Exhibit 3.13
FORM OF
AGREEMENT OF LIMITED LIABILITY COMPANY
OF
[-----------------------------],
A DELAWARE LIMITED LIABILITY COMPANY
Dated as of -, 200-
TABLE OF CONTENTS
Page
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1. Name................................................................. 1
2. Purpose and Powers................................................... 1
3. Registered Office and Agent.......................................... 1
4. Principal Place of Business.......................................... 2
5. Member............................................................... 2
6. Initial Capital Contributions........................................ 2
7. Additional Contributions............................................. 2
8. Tax Matters.......................................................... 2
9. Management of the Company............................................ 2
10. Committees and Officers.............................................. 3
11. Distributions........................................................ 5
12. Admission of Additional or Substitute Members........................ 5
13. Dissolution.......................................................... 5
14. Distributions upon Dissolution....................................... 5
15. Liability of the Members............................................. 5
16. Benefits of the Agreement............................................ 5
17. Headings............................................................. 5
18. Amendments........................................................... 5
19. Governing Law........................................................ 5
20. Severability......................................................... 5
FORM OF
AGREEMENT OF LIMITED LIABILITY COMPANY
OF
[_____________________________],
A DELAWARE LIMITED LIABILITY COMPANY
AGREEMENT OF LIMITED LIABILITY COMPANY (this "Agreement") of
[_____________________________] (the "Company"), dated as of -, 200-, by and
among Macquarie Infrastructure Company LLC, a Delaware limited liability
company, as a member of the Company (the "Managing Member"), and any other
person hereafter admitted to the Company as a member pursuant hereto (each a
"Member" and collectively with the Managing Member, the "Members").
Preliminary Statement
The Managing Member desires to form a limited liability company
pursuant to and in accordance with the Delaware Limited Liability Company Act, 6
Del. C. Sections 18-101, et seq., as amended from time to time (the "Act"), and
hereby declares the following to be the Limited Liability Company Agreement of
such limited liability company:
1. Name. The name of the limited liability company formed hereby and
by the filing of the Certificate of Formation of the Company with the Delaware
Secretary of State is [_____________________________].
2. Purpose and Powers. The purpose of the Company is to engage in
any activity for which limited liability companies may be organized in the State
of Delaware. The Company shall possess and may exercise all of the powers and
privileges granted by the Act or by any other law or by this Agreement, together
with any powers incidental thereto, so far as such powers and privileges are
necessary or convenient to the conduct, promotion or attainment of the business
purposes or activities of the Company. Notwithstanding any other provision of
this Agreement or the Act, the Company, and the Managing Member or any Officer
(as defined in Section 10), on behalf of the Company, may enter into and perform
the Management Services Agreement [list of other agreements to be entered into]
and any other documents or agreements to which the Company is a party or by
which it is bound, and all documents, agreements, certificates, instruments or
financing statements contemplated thereby or related thereto, and all amendments
thereto, all without further act, vote or approval of any Member, Officer or
other person or entity; provided, however, that the foregoing authorization
shall not be deemed a restriction on the powers of the Managing Member or any
Officer to enter into documents, agreements, certificates or instruments on
behalf of the Company in accordance with the provisions of this Agreement.
3. Registered Office and Agent. The address of the Company's
registered office in the State of Delaware is Corporation Trust Center, 1209
Orange Street, in the City of
Wilmington, County of New Castle. The name of its registered agent at such
address is The Corporation Trust Company.
4. Principal Place of Business. The principal executive offices of
the Company shall be at 600 Fifth Avenue, 21st Floor, New York, NY 10020.
5. Member. The name and address of the Managing Member, which is
hereby admitted as a member of the Company simultaneously with its execution of
this Agreement, is as follows:
Name Address
---- -------
Macquarie Infrastructure Company LLC 600 Fifth Avenue, 21st Floor
New York, NY 10020
6. Initial Capital Contributions. The Managing Member has made a
capital contribution to the Company in the amount set forth in the books and
records of the Company.
7. Additional Contributions. No Member shall have any obligation to
make additional capital contributions to the Company.
8. Tax Matters. The Managing Member intends that, for so long as the
Company only has one member, the Company not be treated as an association for
federal and all relevant state tax purposes and that the activities of the
Company be deemed to be activities of the Managing Member for such purposes. All
provisions of the Company's Certificate of Formation and this Agreement are to
be construed so as to preserve that tax status. The Managing Member is hereby
authorized to file any necessary elections with any tax authorities and shall be
required to file any necessary tax returns on behalf of the Company with any
such tax authorities.
9. Management of the Company. The business and affairs of the
Company shall be managed by the Managing Member, who shall have the power and
authority, on behalf of the Company, to take any action of any kind not
inconsistent with the provisions of this Agreement and to do anything and
everything it deems necessary or appropriate, itself or through its officers,
agents, representatives and affiliates, to carry on the business and purposes of
the Company, including, but not limited to, the following:
(a) to manage and direct the business affairs of the Company,
to do any and all acts on behalf of the Company and to exercise all rights of
the Company with respect to its interest in any other person, corporation,
partnership or other entity, including, without limitation, the voting of
securities, exercise of redemption rights, participation in arrangements with
creditors, the institution, defense and settlement or compromise of suits and
administrative proceedings and other like or similar matters;
(b) to acquire, own, lease, sublease, manage, hold, deal in,
control or dispose of any interests or rights in real or personal property;
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(c) to hire employees, consultants, attorneys, accountants,
appraisers and other advisors for the Company;
(d) to open, maintain and close bank accounts and draw checks
or other orders for the payment of funds;
(e) to borrow money or obtain credit from banks, lending
institutions or any other person;
(f) to assume obligations, incur liabilities, lend money or
otherwise use the credit of the Company;
(g) to organize or to contact with one or more corporations or
other entities to hold record title, as nominee for the Company, to securities,
funds or other assets of the Company;
(h) to make and perform such other agreements and undertakings
as may be necessary or advisable to the carrying out of any of the foregoing
powers, objects or purposes;
(i) to bring and defend actions and proceedings at law or in
equity or before any governmental, administrative or other regulatory agency,
body or commission; and
(j) to carry on any other activities necessary to, in
connection with or incidental to any of the foregoing or the Company's business.
There shall not be a "manager" (within the meaning of the Act) of
the Company. The Managing Member is, to the extent of its rights and powers set
forth in this Agreement, an agent of the Company for the purpose of the
Company's business, and the actions of the Managing Member taken in accordance
with such rights and powers shall bind the Company.
10. Committees and Officers.
(a) The Managing Member may designate one or more committees,
each to consist of one or more of the Members.
(b) The Managing Member may designate one or more officers of
the Company (each an "Officer") with the powers provided in this Section 10 and
otherwise expressly provided in this Agreement and such additional powers and
terms as the Managing Member may determine. The Officers of the Company shall
consist of a Chief Executive Officer, a Secretary and a Treasurer, and such
other Officers, as the Managing Member may from time to time designate. The
initial Officers of the Company shall be:
Chief Executive Officer Peter Stokes
Secretary David Mitchell
Treasurer David Mitchell
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The powers and duties of each Officer shall be as follows:
Chief Executive Officer. The Chief Executive Officer shall also act
as the President of the Company. Subject to the control of the Managing Member,
the Chief Executive Officer shall be responsible for the day-to-day management
of the business and affairs of the Company. The Chief Executive Officer shall
have the power to sign alone (unless the Managing Member shall specifically
require an additional signature) all contracts in the name and on behalf of the
Company. The Chief Executive Officer also shall perform all duties and enjoy all
other powers as generally are incident to the position of a president of a
corporation organized under the General Corporation Law of the State of Delaware
(the "DGCL"), subject, however, to the control of the Managing Member.
The Secretary. The Secretary shall have all such powers and duties
as generally are incident to the position of a secretary of a corporation
organized under the DGCL or as may from time to time be assigned to him or her
by the Managing Member or the Chief Executive Officer.
The Treasurer. The Treasurer shall have custody of the Company's
funds and securities and shall keep full and accurate accounts of receipts and
disbursements in books belonging to the Company and shall deposit or cause to be
deposited moneys or other valuable effects in the name and to the credit of the
Company in such depositories as may be designated by the Managing Member. The
Treasurer shall also maintain adequate records of all assets, liabilities, and
transactions of the Company and shall see that adequate audits thereof are
currently and regularly made. The Treasurer shall have such other powers and
perform such other duties that generally are incident to the position of a
treasurer of a corporation organized under the DGCL or as may from time to time
be assigned to him or her by the Managing Member or the Chief Executive Officer.
Each of the Officers of the Company shall be an "authorized person" within the
meaning of the Act for purposes of executing, delivering and filing with the
Delaware Secretary of State the Company's Certificate of Formation and any
amendments thereto and restatements thereof.
(c) Unless otherwise provided in this Section 10, the Company shall
indemnify, save harmless, and pay all judgments and claims against the Managing
Member or any Officer relating to any liability or damage incurred by reason of
any act performed or omitted to be performed by the Managing Member or any
Officer in connection with the business of the Company, including reasonable
attorneys' fees incurred by the Managing Member or any Officer in connection
with the defense of any action based on any such act or omission, which
attorneys' fees may be paid as incurred. Unless otherwise provided in this
Section 10, in the event of any action by any Member against the Managing Member
or any Officer, including a derivative suit, the Company shall indemnify, save
harmless, and pay all expenses of the Managing Member or such Officer, including
reasonable attorneys' fees incurred in the defense of such action.
Notwithstanding the provisions of this Section 10, this Section shall be
enforced only to the maximum extent permitted by law and no Managing Member or
Officer shall be indemnified from any liability for the fraud, intentional
misconduct, gross negligence or a knowing violation of the law that was material
to the cause of action.
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11. Distributions. Distributions shall be made to the Members at the
times and in the aggregate amounts determined by the Managing Member.
12. Admission of Additional or Substitute Members. The Company may
admit substitute or additional members at the Managing Member's discretion.
13. Dissolution. The Company shall dissolve, and its affairs shall
be wound up, upon the earliest to occur of (a) the unanimous decision of the
Members, or (b) an event of dissolution of the Company under the Act; provided,
however, that within ninety (90) days following any event terminating the
continued membership of the last remaining Member in the Company, if the
Personal Representative (as defined in the Act) of such Member agrees in writing
to continue the Company and to admit itself or some other person or entity as a
member of the Company effective as of the date of the occurrence of the event
that terminated the continued membership of such Member in the Company, then the
Company shall not be dissolved and its affairs shall not be wound up.
14. Distributions upon Dissolution. Upon the occurrence of the
dissolution of the Company under Section 13 hereof, the Members shall be
entitled to receive, after the Managing Member has paid or made reasonable
provision for the payment of all of the Company's creditors to the extent
required by Section 18-804 of the Act, the remaining funds of the Company.
15. Liability of the Members. The Members shall not have any
liability for the obligations or liabilities of the Company except to the extent
expressly provided in the Act.
16. Benefits of the Agreement. None of the provisions of this
Agreement shall be for the benefit of or enforceable by any creditor of the
Company or of any Member.
17. Headings. The titles of the Sections of this Agreement are for
convenience of reference only and shall not define or limit any of the
provisions of this Agreement.
18. Amendments. This Agreement may be amended only by written
instrument executed by the Members.
19. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
UNDER THE LAWS OF THE STATE OF DELAWARE.
20. Severability. Except as otherwise provided in the succeeding
sentence, every term and provision of this Agreement is intended to be
severable, and if any term or provision of this Agreement is illegal or invalid
for any reason whatsoever, such illegality or invalidity shall not affect the
legality or validity of the remainder of this Agreement. The preceding sentence
shall be of no force or effect if the consequence of enforcing the remainder of
this Agreement without such illegal or invalid term or provision would be to
cause any party to lose the benefit of its economic bargain.
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IN WITNESS WHEREOF, the undersigned has caused this Agreement of
Limited Liability Company to be executed as of the ____ day of ________________,
200-
MACQUARIE INFRASTRUCTURE COMPANY LLC
By:
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Name:
Title:
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EXHIBIT A
CERTIFICATE OF FORMATION
A-1