a Company Registration Statement pursuant to this Section 3 shall be conditioned upon the Manager's participation in such underwriting and the inclusion of the Manager's Registrable Shares in the underwriting to the extent provided herein. The Company and the Manager shall enter into an underwriting agreement in customary form, with the underwriters selected by the Company. 3.3 Cutback. Notwithstanding any other provision of this Section 3 to the contrary, if the representative of the underwriters determines that marketing factors require a limitation of the number of shares to be underwritten, the underwriters and the Company may limit the number of Registrable Shares to be included in the Company Registration Statement and underwriting. In the event of any such limitation of the number of shares of Trust Stock to be underwritten, the Company shall so advise the Manager, and the number of shares included in such Company Registration Statement and underwriting shall be allocated first to the Company for securities being sold for its own account and thereafter to the Manager. If the Manager disapproves of the terms of any such underwriting, it may elect to withdraw therefrom by written notice to the Company and the underwriter, and such Registrable Shares shall be withdrawn from such Company Registration Statement. SECTION 4 REGISTRATION PROCEDURES The following provisions shall apply to any Registration Statement filed pursuant to Sections 2 and 3 hereof. 7 4.1 The Company shall: (i) prepare and file with the Commission a Registration Statement on any form that may be utilized by the Company and that shall permit the disposition of the Registrable Shares in accordance with the intended method or methods thereof, as specified in writing by the Manager; (ii) before filing any Registration Statement or related Prospectus or any amendments or supplements thereto with the Commission, furnish to the Manager copies of all such documents proposed to be filed and reflect in each such document, when so filed with the Commission, such comments as the Manager reasonably shall propose within five (5) Business Days of the delivery of such copies to the Manager; (iii) (A) prepare and file with the Commission such amendments and post-effective amendments to any Registration Statement and file with the Commission any other required document that may be necessary to keep such Registration Statement continuously effective until the expiration of the Effective Period, subject to Section 4.2, (B) cause the related Prospectus to be supplemented by any required Prospectus supplement and, as so supplemented, to be filed pursuant to Rule 424 (or any similar provisions then in force) under the Securities Act, and (C) comply with the provisions of the Securities Act applicable to it with respect to the disposition of all Registrable Shares covered by a Registration Statement during the Effective Period in accordance with the intended methods of disposition by the Manager set forth in a Registration Statement as so amended or such Prospectus as so supplemented; (iv) promptly notify the Manager (A) when each Registration Statement or the Prospectus included therein, or any amendment or supplement to the Prospectus or post-effective amendment, has been filed with the Commission, and, with respect to each Registration Statement or any post-effective amendment, when the same has become effective, (B) of any request, following the effectiveness of each Registration Statement, by the Commission or any other federal or state governmental authority for amendments or supplements to a Registration Statement or related Prospectus or for additional information, (C) of the issuance by the Commission of any stop order suspending the effectiveness of a Registration Statement or the initiation or written threat of any proceedings for that purpose, (D) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Registrable Shares for sale in any jurisdiction or the initiation or written threat of any proceeding for such purpose, (E) of the occurrence of (but not the nature of or details concerning) any event or the existence of any fact (a "Material Event") as a result of which any Registration Statement shall contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading or any Prospectus shall contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading (provided, however, that no notice by the Company shall be required pursuant to this clause (E) in the event that the Company either promptly files a Prospectus supplement to update the 8 Prospectus or a Form 8-K or other appropriate Exchange Act report that is incorporated by reference into a Registration Statement, which, in either case, contains the requisite information with respect to such Material Event that results in such Registration Statement no longer containing any untrue statement of material fact or omitting to state a material fact necessary to make the statements contained therein not misleading), (F) of the determination by the Company that a post-effective amendment to a Registration Statement will be filed with the Commission, which notice may, at the discretion of the Company (or as required pursuant to Section 4.2), state that it constitutes a Deferral Notice, in which event the provisions of Section 4.2 shall apply or (G) at any time during which a Prospectus is required to be delivered under the Securities Act, that a Registration Statement, Prospectus, Prospectus amendment or supplement or post-effective amendment does not conform in all material respects to the applicable requirements of the Securities Act and the rules and regulations of the Commission thereunder; (v) prior to any public offering of the Registrable Shares pursuant to a Registration Statement, use its best efforts to register or qualify or cooperate with the Manager in connection with the registration or qualification (or exemption from such registration or qualification) of such Registrable Shares for offer and sale under the securities or "blue sky" laws of such jurisdictions within the United States as the Manager reasonably requests in writing (which request may be included in the Notice and Questionnaire); (vi) prior to any public offering of the Registrable Shares pursuant to a Registration Statement, use its best efforts to keep each such registration or qualification (or exemption therefrom) effective during the Effective Period in connection with the Manager's offer and sale of Registrable Shares pursuant to such registration or qualification (or exemption therefrom) and do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of such Registrable Shares in the manner set forth in the Registration Statement and the related Prospectus; provided that the Company will not be required to (A) qualify as a foreign corporation or as a dealer in securities in any jurisdiction in which it would not otherwise be required to qualify but for this Agreement, (B) take any action that would subject it to general service of process in suits or to taxation in any such jurisdiction in which it is not then so subject, or (C) become subject to the reporting requirements of such jurisdiction; (vii) use its best efforts to prevent the issuance of and, if issued, to obtain the withdrawal of any order suspending the effectiveness of a Registration Statement, or any post-effective amendment thereto, and to lift any suspension of the qualification of any of the Registrable Shares for sale in any jurisdiction in which they have been qualified for sale, in each case at the earliest practicable date; (viii) upon reasonable notice, for a reasonable period prior to the filing of a Registration Statement, and throughout the applicable Effective Period, make available at reasonable times at the Company's principal place of business or such other reasonable place for inspection by a representative of any underwriter, placement agent or counsel 9 appointed by the Manager in connection with an underwritten offering, such financial and other information and books and records of the Company, and cause the officers, directors, trustees and independent certified public accountants of the Company to respond to such inquiries, as shall be reasonably necessary, in the judgment of the counsel to the Manager, to conduct a reasonable "due diligence" investigation; provided, however, that each such representative appointed by the Manager in connection with an underwritten offering shall be required to maintain in confidence and not to disclose to any other person any information or records reasonably designated by the Company in writing as being confidential, subject to customary exceptions; (ix) if reasonably requested by the Manager, promptly incorporate in a Prospectus supplement or post-effective amendment to a Registration Statement such information as the Manager shall, on the basis of a written opinion of nationally recognized counsel experienced in such matters, determine to be required to be included therein by applicable law and make any required filings of such Prospectus supplement or such post-effective amendment; provided that the Company shall not be required to take any actions under this Section 4.1(viii) that are not, in the reasonable opinion of counsel for the Company, in compliance with applicable law; (x) promptly furnish to the Manager, upon its request and without charge, at least one (1) conformed copy of each Registration Statement and any amendments thereto, including financial statements but excluding schedules, all documents incorporated or deemed to be incorporated therein by reference and all exhibits (unless requested in writing to the Company by the Manager); and (xi) during each Effective Period, deliver to the Manager in connection with any sale of Registrable Shares pursuant to a Registration Statement, without charge, as many copies of the Prospectus relating to such Registrable Shares (including each preliminary Prospectus) and any amendment or supplement thereto as the Manager may reasonably request; and the Company hereby consents (except during such periods in which a Deferral Notice is outstanding and has not been revoked or during any period that is not a "trading window" as defined in the Company's Insider Trading Policy) to the use of such Prospectus or each amendment or supplement thereto by the Manager in connection with any offering and sale of the Registrable Shares covered by such Prospectus or any amendment or supplement thereto in the manner set forth therein. 4.2 Upon (i) the issuance by the Commission of a stop order suspending the effectiveness of a Registration Statement or the initiation of proceedings with respect to a Registration Statement under Section 8(d) or 8(e) of the Securities Act or (ii) the occurrence of any event or the existence of any Material Event as a result of which a Registration Statement shall contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, or any Prospectus shall contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, the Company will (A) in the case of clause (ii) above, subject to the third sentence of this provision, as promptly as practicable, prepare and 10 file a post-effective amendment to such Registration Statement or a supplement to the related Prospectus or any document incorporated therein by reference or file any other required document that would be incorporated by reference into such Registration Statement and Prospectus so that such Registration Statement does not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, and such Prospectus does not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, as thereafter delivered to the purchasers of the Registrable Shares being sold thereunder, and, in the case of a post-effective amendment to a Registration Statement, use best efforts to cause it to be declared effective as promptly as practicable, and (B) in the case of clauses (i) and (ii) above, give notice to the Manager that the availability of a Registration Statement is suspended (a "Deferral Notice"). Upon receipt of any Deferral Notice, the Manager agrees not to sell any Registrable Shares pursuant to a Registration Statement until the Manager's receipt of copies of the supplemented or amended Prospectus provided for in clause (A) above, or until it is advised in writing by the Company that the Prospectus may be used, and has received copies of any additional or supplemental filings that are incorporated or deemed incorporated by reference in such Prospectus. The Company will use its best efforts to ensure that the use of the Prospectus may be resumed (x) in the case of clause (i) above, as promptly as practicable, (y) in the case of clause (ii) above, as soon as, in the sole judgment of the Company, public disclosure of such Material Event would not be prejudicial to or contrary to the interests of the Company or, if necessary to avoid unreasonable burden or expense, as soon as practicable thereafter. 4.3 The Manager agrees that, upon receipt of any Deferral Notice from the Company, the Manager shall forthwith discontinue (and cause any placement or sales agent or underwriters acting on their behalf to discontinue) the disposition of Registrable Shares pursuant to the Registration Statement applicable to such Registrable Shares until the Manager (i) shall have received copies of such amended or supplemented Prospectus and, if so directed by the Company, deliver to the Company (at the Company's expense) all copies, other than permanent file copies, then in the Manager's possession of the Prospectus covering such Registrable Shares at the time of receipt of such notice or (ii) shall have received notice from the Company that the disposition of Registrable Shares pursuant to the Registration Statement may continue. 4.4 The Company may require the Manager in connection with the Registrable Shares as to which any Registration Statement pursuant to Section 2.1 or 3 is being effected to furnish to the Company such information regarding the Manager and the Manager's intended method of distribution of such Registrable Shares as the Company may from time to time reasonably request in writing, but only to the extent that such information is required in order to comply with the Securities Act. The Manager agrees to notify the Company as promptly as practicable of any inaccuracy or change in information previously furnished by the Manager to the Company or of the occurrence of any event in either case as a result of which any Prospectus relating to such Registration Statement contains or would contain an untrue statement of a material fact regarding the Manager or the Manager's intended method of disposition of such Registrable Shares or omits to state any material fact regarding the Manager or the Manager's intended method of disposition of such Registrable Shares required to be stated therein or 11 necessary to make the statements therein not misleading, and promptly to furnish to the Company any additional information required to correct and update any previously furnished information or required so that such Prospectus shall not contain, with respect to the Manager or the disposition of such Registrable Shares, an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading. 4.5 The Company shall comply with all applicable rules and regulations of the Commission and timely file such reports pursuant to the Exchange Act as are necessary in order to make generally available to its security holders as soon as practicable an earnings statement for the purposes of, and to provide the benefits contemplated by, the last paragraph of Section 11(a) of the Securities Act. 4.6 The Company shall provide CUSIP numbers for all Registrable Shares covered by a Registration Statement no later than the effective date of such Registration Statement. 4.7 The Company and the Manager shall provide such information as is required for any filings required to be made with the NASD. 4.8 From the period beginning with the termination of the Management Services Agreement and ending two years after the last Management Fee Investment, the Company will not, and will not permit any of its "affiliates" (as defined in Rule 144) to, resell any of the Securities that have been reacquired by any of them except pursuant to an effective registration statement under the Securities Act. 4.9 The Company shall enter into such customary agreements and take all such other necessary and lawful actions in connection therewith in order to expedite or facilitate disposition of such Registrable Shares. 4.10 Upon (i) the filing of the Initial Shelf Registration Statement and (ii) the effectiveness of the Initial Shelf Registration Statement, the Company shall issue a press release to announce the same. SECTION 5 MANAGER'S OBLIGATIONS The Manager agrees, by acquisition of the Registrable Shares, that it shall not be entitled to sell any of such Registrable Shares pursuant to a Registration Statement or to receive a Prospectus relating thereto, unless it has furnished the Company with a Notice and Questionnaire as required pursuant to Section 2.3 hereof (including the information required to be included in such Notice and Questionnaire) and the information set forth in the next sentence. The Manager agrees promptly to furnish to the Company all information required to be disclosed in order to make the information previously furnished by it to the Company not misleading and any other information regarding the Manager and the distribution of the Registrable Shares that may be required to be disclosed in a Registration Statement under applicable law or pursuant to 12 Commission comments. The Manager agrees, so long as the Management Services Agreement is in effect, to comply with the Company's Insider Trading Policy. The Manager further agrees not to sell any Registrable Shares pursuant to a Registration Statement without delivering, or causing to be delivered, a Prospectus to the purchaser thereof and, within ten (10) Business Days of a request by the Company confirm the amount of Registrable Shares sold pursuant to any Registration Statement. In the absence of a response, the Company may assume that all of the Manager's Registrable Shares were so sold. SECTION 6 REGISTRATION EXPENSES The Company agrees to bear and to pay or cause to be paid promptly upon request being made therefor all expenses incident to the Company's performance of or compliance with this Agreement, including (i) all Commission and any NASD registration and filing fees and expenses, (ii) all fees and expenses in connection with the qualification of the Registrable Shares for offering and sale under the state securities and blue sky laws referred to in Section 4.1(v) hereof, including reasonable fees and disbursements of one counsel for the placement agent or underwriters, if any, in connection with such qualifications, (iii) all expenses relating to the preparation, printing, distribution and reproduction of a Registration Statement, the related Prospectus, each amendment or supplement to each of the foregoing, the certificates representing the Registrable Shares and all other documents relating hereto, (iv) fees and expenses of the registrar and transfer agent for the Trust Stock, (v) fees, disbursements and expenses of counsel and independent certified public accountants of the Company (including the expenses of any opinions or "cold comfort" letters required by or incident to such performance and compliance) and (f) reasonable fees, disbursements and expenses of one counsel for the Manager retained in connection with any underwritten offering of the Registrable Shares pursuant to a Registration Statement, as selected by the Manager and reasonably acceptable to the Company (including the expenses of any opinion), and fees, expenses and disbursements of any other persons, including special experts, retained by the Company in connection with such registration (collectively, the "Registration Expenses"). To the extent that any Registration Expenses are incurred, assumed or paid by the Manager or any placement agent therefor or underwriter thereof, the Company shall promptly after receipt of a documented request therefor reimburse such person for the full amount of the Registration Expenses so incurred, assumed or paid. Notwithstanding the foregoing, the Manager shall pay all placement agent fees and commissions and underwriting discounts and commissions attributable to the sale of the Registrable Shares being registered and the fees and disbursements of any counsel or other advisors or experts retained by the Manager, other than the counsel and experts specifically referred to above. SECTION 7 INDEMNIFICATION 7.1 Indemnification by the Company. The Company will indemnify the Manager, each of its officers, directors and partners, each person controlling the Manager within the meaning of either the Securities Act of 13 the Exchange Act, each underwriter of public offerings effected pursuant to this Agreement, if any, and each person who controls any such underwriter within the meaning of either the Securities Act and the Exchange Act against all claims, losses, expenses, damages and liabilities (or actions, proceedings or settlements with respect thereto) arising out of or based on any untrue statement (or alleged untrue statement) of a material fact contained in any Registration Statement as originally filed or in any amendment thereof, or in any preliminary Prospectus or the Prospectus, or in any Registration Statement, or amendment thereof or supplement thereto, or based on any omission (or alleged omission) to state therein a material fact required to be stated therein or necessary to make the statement therein not misleading (in the case of any preliminary Prospectus or the Prospectus, in the light of the circumstances under which they were made), or any violation or alleged violation by the Company of the Securities Act, the Exchange Act or any state securities law applicable to the Company or any rule or regulation promulgated under the Securities Act, the Exchange Act or any such state law and relating to action or inaction required of the Company in connection with any such Registration Statement as originally filed or any amendment thereof, preliminary Prospectus or Prospectus. The Company will reimburse the Manager, each of its officers, directors and partners, and each person controlling the Manager, each such underwriter and each person who controls any such underwriter for any reasonable legal and any other expenses incurred in connection with investigating, defending or settling any such claim, loss, damage, liability or action; provided, however, that the indemnity agreement contained in this Section 7.1 shall not apply to amounts paid in settlement of any such claim, loss, damage, liability or action if such settlement is effected without the consent of the Company (which consent shall not be unreasonably withheld); and provided further that the Company will not be liable in any such case to the extent that any such claim, loss, damage or liability arises out of or is based on any untrue statement or omission based upon written information furnished to the Company by the Manager or underwriter specifically for use therein. The foregoing indemnity agreement with respect to any preliminary Prospectus shall not inure to the benefit of the Manager or underwriter, or any person controlling the Manager, or underwriter, from whom the persons asserting any such losses, claims, damages or liabilities purchased shares in the offering, if a copy of the Prospectus (as then amended or supplemented if the Company shall have furnished any amendments or supplements thereto) was not sent or given by or on behalf of the Manager or underwriter to such person at or prior to the written confirmation of the sale of the shares to such person, and if the Prospectus (as so amended or supplemented) would have cured the defect giving rise to such loss, claim, damage or liability. 7.2 Indemnification by the Manager. The Manager will, as to each registration in which the Manager participates, indemnify the Company, each of its directors and officers, each underwriter and each person who controls the Company or such underwriter within the meaning of either the Securities Act or the Exchange Act, and the Manager, each of its officers, directors and partners and each person controlling the Manager, against all claims, losses, expenses, damages and liabilities (or actions, proceedings or settlements in respect thereof) arising out of or based on any untrue statement (or alleged untrue statement) of a material fact contained in any Registration Statement as originally filed or in any amendment thereof, or in any preliminary Prospectus or the Prospectus, or any omission (or alleged omission) to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading (in the case of any preliminary 14 Prospectus or the Prospectus, in the light of the circumstances under which they were made), and will reimburse the Company, and each of its directors, officers, partners, underwriters and controlling persons for any reasonable legal and any other expenses incurred in connection with investigating, defending or settling any such claim, loss, damage, liability or action, in each case to the extent, but only to the extent, that such untrue statement (or alleged untrue statement) or omission (or alleged omission) is made in any such Registration Statement as originally filed or any amendment thereof, preliminary Prospectus or Prospectus, in reliance upon and in conformity with written information furnished to the Company by the Manager specifically for use therein; provided, however, that (i) the indemnity agreement contained in this Section 7.2 shall not apply to amounts paid in settlement of any such claim, loss, damage, liability or action if such settlement is effected without the consent of the Manager (which consent shall not be unreasonably withheld) and (ii) that the total amount for which the Manager shall be liable under this Section 7.2. shall not in any event exceed the aggregate net proceeds received by the Manager from the sale of Registrable Shares held by the Manager in such registration. 7.3 Indemnification Procedures. Each party entitled to indemnification under this Section 7 (the "Indemnified Party") shall give notice to the party required to provide indemnification (the "Indemnifying Party") promptly after such Indemnified Party has actual knowledge of any claim as to which indemnity may be sought, and shall permit the Indemnifying Party to assume the defense of any such claim or any litigation resulting therefrom; provided that counsel for the Indemnifying Party proposed to conduct the defense of such claim or litigation shall be approved by the Indemnified Party (whose approval shall not be unreasonably withheld), and the Indemnified Party may participate in such defense at such Indemnified Party's election and expense; provided further, that the failure of any Indemnified Party to give notice as provided herein shall not relieve the Indemnifying Party of its obligations hereunder, unless such failure resulted in prejudice to the Indemnifying Party; and provided further, that an Indemnified Party (together with all other Indemnified Parties which may be represented without conflict by one counsel) shall have the right to retain one separate counsel, with the fees and expenses of such counsel to be paid by the Indemnifying Party, if representation of such Indemnified Party by the counsel retained by the Indemnifying Party would be inappropriate due to actual or potential differing interests between such Indemnified Party and any other party represented by counsel for the Indemnifying Party in such proceeding. No Indemnifying Party, in the defense of any such claim or litigation, shall, except with the consent of each Indemnified Party, consent to entry of any judgment or enter into any settlement which does not include as an unconditional term thereof the giving by the claimant or plaintiff to all Indemnified Parties of a release from all liability in respect to such claim or litigation. 7.4 Survival; Contribution. (a) The indemnification provided for under this Agreement shall remain in full force and effect regardless of any investigation made by or on behalf of the Indemnified Party or any officer, director or controlling person of such Indemnified Party and shall survive the transfer of securities. If the indemnification provided for in this Section 7 is held by a court of competent jurisdiction to be unavailable to an Indemnified Party with respect to any losses, 15 claims, damages or liabilities referred to herein, the Indemnifying Party, in lieu of indemnifying such Indemnified Party hereunder, shall, to the extent permitted by applicable law, contribute to the amount paid or payable by such Indemnified Party as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect the relative fault of the Indemnifying Party on the one hand, and of the Indemnified Party, on the other, in connection with the circumstances that resulted in such loss, claim, damage or liability, as well as any other relevant equitable considerations. The relative fault of the Indemnifying Party and of the Indemnified Party shall be determined by a court of law by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission to state a material fact relates to information supplied by the Indemnifying Party or by the Indemnified Party and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. (b) Notwithstanding anything in this Section 7 to the contrary, to the extent that the provisions on indemnification and contribution contained in the underwriting agreement entered into in connection with the underwritten public offering are in conflict with the foregoing provisions, the provisions of the underwriting agreement shall control. SECTION 8 PARTICIPATION IN UNDERWRITTEN REGISTRATIONS 8.1 No person may participate in any registration hereunder which is underwritten unless the person (i) agrees to accept the terms of the underwriting agreement as agreed upon by the Company and the underwriters selected in accordance with this Agreement, and (ii) completes and executes all questionnaires, powers of attorney, indemnities, underwriting agreements and other documents required under the terms of such underwriting arrangements. SECTION 9 REPORTS UNDER THE SECURITIES LAWS 9.1 With a view to making available to the Manager the benefits of Rule 144 and any other rule or regulation of the Commission that may at any time permit the Manager to sell shares of Trust Stock to the public without registration, the Company agrees to use its commercially reasonable efforts to: (a) make and keep public information available, as those terms are understood and defined in Rule 144, at all times subsequent to ninety (90) days after the effective date of any registration statement covering an underwritten public offering filed under the Securities Act by the Company; (b) file with the Commission in a timely manner all reports and other documents required of the Company under the Securities Act and the Exchange Act at any time after it is subject to the reporting requirements thereof; and (c) furnish to the Manager upon request a written statement by the Company that it has complied with the reporting requirements of Rule 144 (at any time after ninety 16 (90) days after the effective date of the registration statement filed by the Company), and of the Securities Act and the Exchange Act (at any time after it has become subject to such reporting requirements), a copy of the most recent annual or quarterly report of the Company, and such other reports and documents so filed by the Company as may be reasonably requested by the Manager in availing itself of any rule or regulation of the Commission permitting the selling of any of the securities without registration. SECTION 10 TRANSFER OF REGISTRATION RIGHTS Provided that the Company is given written notice by the Manager at the time of any transfer of Registrable Shares by the Manager stating the name and address of the transferee of such Registrable Shares and identifying the securities with respect to which the rights under this Agreement are being assigned, the rights of the Manager under Sections 2 and 3 of this Agreement may be assigned to a transferee or assignee who (i) receives the number of shares equal to the number of shares acquired by the Manager in the Additional Initial Investment (as adjusted for stock dividends, stock splits, recapitalizations and the like that occur after the date of this Agreement) or (ii) is a subsidiary, affiliate, parent, general partner, limited partner or retired partner of the Manager, so long as such transfer of securities is in accordance with the LLC Agreement and any other agreements with the Company regarding transfer of Registrable Shares and all applicable state and federal securities laws and regulations, and provided further that the transferee or assignee of such rights assumes in writing the obligations of the Manager under this Agreement. The Company may prohibit the transfer of the Manager's rights under this Section to any proposed transferee or assignee who the Company reasonably believes is a competitor of the Company. SECTION 11 INFORMATION FURNISHED BY THE MANAGER The Manager shall furnish to the Company such information regarding the Manager and the distribution proposed by the Manager as the Company may reasonably request in writing and as shall be reasonably required in connection with any registration, qualification or compliance referred to in this Agreement. SECTION 12 MISCELLANEOUS 12.1 Representations. Each of the parties hereto represents that this Agreement has been duly authorized, executed and delivered by such party and constitutes a legal, valid and binding obligation of such party, enforceable against it in accordance with the terms of this Agreement, except (i) as limited by applicable bankruptcy, insolvency, reorganization, moratorium, and other laws of general application affecting enforcement of creditors' rights generally, (ii) as limited by laws relating to the availability of specific performance, injunctive relief, or other equitable 17 remedies and (iii) to the extent that the indemnification provisions contained in this Agreement may be limited by applicable laws. 12.2 Expenses. Except as provided in Section 6, the Company and the Manager shall each bear their own expenses incurred with respect to this Agreement. 12.3 Notices. All notices and other communications required or permitted under this Agreement shall be deemed to have been duly given and made if in writing and if served by personal delivery to the party for whom intended, by facsimile transmission, by telegram or telex or by registered or certified mail (postage prepaid, return receipt requested), sent to the following addresses (or such other address for a party as shall be specified by like notice): (a) If to the Company: Macquarie Infrastructure Company LLC 600 Fifth Avenue, 21st Floor New York, New York 10020 Facsimile: (212) 581-8037 Attention: David Mitchell (b) If to the Manager: Macquarie Infrastructure Management (USA) Inc. 600 Fifth Avenue, 21st Floor New York, New York 10020 Facsimile: (212) 581-8037 Attention: Stephen Peet (c) If to the Trust: Macquarie Infrastructure Company Trust 600 Fifth Avenue, 21st Floor New York, New York 10020 Facsimile: (212) 581-8037 Attention: Peter Stokes 12.4 Waiver. No delay on the part of any party hereto with respect to the exercise of any right, power, privilege or remedy under this Agreement shall operate as a waiver thereof, nor shall any exercise or partial exercise of any such right, power, privilege or remedy preclude any further exercise thereof or the exercise of any other right, power, privilege or remedy. No modification or waiver by either party hereto of any provision of this Agreement, or consent to any departure 18 by the other party therefrom, shall be effective in any event unless in writing as set forth in Section 12.12 hereof, and then only in the specific instance and for the purpose for which given. Notwithstanding the foregoing, each party hereto shall have the right to waive compliance by the other party with any of the provisions hereof, or to modify such provisions to a less restrictive obligation of the other party on such terms as such party shall determine, with or without prior notice to the other party. 12.5 Remedies. The rights, powers, privileges and remedies hereunder are cumulative and not exclusive of any other right, power, privilege or remedy the parties hereto would otherwise have. 12.6 Entire Agreement. This Agreement constitutes the entire agreement and understanding between the Manager and the Company, and supersedes all prior agreements and understandings relating to the subject matter hereof. 12.7 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of New York. 12.8 Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original but all of which together shall constitute one and the same instrument. The execution and delivery of this Agreement by facsimile shall have the same force and effect as delivery of original signatures and each party may use such facsimile signatures as evidence of the execution and delivery of this Agreement by all parties to the same extent that an original signature could be used. 12.9 Severability. Any provision of this Agreement which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions of this Agreement or affecting the validity or enforceability of such provision in any other jurisdiction. 12.10 Headings. The various headings of this Agreement are inserted for convenience only and shall not affect the meaning or interpretation of this Agreement or any provisions hereof. 19 12.11 Amendment and Waiver. Except as otherwise provided herein, no modification, amendment or waiver of any provision of this Agreement will be effective unless such modification, amendment or waiver is approved in writing by the Company and the Manager and any such amendment, waiver, discharge or termination shall be binding on the Company and the Manager. Any term of this Agreement may be amended and the observance of any term of this Agreement may be waived (either generally or in a particular instance and either retroactively or prospectively) only with the written consent of the Company and the written consent of the Manager. Any amendment or waiver effected in accordance with this Section 12.11 shall be binding upon the Company and the Manager, and each of their respective successors and permitted assigns. 12.12 Succession and Assignment. Except as otherwise expressly provided herein, the provisions hereof shall inure to the benefit of, and be binding upon, the successors, permitted assigns, heirs, executors and administrators of the parties hereto. Except as otherwise expressly provided to the contrary, the provisions of this Agreement and the rights and obligations of the parties hereunder shall inure to the benefit of, and be binding upon, the Company and its successors and assigns and be binding upon the Manager and each of the Manager's legal representatives, heirs, legatees, distributees, permitted assigns and transferees by operation of law, whether or not any such person has become a party to this Agreement or has agreed in writing to join herein and to be bound by the terms, conditions and restrictions hereof, and shall not otherwise be for the benefit of any third party. 12.13 Information Confidential. Each party hereto acknowledges that the information received pursuant hereto may be confidential and for its use only, and it will not use such confidential information in violation of the Exchange Act or reproduce, disclose or disseminate such information to any other person (other than its employees or agents having a need to know the contents of such information and its attorneys), except in connection with the exercise of rights under this Agreement, unless such information is available to the public generally or such party is required by a governmental body to disclose such information. 12.14 Right to Enforcement. The Manager shall have the right to directly enforce the agreements made hereunder by the Company, to the extent they deem such enforcement necessary or advisable to protect its rights. 20 IN WITNESS WHEREOF, the parties hereto have each executed this Registration Rights Agreement as of the date first written above. THE LLC: MACQUARIE INFRASTRUCTURE COMPANY LLC /s/ David M. Mitchell ______________________________ Name: David M. Mitchell Title: Chief Financial Officer THE TRUST: MACQUARIE INFRASTRUCTURE COMPANY TRUST /s/ Peter Stokes ______________________________ Name: Peter Stokes Title: Regular Trustee THE MANAGER: MACQUARIE INFRASTRUCTURE MANAGEMENT (USA) INC. /s/ John B. Mullin ______________________________ Name: John B. Mullin Title: Secretary/Treasurer SCHEDULE 1 FORM OF NOTICE AND QUESTIONNAIRE SHARES OF TRUST STOCK OF MACQUARIE INFRASTRUCTURE COMPANY TRUST Macquarie Infrastructure Management (USA) Inc. (the "Manager"), beneficial holder of [_______] shares of beneficial interest (the "Registrable Shares") of Macquarie Infrastructure Company Trust (the "Trust"), understands that Macquarie Infrastructure Company LLC (the "LLC", and together with the Trust, the "Company") and the Trust have filed or intend to file with the Securities and Exchange Commission (the "Commission") a registration statement on Form S-3 (the "Shelf Registration Statement") for the registration and resale under Rule 415 of the Securities Act of 1933, as amended (the "Securities Act"), of the Registrable Shares in accordance with the terms of the Trust Stock Registration Rights Agreement (the "Registration Rights Agreement") to be dated as of [______], 2004 between the Company and the Manager. All capitalized terms not otherwise defined herein shall have the meanings ascribed thereto in the Registration Rights Agreement. The Manager, as a beneficial owner of Registrable Shares, is entitled to the benefits of the Registration Rights Agreement. In order to sell or otherwise dispose of any Registrable Shares pursuant to the Shelf Registration Statement, the Manager generally will be required to be named as a selling security holder in the related Prospectus and to deliver a Prospectus to purchasers of Registrable Shares. If the Manager does not complete this Notice and Questionnaire and deliver it to the Company as provided below, the Manager will not be named as a selling security holder in the Prospectus and therefore will not be permitted to sell any Registrable Shares pursuant to a Shelf Registration Statement. Upon receipt of a completed Notice and Questionnaire from the Manager following the effectiveness of any Shelf Registration Statement, the Company will, as promptly as practicable but in any event within five Business Days of such receipt, file such amendments to the Shelf Registration Statement or supplements to the related Prospectus as are necessary to permit the Manager to deliver such Prospectus to purchasers of Registrable Shares. Certain legal consequences arise from being named as a selling security holder in the Shelf Registration Statement and the related Prospectus. Accordingly, the Manager, as a holder and beneficial owner of Registrable Shares, is advised to consult its own securities law counsel regarding the consequences of being named or not being named as a selling security holder in the Shelf Registration Statement and the related Prospectus. NOTICE The Manager hereby gives notice to the Company of its intention to sell or otherwise dispose of Registrable Shares beneficially owned by it and listed below in Item 3 (unless otherwise specified under Item 3) pursuant to a Shelf Registration Statement. The Manager, by signing and returning this Notice and Questionnaire, understands that it will be Sch-1-1 bound by the terms and conditions of this Notice and Questionnaire and the Registration Rights Agreement. Pursuant to the Registration Rights Agreement, the Manager has agreed to indemnify and hold harmless the Company's directors and officers and each person, if any, who controls the Company within the meaning of either the Securities Act or the Securities Exchange Act of 1934, as amended (the "Exchange Act"), from and against certain losses arising in connection with statements concerning the undersigned made in a Shelf Registration Statement or the related Prospectus in reliance upon the information provided in this Notice and Questionnaire. Sch-1-2 QUESTIONNAIRE COMPLETED AND EXECUTED NOTICE AND QUESTIONNAIRE SHOULD BE RETURNED TO THE COMPANY AS FOLLOWS: 1 COPY BY FACSIMILE TO [________], FAX: [________] WITH THE ORIGINAL COPY TO FOLLOW TO: MACQUARIE INFRASTRUCTURE COMPANY LLC AT: 600 Fifth Avenue, 21st Floor New York, New York 10020 Attention: Peter Stokes The undersigned hereby provides the following information to the Company and represents and warrants that such information is accurate and complete. 1. Full legal name of the Manager, as a selling security holder: Macquarie Infrastructure Management (USA) Inc. (a) Full legal name of The Depository Trust Company Participant (if applicable) through which Registrable Shares listed in (3) below are held: Name:_______________________________________________________________ DTC No.: ___________________________________________________________ Contact Person: ___________________________________________________ Telephone No.: _____________________________________________________ (b) Are you a broker-dealer registered pursuant to Section 15 of the Exchange Act? ____________________________________________________________________ (c) If your response to Item 1(b) above is no, are you an "affiliate" of a broker-dealer registered pursuant to Section 15 of the Exchange Act? ____________________________________________________________________ For the purposes of this Item 1(c), an "affiliate" of a registered broker-dealer shall include any company that directly, or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with, such broker-dealer, and does not include any individuals employed by such broker-dealer or its affiliates. Sch-1-3 2. Address for notices to Manager: 600 Fifth Avenue, 21st Floor New York, New York 10020 Telephone, including area code: [________] Fax, including area code: (212) 581-8037 Contact Person: 3. Beneficial ownership of Registrable Shares: (a) Number of Registrable Shares beneficially owned: _____ shares of beneficial interest of Macquarie Infrastructure Company Trust (b) CUSIP No(s). of such Registrable Shares beneficially owned: ____________________________________________________________________ ____________________________________________________________________ 4. Beneficial Ownership of the Trust securities (other than Registrable Securities) owned by the Manager: EXCEPT AS SET FORTH BELOW IN THIS ITEM (4), THE UNDERSIGNED IS NOT THE BENEFICIAL OR REGISTERED OWNER OF ANY SHARES OF TRUST STOCK OTHER THAN THE REGISTRABLE SHARES LISTED ABOVE IN ITEM (3). (a) Type and Amount of other shares of Trust Stock beneficially owned by the Manager: ____________________________________________________________________ ____________________________________________________________________ (b) CUSIP No(s). of such other shares of Trust Stock beneficially owned: ____________________________________________________________________ ____________________________________________________________________ 5. Nature of Beneficial Ownership: (a) Full legal name of Manager's controlling stockholders who have sole or shared voting or dispositive power over the Registrable Shares: ____________________________________________________________________ (b) Business address (including street address)(or residence if no business address), telephone number and facsimile number of such person(s): Address: ___________________________________________________________ ____________________________________________________________________ ____________________________________________________________________ Sch-1-4 Telephone: _________________________________________________________ Fax: _______________________________________________________________ 6. Plan of Distribution: Except as set forth below, the Manager (including its donees or pledgees) intends to distribute the Registrable Shares listed above in Item (3) pursuant to the Shelf Registration Statement only as follows (if at all): Such Registrable Shares may be sold from time to time directly by the Manager or alternatively through underwriters or broker-dealers or agents. If the Registrable Shares are sold through underwriters or broker-dealers, the Manager will be responsible for underwriting discounts or commissions or agents' commissions. Such Registrable Shares may be sold in one or more transactions at fixed prices, at prevailing market prices at the time of sale, at varying prices determined at the time of sale, or at negotiated prices. Such sales may be effected in transactions (which may involve block transactions) (i) on any national securities exchange or quotation service on which the Registrable Shares may be listed or quoted at the time of sale, (ii) in the over-the-counter market, (iii) in transactions otherwise than on such exchanges or services or in the over-the-counter market or (iv) through the writing of options. In connection with sales of the Registrable Shares or otherwise, the undersigned may enter into hedging transactions with broker-dealers, which may in turn engage in short sales of the Registrable Shares, and deliver Registrable Shares to close out such short positions, or loan or pledge Registrable Shares to broker-dealers that in turn may sell such securities. State any exceptions here: __________________________________________________________________________ __________________________________________________________________________ __________________________________________________________________________ Note: In no event will such method(s) of distribution take the form of an underwritten offering of the Registrable Shares without the prior agreement of the Company. The Manager acknowledges that it understands its obligation to comply with the provisions of the Exchange Act, and the rules thereunder relating to stock manipulation, particularly Regulation M thereunder (or any successor rules or regulations), and the provisions of the Securities Act relating to Prospectus delivery, in connection with any offering of Registrable Shares pursuant to a Shelf Registration Statement. The Manager agrees that neither it nor any person acting on its behalf will engage in any transaction in violation of such provisions. The Manager hereby acknowledges its obligations under the Registration Rights Agreement to indemnify and hold harmless certain persons set forth therein. Pursuant to the Registration Rights Agreement, the Company has agreed under certain circumstances to indemnify the Manager against certain liabilities. In accordance with the Manager's obligation under the Registration Rights Agreement to provide such information as may be required by law for inclusion in a Shelf Registration Statement, the Manager agrees to promptly notify the Company of any inaccuracies or changes in Sch-1-5 the information provided herein that may occur subsequent to the date hereof at any time while a Shelf Registration Statement remains effective. All notices to the Manager hereunder and pursuant to the Registration Rights Agreement shall be made in writing to the Manager at the address set forth in Item 1(a) of this Notice and Questionnaire. By signing below, the Manager acknowledges that it is the beneficial owner of the Registrable Shares set forth herein, represents that the information herein is accurate and consents to the disclosure of the information contained herein in its answers to Items (1) through (6) above and the inclusion of such information in a Shelf Registration Statement and the related Prospectus. The undersigned understands that such information will be relied upon by the Company in connection with the preparation or amendment of a Shelf Registration Statement and the related Prospectus. Once this Notice and Questionnaire is executed by the undersigned beneficial owner and received by the Company, the terms of this Notice and Questionnaire, and the representations and warranties contained herein, shall be binding on, shall inure to the benefit of and shall be enforceable by the respective successors, heirs, personal representatives and assigns of the Company and the Manager. This Agreement shall be governed in all respects by the laws of the State of New York. IN WITNESS WHEREOF, the Manager, by authority duly given, has caused this Notice and Questionnaire to be executed and delivered either in person or by its duly authorized agent. THE MANAGER: MACQUARIE INFRASTRUCTURE MANAGEMENT (USA) INC. ___________________________________ Name: Title: Dated: Sch-1-6 -----END PRIVACY-ENHANCED MESSAGE-----