EXHIBIT 99.2
EXECUTION
VERSION
AMENDED AND RESTATED TRUST AGREEMENT
OF
MACQUARIE INFRASTRUCTURE COMPANY TRUST
AMONG
MACQUARIE INFRASTRUCTURE COMPANY LLC
as Sponsor,
WELLS FARGO DELAWARE TRUST COMPANY
as Delaware Trustee,
AND
THE REGULAR TRUSTEE NAMED HEREIN
Dated as of December 21, 2004
TABLE OF CONTENTS
Page(s)
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ARTICLE I DEFINED TERMS.......................................................................................... 1
Section 1.01 Definitions............................................................................... 1
ARTICLE II ESTABLISHMENT OF THE TRUST............................................................................ 6
Section 2.01 Name...................................................................................... 6
Section 2.02 Office of the Delaware Trustee; Principal Place of Business............................... 6
Section 2.03 Initial Issuance of Shares................................................................ 7
Section 2.04 Trust to Be Sole Member of Sponsor........................................................ 7
Section 2.05 Authorized Shares......................................................................... 7
Section 2.06 Issuance of Additional Shares............................................................. 7
Section 2.07 Repurchase of Shares at Direction of the Sponsor.......................................... 7
Section 2.08 Agreement of Trust........................................................................ 8
Section 2.09 Authorization to Enter into Certain Transactions.......................................... 8
Section 2.10 Title to Trust Property................................................................... 9
Section 2.11 Certain Covenants of the Sponsor.......................................................... 9
ARTICLE III DIVIDENDS AND DISTRIBUTIONS.......................................................................... 9
Section 3.01 Dividends................................................................................. 9
Section 3.02 Payment Procedures........................................................................ 10
Section 3.03 Tax Returns and Reports................................................................... 10
ARTICLE IV SHARE CERTIFICATES.................................................................................... 10
Section 4.01 Initial Ownership......................................................................... 10
Section 4.02 Share Certificates........................................................................ 10
Section 4.03 Share Register............................................................................ 11
Section 4.04 Transfer of Shares........................................................................ 11
Section 4.05 Mutilated, Lost, Destroyed or Stolen Share Certificates................................... 11
Section 4.06 Rights of Shareholders.................................................................... 12
ARTICLE V MEETINGS; VOTING....................................................................................... 12
Section 5.01 Annual Meetings of Shareholders........................................................... 12
Section 5.02 Special Meetings of Shareholders.......................................................... 12
Section 5.03 Place of Meeting.......................................................................... 12
Section 5.04 Notice of Meeting......................................................................... 12
Section 5.05 Quorum and Adjournment.................................................................... 14
Section 5.06 Voting.................................................................................... 14
Section 5.07 Proxies................................................................................... 14
Section 5.08 Notice of Shareholder Business and Nominations............................................ 15
Section 5.09 Procedure for Election of Directors; Voting............................................... 17
Section 5.10 Inspectors of Elections; Opening and Closing the Polls.................................... 18
Section 5.11 Confidential Shareholder Voting........................................................... 18
Section 5.12 Waiver of Notice.......................................................................... 18
Section 5.13 Remote Communication...................................................................... 18
Section 5.14 Inspection of Records..................................................................... 19
ARTICLE VI DISCLOSURE REQUIREMENTS FOR TEN PERCENT HOLDERS....................................................... 20
ARTICLE VII RIGHT OF SHAREHOLDERS TO ENFORCE PROVISIONS OF SPONSOR AGREEMENTS AND BRING DERIVATIVE ACTION........ 20
ARTICLE VIII SHAREHOLDER VOTE REQUIRED IN CONNECTION WITH CERTAIN BUSINESS COMBINATIONS OR TRANSACTIONS.......... 20
Section 8.01 Vote Generally Required................................................................... 20
Section 8.02 Vote for Business Combinations............................................................ 24
Section 8.03 Power of Continuing Directors............................................................. 24
Section 8.04 No Effect on Fiduciary Obligations........................................................ 24
Section 8.05 Miscellaneous............................................................................. 24
ARTICLE IX THE TRUSTEES.......................................................................................... 24
Section 9.01 Certain Duties and Responsibilities....................................................... 24
Section 9.02 Not Responsible for Recitals or Issuance of Shares........................................ 26
Section 9.03 May Hold Shares........................................................................... 26
Section 9.04 Compensation; Indemnity; Fees............................................................. 26
Section 9.05 Delaware Trustee Required; Eligibility of Trustees........................................ 27
Section 9.06 Resignation and Removal; Appointment of Successor......................................... 27
Section 9.07 Acceptance of Appointment by Successor.................................................... 28
Section 9.08 Merger, Conversion, Consolidation or Succession to Business............................... 28
Section 9.09 Number of Trustees........................................................................ 28
Section 9.10 Delegation of Power....................................................................... 29
Section 9.11 Appointment of Regular Trustees........................................................... 29
ARTICLE X TERMINATION AND DISSOLUTION............................................................................ 29
Section 10.01 Termination or Dissolution................................................................ 29
Section 10.02 Circumstances Under Which Shares Will Be Exchanged for Sponsor Shares..................... 29
Section 10.03 Right to Acquisition Exchange............................................................. 30
Section 10.04 Early Termination......................................................................... 30
Section 10.05 Termination of Obligations................................................................ 31
ARTICLE XI MISCELLANEOUS PROVISIONS.............................................................................. 31
Section 11.01 Limitation of Rights of Shareholders...................................................... 31
Section 11.02 Amendment................................................................................. 31
Section 11.03 Separability.............................................................................. 32
Section 11.04 Specific Performance...................................................................... 32
Section 11.05 Governing Law............................................................................. 32
Section 11.06 Successors................................................................................ 33
Section 11.07 Headings.................................................................................. 33
Section 11.08 Reports, Notices and Demands.............................................................. 33
Section 11.09 Counterparts.............................................................................. 33
EXHIBITS
Exhibit A - Form of Share Certificate............................................................................ A-1
Exhibit B - Form of Economic Disclosure Statement and Affidavit.................................................. B-1
AMENDED AND RESTATED TRUST AGREEMENT, dated as of December 21, 2004
among (i) Macquarie Infrastructure Company LLC, a Delaware limited liability
company (the "Sponsor"), (ii) Wells Fargo Delaware Trust Company, a Delaware
banking corporation, as Delaware trustee (in such capacity, the "Delaware
Trustee"), and (iii) Peter Stokes, an individual, whose address is c/o Macquarie
Infrastructure Company LLC, 600 Fifth Avenue, 21st Floor, New York, New York
10020 (the "Regular Trustee" and, collectively with the Delaware Trustee, the
"Trustees"). The Sponsor and the Trustees hereby agree as follows:
W I T N E S S E T H:
WHEREAS, the Sponsor, the Delaware Trustee and Peter Stokes and
Stephen Peet (the then "Regular Trustees"), heretofore duly declared and
established a statutory trust pursuant to the Delaware Statutory Trust Act by
entering into a trust agreement, dated as of April 13, 2004 (the "Original
Agreement"), and by executing and filing a certificate of trust with the
Secretary of State of the State of Delaware on April 13, 2004, for the purpose
of owning the Sponsor Shares and issuing Shares (as defined herein) of stock of
the Trust (as defined herein), each Share representing an undivided beneficial
interest in one underlying Sponsor Share (as defined herein);
WHEREAS, the Sponsor and the Trustees desire to amend and restate
the Original Agreement in its entirety as set forth herein to provide for, among
other things, the operation of the Trust;
NOW, THEREFORE, in consideration of the agreements and obligations
set forth herein and for other good and valuable consideration, the sufficiency
of which is hereby acknowledged, each party, for the benefit of the other party,
hereby amends and restates the Original Agreement in its entirety and agrees as
follows:
ARTICLE I
DEFINED TERMS
Section 1.01 Definitions
For all purposes of this Agreement, except as otherwise expressly
provided or unless the context otherwise requires:
(a) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular;
(b) unless the context otherwise requires, any reference to an
"Article," "Section" or "Exhibit" refers to an Article, Section or
Exhibit, as the case may be, of this Agreement; and
(c) the words "herein," "hereof" and "hereunder" and other words of
similar import refer to this Agreement as a whole and not to any
particular Article, Section or other subdivision.
"Acquirer" has the meaning specified in Section 10.03.
"Acquisition Exchange" has the meaning specified in Section 10.03.
"Affiliate" means, with respect to any Person, (i) any Person
directly or indirectly controlling, controlled by or under common control with
such Person, (ii) any officer, director, general partner, manager or trustee of
such Person or (iii) any Person who is an officer, director, general partner,
manager or trustee of any Person described in clause (i) or (ii) of this
sentence. For purposes of this definition, the terms "controlling," "controlled
by" or "under common control with" shall mean the possession, direct or
indirect, of the power to direct or cause the direction of the management and
policies of a Person or entity, whether through the ownership of voting
securities, by contract or otherwise, or the power to elect at least fifty
percent (50%) of the directors, managers, general partners, trustees or Persons
exercising similar authority with respect to such Person or entity.
"Agreement" means this Amended and Restated Trust Agreement, as the
same may be modified, amended or supplemented in accordance with the applicable
provisions hereof, including all exhibits hereto.
"Associate" has the meaning set forth in Section 8.01 hereof.
"Authorized Officer" of a Person means any Person that is authorized
to bind such Person.
"Beneficial Holder" has the meaning ascribed to such term in Rule
13d-3 of the rules promulgated under the Exchange Act.
"Board" or "Board of Directors" means either the board of directors
of the Sponsor or any committee of such Board duly authorized to act hereunder,
as applicable.
"Business Day" means a day of the year on which banks are not
required or authorized by law or executive order to close in The City of New
York.
"Chairman" means the director appointed or nominated and elected, as
the case may be, Chairman of the Board of Directors, in accordance with the
terms of the Sponsor Agreement with such powers and duties as are set forth in
the Sponsor Agreement.
"Commission" means the Securities and Exchange Commission.
"Delaware Statutory Trust Act" means chapter 38 of title 12 of the
Delaware Code, 12 Del. C. Sections 3801 et seq., as it may be amended from time
to time.
"Delaware Trustee" means the Person identified as the "Delaware
Trustee" in the preamble to this Agreement solely in its capacity as Delaware
Trustee of the Trust continued hereunder and not in its individual capacity, or
its successor in interest in such capacity, or any successor Delaware Trustee
appointed as herein provided.
"Dividends" means amounts payable in respect of the Shares as
provided in Section 3.01.
"Early Termination Event" has the meaning specified in Section
10.04.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Fair Market Value" has the meaning set forth in Section 8.01
hereof.
"Fiscal Quarter" means (i) the period commencing on April 13, 2004
and ending on June 30, 2004, (ii) any subsequent three (3)-month period
commencing on each of July 1, October 1, January 1 and April 1 and ending on the
last date before the next such date, or (iii) the period commencing on the
immediately preceding January 1, April 1, July 1 or October 1, as the case may
be, and ending on the date on which the trust is terminated or dissolved in
accordance with Article X of this Agreement.
"Fiscal Year" means (i) the period commencing April 13, 2004 and
ending on December 31, 2004, (ii) any subsequent twelve (12)-month period
commencing on January 1 and ending on December 31, or (iii) the period
commencing on the immediately preceding January 1 and ending on the date on
which the Trust is terminated or dissolved in accordance with Article X of this
Agreement.
"Future Investment" has the meaning set forth in Section 8.01
hereof.
"GAAP" means generally accepted accounting principles in effect in
the United States of America from time to time.
"Initial Board" has the meaning specified in the Sponsor Agreement.
"Interested Shareholder" has the meaning set forth in Section 8.01
hereof.
"Limited Liability Company Act" means the Delaware Limited Liability
Company Act, 6 Del. C. Sections 18-101 et seq., as amended from time to time (or
any corresponding provisions of succeeding law).
"Managed Subsidiary" has the meaning set forth in Section 8.01
hereof.
"Management Services Agreement" means the Management Services
Agreement, as may be amended from time to time, to be entered into by and among
the Sponsor, certain wholly owned Subsidiaries of the Sponsor, and the Manager,
which will provide the terms on which the Manager will assume its duties with
respect to the management of the Sponsor and its Subsidiaries.
"Manager" means Macquarie Infrastructure Management (USA) Inc.,
party to the Management Services Agreement.
"Mandatory Exchange" has the meaning specified in Section 10.02.
"Market Value of the Trust Stock" has the meaning set forth in
Section 8.01 hereof.
"Member" of the Sponsor means the Trust and any successor to the
Trust in accordance with the terms of this Agreement and the Sponsor Agreement.
"Members" means all such Persons.
"Net Investment Value" has the meaning set forth in Section 8.01
hereof.
"1940 Act" means the Investment Company Act of 1940, as amended.
"1933 Act Registration Statement" has the meaning specified in
Section 2.09(a)(i).
"1934 Act Registration Statement" has the meaning specified in
Section 2.09(a)(i).
"Original Agreement" has the meaning specified in the recitals to
this Agreement.
"Outstanding Shares," when used with respect to Shares, means, as of
the date of determination, all Shares theretofore executed and delivered under
this Agreement, except:
(a) Shares theretofore cancelled or delivered for cancellation; and
(b) Shares in exchange for or in lieu of which other Shares have
been executed and delivered pursuant to Section 4.05.
"Person" means any individual, corporation, partnership, joint
venture, trust, limited liability company, unincorporated organization or
government or any agency or political subdivision thereof or any other entity.
"Property" means all real and personal property acquired by the
Trust, including cash, and any improvements thereto, and shall include both
tangible and intangible property.
"Regular Trustee" means Peter Stokes in his capacity as Regular
Trustee of the Trust continued hereunder and not in his individual capacity, or
such Regular Trustee's successor in interest in such capacity, or any successor
in interest in such capacity, or any successor Regular Trustee appointed as
herein provided.
"Relevant Trustee" has the meaning specified in Section 9.06(a).
"Rules and Regulations" means the rules and regulations promulgated
under the Exchange Act or the Securities Act.
"Secretary" means the Secretary of the Sponsor with such powers and
duties as set forth in the Sponsor Agreement.
"Securities Act" means the Securities Act of 1933, as amended.
"Share Certificate" means a certificate evidencing ownership of
Shares, substantially in the form attached hereto as Exhibit A.
"Share Register" has the meaning specified in Section 4.03.
"Shareholder" means a Person in whose name a Share Certificate
representing a Share is registered, such Person being a beneficial owner within
the meaning of the Delaware Statutory Trust Act.
"Shares" means the shares of trust stock, each share of trust stock
representing one undivided beneficial interest in the Trust, issued by the Trust
and corresponding to one underlying Sponsor Share owned by the Trust.
"Sponsor" has the meaning specified in the preamble to this
Agreement.
"Sponsor Agreement" means the Amended and Restated Operating
Agreement of the Sponsor, including all exhibits and schedules attached thereto,
as amended from time to time.
"Sponsor Share" means a limited liability company interest in the
Sponsor within the meaning of the Delaware Limited Liability Company Act, 6 Del.
C. Sections 18-101 et seq., as amended from time to time, and includes any and
all benefits to which the holder of Sponsor Shares may be entitled as provided
in the Sponsor Agreement, together with all obligations of such Person to comply
with the terms and provisions of the Sponsor Agreement.
"Subsidiary" means any corporation, partnership, joint venture,
limited liability company, association or other entity in which the Sponsor
owns, directly or indirectly, more than 50% of the outstanding equity securities
or interests, the holders of which are generally entitled to vote for the
election of the board of directors or other governing body of such entity.
"Successor Delaware Trustee" has the meaning specified in Section
9.06(b).
"Ten Percent Holder" has the meaning specified in Article VI.
"Trading Day" means a day on which the Shares (A) are not suspended
from trading on any national or regional securities exchange or association or
over-the-counter market at the close of business and (B) have traded at least
once on the national or regional securities exchange or association or
over-the-counter market that is the primary market for the trading of the
Shares.
"Transfer Agent and Registar" means, with respect to the Shares and
the Sponsor Shares, The Bank of New York, or any successor(s) thereto.
"Trust" means the Delaware statutory trust continued hereby and
identified on the cover page of this Agreement.
"Trust Property" means the Sponsor Shares.
"Trustees" has the meaning specified in the preamble to this
Agreement.
"Use Agreement" means the District Cooling System Use Agreement
dated as of October 1, 1994 between the City of Chicago, Illinois and MDE
Thermal Technologies, Inc. (formerly known as Exelon Thermal Technologies, Inc.
and formerly before that known as Unicom Thermal Technologies, Inc. and
Northwind, Incorporated), as amended on June 1, 1995, July 15, 1995, February 1,
1996, April 1, 1996, October 1, 1996, November 7, 1996, January 15, 1997, May 1,
1997, August 1, 1997, October 1, 1997, March 12, 1998, June 1, 1998, October 8,
1998, April 21, 1999, March 1, 2000, March 15, 2000, June 1, 2000, August 1,
2001, November 1, 2001, June 1, 2002, June 30, 2004 and as further amended from
time to time.
ARTICLE II
ESTABLISHMENT OF THE TRUST
Section 2.01 Name
(a) The Trust continued by this Agreement shall be known as
"Macquarie Infrastructure Company Trust" and all business of the Trust shall be
conducted in such name. The Sponsor, acting through the Board of Directors, may
change the name of the Trust upon ten (10) Business Days' written notice to the
Shareholders and the Trustees.
(b) Upon the Manager's resignation and the termination of the
Management Services Agreement or within thirty (30) days of the delisting of the
Shares as provided in the Management Services Agreement unless otherwise
approved in writing by the Manager, the Sponsor, acting through the Board of
Directors, shall within thirty (30) days of such resignation and termination or
such date, cause the Trust to cease using the Macquarie brand entirely,
including, without limitation, changing its name to remove any reference to
"Macquarie"; provided that, to the extent the Sponsor, acting through the Board
of Directors, deems it necessary or advisable, the Trust may use "Macquarie" in
referencing its previous name.
(c) Upon the termination of the Management Services Agreement and
the removal of the Manager by the Board of Directors of the Sponsor in
accordance with the terms of the Management Services Agreement, the Sponsor,
acting through the Board of Directors, shall cause the Trust to cease using the
Macquarie brand entirely, including, without limitation, changing its name to
remove any reference to "Macquarie"; provided that, to the extent the Sponsor,
acting through the Board of Directors, deems it necessary or advisable, the
Trust may use "Macquarie" in referencing its previous name.
Section 2.02 Office of the Delaware Trustee; Principal Place of
Business
The address of the Delaware Trustee in the State of Delaware is c/o
Wells Fargo Delaware Trust Company, 919 N. Market Street, Suite 700, Wilmington,
Delaware 19801, Attention: Corporate Trust Services, or such other address in
the State of Delaware as the Delaware Trustee may designate by written notice to
the Shareholders and the Sponsor. The principal executive office of the Trust is
600 Fifth Avenue, 21st Floor, New York, New York 10020.
Section 2.03 Initial Issuance of Shares
On April 13, 2004, the Sponsor issued to the Trust, as Member of the
Sponsor, one hundred (100) Sponsor Shares representing all of the issued and
outstanding Sponsor Shares as of such date. The then Regular Trustees
acknowledged receipt of such Sponsor Shares in trust from the Sponsor, which
constitute the Trust Property. In exchange for the Sponsor Shares, the then
Regular Trustees caused the Trust to issue one hundred (100) Shares of the Trust
to the Sponsor. At all times, the Trust will have outstanding the identical
number of Shares as the number of Sponsor Shares that have been issued and are
outstanding. At all times, the Sponsor Shares shall comprise the Trust Property.
Section 2.04 Trust to Be Sole Member of Sponsor
The Trust shall be the sole owner of the ownership interests of the
Sponsor represented by one hundred percent (100%) of the Sponsor Shares. For so
long as the Trust remains in existence, the Trust shall not sell or otherwise
transfer any of its Sponsor Shares to any Person. Every holder of Share
Certificates, by holding and receiving the same, agrees with the Trust to be
bound by the terms of this Agreement.
Section 2.05 Authorized Shares
The Trust shall be authorized to issue one class of Shares in an
aggregate amount of up to five hundred million (500,000,000) of such Shares. The
Trust is prohibited from issuing any other class of equity securities, any debt
securities or any derivative securities. The aggregate number of Shares that are
authorized may be increased from time to time by the Sponsor, by an amendment of
this Agreement upon the adoption of a resolution by the affirmative vote of at
least a majority of the Board of Directors declaring such amendment to be
advisable and the approval of such amendment by the affirmative vote of the
holders of a majority of the Shares present in person or represented by proxy at
a meeting of the Shareholders.
Section 2.06 Issuance of Additional Shares
The Sponsor shall have authority to authorize the issuance, from
time to time, of authorized but unissued Shares and cause the Trust to issue
such additional Shares in exchange for and upon receipt of an equal number of
Sponsor Shares. Upon the issuance of such additional Shares, the Regular Trustee
shall execute in accordance with Section 4.02 one or more Share Certificates in
certificated, fully registered form and shall deliver such Share Certificates to
the Transfer Agent. The Sponsor may sell or distribute the Shares in any manner,
subject to applicable law, that the Board of Directors in its sole discretion
deems appropriate and advisable.
Section 2.07 Repurchase of Shares at Direction of the Sponsor
(a) From time to time and at the direction of the Sponsor, acting
through the Board of Directors, the Trust shall conduct a capital reduction,
including the repurchase of any number of Shares issued and outstanding, on
similar terms to the capital reduction simultaneously conducted by the Sponsor
and shall ensure that an identical number of Sponsor Shares and Shares are
issued and outstanding at any one time.
(b) Any Shares tendered and repurchased by the Trust in accordance
with this Section 2.07 shall be deemed to be authorized and issued, but not
outstanding, and may subsequently be sold or transferred for due consideration.
Section 2.08 Agreement of Trust
The purposes of the Trust are to (i) issue Shares represented by the
Share Certificates, each such Share representing an undivided beneficial
interest in one underlying Sponsor Share owned by the Trust, in exchange for
Sponsor Shares, (ii) own the Sponsor Shares and (iii) engage in such other
activities as are set forth in this Agreement. Each person or entity in whose
name a Share is registered on the books of the Trust shall be a "beneficial
owner" within the meaning of the Delaware Statutory Trust Act. It is intended
that the Trust shall qualify as a grantor trust for U.S. federal income tax
purposes; consistent with such treatment the Trustees shall have no power under
this Agreement to vary the investment of the beneficial owners of the Trust.
There shall be no implied duties or obligations of the Trustees hereunder. Any
action by the Trustees in accordance with their respective powers shall
constitute the act of and serve to bind the Trust. The Delaware Trustee shall be
a trustee for purposes of fulfilling the requirements of Section 3807 of the
Delaware Statutory Trust Act. Notwithstanding any other provision of this
Agreement, the Delaware Trustee shall not be entitled to exercise any of the
powers, nor shall the Delaware Trustee have any of the duties and
responsibilities, of the Regular Trustee, the Manager or the Board of Directors
described in this Agreement. Notwithstanding anything herein to the contrary,
the Delaware Trustee shall not be liable for the acts or omissions of the Trust,
the Regular Trustee, the Manager or the Board of Directors.
Section 2.09 Authorization to Enter into Certain Transactions
(a) The Sponsor is hereby authorized and directed, on behalf of the
Trust, to engage in the following activities:
(i) to prepare and file with the Commission and execute, in each
case on behalf of the Trust, (a) a Registration Statement on Form S-1,
Form S-2 or Form S-3, as applicable (a "1933 Act Registration Statement"),
including any pre-effective or post-effective amendments thereto, relating
to the registration of the Shares under the Securities Act, and (b) as
applicable, a Registration Statement on Form 8-A (a "1934 Act Registration
Statement") (including any pre-effective or post-effective amendments
thereto) relating to the registration of the Shares under Section 12(b) or
(g) of the Exchange Act;
(ii) to prepare and file with the New York Stock Exchange and/or any
other exchange or quotation service and execute, in each case on behalf of
the Trust, an application therewith and all other applications,
statements, certificates, agreements and other instruments as shall be
necessary or desirable to cause the Shares to be listed on the New York
Stock Exchange and/or any other exchange or quotation service;
(iii) to prepare and file and execute, in each case on behalf of the
Trust, such applications, reports, surety bonds, irrevocable consents,
appointments of attorney for service of process and other papers and
documents as shall be necessary or desirable to
register the Shares under the securities or "blue sky" laws of such
jurisdictions as the Sponsor, on behalf of the Trust, may deem necessary
or desirable;
(iv) to negotiate the terms of, and execute on behalf of the Trust,
any underwriting agreements, purchase agreements or other agreements
relating to the initial public offering or any future issuance of the
Shares in exchange for Sponsor shares;
(v) to execute and deliver, in each case on behalf of the Trust,
such certifications or reports required by the Sarbanes-Oxley Act of 2002
from time to time as may be necessary or proper to the conduct of the
business of the Trust; and
(vi) to execute and deliver, in each case on behalf of the Trust,
such agreements, instruments, certificates and documents, and to make
filings with or representations on behalf of the Trust, to the City of
Chicago as may be necessary in connection with the potential acquisition
of Macquarie District Energy Holdings LLC.
(b) It is hereby acknowledged and agreed that in connection with any
execution, filing or document referred to in clauses (i) - (vi) above, (A) the
Regular Trustee (or his or her attorneys-in-fact and agents or the Sponsor as
permitted herein) is authorized on behalf of the Trust to file and execute such
document on behalf of the Trust and (B) the Delaware Trustee shall not be
required to join in any such filing or execute on behalf of the Trust any such
document.
Section 2.10 Title to Trust Property
Legal title to all Trust Property shall be vested at all times in
the Trust and shall be held and administered by the Regular Trustee for the
benefit of the Trust and the Shareholders in accordance with this Agreement.
Each Shareholder shall not have legal title to any part of the Trust Property,
but shall have an undivided beneficial interest in the Sponsor Shares owned by
the Trust.
Section 2.11 Certain Covenants of the Sponsor
The Sponsor will use its best efforts, consistent with the terms and
provisions of this Agreement, to cause the Trust to remain classified as a
"grantor trust" for U.S. federal income tax purposes.
ARTICLE III
DIVIDENDS AND DISTRIBUTIONS
Section 3.01 Dividends
(a) The Regular Trustee shall distribute to the Shareholders all
distributions or dividends received by the Trust with respect to the Sponsor
Shares from the Sponsor within two (2) Business Days of receipt. Any such
distributions or dividends shall be allocated to Shareholders in the same
amounts as any such allocations were made per Sponsor Share by the Sponsor.
(b) Dividends or distributions on the Shares shall be payable to the
Shareholders thereof as they appear on the Share Register for the Shares on the
relevant record date.
Section 3.02 Payment Procedures
Payments of Dividends in respect of the Shares shall be made by (i)
check mailed to the address of the Person entitled thereto as such address shall
appear on the Share Register or (ii) wire transfer of immediately available
funds to an account maintained by the Person entitled thereto as specified in
the Share Register.
Section 3.03 Tax Returns and Reports
The Sponsor shall prepare (or cause to be prepared), at the
Sponsor's expense, and file or provide (or cause to be filed or provided) all
U.S. federal, state and local tax and information returns and reports required
to be filed or provided to Shareholders by or in respect of the Trust. In this
regard, the Sponsor shall (a) prepare and file (or cause to be prepared or
filed) Form 1041 or the appropriate Internal Revenue Service form required to be
filed in respect of the Trust in each taxable year of the Trust and (b) prepare
and furnish (or cause to be prepared and furnished) a tax information statement
or such other form or statement, if any, required to be furnished in respect of
the Trust in each taxable year of the Trust. The Sponsor shall use all
reasonable efforts to comply in all material respects with U.S. federal, state
and local withholding and backup withholding tax laws and information reporting
requirements with respect to any payments to Shareholders upon the Shares. To
the extent that the Trust is required to withhold and pay over any amounts to
any authority with respect to Dividends or allocations to any Shareholder, the
amount withheld shall be deemed to be a distribution in the amount of the
withholding to the Shareholder. In the event of any claimed over-withholding,
Shareholders shall be limited to an action against the applicable taxing
jurisdiction. If the amount required to be withheld was not withheld from actual
Dividends paid, the Trust must reduce subsequent Dividends by the amount of such
withholding (but not by the amount of any liability imposed on the Trust as
withholding agent).
ARTICLE IV
SHARE CERTIFICATES
Section 4.01 Initial Ownership
Upon the formation of the Trust, the Sponsor was, and as of the date
hereof continues to be, the sole beneficial owner of the Trust. The Sponsor
shall have the right to sell or distribute Shares in any manner, subject to
applicable law, that the Board of Directors in its sole discretion deems
appropriate and advisable.
Section 4.02 Share Certificates
The Share Certificates shall be issued substantially in the form of
Exhibit A hereto. Each Share Certificate shall bear a serial number, shall
exhibit the Shareholder's name and the number of Shares evidenced thereby and
shall be executed on behalf of the Trust by manual or facsimile signature of the
Regular Trustee and countersigned by the Transfer Agent by
manual or facsimile signature of the Transfer Agent. Share Certificates bearing
the manual or facsimile signatures of individuals who were, at the time when
such signatures shall have been affixed, authorized to sign on behalf of the
Trust or the Transfer Agent or Registrar shall be validly issued and entitled to
the benefit of this Agreement, notwithstanding that such individuals or any of
them shall have ceased to be so authorized prior to the delivery of such Share
Certificates or did not hold such offices at the date of delivery of such Share
Certificates. A transferee of a Share Certificate shall become a Shareholder,
and shall be entitled to the rights and subject to the obligations of a
Shareholder hereunder, upon due registration of such Share Certificate in such
transferee's name pursuant to Section 4.04.
Section 4.03 Share Register
The Sponsor shall retain the Transfer Agent to keep a register or
registers (herein referred to as the "Share Register"), the Transfer Agent, in
such capacity shall be known as the Registrar, in which shall be recorded the
name and address of each Person owning the Shares evidenced by each Share
Certificate evidencing Shares issued by the Trust, the number of Shares
evidenced by each such Share Certificate, the date of issuance thereof and, in
the case of cancellation, the date of cancellation. Except as otherwise
expressly required by law, the Person in whose name Shares stand on the Share
Register of the Trust shall be deemed the owner and Shareholder of record
thereof for all purposes.
Section 4.04 Transfer of Shares
Registration of transfers of Shares shall be made only in the Share
Register of the Trust upon request of the registered Shareholder of such Shares,
or of his attorney thereunto authorized by power of attorney duly executed and
filed with Registrar, and upon the surrender of the Share Certificate or Share
Certificates evidencing such Shares properly endorsed or accompanied by a stock
power duly executed, together with such proof of authenticity of signatures as
the Registrar may reasonably require. All Share Certificates surrendered for
transfer shall be cancelled before new Share Certificates for the transferred
Shares shall be issued. Upon surrender for registration of transfer, and
cancellation, of any Share Certificate, the Regular Trustee shall execute in the
name of the designated transferee or transferees, one or more new Share
Certificates.
Section 4.05 Mutilated, Lost, Destroyed or Stolen Share Certificates
Each Shareholder of record of Shares shall promptly notify the Trust
of any mutilation, loss or destruction of any Share Certificate of which such
Shareholder is the recordholder. The Sponsor may, in its discretion, cause the
Transfer Agent to issue a new Share Certificate in place of any Share
Certificate theretofore issued by it and alleged to have been mutilated, lost,
stolen or destroyed, upon surrender of the mutilated Share Certificate or, in
the case of loss, theft or destruction of the Share Certificate, upon
satisfactory proof of such loss, theft or destruction, and the Sponsor may, in
its discretion, require the Shareholder of record of the Shares evidenced by the
lost, stolen or destroyed Share Certificate, or his legal representative, to
give the Transfer Agent a bond sufficient to indemnify the Transfer Agent
against any claim made against it on account of the alleged loss, theft or
destruction of any such Share Certificate or the issuance of such new Share
Certificate.
Section 4.06 Rights of Shareholders
The legal title to the Trust Property is vested exclusively in the
Trust in accordance with Section 2.10, and the Shareholders shall not have any
right or title therein other than the undivided beneficial interest in the
Sponsor Shares owned by the Trust conferred by their Shares and they shall have
no right to call for any partition or division of property, profits or rights of
the Trust except as described below. The Shares shall be personal property
giving only the rights specifically set forth therein and in this Agreement. The
Shares shall have no preemptive or similar rights and, when issued and delivered
to Shareholders against payment of the purchase price therefor and otherwise in
accordance with this Agreement, shall be deemed validly issued, fully paid and
nonassessable undivided beneficial interests in the Sponsor Shares owned by the
Trust. Shareholders, in their capacities as such, shall be entitled to the
benefits provided in this Agreement and to the same limitation of personal
liability extended to stockholders of private corporations for profit organized
under the General Corporation Law of the State of Delaware. Members of the Board
of Directors shall owe the same duties to Shareholders, in their capacities as
such, as they owe to the Trust, as Member of the Sponsor pursuant to the Sponsor
Agreement.
ARTICLE V
MEETINGS; VOTING
Section 5.01 Annual Meetings of Shareholders
The annual meeting of Shareholders to direct the voting of the
Trust, as Member of the Sponsor, shall be held at such date, at such time and at
such place (if any) within or without the State of Delaware as may be fixed by
resolution of the Board of Directors.
Section 5.02 Special Meetings of Shareholders
Special meetings of Shareholders shall be held on such date, at such
time and at such place (if any) within or without the State of Delaware as shall
be designated from time to time by the Board of Directors and stated in the
notice of the meeting. Special meetings of Shareholders may be called at any
time only by the Secretary either at the direction of the Board of Directors
pursuant to a resolution adopted by the Board of Directors or by the Chairman of
the Board.
Section 5.03 Place of Meeting
The Board of Directors may designate the place (if any) of meeting
for any meeting of Shareholders. If no designation is made by the Board of
Directors, the place of meeting shall be the principal office of the Sponsor. In
lieu of holding any meeting of Shareholders at a designated place, the Board of
Directors may, in its sole discretion, determine that any meeting of
Shareholders may be held solely by means of remote communication.
Section 5.04 Notice of Meeting
(a) A notice of meeting, stating the place (if any), day and hour of
the meeting, and the means of remote communication, if any, by which
Shareholders and proxy
holders may be deemed to be present in person and vote at such meeting, shall be
prepared and delivered by the Sponsor not less than twenty (20) days and not
more than sixty (60) days before the date of the meeting, either personally, by
mail or, to the extent and in the manner permitted by applicable law,
electronically, to each Shareholder of record. In the case of special meetings,
the notice shall state the purpose or purposes for which such special meeting is
called. Such further notice shall be given as may be required by law. Only such
business shall be conducted at a special meeting of Shareholders as shall have
been brought before the meeting pursuant to the Trust's notice of meeting. Any
previously scheduled meeting of the Shareholders may be postponed, and (unless
this Agreement otherwise provides) any special meeting of the Shareholders may
be cancelled, by resolution of the Board of Directors upon public notice given
prior to the time previously scheduled for such meeting of Shareholders.
(b) Notice to Shareholders shall be given personally, by mail or, to
the extent and in the manner permitted by applicable law, electronically to each
Shareholder of record. If mailed, such notice shall be delivered by postage
prepaid envelope directed to each holder at such Shareholder's address as it
appears in the records of the Trust and shall be deemed given when deposited in
the United States mail. Notice given by electronic transmission pursuant to this
subsection shall be deemed given: (1) if by facsimile telecommunication, when
directed to a facsimile telecommunication number at which the Shareholder has
consented to receive notice; (2) if by electronic mail, when directed to an
electronic mail address at which the Shareholder has consented to receive
notice; (3) if by posting on an electronic network together with separate notice
to the Shareholder of such specific posting, upon the later of (A) such posting
and (B) the giving of such separate notice; and (4) if by any other form of
electronic transmission, when directed to the Shareholder. An affidavit of the
Secretary or an assistant Secretary or of the Transfer Agent or other agent of
the Sponsor that the notice has been given by personal delivery, mail or a form
of electronic transmission shall, in the absence of fraud, be prima facie
evidence of the facts stated therein.
(c) Notice of any meeting of Shareholders need not be given to any
Shareholder if waived by such Shareholder either in a writing signed by such
Shareholder or by electronic transmission, whether such waiver is given before
or after such meeting is held. If such a waiver is given by electronic
transmission, the electronic transmission must either set forth or be submitted
with information from which it can be determined that the electronic
transmission was authorized by the Shareholder.
(d) In order that the Trust may determine the Shareholders entitled
to notice of or to vote at any meeting of Shareholders or any adjournment
thereof, the Board of Directors may fix a record date, which record date shall
not precede the date upon which the resolution fixing the record date is adopted
by the Board of Directors, and which record date shall not be more than sixty
(60) or fewer than ten (10) days before the date of such meeting. If no record
date is fixed by the Board of Directors, the record date for determining
Shareholders entitled to notice of or to vote at any meeting of Shareholders or
any adjournment thereof shall be at the close of business on the day next
preceding the day on which notice is given or, if notice is waived, at the close
of business on the day next preceding the day on which the meeting is held.
Section 5.05 Quorum and Adjournment
Except as otherwise provided by law or by this Agreement, the
Shareholders present in person or by proxy holding a majority of the outstanding
Shares entitled to vote, shall constitute a quorum at a meeting of Shareholders.
The Chairman of the Board or the holders of a majority of the Shares entitled to
vote so represented may adjourn the meeting from time to time, whether or not
there is such a quorum. The Shareholders present at a duly organized meeting at
which a quorum is present in person or by proxy may continue to transact
business until adjournment, notwithstanding the withdrawal of enough
Shareholders to leave less than a quorum.
When a meeting is adjourned to another time and place, if any,
unless otherwise provided by this Agreement, notice need not be given of the
reconvened meeting if the date, time and place, if any, thereof and the means of
remote communication, if any, by which Shareholders and proxyholders may be
deemed to be present in person and vote at such reconvened meeting are announced
at the meeting at which the adjournment is taken. At the reconvened meeting, the
Shareholders may transact any business that might have been transacted at the
original meeting. A determination of Shareholders of record entitled to notice
of or to vote at a meeting of Shareholders shall apply to any adjournment of
such meeting; provided, however, that the Board of Directors may fix a new
record date for the reconvened meeting. If an adjournment is for more than
thirty (30) days or if, after an adjournment, a new record date is fixed for the
reconvened meeting, a notice of the reconvened meeting shall be given to each
Shareholder entitled to vote at the meeting.
Section 5.06 Voting
(a) Subject to the provisions of this Section 5.06 and Section 5.07,
the Shareholders shall have the exclusive and absolute right to direct the
Regular Trustee with respect to voting of the Trust, as Member of the Sponsor,
with respect to the Sponsor Shares at all times during the term of the Trust.
(b) When the Trust is required or permitted to vote with respect to
the Sponsor Shares, the Sponsor shall prepare and deliver to the Trustees the
form of proxy materials to enable the Regular Trustee to solicit from the
Shareholders the manner in which they direct the Regular Trustee to vote their
Shares. Shareholders shall be entitled to one vote for each Share in respect of
any matter as to which Members are entitled to vote as provided in the Sponsor
Agreement.
(c) All Shares shall to the extent practicable under the
circumstances be voted or deemed to have been voted (to the extent that Shares
are not voted) in the same proportion as the Shares are directed to be voted by
the Shareholders, including for purposes of determining a quorum, in favor of,
in opposition to or abstaining from the matter. If such calculation of votes
would require a fractional vote, the Regular Trustee shall vote the next lower
number of whole Shares.
Section 5.07 Proxies
At all meetings of Shareholders, a Shareholder may vote by proxy as
provided by the Exchange Act; provided that no proxy shall be voted after three
(3) years from its date, unless
the proxy provides for a longer period in accordance with this Agreement. Any
proxy to be used at a meeting of Shareholders must be filed with the Secretary
of the Sponsor or his or her representative at or before the time of the
meeting.
Section 5.08 Notice of Shareholder Business and Nominations
(a) Annual Meetings of Shareholders
(i) Except in the case of the Initial Board, nominations of
individuals for election to the Board of Directors of the Sponsor, other
than the Chairman, for so long as the Manager is entitled to appoint a
director of the Board of Directors to serve as Chairman pursuant to the
terms of the Management Services Agreement, and the proposal of business
to be considered by Shareholders, may be made at an annual meeting of
Shareholders (A) pursuant to the Trust's notice of meeting delivered
pursuant to Section 5.04 hereof, (B) by or at the direction of the Board
of Directors or (C) by any Shareholder who is entitled to vote at the
meeting, who complies with the notice procedures set forth in clause (ii)
of this Section 5.08(a).
In addition to any other applicable requirements, for a nomination
for election of a director to be made by a Shareholder or for business to
be properly brought before an annual meeting by a Shareholder, such
Shareholder must (A) be a Shareholder of record on both (1) the date of
the delivery of such nomination or the date of the giving of the notice
provided for in this Section 5.08(a) and (2) the record date for the
determination of Shareholders entitled to vote at such annual meeting and
(B) have given timely notice thereof in proper written form in accordance
with the requirements of this Section 5.08 (a) to the Secretary.
(ii) For nominations or other business to be properly brought before
an annual meeting by a Shareholder pursuant to clause (C) of paragraph
(a)(i) of this Section 5.08, a Shareholder must have given timely notice
thereof in writing to the Secretary and, in the case of business other
than nominations, such other business must otherwise be a proper matter
for Shareholder action. To be timely, a Shareholder's notice shall be
delivered to the Secretary at the principal executive offices of the
Sponsor not less than one hundred and twenty (120) days nor more than one
hundred and fifty (150) days prior to the first anniversary of the
preceding year's annual meeting; provided, however, that, in the case of
the first annual meeting of Shareholders, a Shareholder's notice shall be
timely if it is delivered to the Secretary at the principal executive
offices of the Sponsor not earlier than the one hundred and twentieth
(120th) day prior to such annual meeting and not later than the close of
business on the later of the ninetieth (90th) day prior to such annual
meeting or the tenth (10th) day following the day on which public
announcement of the date of such meeting is first made. In no event shall
the public announcement or an adjournment or postponement of an annual
meeting commence a new time period for the giving of a Shareholder's
notice as described in this Section 5.08(a).
Subject to Section 5.08(a)(i), such Shareholder's notice shall set
forth: (A) as to each individual whom such Shareholder proposes to nominate for
election or reelection as a director, all information relating to such
individual that is required to be disclosed in solicitations of proxies for
election of directors in an election contest, or is otherwise required, in
Regulation
14A under the Exchange Act, including such individual's written consent to being
named in the proxy statement as a nominee and to serving as a director if
elected; (B) as to any other business that such Shareholder proposes to bring
before the meeting, a brief description of the business desired to be brought
before the meeting, the reasons for conducting such business at the meeting and
any material interest in such business of such Shareholder and the beneficial
owner or holder of Shares, if any, on whose behalf the proposal is made; and (C)
as to such Shareholder giving the notice and the beneficial owner, if any, on
whose behalf the nomination or proposal is made, (1) the name and address of
such Shareholder as they appear on the Trust's books and of such beneficial
owner and (2) the number of Shares which are owned beneficially and of record by
such Shareholder and such beneficial owner.
Notwithstanding anything in the second sentence of clause (ii) of
this Section 5.08(a) to the contrary, in the event that the number of directors
to be elected to the Board of Directors is increased and there is no public
announcement naming all of the nominees for director or specifying the size of
the increased Board of Directors made by the Sponsor, on behalf of the Trust at
least one hundred (100) days prior to the first anniversary of the preceding
year's annual meeting, a Shareholder's notice required by this Section 5.08
shall also be considered timely, but only with respect to nominees for any new
positions created by such increase, if it shall be delivered to the Secretary at
the principal executive offices of the Sponsor not later than the close of
business on the tenth (10th) day following the day on which such public
announcement is first made by the Sponsor, on behalf of the Trust.
(b) Special Meeting of Shareholders
Only such business shall be conducted at a special meeting of
Shareholders as shall have been brought before the meeting pursuant to the
Trust's notice of meeting pursuant to Section 5.04 of this Agreement.
Nominations of individuals for election to the Board of Directors, other than
the Chairman, for so long as the Manager is entitled to appoint a director of
the Board of Directors to serve as Chairman pursuant to the terms of the
Management Services Agreement, may be made at a special meeting of Shareholders
at which directors are to be elected pursuant to the Trust's notice of meeting
(i) by or at the direction of the Board of Directors or (ii) by any Shareholder
who is entitled to vote at the meeting who complies with the notice procedures
set forth in this Section 5.08.
In addition to any other applicable requirements, for a nomination
for election of a director to be made by a Shareholder, such Shareholder must
(A) be a Shareholder of record on both (1) the date of the delivery of such
nomination and (2) the record date for the determination of Shareholders
entitled to vote at such special meeting and (B) have given timely notice
thereof in proper written form in accordance with the requirements of this
Section 5.08(b) to the Secretary.
In the event the Sponsor on behalf of the Trust calls a special
meeting of Shareholders for the purpose of electing one or more directors to the
Board of Directors, any such Shareholder may nominate such number of individuals
for election to such position(s) as are specified in the Trust's Notice of
Meeting, if Shareholder's notice as required by clause (ii) of Section 5.08(a)
of this Agreement shall be delivered to the Secretary at the principal executive
offices of the Sponsor not earlier than the one hundred and twentieth (120th)
day prior to such
special meeting and not later than the close of business on the later of the
ninetieth (90th) day prior to such special meeting or the tenth (10th) day
following the day on which public announcement is first made of the date of the
special meeting and of the nominees proposed by the Board of Directors to be
elected at such meeting. In no event shall the public announcement of an
adjournment or postponement of a special meeting commence a new time period for
the giving of a Shareholder's notice as described above.
(c) General
(i) Only individuals who are nominated in accordance with the
procedures set forth in this Section 5.08 shall be eligible to be elected
as directors at a meeting of Shareholders and only such business shall be
conducted at a meeting of Shareholders as shall have been brought before
the meeting in accordance with the procedures set forth in this Section
5.08. Except as otherwise provided by applicable law or this Section 5.08,
the Chairman shall have the power and duty to determine whether a
nomination or any business proposed to be brought before the meeting was
made in accordance with the procedures set forth in this Section 5.08 and,
if any proposed nomination or business is not in compliance with this
Section 5.08, to declare that such defective proposal or nomination shall
be disregarded.
(ii) For purposes of this Section 5.08, "public announcement" shall
mean disclosure in a press release reported by the Dow Jones News Service,
Associated Press or comparable national news service or in a document
publicly filed by the Trust with the Securities and Exchange Commission
pursuant to Section 13, 14 or 15(d) of the Exchange Act.
(iii) Notwithstanding the foregoing provisions of this Section 5.08,
a Shareholder shall also comply with all applicable requirements of the
Exchange Act and the Rules and Regulations thereunder with respect to the
matters set forth in this Section 5.08. Nothing in this Section 5.08 shall
be deemed to affect any rights of Shareholders to request inclusion of
proposals in the Trust's proxy statement pursuant to Rule 14a-8 under the
Exchange Act.
Section 5.09 Procedure for Election of Directors; Voting
The election of directors submitted to Shareholders at any meeting
shall be decided by a plurality of the votes cast thereon. Except as otherwise
provided by law or this Agreement, all matters other than the election of
directors submitted to Shareholders at any meeting shall be decided by the
affirmative vote of a majority of the Shares present in person or represented by
proxy at the meeting of Shareholders.
The vote on any matter at a meeting, including the election of
directors, shall be by written ballot. Each ballot shall be signed by
Shareholder voting, or by such Shareholder's proxy, and shall state the number
of Shares voted.
Section 5.10 Inspectors of Elections; Opening and Closing the Polls
The Board of Directors by resolution shall appoint one or more
inspectors, which inspector or inspectors shall not be directors, officers or
employees of the Sponsor, to act at the meeting and make a written report
thereof. One or more individuals may be designated as alternate inspectors to
replace any inspector who fails to act. If no inspector or alternate has been so
appointed to act, or if all inspectors or alternates who have been appointed are
unable to act, at a meeting of Shareholders, the Chairman of the Board shall
appoint one or more inspectors to act at the meeting. Each such inspector,
before discharging his or her duties, shall take and sign an oath faithfully to
execute the duties of inspector with strict impartiality and according to the
best of his or her ability. The inspectors shall have the duties prescribed by
the General Corporation Law of the State of Delaware as if the Trust were a
Delaware corporation.
Section 5.11 Confidential Shareholder Voting
All proxies, ballots and votes, in each case to the extent they
disclose the specific vote of an identified Shareholder, shall be tabulated and
certified by an independent tabulator, inspector of elections and/or other
independent parties and shall not be disclosed to any director, officer or
employee of the Sponsor or Trustee; provided, however, that, notwithstanding the
foregoing, any and all proxies, ballots and voting tabulations may be disclosed:
(a) as necessary to meet legal requirements or to assist in the pursuit or
defense of legal action; (b) if the Sponsor concludes in good faith that a bona
fide dispute exists as to the authenticity of one or more proxies, ballots or
votes, or as to the accuracy of any tabulation of such proxies, ballots or
votes; (c) in the event of a proxy, consent or other solicitation in opposition
to the voting recommendation of the Board of Directors; and (d) if a Shareholder
requests or consents to disclosure of such Shareholder's vote or writes comments
on such Shareholder's proxy card or ballot.
Section 5.12 Waiver of Notice
Whenever any notice is required to be given to any Shareholder by
the terms of this Agreement, a waiver thereof in writing, signed by the Person
or Persons entitled to such notice, or a waiver thereof by electronic
transmission by the Person or Persons entitled to notice, whether before or
after the time stated therein, shall be deemed equivalent to the giving of such
notice. Neither the business to be transacted at, nor the purpose of, any annual
or special meeting of Shareholders need be specified in any written waiver of
notice or any waiver by electronic transmission of such meeting.
Section 5.13 Remote Communication
For the purposes of this Agreement, if authorized by the Board of
Directors in its sole discretion, and subject to such guidelines and procedures
as the Board of Directors may adopt, Shareholders and proxyholders may, by means
of remote communication:
(a) participate in a meeting of Shareholders; and
(b) be deemed present in person and vote at a meeting of
Shareholders, whether such meeting is to be held at a designated place or
solely by means of remote communication,
provided, however, that (i) the Sponsor, on behalf of the Trust, shall implement
reasonable measures to verify that each Person deemed present and permitted to
vote at the meeting by means of remote communication is a Shareholder or
proxyholder, (ii) the Sponsor, on behalf of the Trust, shall implement
reasonable measures to provide such Shareholders and proxyholders a reasonable
opportunity to participate in the meeting and to vote on matters submitted to
Shareholders, including an opportunity to read or hear the proceedings of the
meeting substantially concurrently with such proceedings, and (iii) if any
Shareholder or proxyholder votes or takes other action at the meeting by means
of remote communication, a record of such vote or other action shall be
maintained by the Sponsor, on behalf of the Trust.
Section 5.14 Inspection of Records
(a) The Sponsor, on behalf of the Trust, shall keep or cause to be
kept at the principal place of business of the Trust appropriate books and
records with respect to the Trust, including, without limitation, all books and
records necessary to provide to the Shareholders any information, lists and
copies of documents required to be provided pursuant to applicable law. Any
books and records maintained by or on behalf of the Trust in the regular course
of its business, including, without limitation, the record of the Shareholders,
books of account and records of Trust proceedings, may be kept in electronic or
any other form, provided that the books and records so maintained are
convertible into clearly legible written form within a reasonable period of
time.
(b) The Sponsor shall make, at least ten (10) days before every
meeting of Shareholders, a complete list of the Shareholders entitled to vote at
the meeting, arranged in alphabetical order, and showing the address of each
Shareholder and the number of Shares registered in the name of each Shareholder.
Such list shall be open to the examination of any Shareholder, for any purpose
germane to the meeting for a period of at least ten (10) days prior to the
meeting: (i) on a reasonably accessible electronic network, provided that the
information required to gain access to such list is provided with the notice of
the meeting, or (ii) during ordinary business hours, at the principal place of
business of the Trust. In the event that the Sponsor determines to make the list
available on an electronic network, the Sponsor may take reasonable steps to
ensure that such information is available only to Shareholders. The list shall
be produced and kept at the time and place of the meeting during the whole time
thereof, and may be inspected by any Shareholder who is present.
Any Shareholder, in person or by attorney or other agent, shall,
upon written demand stating the purpose thereof, have the right during the usual
business hours to inspect for any proper purpose, and to make copies and
extracts from: (1) the Trust's Share Register, a list of the Shareholders, and
its other books and records; (2) the Sponsor's books and records; or (3) a
Subsidiary's books and records or copies thereof in electronic form; to the
extent that (i) the Sponsor has actual possession and control of such records of
such Subsidiary or (ii) the Sponsor could obtain such records through the
exercise of control over such Subsidiary, provided that as of the date of the
making of the demand (A) Shareholder inspection of such books and records of the
Subsidiary of the Sponsor would not constitute a breach of an agreement between
the Sponsor or the Subsidiary and a Person or Persons not Affiliated with the
Sponsor, and (B) the Subsidiary would not have the right under the law
applicable to it to deny the Sponsor access to such books and records upon
demand by the Sponsor. In every instance where the beneficial holder of Shares
is not a holder of record, the demand shall state the Person's status as a
beneficial holder of Shares, be accompanied by documentary evidence of
beneficial ownership of Shares, and state that such documentary evidence is a
true and correct copy of what it purports to be. A proper purpose shall mean a
purpose reasonably related to such Person's interest as a Shareholder or
beneficial holder of Shares.
ARTICLE VI
DISCLOSURE REQUIREMENTS FOR TEN PERCENT HOLDERS
To ensure the Trust's compliance with its obligations under the Use
Agreement, in the event the Sponsor or any Subsidiary, or both, is required to
obtain the approval of the City of Chicago (or any department or agency thereof)
for any specific matter, including, but not limited to, the amendment of the Use
Agreement, or otherwise determines to request that the City of Chicago (or any
department or agency thereof) take action with respect to any matter, the
Sponsor shall deliver to the Transfer Agent notice of such approval requirement
or request for action and a copy of the then current form of the City of Chicago
Economic Disclosure Statement and Affidavit and cause the Transfer Agent to mail
a copy of such notice to any Beneficial Holder holding ten percent or more of
the then issued and outstanding Shares (each, a "Ten Percent Holder"). Within
thirty (30) days of the mailing of such notice, each Ten Percent Holder shall
provide to the Sponsor for filing with the City of Chicago a completed City of
Chicago Economic Disclosure Statement and Affidavit, a standard form of which is
attached hereto as Exhibit B. Each Ten Percent Holder shall provide any
supplemental statements, affidavits or material required to update any Economic
Disclosure Statement and Affidavit filed with the City of Chicago as required by
the City of Chicago and as requested by the Sponsor from time to time.
ARTICLE VII
RIGHT OF SHAREHOLDERS TO ENFORCE PROVISIONS OF SPONSOR
AGREEMENTS AND BRING DERIVATIVE ACTION
(a) Each Shareholder shall have the right to institute any legal
proceeding against the Sponsor to enforce the provisions of the Sponsor
Agreement.
(b) Shareholders holding at least ten percent (10%) or more of the
Shares shall have the right to cause the Trust to institute any legal proceeding
for any remedy available to the Trust as the sole Member of the Sponsor,
including bringing a derivative action under the Limited Liability Company Act,
and such Shareholders may direct the time, method and place of conducting any
such legal proceeding brought by the Trust.
ARTICLE VIII
SHAREHOLDER VOTE REQUIRED IN CONNECTION WITH CERTAIN
BUSINESS COMBINATIONS OR TRANSACTIONS
Section 8.01 Vote Generally Required. Except as provided in Sections
10.02 and 10.03 and subject to the provisions of Section 8.03 hereof, neither
the Trust or the Sponsor shall: (a) merge or consolidate with or into any
limited liability company, corporation, statutory
trust, business trust or association, real estate investment trust, common-law
trust or any other unincorporated business, including a partnership, or (b)
sell, lease or exchange all or substantially all of its Property and assets,
unless the Sponsor, acting through the Board of Directors, adopts a resolution
approving such action and unless such action shall be approved by the
affirmative vote of the holders of a majority of the Shares outstanding and
entitled to vote thereon; provided, however, that any Shares held by the Manager
or an Affiliate or Associate of the Manager shall not be entitled to vote to
approve any merger or consolidation with or into, or sale, lease or exchange to,
the Manager or an Affiliate or Associate thereof. The notice of the meeting at
which such resolution is to be considered will so state.
For the purposes of this Article VIII, the following terms have the
following meanings:
"Associate" has the meaning ascribed to such term in Rule 12b-2 of
the General rules promulgated under the Exchange Act.
"Business Combination" means:
(i) any merger or consolidation of the Trust, the Sponsor or any
Subsidiary thereof with (A) an Interested Shareholder, or (B) any other
Person (whether or not itself an Interested Shareholder) that is, or after
such merger or consolidation would be, an Affiliate or Associate of an
Interested Shareholder; or
(ii) any sale, lease, exchange, mortgage, pledge, transfer or other
disposition (in one transaction or a series of transactions) to or with,
or proposed by or on behalf of, an Interested Shareholder or an Affiliate
or Associate of an Interested Shareholder of any assets of the Trust, the
Sponsor or any Subsidiary thereof having an aggregate Fair Market Value of
not less than ten percent (10%) of the Net Investment Value of the Trust;
or
(iii) the issuance or transfer by the Trust, the Sponsor or any
Subsidiary thereof (in one transaction or a series of transactions) of any
securities of the Trust, the Sponsor or any Subsidiary to, or proposed by
or on behalf of, an Interested Shareholder or an Affiliate or Associate of
an Interested Shareholder in exchange for cash, securities or other
property (or a combination thereof) having an aggregate Fair Market Value
of not less than ten percent (10%) of the Net Investment Value of the
Trust; or
(iv) any spinoff or split-up of any kind of the Trust, the Sponsor
or any Subsidiary thereof, proposed by or on behalf of an Interested
Shareholder or an Affiliate or Associate of an Interested Shareholder; or
(v) any reclassification of the Shares (including any reverse split
of Shares) or recapitalization of the Trust, or any merger or
consolidation of the Trust with any Subsidiary thereof, or any other
transaction (whether or not with or into or otherwise involving an
Interested Shareholder), that has the effect, directly or indirectly, of
increasing the percentage of the outstanding shares of (A) the Shares or
any class of equity securities of any Subsidiary thereof or (B) any class
of securities of any Subsidiary convertible into or exchangeable for
Shares or equity securities of any Subsidiary, that
are directly or indirectly owned by an Interested Shareholder and its
Affiliates and Associates; or
(vi) any agreement, contract or other arrangement providing for any
one or more of the actions specified in clauses (i) through (v) above.
"Continuing Director" means (i) any director of the Board of
Directors who (A) is neither the Interested Shareholder involved in the Business
Combination as to which a determination of Continuing Directors is provided
hereunder, nor an Affiliate, Associate, employee, agent or nominee of such
Interested Shareholder, or a relative of any of the foregoing, and (B) was a
member of the Board of Directors prior to the time that such Interested
Shareholder became an Interested Shareholder, or (ii) any successor of a
Continuing Director described in clause (i) above who is recommended or elected
to succeed a Continuing Director by the affirmative vote of a majority of
Continuing Directors then on the Board of Directors.
"Fair Market Value" means: (i) in the case of equity securities, the
average of the closing sale prices during the ten (10)-day period immediately
preceding the date in question of such equity securities:
(1) on the New York Stock Exchange (regular way);
(2) if such equity securities are not listed for trading on the
NYSE, as reported in the composite transactions for the principal U.S.
national or regional securities exchange on which such equity securities
are so listed;
(3) if such equity securities are not so listed on a principal U.S.
national or regional securities exchange, the price as reported by the
Nasdaq National Market;
(4) if such equity securities are not so reported, the last quoted
bid price for such equity securities, in the over-the-counter market as
reported by the National Quotation Bureau or a similar organization; or
(5) if such equity securities are not so quoted, the fair market
value of such equity securities, as determined by a majority of the
Continuing Directors in good faith;
and (ii) in the case of Property other than cash or equity securities, the fair
market value of such Property on the date in question as determined by a
majority of the Continuing Directors in good faith.
"Future Investment" means a contractual commitment to invest
represented by a definitive agreement.
"Interested Shareholder" means any Person (other than the Manager,
the Trust, the Sponsor or any Subsidiary of the Sponsor, any employee benefit
plan maintained by the Sponsor, any Subsidiary or any trustee or fiduciary with
respect to any such plan when acting in such capacity) that:
(i) is, or was at any time within the three-year period immediately
prior to the date in question, the Beneficial Owner of fifteen percent
(15%) or more of the then outstanding Shares and who did not become the
Beneficial Owner of such amount of Shares pursuant to a transaction that
was approved by the Sponsor, acting through the Board of Directors; or
(ii) is an assignee of, or has otherwise succeeded to, any Shares of
which an Interested Shareholder was the Beneficial Owner at any time
within the three-year period immediately prior to the date in question, if
such assignment or succession shall have occurred in the course of a
transaction, or series of transactions, not involving a public offering
within the meaning of the Securities Act.
For the purpose of determining whether a Person is an Interested
Shareholder, the Shares that may be issuable or exchangeable by the Trust to the
Interested Shareholder pursuant to any agreement, arrangement or understanding,
or upon the exercise of conversion rights, warrants or options, or otherwise,
shall be included, but not any other Shares that may be issuable or exchangeable
by the Trust pursuant to any agreement, arrangement or understanding, or upon
the exercise of conversion rights, warrants or options, or otherwise, to any
Person who is not the Interested Shareholder.
"Managed Subsidiary" means Macquarie Infrastructure Company Inc.,
Macquarie Yorkshire LLC, South East Water LLC, Communications Infrastructure
LLC, and, any directly owned Subsidiary of the Sponsor that becomes party to the
Management Services Agreement, from time to time.
"Market Value of the Trust Stock" means the product of (1) the
average number of shares of Trust Stock issued and outstanding, other than
treasury Shares during the last fifteen (15) Trading Days in the most recent
full Fiscal Quarter multiplied by (2) the volume weighted average trading price
per share of Trust Stock traded on the NYSE over those fifteen (15) Trading
Days.
"Net Investment Value" means:
(a) the Market Value of the Trust Stock; plus
(b) the amount of any borrowings (other than intercompany
borrowings) of the Sponsor and its Managed Subsidiaries (but not including
borrowings on behalf of any Subsidiary of the Managed Subsidiaries); plus
(c) the value of Future Investments of the Sponsor and/or any of its
Subsidiaries other than cash or cash equivalents, as calculated by the
Manager and approved by a majority of the Continuing Directors; provided
that such Future Investment has not been outstanding for more than two
consecutive full Fiscal Quarters; less
(d) the aggregate amount held by the Sponsor and its Managed
Subsidiaries in cash or cash equivalents (but not including cash or cash
equivalents held specifically for the benefit of any Subsidiary of a
Managed Subsidiary).
Section 8.02 Vote for Business Combinations. The affirmative vote of
the holders of record of outstanding Shares represented by at least sixty-six
and two-thirds percent (66 2/3%) of the then outstanding Shares (excluding
Shares held by the Interested Shareholder or any Affiliate or Associate of an
Interested Shareholder) shall be required to approve any Business Combination.
Such affirmative vote shall be required notwithstanding the fact that no vote
may be required, or that a lesser percentage may be specified, by law or in any
agreement with any securities exchange or otherwise.
Section 8.03 Power of Continuing Directors. The Continuing Directors
shall have the power and duty to determine, on the basis of information known to
them after reasonable inquiry, all facts necessary to determine compliance with
this Article VIII, including, without limitation, (a) whether a Person is an
Interested Shareholder, (b) the number of Shares beneficially owned by any
Person, (c) whether a Person is an Affiliate or Associate of another and (d) the
Fair Market Value of the Shares, the Sponsor Shares or the equity securities of
any Subsidiary thereof; and the good faith determination of the Continuing
Directors on such matters shall be conclusive and binding for all the purposes
of this Article VIII.
Section 8.04 No Effect on Fiduciary Obligations. Nothing contained
in this Article shall be construed to relieve the members of the Board of
Directors or an Interested Shareholder from any fiduciary obligation imposed by
law.
Section 8.05 Miscellaneous. In addition to any affirmative vote
required by law or by this Agreement, the affirmative vote of a majority of the
then outstanding Shares held by the Shareholders that are not held by the
Interested Shareholder or an Affiliate or Associate of an Interested Shareholder
shall be required to approve the sale or transfer by an Interested Shareholder
or an Affiliate or Associate of an Interested Shareholder to the Trust, the
Sponsor or any Subsidiary (in one transaction or a series of transactions) of
any Shares, securities of the Sponsor or any Subsidiary in exchange for cash,
securities of the Sponsor or any Subsidiary. Such affirmative vote shall be
required notwithstanding the fact that no vote may be required, or that a lesser
percentage may be specified, by law or in any agreement with any securities
exchange or otherwise.
ARTICLE IX
THE TRUSTEES
Section 9.01 Certain Duties and Responsibilities
(a) In addition to the duties and responsibilities provided for in
Sections 3.01 and 5.05, the Regular Trustee shall have the following exclusive
duties:
(i) to maintain bank accounts, brokerage accounts and other custody
accounts that receive Trust income and receipts from which Trust
expenditures and distributions are disbursed;
(ii) to maintain evidence of intangible Trust assets;
(iii) to maintain Trust records;
(iv) to maintain an office for Trust business;
(v) to originate, facilitate and review Trust reports and other
Trust communications;
(vi) to execute documents and authorize Trust account transactions;
(vii) to retain accountants, attorneys, agents and other advisors in
connection with its duties under this Agreement;
(viii) to file reports and returns on behalf of the Trust with
government agencies to the extent required by law and as specifically
directed in writing by the Sponsor; and
(ix) to perform such other actions as are necessary to effect any of
the foregoing duties; provided, however, that no action may be taken by
the Regular Trustee to the extent that such action would cause the Regular
Trustee to be considered to have the power to vary the investment of the
beneficial owners or otherwise to cause the Trust no longer to qualify as
a grantor trust for U.S. federal income tax purposes.
(b) The duties and responsibilities of the Trustees shall be as
provided by this Agreement. Except as provided in Section 2.09(a), the Sponsor
hereby acknowledges and agrees that the Trustees are authorized, directed and
instructed to act, only as specifically authorized in writing by the Sponsor.
Any written instructions, notwithstanding any error in the
transmission thereof or that such instructions may not be genuine, shall, as
against the Sponsor and in favor of the Trustees, be conclusively deemed to be
valid instructions from the Sponsor to the Trustees for the purposes of this
Agreement, if reasonably believed by the Trustees to be genuine and if not
otherwise insufficient on the face of such written instructions; provided,
however, that a Trustee in its discretion may decline to act upon any
instructions where they are not received by such Trustee in sufficient time for
such Trustee to act upon or in accordance with such instructions, where such
Trustee has reasonable grounds for concluding that the same have not been
accurately transmitted or are not genuine or where such Trustee believes in good
faith that complying with such instructions is contrary to law or might subject
such Trustee to any liability. If a Trustee declines to act upon any
instructions for any reason set out in the preceding sentence, it shall notify
the Sponsor and the other Trustees in writing forthwith after it so declines.
(c) The Trustees shall not be liable for any act or omission in the
course of or connected with their performance hereunder, except only that each
Trustee shall be subject to liability and assume the entire responsibility for
direct damages suffered by the Sponsor or any other Person occasioned by such
Trustee's own gross negligence or willful misconduct or the gross negligence or
willful misconduct of any of such Trustee's directors, officers or employees in
the rendering of its performance hereunder, as determined by a court of
competent jurisdiction.
(d) The Trustees shall incur no liability to anyone in acting upon
any document reasonably believed by them to be genuine (which is not
insufficient on its face) and to have been signed by the proper Person or
Persons. The Trustees may accept a certified copy of a
resolution of the board of directors or other governing body of any corporate
party as conclusive evidence that such resolution has been duly adopted by such
body and that the same is in full force and effect. As to any fact or matter the
manner of ascertainment of which is not specifically prescribed herein, the
Trustees may for all purposes hereof rely on a certificate, signed by the
Sponsor, as to such fact or matter, and such certificate, if relied upon by the
Trustees in good faith, shall constitute full protection to the Trustees for any
action taken or omitted to be taken by them in good faith in reliance thereon.
In no event shall the Trustees be liable for (A) acting in
accordance with instructions from the Sponsor, (B) special or consequential
damages or (C) the acts or omissions of their nominees, correspondents,
designees, agents or subagents appointed by them in good faith.
(e) In the event that the Trustees are unsure of the course of
action to be taken by them hereunder, the Trustees may request instructions from
the Sponsor and, to the extent the Trustees follow such instructions in good
faith, they shall not be liable to any Person. In the event that no instructions
are provided within the time requested by the Trustees, they shall have no duty
or liability for their failure to take any action or for any action they take in
good faith and in accordance with the terms hereof.
Section 9.02 Not Responsible for Recitals or Issuance of Shares
The recitals contained herein and in the Share Certificates shall
not be taken as the statements of the Trustees, and the Trustees do not assume
any responsibility for their correctness.
Section 9.03 May Hold Shares
Any Trustee or any other agent of any Trustee or the Trust, in its
individual or any other capacity, may become the owner or pledgee of Shares and
may otherwise deal with the Trust with the same rights it would have if it were
not a Trustee or such other agent.
Section 9.04 Compensation; Indemnity; Fees
The Sponsor agrees:
(a) to pay the Delaware Trustee from time to time such compensation
for all services rendered by them hereunder as the parties shall agree
from time to time in writing (which compensation shall not be limited by
any provision of law in regard to the compensation of a trustee of an
express trust);
(b) except as otherwise expressly provided herein, to reimburse the
Delaware Trustee upon request for all reasonable expenses, disbursements
and advances incurred or made by the Delaware Trustee in accordance with
any provision of this Agreement (including the reasonable compensation and
the expenses and disbursements of its agents and counsel), except any such
expense, disbursement or advance determined by a court of competent
jurisdiction to have been caused by its own gross negligence or willful
misconduct; and
(c) the Sponsor agrees, to the fullest extent permitted by
applicable law, to indemnify and hold harmless (i) the Trustees, (ii) any
officer, director, shareholder, employee, representative or agent of the
Trustees, and (iii) any employee or agent of the Trust (referred to herein
as an "Indemnified Person") from and against any loss, damage, liability,
tax, penalty, expense or claim of any kind or nature whatsoever incurred
by such Indemnified Person by reason of the creation, operation or
termination of the Trust or any act or omission performed or omitted by
such Indemnified Person in good faith on behalf of the Trust and in a
manner such Indemnified Person reasonably believed to be within the scope
of authority conferred on such Indemnified Person by this Agreement,
except that no Indemnified Person shall be entitled to be indemnified in
respect of any loss, damage or claim incurred by such Indemnified Person
by reason of gross negligence or willful misconduct with respect to such
acts or omissions.
Section 9.05 Delaware Trustee Required; Eligibility of Trustees
(a) There shall at all times be a Delaware Trustee hereunder with
respect to the Shares. The Delaware Trustee shall be either (i) a natural person
who is at least 21 years of age and a resident of the State of Delaware or (ii)
a legal entity with its principal place of business in the State of Delaware and
that otherwise meets the requirements of applicable Delaware law that shall act
through one or more persons authorized to bind such entity. If at any time the
Delaware Trustee with respect to the Shares shall cease to be eligible in
accordance with the provisions of this Section 9.05, it shall resign immediately
in the manner and with the effect hereinafter specified in this Article IX.
(b) There shall at all times be one Regular Trustee hereunder with
respect to the Shares. The Regular Trustee shall be either a natural person who
is at least 21 years of age or a legal entity that shall act through one or more
persons authorized to bind that entity.
Section 9.06 Resignation and Removal; Appointment of Successor
(a) Subject to Sections 9.06(b) and 9.06(c), any Trustee (the
"Relevant Trustee") may be appointed or removed without cause at any time by the
Sponsor.
(b) The Trustee that acts as Delaware Trustee shall not be removed
in accordance with Section 9.06(a) until a successor possessing the
qualifications to act as Delaware Trustee under Section 9.05 (a "Successor
Delaware Trustee") has been appointed and has accepted such appointment by
instrument executed by such Successor Delaware Trustee and delivered to the
Trust, the Sponsor and the removed Delaware Trustee.
(c) A Trustee appointed to office shall hold office until his, her
or its successor shall have been appointed or until his, her or its death,
removal, resignation, dissolution or liquidation. Any Trustee may resign from
office (without need for prior or subsequent accounting) by an instrument in
writing with thirty (30) days' notice signed by the Trustee and delivered to the
Sponsor and the Trust, which resignation shall take effect upon such later date
as is specified therein; provided, however, that no such resignation of the
Trustee that acts as the Delaware Trustee shall be effective until a Successor
Delaware Trustee has been appointed and has accepted such appointment by
instrument executed by such Successor Delaware Trustee and delivered to the
Trust, the Sponsor and the resigning Delaware Trustee.
(d) If no Successor Delaware Trustee shall have been appointed and
accepted appointment as provided in this Section 9.06 within sixty (60) days
after delivery pursuant to this Section 9.06 of an instrument of resignation or
removal, the Delaware Trustee resigning or being removed, as applicable, may
petition, at the expense of the Sponsor, any court of competent jurisdiction for
appointment of a Successor Delaware Trustee. Such court may thereupon, after
prescribing such notice, if any, as it may deem proper, appoint a Successor
Delaware Trustee.
(e) No Delaware Trustee shall be liable for the acts or omissions to
act of any Successor Delaware Trustee, as the case may be.
(f) Notwithstanding the foregoing or any other provision of this
Agreement, in the event a Regular Trustee or a Delaware Trustee who is a natural
person dies or becomes, solely in the opinion of the Sponsor, incompetent or
incapacitated, the vacancy created by such death, incompetence or incapacity may
be filled by the Sponsor (with the successor in each case being a Person who
satisfies the eligibility requirement for the Regular Trustee or the Delaware
Trustee, as the case may be, set forth in Section 9.05).
(g) The indemnity provided to a Trustee under Section 9.04 shall
survive any Trustee's resignation or removal and the termination of this
Agreement.
Section 9.07 Acceptance of Appointment by Successor
(a) In case of the appointment hereunder of a Successor Trustee,
such Successor Trustee so appointed shall execute, acknowledge and deliver to
the Trust and to the retiring Trustee an instrument accepting such appointment,
and thereupon the resignation or removal of the retiring Trustee shall become
effective and such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers and duties of the
retiring Trustee; but, on the request of the Sponsor or the Successor Trustee,
such retiring Trustee shall, upon payment of its charges, execute and deliver an
instrument transferring to such Successor Trustee all the rights and powers of
the retiring Trustee.
(b) No Successor Trustee shall accept its appointment unless at the
time of such acceptance such Successor Trustee shall be qualified and eligible
under this Article IX.
Section 9.08 Merger, Conversion, Consolidation or Succession to
Business
Any Person into which the Delaware Trustee or the Regular Trustee
that is not a natural person may be merged or converted or with which it may be
consolidated, or any Person resulting from any merger, conversion or
consolidation to which such Relevant Trustee shall be a party, or any Person
succeeding to all or substantially all the corporate trust business of such
Relevant Trustee, shall be the successor of such Relevant Trustee hereunder,
provided that such Person shall be otherwise qualified and eligible under this
Article IX, without the execution or filing of any paper or any further act on
the part of any of the parties hereto.
Section 9.09 Number of Trustees
(a) The number of Trustees shall be two, provided that the Sponsor
may increase or decrease the number of Regular Trustees.
(b) If a Trustee ceases to hold office for any reason and the number
of Regular Trustees is not reduced pursuant to Section 9.09(a), or if the number
of Trustees is increased pursuant to Section 9.09(a), a vacancy shall occur. The
vacancy shall be filled by a Successor Trustee appointed in accordance with
Section 9.06.
(c) The death, resignation, retirement, removal, bankruptcy,
incompetence or incapacity to perform the duties of a Trustee shall not operate
to annul the Trust.
Section 9.10 Delegation of Power
(a) Any Regular Trustee may, by power of attorney consistent with
applicable law, delegate to any other natural person over the age of 21 his or
her power for the purpose of executing any documents contemplated in Section
2.09(a).
(b) The Regular Trustee shall have power to delegate from time to
time to such of their number or to the Sponsor the doing of such things and the
execution of such instruments either in the name of the Trust or the names of
the Regular Trustee or otherwise as the Regular Trustee may deem expedient, to
the extent such delegation is not prohibited by applicable law or contrary to
the provisions of the Trust, as set forth herein.
Section 9.11 Appointment of Regular Trustees
(a) The Regular Trustee shall be Peter Stokes, an individual and his
successor shall be appointed by the Sponsor. Upon any resignation or removal,
the Sponsor shall appoint a successor Regular Trustee.
(b) Whenever a vacancy in the number of Regular Trustees shall
occur, until such vacancy is filled by the appointment of a Regular Trustee in
accordance with this Section 9.11 or Section 9.06, the Regular Trustees in
office, if any, regardless of their number (and not withstanding any other
provision of this Agreement), shall have all the powers granted to the Regular
Trustee and shall discharge all the duties imposed upon the Regular Trustee by
this Agreement.
ARTICLE X
TERMINATION AND DISSOLUTION
Section 10.01 Termination or Dissolution
Unless terminated as provided herein, the Trust shall continue
without limitation of time. If an Early Termination Event specified in Section
10.04 occurs, the Trust shall be dissolved, and one Sponsor Share shall be
distributed to each Shareholder in exchange for each outstanding Share.
Section 10.02 Circumstances Under Which Shares Will Be Exchanged for
Sponsor Shares
In the event that the Sponsor, acting through the Board of
Directors, (i) determines that either (A) the Trust or the Sponsor, or both, is,
or is reasonably likely to be, treated as a corporation for U.S. federal income
tax purposes, (B) the Trust is, or is reasonably likely to be, required to issue
Schedules K-1 to Shareholders or (C) the existence of the Trust
otherwise results, or is reasonably likely to result, in a material tax
detriment to the Trust, Shareholders, the Sponsor or any Member of the Sponsor
and (ii) obtains an opinion of counsel of national reputation to such effect,
the Sponsor, acting through the Board of Directors (a) shall declare a record
date and deliver a mandatory instruction to the Regular Trustee, together with
any opinions of counsel or officers' certificates of the Sponsor as the Regular
Trustee may reasonably request, directing the Regular Trustee to (i) deliver one
Sponsor Share to each Shareholder in exchange for such outstanding Share (the
"Mandatory Exchange") and (ii) dissolve the Trust and (b) shall deliver to the
Transfer Agent notice of such Mandatory Exchange and shall cause the Transfer
Agent to mail a copy of such notice to the Shareholders at least thirty (30)
days prior to the Mandatory Exchange. Simultaneously with the completion of such
Mandatory Exchange, each Shareholder immediately prior to the completion of the
Mandatory Exchange shall be admitted to the Sponsor as a Shareholder in respect
of an equal number of Sponsor Shares previously held by the Trust and each
Shareholder shall be issued a certificate evidencing the same, in accordance
with the provisions of the Sponsor Agreement. Immediately whereafter, the Trust
shall be deemed withdrawn from the Sponsor as a Shareholder in respect of such
Sponsor Share(s), and the Trust shall tender its certificates evidencing Sponsor
Shares to the Transfer Agent for cancellation.
Section 10.03 Right to Acquisition Exchange
If at any time one Person is the beneficial holder of more than
ninety percent (90%) of the then outstanding Shares (the "Acquirer"), such
Acquirer shall then have the right to direct the Sponsor, acting through the
Board of Directors, to (i) declare a record date and deliver a mandatory
instruction to the Regular Trustee directing the Regular Trustee to (A) deliver
the Sponsor Shares to Shareholders, including the Acquirer, in exchange for all
of the outstanding Shares (the "Acquisition Exchange") and (B) dissolve the
Trust and (ii) deliver to the Transfer Agent notice of such Acquisition Exchange
and cause the Transfer Agent to mail a copy of such notice to Shareholders at
least thirty (30) days prior to the Acquisition Exchange. Simultaneously with
the completion of such Acquisition Exchange, each Shareholder immediately prior
to the completion of the Acquisition Exchange shall be admitted to the Sponsor
as a Shareholder in respect of an equal number of Sponsor Shares previously held
by the Trust and shall be issued a certificate evidencing the same, in
accordance with the provisions of the Sponsor Agreement, immediately whereafter
the Trust shall be deemed withdrawn from the Sponsor as a Shareholder in respect
of such Sponsor Share(s), and the Trust shall tender its certificates evidencing
Sponsor Shares to the Sponsor for cancellation.
Section 10.04 Early Termination
The Trust shall dissolve upon the first to occur of any of the
following events (each an "Early Termination Event"):
(a) the occurrence of a Mandatory Exchange or an Acquisition
Exchange;
(b) the dissolution or liquidation of the Sponsor;
(c) receipt by the Regular Trustee of written notice from the
Sponsor at any time (which notice is optional and wholly within the
discretion of the Sponsor) of its
intention to dissolve the Trust and distribute the Sponsor Shares in
exchange for the Shares; or
(d) an order for dissolution of the Trust shall have been entered by
a court of competent jurisdiction.
Section 10.05 Termination of Obligations
The respective obligations and responsibilities of the Trustees and
the Trust continued hereby shall terminate upon the latest to occur of the
following:
(a) the payment of all expenses owed by the Trust;
(b) the discharge of all administrative duties of the Regular
Trustee; and
(c) the filing of a certificate of cancellation cancelling the
Trust's certificate of trust with the Secretary of State of the State of
Delaware by the Regular Trustee.
ARTICLE XI
MISCELLANEOUS PROVISIONS
Section 11.01 Limitation of Rights of Shareholders
The death or incapacity of any person having an interest, beneficial
or otherwise, in Shares shall not operate to terminate this Agreement, nor
entitle the legal representatives or heirs of such person or any Shareholder for
such person to claim an accounting, take any action or bring any proceeding in
any court for a partition or winding-up of the arrangements contemplated hereby,
nor otherwise affect the rights, obligations and liabilities of the parties
hereto or any of them.
Section 11.02 Amendment
This Agreement may be amended from time to time by the Sponsor,
acting through the Board of Directors, and by the Regular Trustee at the
direction of the Sponsor, acting through the Board of Directors; provided,
however, that no such amendment shall alter the rights, powers or immunities of
the Delaware Trustee without its written consent. Notwithstanding any other
provisions of this Agreement, the Sponsor shall not, and no Trustee shall, (i)
enter into or consent to any amendment to this Agreement which would cause the
Trust to fail or cease to qualify for the exemption from the status of an
"investment company" under the 1940 Act or be classified as other than a grantor
trust for U.S. federal income tax purposes, (ii) cause the Trust to issue a
class of equity securities other than the Shares or issue any debt securities or
any derivative securities or amend the provision of Section 2.05 of this
Agreement prohibiting such issuance or (iii) enter into or consent to any
amendment to this Agreement that would affect the exclusive and absolute right
of the Shareholders to direct the voting of the Trust, as Member of the Sponsor,
pursuant to Section 5.05 of this Agreement, with respect to all matters reserved
for the vote of Members pursuant to the provisions of the Sponsor Agreement;
provided, however, that Article VIII, Section 2.05 and this Section 11.02 of
this Agreement may not be amended
without the affirmative vote of a majority of the Shares present in person or
represented by proxy at a meeting of Shareholders.
Section 11.03 Separability
In case any provision in this Agreement or in the Share Certificates
shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
Section 11.04 Specific Performance
The Sponsor and the Trustees agree that each party to this Agreement
would be irreparably damaged if any of the provisions of this Agreement were not
performed in accordance with their specific terms and that monetary damages
would not provide an adequate remedy in such event. Accordingly, it is agreed
that, in addition to any other remedy to which the nonbreaching party may be
entitled, at law or in equity, each nonbreaching party shall be entitled to
injunctive relief to prevent breaches of the provisions of this Agreement and
specifically to enforce the terms and provisions hereof in any action instituted
in any court of the United States or any state thereof having subject matter
jurisdiction thereof.
Section 11.05 Governing Law
This Agreement and the rights of the parties hereunder shall be
governed by and interpreted in accordance with the laws of the State of
Delaware; PROVIDED, HOWEVER, THAT THERE SHALL NOT BE APPLICABLE TO THE PARTIES
HEREUNDER OR THIS AGREEMENT ANY PROVISION OF THE LAWS (COMMON OR STATUTORY) OF
THE STATE OF DELAWARE PERTAINING TO TRUSTS THAT RELATE TO OR REGULATE, IN A
MANNER INCONSISTENT WITH THE TERMS HEREOF, (A) THE FILING WITH ANY COURT OR
GOVERNMENTAL BODY OR AGENCY OF TRUSTEE ACCOUNTS OR SCHEDULES OF TRUSTEE FEES AND
CHARGES, (B) AFFIRMATIVE REQUIREMENTS TO POST BONDS FOR TRUSTEES, OFFICERS,
AGENTS OR EMPLOYEES OF A TRUST, (C) THE NECESSITY FOR OBTAINING COURT OR OTHER
GOVERNMENTAL APPROVAL CONCERNING THE ACQUISITION, HOLDING OR DISPOSITION OF REAL
OR PERSONAL PROPERTY, (D) FEES OR OTHER SUMS PAYABLE TO TRUSTEES, OFFICERS,
AGENTS OR EMPLOYEES OF A TRUST, (E) THE ALLOCATION OF RECEIPTS AND EXPENDITURES
TO INCOME OR PRINCIPAL, (F) RESTRICTIONS OR LIMITATIONS ON THE PERMISSIBLE
NATURE, AMOUNT OR CONCENTRATION OF TRUST INVESTMENTS OR REQUIREMENTS RELATING TO
THE TITLING, STORAGE OR OTHER MANNER OF HOLDING OR INVESTING TRUST ASSETS OR (G)
THE ESTABLISHMENT OF FIDUCIARY OR OTHER STANDARDS OF RESPONSIBILITY OR
LIMITATIONS ON THE ACTS OR POWERS OF TRUSTEES THAT ARE INCONSISTENT WITH THE
LIMITATIONS OR AUTHORITIES AND POWERS OF THE TRUSTEES HEREUNDER AS SET FORTH OR
REFERENCED IN THIS AGREEMENT. SECTION 3540 OF TITLE 12 OF THE DELAWARE CODE
SHALL NOT APPLY TO THE TRUST.
Section 11.06 Successors
This Agreement shall be binding upon and shall inure to the benefit
of any successor to the Sponsor, the Trust or the Relevant Trustee, including
any successor by operation of law.
Section 11.07 Headings
The Article and Section headings are for convenience only and shall
not affect the construction of this Agreement.
Section 11.08 Reports, Notices and Demands
(a) Any report, notice, demand or other communications which by any
provision of this Agreement is required or permitted to be given or served to or
upon any Shareholder or the Sponsor may be given or served in writing by deposit
thereof, first-class postage prepaid, in the United States mail, hand delivery
or facsimile transmission, in each case, addressed, (a) in the case of a
Shareholder, to such Shareholder as such Shareholder's name and address may
appear on the Share Register; with a copy to Potter Anderson & Corroon LLP, P.O.
Box 951, Wilmington, DE 19899; Attention: Scott E. Waxman and (b) in the case of
the Sponsor, to Macquarie Infrastructure Company LLC, 600 Fifth Avenue, 21st
Floor, New York, New York 10020; Attention: David Mitchell or to such other
address as such Person may from time to time specify by notice to the other
parties hereto. Such notice, demand or other communication to or upon a
Shareholder shall be deemed to have been sufficiently given, or made, for all
purposes, upon hand delivery, mailing or transmission.
(b) Any notice, demand or other communication which by any provision
of this Agreement is required or permitted to be given or served to or upon the
Trust, the Delaware Trustee or the Regular Trustee shall be given in writing
(which may be by facsimile transmission) addressed (until another address is
published by the Trust) as follows: (a) with respect to the Delaware Trustee, to
Wells Fargo Delaware Trust Company, 919 N. Market Street, Wilmington, Delaware
19801, Attention: Corporate Trust Services, and (b) with respect to the Regular
Trustee, to him at the address for notices to the Sponsor, marked "Attention:
Peter Stokes." Such notice, demand or other communication to or upon the Trust
shall be deemed to have been sufficiently given or made only upon actual receipt
of the writing by the Trust.
Section 11.09 Counterparts
This Agreement may contain more than one counterpart of the
signature page and this Agreement may be executed by the affixing of the
signature of each of the Trustees to one of such counterpart signature pages.
All of such counterpart signature pages shall be read as though one, and they
shall have the same force and effect as though all of the signers had signed a
single signature page.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed as of the day and year first above written.
MACQUARIE INFRASTRUCTURE COMPANY LLC,
as Sponsor
By: /s/ Peter Stokes
____________________________________
Name: Peter Stokes
______________________________
Title: Chief Executive Officer
_____________________________
WELLS FARGO DELAWARE TRUST COMPANY,
as Delaware Trustee
By: /s/ Edward L. Truitt, Jr.
____________________________________
Name: Edward L. Truitt, Jr.
______________________________
Title: Vice President
_____________________________
/s/ Peter Stokes
________________________________________
Peter Stokes, as Regular Trustee
EXHIBIT A
FORM OF SHARE CERTIFICATE
EXHIBIT B
FORM OF ECONOMIC
DISCLOSURE STATEMENT
AND AFFIDAVIT
B-1