Exhibit B
PLEDGE AGREEMENT
THIS PLEDGE AGREEMENT is made as of this 3rd day of May, 2005, between
Macquarie Infrastructure Management (USA) Inc., a Delaware corporation
("Pledgor") and Macquarie International Infrastructure Fund Limited ("Secured
Party").
WHEREAS, Macquarie Bank Limited ("MBL"), which is Pledgor's corporate parent,
and Secured Party have entered into a 2002 Master Agreement and a total return
swap confirmation thereunder, each dated on or about the date hereof (together,
the "Swap Agreement");
WHEREAS, Pledgor and Secured Party are entering into this Pledge Agreement and
Pledgor is granting the pledge provided for herein to support MBL's obligations
under the Swap Agreement;
NOW, THEREFORE, in consideration of their mutual covenants contained herein and
to secure the full and punctual observance and performance by MBL of all Secured
Obligations (as defined herein), the parties hereto, intending to be legally
bound, hereby mutually covenant and agree as follows:
1. Definitions. As used herein, the following words and phrases shall have the
following meanings:
"Authorized Officer" of Pledgor means, if Pledgor is not a natural person, any
officer, trustee or general partner (or any officer thereof), as applicable, as
to whom Pledgor shall have delivered notice to Secured Party that such trustee,
general partner or officer is authorized to act hereunder on behalf of Pledgor.
"Business Day" means any day on which commercial banks are open for business in
New York City.
"Calculation Agent" means the Secured Party.
"Collateral Event of Default" means, at any time, the occurrence of either of
the following: (A) failure of the Collateral to include, as Eligible Collateral,
Shares at least equal in number to the Required Number or (B) failure at any
time of the Security Interests to constitute valid and perfected security
interests in all of the Collateral, subject to no prior or equal Lien.
"Collateral" has the meaning provided in Section 2(a).
"Control" means "control" as defined in Section 8-106 and Section 9-106 of the
UCC.
"Custodian" means The Bank of New York acting as custodian for Secured Party in
accordance with the Custody Agreement.
"Custody Agreement" means the Custody Agreement dated on or about the date
hereof between Secured Party and the Custodian.
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"Effective Date" has the meaning given to it in the Swap Agreement.
"Eligible Collateral" means Shares or other Collateral acceptable to Secured
Party in its sole discretion, provided that Pledgor has good and marketable
title thereto, free of all Liens (other than the Security Interests) and
Transfer Restrictions (other than any Existing Transfer Restrictions) and that
Secured Party has a valid, first priority perfected security interest therein, a
first lien thereon and Control with respect thereto.
"Enforcement Event", following the occurrence of an Event of Default or
Collateral Event of Default, means a failure by MBL to remedy that Event of
Default or Collateral Event of Default on or before the date which is the later
of:
(a) the Business Day following the last day of any cure or remedy period
afforded to MBL under the Swap Agreement in respect of that Event of Default or
Collateral Event of Default; and
(b) 10 Business Days after notice from the Secured Party to MBL specifying the
Event of Default or Collateral Event of Default.
"Event of Default" means a failure by MBL to perform a Secured Obligation when
due.
"Existing Transfer Restrictions" means Transfer Restrictions existing by virtue
of the fact that Pledgor is an "affiliate", within the meaning of Rule 144 under
the Securities Act, of the Issuer.
"Initial Number" means 926,000.
"Issuer" means Macquarie Infrastructure Company Trust (New York Stock Exchange
ticker "MIC").
"Lien" means any lien, mortgage, security interest, pledge, charge or
encumbrance of any kind.
"Location" means, with respect to any party, the place such party is "located"
within the meaning of Section 9-307 of the UCC.
"Over-allotment Option" has the meaning given to it in the Swap Agreement.
"Over-allotment Option Exercise Date" has the meaning given to it in the Swap
Agreement.
"Party A Equity Portfolio Assets" has the meaning given to it in the Swap
Agreement.
"Person" means an individual, a corporation, a partnership, an association, a
trust or any other entity or organization, including a government or political
subdivision or an agency or instrumentality thereof.
"Pledged Shares" means, as of any date, the Shares listed on Schedule 1.
"Required Number" means (i) the Initial Number at all times prior to the date
which is the later of the Over-allotment Option Exercise Date and the last day
on which the Over-allotment Option may be exercised, and (ii) thereafter, the
number of Party A Equity Portfolio Assets.
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"Sales Proceeds Account" means any interest-bearing demand deposit account
established and maintained as set forth in Section 6(b).
"Secured Moneys" means all debts and monetary liabilities of MBL to the Secured
Party on any account under or in relation to the Swap Agreement, irrespective of
whether the debts or liabilities (A) are present or future, (B) are actual,
prospective, contingent or otherwise or (C) are at any time ascertained or
unascertained.
"Secured Obligations" means all present and future obligations of MBL to Secured
Party under the Swap Agreement including the obligation to pay the Secured
Moneys.
"Securities Act" means the Securities Act of 1933, as amended.
"Security Interests" means the security interests in the Collateral created
hereby.
"Settlement Date" has the meaning assigned to it in the Swap Agreement.
"Shares" means shares of trust stock of the Issuer.
"Sydney Business Days" has the meaning assigned to it in the Swap Agreement.
"Transfer Restriction" means, with respect to any Shares or item of Collateral
pledged under this Pledge Agreement, any condition to or restriction on the
ability of the owner thereof to sell, assign or otherwise transfer such Shares
or item of Collateral or to enforce the provisions thereof or of any document
related thereto whether set forth in such item of Collateral itself or in any
document related thereto, including, without limitation, (i) any requirement
that any sale, assignment or other transfer or enforcement of such Shares or
item of Collateral be consented to or approved by any Person, including, without
limitation, the issuer thereof or any other obligor thereon, (ii) any
limitations on the type or status, financial or otherwise, of any purchaser,
pledgee, assignee or transferee of such Shares or item of Collateral, (iii) any
requirement of the delivery of any certificate, consent, agreement, opinion of
counsel, notice or any other document of any Person to the issuer of, any other
obligor on or any registrar or transfer agent for, such Shares or item of
Collateral, prior to the sale, pledge, assignment or other transfer or
enforcement of such Shares or item of Collateral and (iv) any registration or
qualification requirement or prospectus delivery requirement for such Shares or
item of Collateral pursuant to any federal, state or foreign securities law
(including, without limitation, any such requirement arising as a result of the
fact that such Shares or Collateral are "restricted securities" as defined in
Rule 144 under the Securities Act or the fact that Pledgor is an "affiliate", as
defined in Rule 144 under the Securities Act, of the relevant Issuer; provided
that the required delivery of any assignment, instruction or entitlement order
from the seller, pledgor, assignor or transferor of such Shares or item of
Collateral, together with any evidence of the corporate or other authority of
such Person, shall not constitute a "Transfer Restriction".
"UCC" means the Uniform Commercial Code as in effect from time to time in the
State of New York.
2. The Security Interests. In order to secure the full and punctual observance
and performance by MBL of all Secured Obligations:
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(a) Pledgor hereby pledges to Secured Party and grants to Secured Party a
security interest in and to, and a lien upon and right of set off against, and
transfers to Secured Party, as and by way of a security interest, all of its
right, title and interest in and to (i) the Pledged Shares; (ii) all income,
proceeds and collections received or to be received, or derived or to be
derived, now or any time hereafter (whether before or after the commencement of
any proceeding under applicable bankruptcy, insolvency or similar law, by or
against Pledgor or with respect to Pledgor) from or in connection with the
Pledged Shares (including, without limitation, any shares of capital stock
issued by Issuer in respect of any Pledged Shares or any cash, securities or
other property distributed in respect of or exchanged for any Pledged Shares, or
into which any such Pledged Shares are converted, in connection with any merger
or similar event or otherwise, and any security entitlements in respect of any
of the foregoing); (iii) all powers and rights now owned or hereafter acquired
under or with respect to the Pledged Shares and (iv) any Sales Proceeds Account
established pursuant to Section 6(b) and all funds from time to time held
therein or credited thereto (collectively, the "Collateral").
(b) On or before the date which is 2 Sydney Business Days before the Effective
Date, Pledgor shall deliver to Custodian in pledge hereunder the Pledged Shares.
(c) Secured Party shall have all of the rights, remedies and recourses with
respect to the Collateral afforded a secured party by the UCC, in addition to,
and not in limitation of, the other rights, remedies and recourse afforded to
Secured Party by this Pledge Agreement. Pledgor shall not be generally liable
for MBL's obligations under the Swap Agreement, and Secured Party shall have no
recourse against Pledgor for such obligations except to the extent set forth
herein.
(d) Upon the establishment of a Sales Proceeds Account pursuant to Section 6(b),
Pledgor shall confirm in writing, in a form satisfactory to Secured Party, its
pledge and grant of a Security Interest in, and lien upon and right of set off
against, all of its right, title and interest in and to such Sales Proceeds
Account and all funds from time to time held therein or credited thereto.
3. Representations and Warranties of Pledgor. Pledgor hereby represents and
warrants to Secured Party, which representations shall be deemed repeated on
each date Pledgor delivers Pledged Shares as Collateral hereunder, that:
(a) Pledgor (i) owns and, at all times prior to the release of the Collateral
pursuant to the terms of this Pledge Agreement, will own the Collateral free and
clear of any Liens (other than the Security Interests) or Transfer Restrictions
(other than any Existing Transfer Restrictions) and (ii) is not and will not
become a party to or otherwise bound by any agreement, other than this Pledge
Agreement, that (x) restricts in any manner the rights of any present or future
owner of the Collateral with respect thereto or (y) provides any person other
than Pledgor, Secured Party or any securities intermediary through whom any
Collateral is held (but in the case of any such securities intermediary only in
respect of Collateral held through it) with Control with respect to any
Collateral.
(b) Other than financing statements or other similar or equivalent documents or
instruments with respect to the Security Interests, no financing statement,
security agreement or similar or equivalent document or instrument covering all
or any part of the Collateral is on file or of
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record in any jurisdiction in which such filing or recording would be effective
to perfect a Lien, security interest or other encumbrance of any kind on such
Collateral.
(c) (i) Upon the filing of a UCC financing statement naming the Pledgor as
"debtor" and the Secured Party as "secured party" and describing the Collateral
in the office of the Secretary of State of the State of Delaware, Secured Party
will have a valid, enforceable and perfected Security Interest in the Collateral
subject to no prior Lien.
(d) Subject to Section 4(a), no registration, recordation or filing with any
governmental body, agency or official is required in connection with the
execution and delivery of this Pledge Agreement or necessary for the validity or
enforceability hereof or thereof or for the perfection or enforcement of the
Security Interests.
(e) Pledgor has not performed and will not perform any acts that might prevent
Secured Party from enforcing any of the terms of this Pledge Agreement or that
might limit Secured Party in any such enforcement.
(f) The Location of Pledgor is Delaware.
4. Certain Covenants of Pledgor. Pledgor agrees that, so long as any Secured
Obligation remains outstanding:
(a) Pledgor shall, at the expense of Pledgor and in such manner and form as
Secured Party may require, give, execute, deliver, file and record any financing
statement, notice, instrument, document, agreement or other papers that may be
necessary or desirable in order (i) to create, preserve, perfect, substantiate
or validate any security interest granted pursuant hereto, (ii) to create or
maintain Control with respect to any such security interests in any investment
property (as defined in Section 9-102(49) of the UCC) constituting Collateral or
(iii) to enable Secured Party to exercise and enforce its rights hereunder with
respect to such security interest. To the extent permitted by applicable law,
Pledgor hereby authorizes Secured Party to execute and file, in the name of
Pledgor or otherwise, UCC financing or continuation statements that Secured
Party in its sole discretion may deem necessary or appropriate to further
perfect, or maintain the perfection of, the Security Interests. Pledgor hereby
authorizes the filing of any financing statements or continuation statements,
and amendments to financing statements, in any jurisdictions and with any filing
offices as the Secured Party may determine, in its sole discretion, are
necessary or advisable to perfect the security interest granted to the Secured
Party in connection herewith. Such financing statements may describe the
collateral in the same manner as described in this Security Agreement or may
contain an indication or description of collateral that describes such property
in any other manner as the Secured Party may determine, in its sole discretion,
is necessary to ensure the perfection of the security interest in the Collateral
granted to the Secured Party in connection herewith.
(b) Pledgor shall warrant and defend its title to the Collateral, subject to the
rights of Secured Party, against the claims and demands of all persons. Secured
Party may elect, but without an obligation to do so, to discharge any Lien of
any third party on any of the Collateral.
(c) Pledgor agrees that it shall not (1) create or permit to exist any Lien
(other than the Security Interests) or any Transfer Restriction (other than any
Existing Transfer Restrictions)
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upon or with respect to the Collateral, (2) sell or otherwise dispose of, or
grant any option with respect to, any of the Collateral or (3) enter into or
consent to any agreement pursuant to which any person other than the Pledgor,
the Secured Party and any securities intermediary through whom any of the
Collateral is held (but in the case of any such securities intermediary only in
respect of Collateral held through it) has or will have Control in respect of
any Collateral.
5. Administration of the Collateral.
(a) Any delivery of Shares as Collateral to Secured Party or its Custodian by
Pledgor shall be effected by delivery of certificates representing such Shares
to Secured Party, accompanied by any required transfer tax stamps, and in
suitable form for transfer by delivery or accompanied by duly executed
instruments of transfer or assignment in blank, with signatures appropriately
guaranteed, all in form and substance satisfactory to Secured Party. Upon
delivery of any such Pledged Shares under this Pledge Agreement, Secured Party
shall examine (or cause the examination of) such Pledged Shares and assignment
to determine that they comply as to form with the requirements for Eligible
Collateral.
(b) Within one Business Day of the later of (i) the Over-allotment Option
Exercise Date and (ii) the last day on which the Over-allotment Option may be
exercised, the Secured Party shall cause the return to the Pledgor of a number
of Shares equal to the difference, if any, between the Initial Number and the
number of Party A Equity Portfolio Assets on such day. Such returned Shares
shall be fully released and discharged from the Security Interests (and Schedule
1 shall be deemed amended to reflect such release).
(c) If on any Business Day Secured Party determines that a Collateral Event of
Default shall have occurred, Secured Party shall promptly notify Pledgor of such
determination by telephone call to Pledgor or, if Pledgor is not a natural
person, an Authorized Officer of Pledgor followed by a written confirmation of
such call.
(d) Unless and until Secured Party is entitled to exercise its remedies with
respect to Collateral as set forth below, Secured Party shall not be entitled to
pledge, rehypothecate or further assign any Collateral without Pledgor's prior
written consent.
(e) Secured Party may exchange Pledged Share certificates for certificates of
smaller denominations from time to time as it deems desirable in order to
facilitate the release or sale of Pledged Shares as set forth in this Pledge
Agreement. Each such exchange shall be at the expense of Pledgor, and Schedule 1
shall be deemed amended to reflect each such exchange.
(f) Pledgor agrees that Pledgor shall forthwith upon demand pay to Secured
Party:
i. the amount of any taxes that Secured Party may have been required to pay by
reason of the Security Interests or to free any of the Collateral from any Lien
thereon, and
ii. the amount of any and all out-of-pocket expenses, including the fees and
disbursements of counsel and of any other experts, that Secured Party may incur
in connection with (A) the enforcement of this Pledge Agreement, including such
expenses as are incurred to preserve the value of the Collateral and the
validity, perfection, rank and value of the Security
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Interests, (B) the collection, sale or other disposition of any of the
Collateral, (C) the exercise by Secured Party of any of the rights conferred
upon it hereunder or (D) any Enforcement Event.
Any such amount not paid on demand shall bear interest (computed on the basis of
a year of 360 days and payable for the actual number of days elapsed) at a rate
per annum equal to 5% plus the prime rate as published in The Wall Street
Journal, Eastern Edition in effect from time to time during the period from the
date hereof to the date of the termination of this Pledge Agreement.
6. Settlement of Swap Agreement. (a) If "Physical Settlement" applies under the
Swap Agreement as set forth therein for any Settlement Date, Pledgor may consent
to the delivery of any Pledged Shares in satisfaction of MBL's obligations under
the Swap Agreement by giving Secured Party notice of such consent in writing. If
Pledgor so consents in writing, then on the later of (i) such consent or (ii)
that Settlement Date, upon Secured Party's satisfaction of its obligations then
due to MBL under the Swap Agreement, Secured Party shall hold such Pledged
Shares absolutely and free from any claim or right of Pledgor, and Schedule 1
shall be deemed amended to reflect such delivery.
(b) If MBL is required to pay a Settlement Price to Secured Party, Pledgor may
consent to the sale of any Pledged Shares and the delivery of the proceeds
thereof, plus any interest on such proceeds, in satisfaction of MBL's
obligations under the Swap Agreement by giving Secured Party notice of such
consent in writing. If Pledgor so consents, then (i) Secured Party shall
establish a Sales Proceeds Account with Custodian in accordance with the Swap
Agreement and execute an agreement with the Custodian and Secured Party, in a
form satisfactory to Secured Party, so that Secured Party shall have Control
over such Sales Proceeds Account, (ii) MBL may direct the sale of such Pledged
Shares, and (iii) the proceeds of any such sale shall be deposited in the Sales
Proceeds Account (and Schedule 1 shall be deemed amended to reflect the sale of
such Pledged Shares). On the relevant Settlement Date, upon Secured Party's
satisfaction of its obligations then due to MBL under the Swap Agreement,
Secured Party may withdraw from the Sales Proceeds Account an amount equal to
the amount owed by MBL to Secured Party on that Settlement Date, and shall hold
such amount absolutely and free from any claim or right of Pledgor, and shall
release to Pledgor any excess amounts in the Sales Proceeds Account.
(c) Pledgor may consent to the release of any Collateral and the delivery of
such Collateral to Secured Party in satisfaction of MBL's obligations under the
Swap Agreement in respect of any Equity Portfolio Return Payment Date (as
defined in the Swap Agreement) by giving Secured Party notice of such consent in
writing. If Pledgor so consents, then on the later of (i) such consent or (ii)
that Equity Portfolio Return Payment Date, upon Secured Party's satisfaction of
its obligations then due to MBL under the Swap Agreement, Secured Party shall
hold such Collateral absolutely and free from any claim or right of Pledgor.
7. Voting Rights in Collateral. Unless Secured Party shall have exercised its
rights to sell or retain Collateral following an Enforcement Event, Pledgor
shall have the right, from time to time, to vote and to give consents,
ratifications and waivers with respect to the Collateral.
8. Remedies upon Enforcement Events. (a) If any Enforcement Event shall have
occurred and be continuing, Secured Party may exercise all the rights of a
secured party under the Uniform Commercial Code (whether or not in effect in the
jurisdiction where such rights are exercised) and, in addition, without being
required to give any notice, except as herein provided or as may be required by
mandatory provisions of law, may sell such Collateral as may be necessary to
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generate proceeds sufficient to satisfy in full all Secured Obligations or
hereunder, at public or private sale or at any broker's board or on any
securities exchange, for cash, upon credit or for future delivery, and at such
price or prices as Secured Party may deem satisfactory. Pledgor covenants and
agrees that it will execute and deliver such documents and take such other
action as Secured Party deems necessary or advisable in order that any such sale
may be made in compliance with law. Upon any such sale Secured Party shall have
the right to deliver, assign and transfer to the buyer thereof the Collateral so
sold. Each buyer at any such sale shall hold the Collateral so sold absolutely
and free from any claim or right of whatsoever kind, including any equity or
right of redemption of Pledgor that may be waived or any other right or claim of
Pledgor, and Pledgor, to the extent permitted by law, hereby specifically waives
all rights of redemption, stay or appraisal that Pledgor has or may have under
any law now existing or hereafter adopted. The notice (if any) of such sale
required by Section 9-611 of the UCC shall (1) in case of a public sale, state
the time and place fixed for such sale, (2) in case of sale at a broker's board
or on a securities exchange, state the board or exchange at which such sale is
to be made and the day on which the Collateral, or the portion thereof so being
sold, will first be offered for sale at such board or exchange, and (3) in the
case of a private sale, state the day after which such sale may be consummated.
Any such public sale shall be held at such time or times within ordinary
business hours and at such place or places as Secured Party may fix in the
notice of such sale. At any such sale the Collateral may be sold in one lot as
an entirety or in separate parcels, as Secured Party may determine. Secured
Party shall not be obligated to make any such sale pursuant to any such notice.
Secured Party may, without notice or publication, adjourn any public or private
sale or cause the same to be adjourned from time to time by announcement at the
time and place fixed for the sale, and such sale may be made at any time or
place to which the same may be so adjourned. In case of any sale of all or any
part of the Collateral on credit or for future delivery, the Collateral so sold
may be retained by Secured Party until the selling price is paid by the buyer
thereof, but Secured Party shall not incur any liability in case of the failure
of such buyer to take up and pay for the Collateral so sold and, in case of any
such failure, such Collateral may again be sold upon like notice. Secured Party,
instead of exercising the power of sale herein conferred upon it, may proceed by
a suit or suits at law or in equity to foreclose the Security Interests and sell
the Collateral, or any portion thereof, under a judgment or decree of a court or
courts of competent jurisdiction.
(b) Pledgor hereby irrevocably appoints Secured Party its true and lawful
attorney, with full power of substitution, in the name of Pledgor, Secured Party
or otherwise, for the sole use and benefit of Secured Party, but at the expense
of Pledgor, to the extent permitted by law, to exercise, at any time and from
time to time while an Enforcement Event has occurred and is continuing, all or
any of the following powers with respect to all or any of the Collateral:
i. to demand, xxx for, collect, receive and give acquittance for any and all
monies due or to become due upon or by virtue thereof,
ii. to settle, compromise, compound, prosecute or defend any action or
proceeding with respect thereto,
iii. to sell, transfer, assign or otherwise deal in or with the same or the
proceeds or avails thereof, as fully and effectually as if Secured Party were
the absolute owner thereof (including, without limitation, the giving of
instructions and entitlement orders in respect thereof), and
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iv. to extend the time of payment of any or all thereof and to make any
allowance and other adjustments with reference thereto;
provided that Secured Party shall give Pledgor not less than one day's prior
written notice of the time and place of any sale or other intended disposition
of any of the Collateral, except any Collateral that threatens to decline
speedily in value, including, without limitation, equity securities, or is of a
type customarily sold on a recognized market.
(c) Upon any delivery or sale of all or any part of any Collateral made either
under the power of delivery or sale given hereunder or under judgment or decree
in any judicial proceedings for foreclosure or otherwise for the enforcement of
this Pledge Agreement, Secured Party is hereby irrevocably appointed the true
and lawful attorney of Pledgor, in the name and stead of Pledgor, to make all
necessary deeds, bills of sale, instruments of assignment, transfer or
conveyance of the property, and all instructions and entitlement orders in
respect of the property, thus delivered or sold. For that purpose Secured Party
may execute all such documents, instruments, instructions and entitlement
orders. This power of attorney shall be deemed coupled with an interest and
irrevocable, and Pledgor hereby ratifies and confirms that which Pledgor's
attorney acting under such power, or such attorney's successors or agents, shall
lawfully do by virtue of this Pledge Agreement. If so requested by Secured Party
or by any buyer of the Collateral or a portion thereof, Pledgor shall further
ratify and confirm any such delivery or sale by executing and delivering to
Secured Party or to such buyer or buyers at the expense of Pledgor all proper
deeds, bills of sale, instruments of assignment, conveyance or transfer,
releases, instructions and entitlement orders as may be designated in any such
request.
(d) In the case of an Enforcement Event, Secured Party may proceed to realize
upon the security interest in the Collateral against any one or more of the
types of Collateral, at any time, as Secured Party shall determine in its sole
discretion subject to the foregoing provisions of this Section 7. The proceeds
of any sale of, or other realization upon, or other receipt from, any of the
Collateral shall be applied by Secured Party in the following order of
priorities:
first, to the payment to Secured Party of the expenses of such sale or other
realization, including reasonable compensation to the agents and counsel of
Secured Party, and all expenses, liabilities and advances incurred or made by
Secured Party in connection therewith, including brokerage fees in connection
with the sale by Secured Party of any Collateral;
second, to the payment to Secured Party of the aggregate amount (or the value of
any delivery or other performance) owed by MBL to Secured Party under the Swap
Agreement;
finally, if all of the obligations of Pledgor hereunder and all of the Secured
Obligations of MBL under the Swap Agreement have been fully discharged or
sufficient funds have been set aside by Secured Party at the request of Pledgor
for the discharge thereof, any remaining proceeds shall be released to Pledgor.
9. Miscellaneous. Whenever any of the parties hereto is referred to, such
reference shall be deemed to include the successors and assigns of such party.
All the covenants and agreements herein contained by or on behalf of Pledgor and
Secured Party shall bind, and inure to the benefit
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of, Pledgor's respective successors and assigns whether so expressed or not, and
shall be enforceable by and inure to the benefit of Secured Party and its
successors and assigns.
(a) To the extent permitted by law, the unenforceability or invalidity of any
provision or provisions of this Pledge Agreement shall not render any other
provision or provisions herein contained unenforceable or invalid.
(b) Any provision of this Pledge Agreement may be amended or waived if, and only
if, such amendment or waiver is in writing and signed, in the case of an
amendment, by Pledgor and Secured Party or, in the case of a waiver, by the
party against whom the waiver is to be effective. No failure or delay by either
party in exercising any right, power or privilege hereunder shall operate as a
waiver thereof nor shall any single or partial exercise thereof preclude any
other or further exercise thereof or the exercise of any other right, power or
privilege. The rights and remedies herein provided shall be cumulative and not
exclusive of any rights or remedies provided by law.
(c) All notices and other communications hereunder shall be in writing and shall
be deemed to have been duly given if mailed or transmitted by any standard forms
of telecommunication. Notices to Pledgor shall be directed to Pledgor at 000
Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: President and Chief Executive
Officer; notices to Secured Party shall be directed to it care of Macquarie
Infrastructure Management (Asia) Pty Limited, 0 Xxxxxx Xxxxx, Xxxxxx XXX 0000,
Xxxxxxxxx, Telecopy No. x(000) 0000 0000, Attention: Executive Director, Legal
Risk Management Division and Investment Banking Group.
(d) This Pledge Agreement shall in all respects be construed in accordance with
and governed by the laws of the State of New York (without reference to its
conflicts of laws rules). Pledgor and Secured Party hereby agree, and Secured
Party shall procure Custodian's agreement, that Secured Party's and Custodian's
jurisdiction, within the meaning of Section 8-110(e) of the UCC, insofar as it
acts as a securities intermediary hereunder or in respect hereof, is the State
of New York.
(e) Each party hereby irrevocably and unconditionally submits to the
non-exclusive jurisdiction of the Federal and state courts located in the
Borough of Manhattan, in the City of New York in any suit or proceeding arising
out of or relating to this Pledge Agreement or the transactions contemplated
hereby.
(f) Each party hereby irrevocably and unconditionally waives any and all right
to trial by jury in any legal proceeding arising out of or related to this
Pledge Agreement or the transactions contemplated hereby.
(g) This Pledge Agreement may be executed, acknowledged and delivered in any
number of counterparts and all such counterparts taken together shall be deemed
to constitute one and the same agreement.
10. Termination of Pledge Agreement. This Pledge Agreement and the rights
granted by Pledgor in the Collateral shall cease, terminate and be void upon
fulfillment of all of the obligations of MBL and Pledgor under the Secured
Obligations and hereunder. Any Collateral remaining at the
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time of such termination shall be fully released and discharged from the
Security Interests and delivered to Pledgor by Secured Party, all at the request
and expense of Pledgor.
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IN WITNESS WHEREOF, the parties have signed this Pledge Agreement as of the date
and year first above written.
MACQUARIE INFRASTRUCTURE MACQUARIE INTERNATIONAL
MANAGEMENT (USA) INC. INFRASTRUCTURE FUND LIMITED
By: /s/ Xxxxx Xxxxxx By: /s/ Xxxxxxx Xxxxx
------------------------------ ---------------------------
Name: Xxxxx Xxxxxx Name: Xxxxxxx Xxxxx
Title: President and Title: Director
Chief Executive Officer
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Schedule 1
to Pledge Agreement
PLEDGED SHARES
-------------------------- ---------------- ------------------- ---------------
Class Stock Certificate Number of
Issuer of Stock Numbers Shares
-------------------------- ---------------- ------------------- ---------------
-------------------------- ---------------- ------------------- ---------------
Macquarie Infrastructure Trust stock MIC-060 600,000
Company Trust MIC-062 326,000
-------------------------- ---------------- ------------------- ---------------
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