EXHIBIT 10.6
EXECUTION COPY
AMENDMENT NO. 1
TO THE
MANAGEMENT SERVICES AGREEMENT
AMONG
MACQUARIE INFRASTRUCTURE COMPANY LLC,
MACQUARIE INFRASTRUCTURE COMPANY INC.,
MACQUARIE YORKSHIRE LLC,
SOUTH EAST WATER LLC,
COMMUNICATIONS INFRASTRUCTURE LLC
AND
MACQUARIE INFRASTRUCTURE MANAGEMENT (USA) INC.
Dated as of August 8, 2006
This AMENDMENT NO. 1 (the "AMENDMENT") to the MANAGEMENT SERVICES AGREEMENT
(the "ORIGINAL AGREEMENT") dated as of December 21, 2004, is entered into as of
August 8, 2006 by and among Macquarie Infrastructure Company LLC, a Delaware
limited liability company (the "COMPANY"), Macquarie Infrastructure Company
Inc., a Delaware corporation, Macquarie Yorkshire LLC, a Delaware limited
liability company, South East Water LLC, a Delaware limited liability company,
and Communications Infrastructure LLC, a Delaware limited liability company
(each a "MANAGED SUBSIDIARY" and, together with any directly owned Subsidiary of
the Company as from time to time may exist and that has executed a counterpart
of the Original Agreement in accordance with Section 2.3 thereof, collectively,
the "MANAGED SUBSIDIARIES"), and Macquarie Infrastructure Management (USA) Inc.,
a Delaware corporation (the "MANAGER"). Individually, each party hereto shall be
referred to as a "PARTY" and collectively as the "PARTIES." Capitalized terms
used but not otherwise defined in this Amendment shall have the meanings set
forth in the Original Agreement.
WHEREAS, the Parties previously entered into the Original Agreement,
whereby the Company and the Managed Subsidiaries agreed to appoint the Manager
to manage their business and affairs as therein described, and the Manager
agreed to act as Manager on the terms and subject to the conditions set forth
therein; and
WHEREAS, the Parties desire to amend the Original Agreement as provided
herein;
NOW, THEREFORE, in consideration of the mutual covenants herein contained,
the Parties hereto agree as follows:
SECTION 1.1 AMENDMENTS TO ORIGINAL AGREEMENT. Schedule I to the Original
Agreement is hereby deleted in its entirety and replaced with Schedule I hereto.
SECTION 1.2 APPLICABLE LAW. This Amendment shall be construed in accordance
with the laws of the State of New York.
SECTION 1.3 EFFECTIVE DATE. This Amendment shall become effective as of the
date first written above (the "EFFECTIVE DATE") upon receipt by the Company of
counterparts of this Amendment duly executed by the Company, the Managed
Subsidiaries and the Manager.
SECTION 1.4 MISCELLANEOUS. From and after the Effective Date of this
Amendment, each reference in the Original Agreement to "this Agreement",
"hereof", "hereunder", or words of like import in any and all agreements,
instruments, documents, notes, certificates and other writings of any kind and
nature shall be deemed to refer to the Original Agreement as amended by this
Amendment. This Amendment may be executed in any number of counterparts, each of
which shall be an original, but all of which together constitute one instrument.
The headings in this Amendment are for purposes of reference only and shall not
limit or otherwise effect the meaning hereof.
[REMAINDER OF PAGE LEFT INTENTIONALLY BLANK]
IN WITNESS WHEREOF, the Company, the Managed Subsidiaries and the Manager
have caused this Amendment No. 1 to the Management Services Agreement to be
executed as of the day and year first above written.
MACQUARIE INFRASTRUCTURE COMPANY LLC MACQUARIE INFRASTRUCTURE
MANAGEMENT (USA) INC.
By: /s/ Peter Stokes By: /s/ Alan Stephen Peet
--------------------------------- ------------------------------------
Name: Peter Stokes Name: Alan Stephen Peet
Title: Chief Executive Officer Title: Vice President
MACQUARIE INFRASTRUCTURE COMPANY INC.
By: /s/ Peter Stokes
---------------------------------
Name: Peter Stokes
Title: Chief Executive Officer
MACQUARIE YORKSHIRE LLC
By: Macquarie Infrastructure Company
LLC, as Managing Member of
Macquarie Yorkshire LLC
By: /s/ Peter Stokes
---------------------------------
Name: Peter Stokes
Title: Chief Executive Officer
SOUTH EAST WATER LLC
By: Macquarie Infrastructure Company
LLC, as Managing Member of South
East Water LLC
By: /s/ Peter Stokes
---------------------------------
Name: Peter Stokes
Title: Chief Executive Officer
COMMUNICATIONS INFRASTRUCTURE LLC
By: Macquarie Infrastructure Company
LLC, as Managing Member of
Communications Infrastructure LLC
By: /s/ Peter Stokes
---------------------------------
Name: Peter Stokes
Title: Chief Executive Officer
Acknowledged: for purposes of Article
VII of the Original Agreement.
MACQUARIE INFRASTRUCTURE COMPANY TRUST
By: MACQUARIE INFRASTRUCTURE COMPANY
LLC, as Sponsor
By: /s/ Peter Stokes
---------------------------------
Name: Peter Stokes
Title: Chief Executive Officer
SCHEDULE I
PRIORITY PROTOCOL
The Company has first priority ahead of all current and future entities managed
by the Manager or by members of the Macquarie Group within the ISF in each of
the following infrastructure acquisition opportunities that are within the
United States:
- airport fixed base operations,
- district energy,
- airport parking and
- User Pays Assets, Contracted Assets and Regulated Assets that
represent an investment of greater than AUD 40 million, subject to the
Existing Qualifications set forth below.
The above priority of the Company in User Pays Assets, Contracted Assets and
Regulated Assets is subject to the following (collectively, the "EXISTING
QUALIFICATIONS"):
Roads: The Company has second priority after Macquarie
Infrastructure Group, any successor thereto or
spin-off managed entity thereof or any one
managed entity (a "MIG Transferee") to which
Macquarie Infrastructure Group has transferred
a substantial interest in its U.S. Assets;
provided that, in the case of such MIG
Transferee, both Macquarie Infrastructure Group
and such entity are co-investing in the
proposed investment.
Airport Ownership: The Company has second priority after Macquarie
Airports (consisting of Macquarie Airports
Group (MAG) and Macquarie Airports (MAp)), any
successor thereto or spin-off managed entity
thereof or any one managed entity (a "MAp
Transferee") to which Macquarie Airports has
transferred a substantial interest in its U.S.
Assets; provided that, in the case of such MAp
Transferee, both Macquarie Airports and such
entity are co-investing in the proposed
investment.
Communications: The Company has second priority after Macquarie
Communications Infrastructure Group, any
successor thereto or spin-off managed entity
thereof or any one managed entity (a "MCG
Transferee") to which Macquarie Communications
Infrastructure Group has transferred a
substantial interest in its U.S. Assets;
provided that, in the case of such MCG
Transferee, both Macquarie Communications
Infrastructure Group and such entity are
co-investing in the proposed investment.
4
Regulated Assets (including, The Company has second priority after Macquarie
but not limited to, Essential Assets Partnership (MEAP) until such
electricity and gas time as MEAP has invested a further CAD 45
transmission and distribution million in the United States. Thereafter, the
and water services): Company will have first priority.
The Company has first priority ahead of all current and future entities managed
by the Manager or any Manager Affiliate in all investment opportunities
originated by a party other than the Manager or any Manager Affiliate where such
party offers the opportunity exclusively to the Company and not to any other
entity under the management of the Manager or any Manager Affiliate within ISF.