Exhibit 10.27
MACQUARIE INFRASTRUCTURE COMPANY LLC
- AND -
BALFOUR XXXXXX PLC
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PARENT COMPANY GUARANTEE
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THIS GUARANTEE is made the 22nd day of December, 2004
BETWEEN:
(1) MACQUARIE INFRASTRUCTURE COMPANY LLC, whose principal executive office is
at 000 Xxxxx xxxxxx, 00xx xxxxx, 00000 XX, XXX (formerly Macquarie
Infrastructure Assets LLC) (hereinafter called "MICL" or the "GUARANTOR");
and
(2) BALFOUR XXXXXX PLC, whose registered office is at 000 Xxxxxx Xxxx, Xxxxxx
XX0X 0XX (hereinafter called "BB").
WHEREAS:
(A) Under a parent company guarantee dated 26 March 1996, as amended and
restated on 30 April 2003, between BB and Macquarie European Infrastructure
Plc ("MEIP") (the "Parent Company Guarantee"), MEIP agreed to guarantee (1)
the due performance by Macquarie Yorkshire Limited ("MYL") of a
shareholders' agreement dated 26 March 1996, as amended and restated on 30
April 0000, xxxxxxx XXX, XX, Xxxxxxxxx Link (Holdings) Limited ("YLHL"),
Yorkshire Link Limited ("YLL") and MEIP (the "Shareholders' Agreement") and
(2) the due performance by Macquarie Infrastructure (UK) Limited ("MIUK")
of a technical services agreement dated 26 March 1996 between YLL, MIUK and
BB (the "Technical Services Agreement") and a secondment agreement dated 26
March 1996, as amended and restated on 30 April 2003, between YLL, BB and
MIUK (the "Secondment Agreement").
(B) On 10 March 2004 the Technical Services Agreement was terminated.
(C) YLL changed its name to Connect M1-A1 Limited on 2 June 2004 ("Connect");
YLHL changed its name to Connect M1-A1 Holdings Limited ("Connect
Holdings") on 2 June 2004.
(D) Pursuant to a share purchase agreement entered into between MEIP and MICL
on or around the date hereof (the "Share Purchase Agreement"), MEIP will
sell and MICL will purchase the 5,000,000 ordinary shares owned by MEIP in
MYL (the "Transaction").
(E) Prior to Completion (as defined in the Share Purchase Agreement), MICL
intends to notify MEIP that it wishes to nominate Macquarie Yorkshire LLC
("MY LLC") as the transferee of the Shares (as defined in the Share
Purchase Agreement) pursuant to paragraph 1 of Schedule 5 of the Share
Purchase Agreement.
(F) As a result of the Transaction MEIP wished to be released and discharged
from the Shareholders' Agreement and the parties agreed to the novation of
the Shareholders' Agreement. BB, MEIP, MYL, Connect, Connect Holdings, MY
LLC and MICL entered into a deed of novation of the Shareholders' Agreement
on or around the date hereof (the "Shareholders' Agreement Novation")
pursuant to which the Shareholders' Agreement was terminated and replaced
by a replacement shareholders' agreement between BB, MY LLC, MYL, Connect
and Connect Holdings (the "Replacement Shareholders' Agreement").
(G) As a result of the Transaction MIUK wished to be released and discharged
from the Secondment Agreement and the parties agreed to the novation of the
Secondment Agreement. BB, MIUK, Connect, MYL and MICL entered into a deed
of novation of the Secondment Agreement on or around the date hereof (the
"Secondment Agreement Novation") pursuant to which the Secondment Agreement
was terminated and replaced by a replacement secondment agreement between
BB, MYL and Connect (the "Replacement Secondment Agreement").
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(H) On or around the date hereof, BB entered into a deed of release with MEIP
under which MEIP was released from its obligations under the Parent Company
Guarantee.
(I) Pursuant to the Replacement Shareholders' Agreement, the parties have
agreed to enter into this guarantee and the Guarantor has agreed to
guarantee to BB (1) the due performance by MY LLC of its obligations under
the Shareholders' Agreement Novation and (2) the due performance by MYL of
its obligations under the Replacement Shareholders' Agreement, the
Secondment Agreement Novation, and the Replacement Secondment Agreement
(together the "Relevant Contracts").
NOW THIS DEED WITNESSES as follows:
1. The Guarantor hereby unconditionally and irrevocably guarantees to and
covenants with BB that:
(a) MYL and MY LLC will well and truly perform and observe all
obligations, terms, provisions, conditions and stipulations mentioned
or described in the Relevant Contracts to which they are a party or to
be implied therefrom on its/their part to be so performed and observed
according to the true purport, intent and meaning hereof; and
(b) if for any reason whatsoever and in any way MYL or MY LLC shall fail
to perform the same, then the Guarantor shall, upon receipt of a
notice in writing from BB, take over from MYL or MY LLC (as
appropriate) and shall forthwith perform and observe or cause to be
performed and observed such obligations, terms, provisions, conditions
and stipulations as aforesaid so far as and to the extent MYL or MY
LLC (as appropriate) was liable to perform and observe them and shall
to the same extent be responsible to BB as principal and not merely as
surety for MYL or MY LLC (as appropriate) for the payment by them of
all sums of money, losses, damages, costs, charges and expenses that
may become due or payable to BB by reason or in consequence of the
acts or defaults of MYL or MY LLC (as appropriate) in the performance
or observance of the Relevant Contracts.
Provided that under no circumstance whatsoever shall the liabilities of the
Guarantor, MYL and MY LLC pursuant to this Guarantee and the Relevant
Contracts either individually or when aggregated together hereunder exceed
the liability which MYL or MY LLC has under the Relevant Contracts.
Such notices as aforesaid shall be signed by Xxxxxxxxxxx X. O'X. Xxxxxxx,
Company Secretary of BB, a copy of whose signature is attached hereto as
Schedule 1 (or his respective successor in post whose name and specimen
signature must be advised to the Guarantor and authenticated by the Company
Secretary of BB for the time being).
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2. Notices in writing of such failure to perform as aforesaid may from time to
time be sent by BB to the Guarantor at 000 Xxxxx Xxxxxx, 00xx Xxxxx, 00000
XX, XXX by either registered mail (and shall be regarded as being received
personally by the Guarantor five days after their posting by BB) or
delivered personally to the Guarantor at its aforementioned address and
regarded as delivered at the time of delivery. Each notice of such failure
to perform shall specify the failure.
3. As between BB and the Guarantor notices in writing of default as aforesaid
shall be conclusive evidence of MYL's or MY LLC's default in performance or
observance of any of their outstanding obligations under the Relevant
Contracts.
4. The obligations of the Guarantor hereunder are primary and not by way of
surety only and the Guarantor shall not be entitled as against MYL or MY
LLC to any right of set off or counterclaim whatsoever and howsoever
arising.
5. This Guarantee is irrevocable and shall not be assigned by either party.
6. The Guarantor shall not in any way be released or discharged or otherwise
absolved of liability hereunder by reason of any of the following (whether
or not the Guarantor has notice thereof):
(a) any alteration amendment or variation in the terms of the Relevant
Contracts;
(b) any indulgence forgiveness or forbearance shown by BB towards MYL or
MY LLC whether as to payment or time for payment of any arrangement
entered into or composition accepted by BB or otherwise modifying (by
operation of law or otherwise) the rights and remedies of BB under the
Relevant Contracts or hereunder with regard to payment or time for
payment or otherwise changing the obligations of either party under
the Relevant Contracts;
(c) any action lawfully taken by BB to determine the Relevant Contracts;
(d) any change in the relationship between the Guarantor and MYL or MY
LLC;
(e) any disability or incapacity or change in status or constitution of
MYL, MY LLC or the Guarantor;
(f) the liquidation or dissolution or insolvency of any of the parties
referred to herein or any receivership administration moratorium
composition of creditors claims or other analogous event effecting
such parties or any of their property or assets; and
(g) any failure or delay to assert any of BB's rights under this
Guarantee.
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7. Any waiver by BB of the terms of this Guarantee or any consent or approval
given by BB shall only be effective if given in writing and then only for
the purpose and upon the terms and conditions if any on which it is given.
8. If at any time one or more of the provisions of this Guarantee is or
becomes invalid or otherwise unenforceable in any respect neither the
validity or enforceability of the remaining provisions of this Guarantee
nor the validity or enforceability of such provision under the law shall in
any way be affected or impaired as a result.
9. Terms and conditions used in this Guarantee shall bear the same meaning as
in the Replacement Shareholders' Agreement where such have a specific
meaning ascribed to them.
10. The Guarantor shall at all times maintain an agent for service of process
and any other documents in proceedings in England or any other proceedings
in connection with this guarantee. Such agent shall be MYL of Xxxxx 00 and
30, 0 Xxxxxxxxx Xxxxxx, Xxxxxx XX0X 0XX and any judgment or other notice of
legal process shall be sufficiently served on the Guarantor if delivered to
such agent at its address for the time being. The Guarantor agrees to
inform BB in writing of any change of address of such process agent within
28 days of such change. If such process agent ceases to be able to act as
such or to have an address in England, the Guarantor irrevocably agrees to
appoint a new process agent in England and to deliver to BB within 14 days
a copy of a written acceptance of appointment by the process agent.
11. This Deed shall be governed by and construed in accordance with the laws of
England and shall be submitted to the exclusive jurisdiction of the English
Courts.
In witness whereof the Guarantor and BB have executed this document as a Deed
the day and year first before written.
MACQUARIE INFRASTRUCTURE COMPANY LLC
EXECUTED and DELIVERED by ) /s/ Xxxxx Xxxxxx
) ------------------------------------
) Name(s): Xxxxx Xxxxxx
) Authorised Signatory/Signatories
as authorised signatory on behalf of
Macquarie Infrastructure Company
LLC and thereby executed by it as
a Deed
BALFOUR XXXXXX PLC
EXECUTED as a Deed by Balfour ) /s/ A. L. P. Xxxxx
Xxxxxx PLC acting by ) ------------------------------------
) Name: A. L. P. Xxxxx
) Director
and )
/s/ C.R. O'N Pearson
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Name: C.R. O'N Pearson
Secretary
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SCHEDULE 1
SPECIMEN SIGNATURE OF COMPANY SECRETARY OF BALFOUR XXXXXX PLC
The following signature is the specimen signature of the Company Secretary of
Balfour Xxxxxx plc who is authorised to issue notices under paragraph 1(b) of
the Parent Company Guarantee:
Name: C.R. O'N Pearson Signature: /s/ C.R. O'N Pearson
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