AMENDMENT NO. 1 TO THE 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...
AMENDMENT
NO. 1
TO
THE
AMENDED
AND RESTATED
AMONG
MACQUARIE
INFRASTRUCTURE COMPANY LLC,
MACQUARIE
INFRASTRUCTURE COMPANY INC.,
MACQUARIE
YORKSHIRE LLC,
SOUTH
EAST WATER LLC,
COMMUNICATIONS
INFRASTRUCTURE LLC
AND
MACQUARIE
INFRASTRUCTURE MANAGEMENT (USA) INC.
Dated
as
of February 7, 2008
This
AMENDMENT NO. 1 (the “Amendment”)
to the
AMENDED AND RESTATED MANAGEMENT SERVICES AGREEMENT, dated as of June 22, 2007
and effective as of June 25, 2007 (the “Original
Agreement”),
is
entered into as of February 7, 2008 by and 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 the Original Agreement in
accordance with Section 2.3 thereof, 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.”
Capitalized terms used but not otherwise defined in this Amendment shall have
the meanings set forth in the Original Agreement.
WHEREAS,
the Parties previously entered into the Original Agreement, whereby the Company
and the Managed Subsidiaries agreed to appoint the Manager to manage their
business and affairs as therein described, and the Manager agreed to act as
Manager on the terms and subject to the conditions set forth therein;
and
WHEREAS,
the Parties desire to amend the Original Agreement as provided
herein;
NOW,
THEREFORE, in consideration of the mutual covenants herein contained, the
Parties
hereto agree as follows:
Section
1.1 Amendments
to Original Agreement. Section
10.1 of the Original Agreement is hereby deleted in its entirety and replaced
with the following:
Section
10.1 Resignation
by the Manager.
i)
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.
(a) 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;
provided,
however,
that
notwithstanding anything contained in Section 10.1(b)(i) to the contrary, if
a
Delisting Event has occurred and either an event of default has occurred in
respect of any indebtedness of the Company or any of its Subsidiaries or the
holder or holders of such indebtedness are in the process of restructuring
or
"working out" such indebtedness, then in no event shall the Manager take, or
fail to take, any action pursuant to Section 10.1(b)(i) that would limit or
impede any sale, lease, exchange or other disposition of assets of the Company
or any of its Subsidiaries required by the terms of such indebtedness to repay
such indebtedness;
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
1.2 Applicable
Law.
This
Amendment shall be construed in accordance with the laws of the State of New
York.
Section
1.3 Effective
Date.
This
Amendment shall become effective as of the date first written above (the
“Effective
Date”)
upon
receipt by the Company of counterparts of this Amendment duly executed by the
Company, the Managed Subsidiaries and the Manager.
Section
1.4 Miscellaneous.
From
and after the Effective Date of this Amendment, each reference in the Original
Agreement to “this Agreement”, “hereof”, “hereunder”, or words of like import in
any and all agreements, instruments, documents, notes, certificates and other
writings of any kind and nature shall be deemed to refer to the Original
Agreement as amended by this Amendment. This Amendment may be executed in any
number of counterparts, each of which shall be an original, but all of which
together constitute one instrument. The headings in this Amendment are for
purposes of reference only and shall not limit or otherwise effect the meaning
hereof.
2
IN
WITNESS WHEREOF, the Company, the Managed Subsidiaries and the Manager have
caused this Amendment No. 1 to the Management Services Agreement to be executed
as of the day and year first above written.
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COMPANY
LLC
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MACQUARIE
INFRASTRUCTURE
MANAGEMENT
(USA) INC.
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By:
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By:
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Name:
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Name:
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Title:
Vice President
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MACQUARIE
INFRASTRUCTURE
COMPANY
INC. (d/b/a
Macquarie
Infrastructure
Company (US))
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By:
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/s/
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Name:
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Title:
Chief Executive Officer
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MACQUARIE
YORKSHIRE LLC
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By:
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Macquarie
Infrastructure Company LLC, as
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Managing
Member of Macquarie Yorkshire LLC
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By:
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/s/
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Name:
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Title:
Chief Executive Officer
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SOUTH
EAST WATER LLC
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By:
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Macquarie
Infrastructure Company LLC, as
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Managing
Member of South East Water LLC
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By:
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/s/
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Name:
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Title:
Chief Executive Officer
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3
COMMUNICATIONS
INFRASTRUCTURE LLC
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By:
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Macquarie
Infrastructure Company LLC, as
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Managing
Member of Communications Infrastructure
LLC
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By:
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/s/
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Name:
▇▇▇▇▇ ▇▇▇▇▇▇
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Title:
Chief Executive Officer
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