AMENDED AND RESTATED 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...
Exhibit 10.1
AMENDED AND RESTATED
MANAGEMENT SERVICES AGREEMENT
MANAGEMENT SERVICES AGREEMENT
AMONG
MACQUARIE INFRASTRUCTURE COMPANY LLC,
MACQUARIE INFRASTRUCTURE COMPANY INC.,
MACQUARIE YORKSHIRE LLC,
SOUTH EAST WATER LLC,
COMMUNICATIONS INFRASTRUCTURE LLC
MACQUARIE INFRASTRUCTURE COMPANY INC.,
MACQUARIE YORKSHIRE LLC,
SOUTH EAST WATER LLC,
COMMUNICATIONS INFRASTRUCTURE LLC
AND
MACQUARIE INFRASTRUCTURE MANAGEMENT (USA) INC.
Dated as of June 22, 2007
TABLE OF CONTENTS
Page | ||||
ARTICLE I |
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DEFINITIONS |
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ARTICLE II |
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APPOINTMENT OF THE MANAGER |
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Section 2.1 Appointment
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15 | |||
Section 2.2 Initial Investment
|
15 | |||
Section 2.3 Agreement to Bind Subsidiaries
|
15 | |||
Section 2.4 Term
|
15 | |||
ARTICLE III |
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SERVICES TO BE PERFORMED BY THE MANAGER |
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Section 3.1 Duties of the Manager
|
16 | |||
Section 3.2 Obligations of the Company and the Managed Subsidiaries
|
20 | |||
ARTICLE IV |
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POWERS OF THE MANAGER |
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Section 4.1 Powers of the Manager
|
22 | |||
Section 4.2 Delegation
|
22 | |||
Section 4.3 Manager’s Duties Exclusive
|
23 | |||
ARTICLE V |
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INSPECTION OF RECORDS |
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Section 5.1 Books and Records 23 |
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ARTICLE VI |
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AUTHORITY OF THE COMPANY, |
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THE MANAGED SUBSIDIARIES AND THE MANAGER |
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ARTICLE VII |
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MANAGEMENT FEES |
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Section 7.1 Structuring Fee
|
23 |
i
Page | ||||
Section 7.2 Base Management Fees
|
24 | |||
Section 7.3 Performance Fee.
|
24 | |||
Section 7.4 Registration Rights
|
25 | |||
Section 7.5 Ability to Issue LLC Interests
|
26 | |||
ARTICLE VIII |
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SECONDMENT OF PERSONNEL BY THE MANAGER |
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Section 8.1 Secondment of CEO and CFO
|
26 | |||
Section 8.2 Remuneration of CEO and CFO
|
26 | |||
Section 8.3 Secondment of Additional Personnel
|
26 | |||
Section 8.4 Removal of Seconded Individuals
|
27 | |||
Section 8.5 Indemnification
|
27 | |||
ARTICLE IX |
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EXPENSE REIMBURSEMENT |
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Section 9.1 Company Expenses
|
27 | |||
ARTICLE X |
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RESIGNATION AND REMOVAL OF THE MANAGER |
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Section 10.1 Resignation by the Manager
|
29 | |||
Section 10.2 Removal of the Manager
|
29 | |||
Section 10.3 Withdrawal of Branding
|
31 | |||
Section 10.4 Resignation of the Chairman and the Seconded Officers
|
31 | |||
Section 10.5 Directions
|
31 | |||
ARTICLE XI |
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INDEMNITY |
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Section 11.1 Indemnification of Manager
|
31 | |||
Section 11.2 Indemnification of Company
|
32 | |||
Section 11.3 Indemnification
|
33 | |||
ARTICLE XII |
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LIMITATION OF LIABILITY OF THE MANAGER |
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Section 12.1 Limitation of Liability
|
33 | |||
Section 12.2 Manager May Rely
|
33 |
ii
Page | ||||
ARTICLE XIII |
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LEGAL ACTIONS |
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Section 13.1 Third Party Claims |
34 | |||
ARTICLE XIV |
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MISCELLANEOUS |
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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
|
35 | |||
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
AMENDED AND RESTATED MANAGEMENT SERVICES AGREEMENT (this “Agreement”), dated as of June 22,
2007 and effective as of June 25, 2007, 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, the Managed Subsidiaries and the Manager are parties to a Management
Services Agreement dated as of December 21, 2004 (the “Original Agreement“);
WHEREAS, the Company, the Managed Subsidiaries and the Manager wish to amend and restate the
Original Agreement to reflect the dissolution of the Trust (as defined below) and
the exchange (the “Exchange”) of all issued and outstanding shares of Trust Stock (as defined
below) for LLC Interests (as defined below) of the Company;
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 Interests” means the aggregate number of LLC Interests issued in an Additional
Offering (including any LLC Interests issued pursuant to the exercise of an over-allotment option).
“Additional Offering” means for any Fiscal Quarter in which a Performance Fee is being
calculated any offering of LLC Interests in which the total number of LLC Interests issued in such
offering equals or exceeds 15% of the total number of LLC Interests issued and outstanding
immediately prior to such offering; provided that “Additional Offering” shall not include:
(i) any issuance of LLC Interests to the Manager pursuant to Article VII hereof;
(ii) the issuance of any LLC Interests 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 LLC Interests or options or rights to purchase those LLC
Interests 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;
or
(iv) the issuance of LLC interests to the Manager in exchange for an equal number of
shares of Trust Stock previously held by the Manager pursuant to the Exchange.
“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 LLC Accumulation Index” means, with
respect to the relevant Additional Interests, the Additional Offering Macquarie Infrastructure
Company LLC Accumulation Index calculated by Xxxxxx Xxxxxxx 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 LLC Accumulation Index is not calculated by Xxxxxx Xxxxxxx Capital
International Inc., the Manager shall cause the institution then used to calculate the Macquarie
Infrastructure Company LLC Accumulation Index to calculate the Additional Offering Macquarie
Infrastructure Company LLC 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;
2
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.
“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
Interests; 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 Interests through
and including the Fiscal Quarter End Date of such Fiscal Quarter.
“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 Amended and Restated 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.
3
“Bankruptcy Law” means title 11, United States Code or any similar federal or state law for
the relief of debtors.
“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.
4
“Benchmark Return” means the amount expressed in USD in respect of a Fiscal Quarter in
accordance with the following formula:
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 LLC Interests, or for periods prior to the dissolution of the Trust, 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 Interests 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 Interests 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 Interests 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. |
5
“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 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.
“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 LLC Interests by third parties in an amount that results in the LLC Interests
ceasing to be listed on a recognized U.S. national securities exchange because the LLC Interests
ceased to meet the distribution and trading criteria of such exchange or market.
6
“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 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” shall have the meaning set forth in the preamble to this agreement.
“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.
“IBF” has the meaning set forth in Section 3.1(b)(iii).
“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 LLC Accumulation
Index” means the initial value designated at the time of the establishment of the relevant
Additional Offering Macquarie Infrastructure Company LLC Accumulation Index,
7
which shall be based on the offering price of the Additional Interests issued in the relevant
Additional Offering.
“Initial Level of the Macquarie Infrastructure Company LLC 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.
“Liabilities” has the meaning set forth in Section 11.1.
“LLC Agreement” means the Third Amended and Restated Operating Agreement of Macquarie
Infrastructure Company LLC dated as of June 22, 2007.
“LLC Interest” means a limited liability company interest in the Company in accordance with
the LLC Agreement.
“LLC Interest Certificate” means a certificate representing LLC Interests.
“LLC Interest 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 LLC Interest Price Period
shall begin on the third Trading Day following the Earnings Release Date.
“Manager Affiliate” means any Affiliate of the Manager other than 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 Company or any Subsidiary of the Company.
“Macquarie Infrastructure Company LLC Accumulation Index” means the Macquarie Infrastructure
Company LLC Accumulation Index, or the Macquarie Infrastructure Company Trust Accumulation Index
prior to the dissolution of the Trust, as calculated by Xxxxxx Xxxxxxx Capital
International Inc., in accordance with the methodology used to calculate the MSCI U.S.
IMI/Utilities Index and the MSCI Europe Utilities Index from time to time. In the event that the
indices used in the calculation of the Benchmark Return are not calculated by Xxxxxx Xxxxxxx
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 LLC
Accumulation Index in a manner consistent with the methodology used to calculate the MSCI U.S.
IMI/Utilities Index and the MSCI Europe Utilities Index.
“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.
8
“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 LLC Interests” means the product of (1) the average number of LLC
Interests, or for periods prior to the dissolution of the Trust, shares of Trust
Stock, issued and outstanding, other than those held in treasury, 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 LLC Interest, or for periods prior to the dissolution
of the Trust, 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.
“MSCI Europe Utilities Index” means the total return equity index with that name calculated in
USD and published by Xxxxxx Xxxxxxx 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 Xxxxxx Xxxxxxx 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 LLC Interests; 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
9
(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.
“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:
10
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 LLC Interests, or for periods prior to the dissolution of the Trust, shares of Trust Stock, other than those included in the calculation of R2; | |||
A1 = the average number of LLC Interests, or for periods prior to the dissolution of the Trust, shares of Trust Stock, issued and outstanding, other than those held in treasury, 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 Quarter) multiplied by the volume weighted average trading price per LLC Interest, or for periods prior to the dissolution of the Trust, 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 LLC Accumulation Index, or Macquarie Infrastructure Company Trust Accumulation Index prior to the dissolution of the Trust, 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 |
11
C1 = the average of the daily closing Macquarie Infrastructure Company LLC Accumulation Index, or Macquarie Infrastructure Company Trust Accumulation Index prior to the dissolution of the Trust, 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 Interests issued during such Fiscal Quarter; | |||
A2 = the number of such Additional Interests times the per share offer price for those Additional Interests; | |||
B2 = the Initial Level of the Additional Offering Macquarie Infrastructure Company LLC Accumulation Index applicable to such Additional Interests; and | |||
C2 = the average of the daily closing Additional Offering Macquarie Infrastructure Company LLC Accumulation Index applicable to such Additional Interests 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 Interests through and including the Fiscal Quarter End Date of such Fiscal Quarter. |
“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).
“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
12
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 LLC Interest 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 per LLC Interest
stated in (i) above multiplied by the aggregate number of LLC Interests issued and outstanding,
other than those held in treasury, 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 LLC Interest stated in (i) above
multiplied by the aggregate number of LLC Interests issued and outstanding, other than those held
in treasury, 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, or its ultimate parent company, and their respective subsidiaries and affiliates
worldwide.
“Trading Day” means a day during which trading in securities generally occurs on the NYSE or,
if the LLC Interests, or Trust Stock prior to the dissolution of the Trust, are not
listed on the NYSE, on the principal other national or regional securities exchange or interdealer
quotation system on which the LLC Interests or Trust Stock are then listed or quoted.
“Trust” means Macquarie Infrastructure Company Trust, which prior to its dissolution, held one hundred percent (100%) of the ownership interest in the Company.
“Trust Stock” means the shares of beneficial interest of the Trust.
“USD” means the lawful currency of the United States of America.
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“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 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;
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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.
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 acquired 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 (including the LLC Interests issued upon the Exchange,
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 any time. 70% of the Initial
Investment had to be held for a period of not less than 12 months from the Commencement Date, which
period has concluded. 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.
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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:”
(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;
(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 within
the IB Funds Division (or any successor thereto) of the Macquarie Group (“IBF”), 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 IBF;
(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
16
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;
(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;
(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;
17
(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:
(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
18
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;
(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 Members and Member 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;
19
(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 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
20
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, (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
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 Company to maintain its dividend per LLC Interest 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.
(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
21
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.
(b) In accordance with the terms of the LLC Agreement, for so long as the Manager or any
Manager Affiliate holds LLC Interests with an aggregate value of no less than $5.0 million, at a
price per LLC Interest equal to the per share price of the shares of Trust Stock sold in the
initial public offering (as adjusted to reflect any subsequent equity 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
22
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.
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
23
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 LLC Interests.
(i) If the Manager determines to invest all or any portion of its Base Management Fee
with respect to a Fiscal Quarter in LLC Interests, the Manager shall be entitled to
purchase, upon payment, that number of LLC Interests equal to such amount of the Base
Management Fee divided by the volume weighted average trading price of an LLC Interest
during the LLC Interest 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 LLC Interests, it shall notify the Company and the Compensation Committee
at the time of the notification pursuant to Section 7.2(b) and the LLC Interests shall be
issued to the Manager on the Business Day immediately following the last day of the relevant
LLC Interest 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 LLC
Interests.
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
24
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 LLC Interests.
(i) If the Manager determines to invest all or any portion of its Performance Fee with
respect to a Fiscal Quarter in LLC Interests, the Manager shall be entitled to purchase,
upon payment, that number of LLC Interests equal to such amount of the Performance Fee
divided by the volume weighted average trading price of an LLC Interest during the LLC
Interest 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 LLC Interests, it shall notify the Company and the Compensation Committee
at the time of the notification pursuant to Section 7.3(b) and the LLC Interests shall be
issued to the Manager on the Business Day immediately following the last day of the relevant
LLC Interest 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 LLC Interests.
(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 entered into a registration rights agreement whereby the Company has undertaken to register
with the Securities and Exchange Commission the offer and resale of any LLC Interests purchased by
the Manager, including but not limited to LLC Interests purchased as the
25
Initial Investment
pursuant to Section 2.2 and LLC Interests purchased pursuant to this Article VII.
Section 7.5 Ability to Issue LLC Interests. The Company will at all times have
reserved a sufficient number of LLC Interests to enable the Manager to invest all reasonably
foreseeable fees received in LLC Interests.
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.
(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.
26
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 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;
27
(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 LLC Interests, 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 LLC Interests, Members or
shareholders, as the case may be, the implementation of any resolutions and communications
with holders of LLC Interests 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;
(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;
28
(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 Company (as calculated by multiplying the price per LLC Interest stated in
clause (i) of the definition of Termination Fee by the aggregate number of LLC Interests
issued and outstanding, other than those held in treasury, 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 Company;
(B) neither the Company nor any of its Subsidiaries shall incur any new
indebtedness or engage in any transactions with the Members of the Company or
Affiliates of Members of 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:
29
(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))
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 the LLC Interests, excluding
from such calculation any LLC Interests 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
30
(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 IBF 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 to remove any
reference to “Macquarie”, provided that, to the extent the Board of Directors of the Company deems
it necessary or
advisable, 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
31
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 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 hold it 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.
32
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.
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 an LLC Interest
Certificate in respect of an LLC Interest 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.
33
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.
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:
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx, 00000
Facsimile: (000) 000-0000
Attention: Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx, 00000
Facsimile: (000) 000-0000
Attention: Xxxxx Xxxxxx
34
If to the Manager:
Macquarie Infrastructure Management (USA) Inc.
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx, 00000
Facsimile: (000) 000-0000
Attention: Xxxxx Xxxxxx
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx, 00000
Facsimile: (000) 000-0000
Attention: Xxxxx Xxxxxx
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 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 COMPANY LLC | MACQUARIE INFRASTRUCTURE MANAGEMENT (USA) INC. | |||||||||
By:
|
/s/ Xxxxx Xxxxxx | By: | /s/ Xxxxx Xxxxxx | |||||||
Title: Chief Executive Officer | Title: President and Chief Executive Officer | |||||||||
MACQUARIE INFRASTRUCTURE COMPANY INC. | ||||||||||
By: |
/s/ Xxxxx Xxxxxx | |||||||||
Title: Chief Executive Officer | ||||||||||
MACQUARIE YORKSHIRE LLC | ||||||||||
By: | Macquarie Infrastructure Company LLC, as | |||||||||
Managing Member of Macquarie Yorkshire LLC | ||||||||||
By: |
/s/ Xxxxx Xxxxxx | |||||||||
Title: Chief Executive Officer | ||||||||||
SOUTH EAST WATER LLC | ||||||||||
By: | Macquarie Infrastructure Company LLC, as | |||||||||
Managing Member of South East Water LLC | ||||||||||
By: |
/s/ Xxxxx Xxxxxx | |||||||||
Title: Chief Executive Officer |
COMMUNICATIONS INFRASTRUCTURE LLC | ||||||||||
By: | Macquarie Infrastructure Company LLC, as | |||||||||
Managing Member of Communications Infrastructure LLC | ||||||||||
By: |
/s/ Xxxxx Xxxxxx | |||||||||
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 IBF 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, any successor thereto or spin-off managed entity thereof or any one managed entity (a “MIG Transferee”) to which Macquarie Infrastructure Group has transferred a substantial interest in its U.S. Assets; provided that, in the case of such MIG Transferee, both Macquarie Infrastructure Group and such entity are co-investing in the proposed investment. | |||
Airport Ownership: | The Company has second priority after Macquarie Airports (consisting of Macquarie Airports Group (MAG) and Macquarie Airports (MAp)), any successor thereto or spin-off managed entity thereof or any one managed entity (a “MAp Transferee”) to which Macquarie Airports has transferred a substantial interest in its U.S. Assets; provided that, in the case of such MAp Transferee, both Macquarie Airports and such entity are co-investing in the proposed investment. | |||
Communications: | The Company has second priority after Macquarie Communications Infrastructure Group, any successor thereto or spin-off managed entity thereof or any one managed entity (a “MCG Transferee”) to which |
Sch, I-1
Macquarie Communications Infrastructure Group has transferred a substantial interest in its U.S. Assets; provided that, in the case of such MCG Transferee, both Macquarie Communications Infrastructure Group and such entity are co-investing in the proposed investment. |
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 IBF.