EXHIBIT 99.4
EQUITY CONTRIBUTION AGREEMENT
EQUITY CONTRIBUTION AGREEMENT (this "Agreement"), dated as of July 3,
2006, by and among DUET Investment Holdings Limited, a company incorporated in
Victoria, Australia ("DUET"), Industry Funds Management (Nominees) Limited (ABN
56 003 969 891), a company incorporated under the laws of New South Wales,
Australia and whose registered address is at Xxxxx 00, Xxxxxxxxx Xxxxx, 0
Xxxxxxxx Xxxxxx, Xxxxxxxxx 0000, Xxxxxxxx, Xxxxxxxxx, in its capacity as trustee
of the IFM (International Infrastructure) Wholesale Trust ("IFM"), CLH Holdings,
GP, a Delaware general partnership ("MIP"), Macquarie Specialised Asset
Management Limited, a company incorporated in New South Wales, Australia, in its
capacity as responsible entity for Macquarie Global Infrastructure Fund IIA
("GIF(II)A"), Macquarie Specialised Asset Management 2 Limited, a company
incorporated in New South Wales, Australia, in its capacity as responsible
entity for Macquarie Global Infrastructure Fund IIB ("GIF(II)B"), Macquarie
Specialised Asset Management Limited a company incorporated in New South Wales,
Australia, in its capacity as responsible entity for Macquarie-FSS
Infrastructure Trust ("M-FIT"), Motor Trades Association of Australia
Superannuation Fund Pty Limited (ACN 008 650 628), a corporation incorporated in
the Australian Capital Territory ("MTAA"), and SAS Trustee Corporation, a body
corporate constituted under the Superannuation Administration Act 1987 and
continued under the Superannuation Administration Xxx 0000 and the
Superannuation Xxxxxxxxxxxxxx Xxx 0000 (XXX), in its capacity as trustee for the
STC funds, as that expression is defined by the Superannuation Administration
Xxx 0000 (NSW) ("State Super") (collectively, the "Investors"), on the one hand,
and Castor Holdings LLC, a Delaware limited liability company ("Parent"), on the
other hand.
R E C I T A L S
WHEREAS, the Investors constitute all members of Parent, who
collectively represent 100% of the percentage ownership interests in Parent;
WHEREAS, Parent and Duquesne Light Holdings, Inc., a Pennsylvania
corporation (the "Company"), intend to enter into an Agreement and Plan of
Merger, dated as of July 5, 2006, in the form attached hereto as Exhibit A (the
"Merger Agreement"), pursuant to which Parent is agreeing to acquire the Company
through the merger of a wholly-owned subsidiary of Parent ("Merger Sub") with
and into the Company whereby the Company will become a wholly-owned subsidiary
of Parent.
WHEREAS, DUET, IFM and the Company intend to enter into a Stock
Purchase Agreement, dated as of July 5, 2006, in the form attached hereto as
Exhibit B (the "Stock Purchase Agreement"), pursuant to which DUET and IFM
(each, an "SPA Investor"), are agreeing to purchase from the Company newly
issued shares of common stock and, in certain circumstances, certain securities
of the Company convertible into shares of common stock of the Company as set
forth in the Stock Purchase Agreement (the "Purchased Shares"); and
WHEREAS, each of Parent, the Investors and the Company acknowledges and
agrees that the Company will not be entitled to be a third party beneficiary of
this Agreement unless and until the Merger Agreement has been executed and
delivered by all the parties thereto.
NOW, THEREFORE, in consideration of the premises and as an inducement
for Parent to enter into the Merger Agreement, the parties hereto agree as
follows:
Section 1. Definitions. Capitalized terms used but not otherwise
defined herein shall have the respective meanings given to them in the Merger
Agreement.
Section 2. Equity Contribution.
(a) Parent shall give written notice to the Investors at such
time as all conditions precedent to the obligations of the Company and
Parent to consummate the Closing as set forth in Article VIII of the
Merger Agreement have been satisfied or waived by the party entitled to
waive such a condition (other than any conditions that by their nature
are to be satisfied at the Closing, but subject to the satisfaction or
waiver of those conditions at the Closing). Within ten (10) business
days after receipt of such notice, each Investor, severally and not
jointly, irrevocably promises and agrees that it shall:
(i) make a deposit in immediately available funds to
an account in the name of the Investor at a bank designated by
Parent in an amount (with respect to each Investor, such
Investor's "Investor Contribution Amount," as set forth on
Exhibit C attached hereto) equal to (I) the product of (A)
US$1,129,250,000 (one billion one hundred twenty nine million
two hundred fifty thousand dollars) (the "Aggregate
Contribution Amount") multiplied by (B) such Investor's
percentage ownership interest in Parent as set forth on
Exhibit C attached hereto (with respect to each Investor, such
Investor's "Investor Percentage") minus (II) any cash amounts
contributed to Parent and/or Escrow Agent and any amounts
drawn under letters of credit issued to Parent and/or Escrow
Agent, in each case pursuant to Section 2(b) below; and
(ii) upon such deposit, provide written notice to
Parent reaffirming its ability and willingness to fund its
Investor Contribution Amount at Closing and evidence of its
deposit.
At Closing, each Investor, severally and not jointly, shall contribute
to Parent its Investor Contribution Amount, and such amounts shall be
treated in full as an equity contribution to Parent, with each
Investor's ownership interest in Parent represented by certificated
limited liability company interests ("Units") and Investors being
issued one Unit for each US$20,000 contributed in cash, including
fractional Units. The Merger Agreement shall provide that, at the
Effective Time, any shares of Company Common Stock held by Parent as of
the Effective Time shall be cancelled and retired without any
conversion thereof and
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no payment or distribution in respect of the Merger Consideration shall
be made with respect thereto. If either of the options set forth in
Section 2(j) of this Agreement are exercised and, as a result of such
exercise, Parent owns Company Common Stock as of the Effective Time,
the Investor Contribution Amount of a SPA Investor shall be reduced by
an amount equal to the number of Option Shares (as defined in Section
2(j)) transferred to Parent by such SPA Investor multiplied by the
Merger Consideration. Parent agrees that if it acquires any shares of
Company Common Stock pursuant to Section 2(j) of this Agreement, it
shall hold such shares until the earlier of the Effective Time of the
Merger and termination of the Merger Agreement.
(b) Each Investor, severally and not jointly, irrevocably
promises and agrees that it shall reimburse Parent for certain expenses
and fund the Default Amount (as defined below) and, in furtherance
thereof, shall make or cause to be made an advance payment to Parent,
as of the date hereof, in immediately available funds in an amount
(with respect to each Investor, such Investor's "Initial Contribution
Amount") equal to the sum of (I) the product of (A) US$70,000,000 (the
"Default Amount") multiplied by (B) such Investor's Investor Percentage
(for each Investor, the "Investor Default Amount") plus (II) the
product of (X) US$23,000,000 (the "Expense Amount") multiplied by (Y)
such Investor's Investor Percentage. An amount equal to $1,000
multiplied by such Investor's Investor Percentage shall be deemed an
equity contribution to Parent and the balance of such cash amounts
shall be treated, until the Closing, as a pro-rata advancement of
Parent expenses. At each Investor's sole discretion, in lieu of all or
a portion of its Initial Contribution Amount, such Investor may provide
for the issuance of a letter or letters of credit of all or such
portion of its Initial Contribution Amount that is reasonably
acceptable to Parent from a U.S. bank or U.S. branch of a non-U.S.
bank, which bank shall have a minimum rating of AA- from Standard &
Poor's Ratings Services and Aa3 from Xxxxx'x Investors Service, Inc.
The letter or letters of credit must provide unconditionally for
payment upon demand from time to time and (i) must be in favor of
Parent in an amount up to the Expense Amount and (ii) must be in favor
of Escrow Agent in an amount up to the Default Amount in accordance
with Section 2(c). Following termination of the Merger Agreement, if
Parent and the Company agree that no Claim or Liability (as defined in
Section 2(d) below) exists or if the Company does not deliver a Claim
to Parent and the Escrow Agent within thirty days following such
termination, the Escrow Agent shall release the amount in the Escrow
Account to Parent, and Parent shall, subject to the Delaware Limited
Liability Company Act (the "LLC Act"), promptly return to the Investors
their respective Initial Contribution Amounts, including any after-tax
interest or other income earned by Parent in respect thereof, and/or
consent to the termination of any letters of credit issued in respect
thereof. Upon Closing, any after-tax interest or other income earned by
Parent in respect of an Investor's Initial Contribution Amount shall,
at such Investor's election, be credited against its Investor
Contribution Amount or returned to the Investor. If the Merger
Agreement is not entered into with the Company on or before July 10,
2006, any amounts deposited in the Escrow Account shall be returned in
accordance with Section 2(c), and any
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amounts deposited in Parent's account in respect of the Expense Amount
shall be returned to the Investor who deposited such amounts less the
pro rata share of the fees and expenses of The Bank of New York and any
letter(s) of credit shall be terminated after the pro rata share of the
fees and expenses of The Bank of New York have been drawn upon.
(c) Parent shall cause immediately prior to the execution of
the Merger Agreement a combination of an amount of cash or undrawn
letters of credit equal to the Default Amount to be deposited into an
escrow account (the "Escrow Account") at The Bank of New York (the
"Escrow Agent") pursuant to an escrow agreement in the form attached
hereto as Exhibit D (the "Escrow Agreement"). Any letters of credit so
deposited must provide unconditionally for payment upon demand from
time to time by Escrow Agent in accordance with the Escrow Agreement.
If the Merger Agreement is not entered into with the Company on or
before July 10, 2006, any amounts deposited in the Escrow Account shall
be returned to the Investor who deposited such amounts less the pro
rata share of the fees and expenses of the Escrow Agent and any letter
or letters of credit deposited in the Escrow Account shall be
terminated after the pro rata share of the fees and expenses of the
Escrow Agent have been drawn upon.
(d) If the Company has a claim against Parent and/or Merger
Sub under the Merger Agreement, the Stock Purchase Agreement or this
Agreement (a "Claim"), upon receipt of notice of any such Claim from
the Company or upon Parent's knowledge that the Company is actively
pursuing or threatening to pursue any such Claim, Parent shall give
prompt notice of such Claim to the Investors. If and to the extent (I)
a court of competent jurisdiction (or other tribunal having
jurisdiction) shall have rendered a final, non-appealable judgment in
respect of the Company's Claim or (II) Parent otherwise agrees in
writing (which shall require the unanimous approval of the managers of
the board of Parent) that an amount is due in respect of the Company's
Claim (each of (I) or (II), a "Liability"), Parent shall give written
notice to the Investors that a Liability has been incurred and the
amount of such Liability, and Parent shall promptly pay to the Company
the amount of such Liability from amounts available in the Escrow
Account. Each of the Company, Parent and the Investors expressly
acknowledge and agree that no payment shall be made until a Liability
has been established in accordance with this Section 2(d).
(e) No Investor shall have any obligation to make the
contribution to Parent required under Section 2(a) of this Agreement
(i) unless and until all conditions precedent to the obligations of the
Company and Parent to consummate the Closing as set forth in Article
VIII of the Merger Agreement have been satisfied or waived by the party
entitled to waive such a condition (other than any conditions that by
their nature are to be satisfied at the Closing, but subject to the
satisfaction or waiver of those conditions at the Closing); (ii) if
Parent has materially breached its representations and warranties
hereunder (which material breach is not curable); (iii) unless and
until such Investor receives the opinions set forth in Exhibit G,
substantially in the form set forth in Exhibit G;
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or (iv) to the extent the making of such contribution would cause such
Investor's aggregate contributions under Section 2(a) and Section 2(b)
to exceed its Investor Contribution Amount. At Closing, Parent agrees
that it will pay the amount required in respect of the Merger
Consideration pursuant to the Merger Agreement only if it has funds to
make such payment in its entirety and will not make any partial payment
in respect thereof. Except as provided in Section 2(b) above, if any
Investor contributes its Investor Contribution Amount (or any other
amount) to Parent prior to the Closing, Parent shall hold such amount
in trust for such Investor until immediately before the Closing and, if
the Closing does not occur, Parent shall promptly return to such
Investor, subject to the LLC Act, any such amounts contributed.
(f) Each SPA Investor, severally and not jointly, agrees to
indemnify and hold harmless Parent from and against all loss, claims,
damages and expenses Parent may suffer or incur as a result of a SPA
Investor's breach of its obligations under the Stock Purchase
Agreement.
(g) Each of the Parent and the Investors expressly acknowledge
and agree that (A) no liability pursuant to the Merger Agreement, the
Stock Purchase Agreement or this Agreement shall include any damages
based on any theory of liability for any special, indirect,
consequential (including lost profits) or punitive damages; (B) in no
event shall the liability of Parent, Merger Sub or any Investor arising
out of or relating to any material and willful breaches of the Merger
Agreement, the Stock Purchase Agreement and this Agreement exceed, in
aggregate, the Default Amount, and (C) under no circumstances shall any
Investor or advisor to Parent or Merger Sub have any liability arising
out of or relating to any breaches in excess of the Default Amount.
(h) Parent shall not return any Investor Default Amounts to
Investors until such time as there are no remaining Claims.
(i) No Investor shall under any circumstances be required to
contribute to Parent any amount in excess of its Investor Contribution
Amount.
(j) Each of the SPA Investors hereby severally grants Parent,
in consideration for US$1.00, an option (the "Parent Call Option") to
purchase on or after the Satisfaction Date (as defined below) and prior
to the earlier of the Effective Time of the Merger and the termination
of the Merger Agreement from such SPA Investor all Option Shares (as
defined below) for an amount in cash equal to the purchase price set
forth in Section 2.1(b) of the Stock Purchase Agreement ("Purchase
Price") per Option Share. Parent hereby grants each SPA Investor, in
consideration for US$1.00, an option (the "Investor Call Option"),
exercisable on or after the Satisfaction Date and prior to the earlier
of the Effective Time of the Merger and the termination of the Merger
Agreement, to purchase the number of Units in Parent equal to (A) the
number of all its Option Shares multiplied by US$20.00 divided by (B)
20,000, at a price per Unit of US$1,000 multiplied by the Purchase
Price, which, if Option Shares are
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outstanding at the time of exercise, the SPA Investor shall satisfy by
delivering to Parent in full payment for such Units in Parent all of
its Option Shares. "Option Shares" means the SPA Investor's Purchased
Shares owned by it on the date of exercise of any option provided in
this Section 2(j), with each such Purchased Share being an "Option
Share." "Satisfaction Date" means the date nine business days after
Parent has notified Investors pursuant to Section 2(a) that such
conditions have been satisfied or waived; provided the Satisfaction
Date shall not occur on any day when Parent does not reasonably believe
that the Closing will occur as scheduled. Each SPA Investor agrees that
(i) prior to the termination of the Merger Agreement it shall not sell
or otherwise dispose of any Purchased Share unless it agrees to
increase its Investor Contribution Amount by an amount equal to (x) the
difference between the Merger Consideration and the Purchase Price
multiplied by (y) the number of Purchased Shares sold or otherwise
disposed of, and (ii) any such sales or dispositions shall constitute
an agreement that such SPA Investor's Investor Contribution Amount
shall be increased as contemplated hereby.
Section 3. Representations and Warranties.
(a) As of the date hereof and as of the Closing, each
Investor, severally but not jointly, represents and warrants to Parent
as to itself as follows:
(i) Such Investor is duly organized, validly existing
and in good standing under the laws of the jurisdiction of its
organization and has full corporate or other power and
authority to enter into this Agreement and to perform its
obligations hereunder.
(ii) The execution and delivery of this Agreement by
such Investor, and the performance of its obligations
hereunder, have been duly authorized by all necessary
corporate or other action on the part of such Investor.
(iii) Such Investor has duly executed and delivered
this Agreement. Assuming due authorization, execution and
delivery of this Agreement by Parent and the other Investors,
this Agreement constitutes the valid and binding obligation of
such Investor, enforceable in accordance with its terms,
except as such enforceability may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws
of general applicability affecting the enforcement of
creditors' rights and the application of general principles of
equity.
(iv) All consents, authorizations and other approvals
of any governmental authority which are necessary for the
execution and delivery of this Agreement by such Investor and
the performance by it of its obligations hereunder have been
obtained and are in full force and effect, final and not
subject to any appeal, except for any consents, authorizations
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and other approvals contemplated by the Merger Agreement and
the Stock Purchase Agreement.
(v) The execution, delivery and performance by such
Investor of this Agreement will not conflict with or result in
a violation or default under any contract, agreement or order
of any court or regulatory authority binding upon such
Investor or any of its respective affiliates.
(vi) To the extent an Investor has entered into this
Agreement in its capacity as a trustee or responsible entity
for another entity (such other entity, the "Investor's
Trust"), such Investor (a) has full rights to indemnification
or reimbursement from assets of such Investor's Trust in
connection with the performance of all of its obligations
under this Agreement, including the payment or contribution of
all funds required to be paid or contributed by such Investor
hereunder, (b) no approval or consent by any governmental
authority, third party or any other entity is necessary in
order for such Investor to exercise its rights to
indemnification or reimbursement from the assets of such
Investor's Trust in connection with the performance of its
obligations under this Agreement, including the payment or
contribution of all funds required to be paid or contributed
by such Investor hereunder, and such Investor has not, and
shall not, take or omit to take any action that would
eliminate or limit such rights to indemnification or
reimbursement, and (c) such Investor's Trust has sufficient
assets from which to satisfy all of such Investor's
obligations under this Agreement, including the payment or
contribution of all funds required to be paid or contributed
by such Investor hereunder.
(b) As of the date hereof and as of the Closing, Parent
represents and warrants to each Investor as follows:
(i) Parent is duly organized, validly existing and in
good standing under the laws of Delaware, and has full limited
liability company power and authority to enter into this
Agreement and to perform its obligations hereunder. Parent has
provided each Investor a true, correct and complete copy of
its certificate of formation, which is in full force and
effect.
(ii) The execution and delivery by Parent of this
Agreement, and the performance of its obligations hereunder,
have been duly authorized by all necessary action on the part
of Parent.
(iii) Parent has duly executed and delivered this
Agreement. Assuming due authorization, execution and delivery
of this Agreement by the Investors, this Agreement constitutes
the valid and binding obligation of Parent, enforceable in
accordance with its terms, except as such enforceability may
be limited by bankruptcy, insolvency, reorganization,
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moratorium or other similar laws of general applicability
affecting the enforcement of creditors' rights and the
application of general principles of equity.
(iv) All consents, authorizations and other approvals
of any governmental authority which are necessary for the
execution and delivery of this Agreement by Parent and the
performance by it of its obligations hereunder have been
obtained and are in full force and effect, final and not
subject to any appeal, except for any consents, authorizations
and other approvals contemplated by the Merger Agreement and
the Stock Purchase Agreement.
(v) The execution, delivery and performance of this
Agreement by Parent will not conflict with or result in a
violation or default under any contract, agreement or order of
any court or regulatory authority binding upon Parent or any
of its affiliates.
(vi) Parent is a newly organized Delaware limited
liability company that has conducted no business except as is
incident to the transactions contemplated by this Agreement,
the Merger Agreement and the Stock Purchase Agreement.
Section 4. Restriction on Use. Parent shall segregate from its general
funds any contributions made by the Investors hereunder and, to the fullest
extent permitted by law, shall use such funds for the purpose, and only for the
purpose, of Parent and Merger Sub satisfying their respective obligations under
the Merger Agreement and the Stock Purchase Agreement and pay related fees and
expenses.
Section 5. Termination. The obligation of the Investors under this
Agreement shall terminate upon the earlier to occur of:
(a) thirty days after notice of termination of the Merger
Agreement is given pursuant to Article IX thereof, unless prior to the
close of business on the thirtieth day after such notice, the Investors
receive written notice from Parent or the Company that the Company is
actively pursuing a Claim, in which case this Agreement shall terminate
upon the settlement or other determination of any Claim in accordance
with Section 2(b) hereof; provided, that the obligation of the
Investors under Section 2(a) of this Agreement shall terminate upon the
termination of the Merger Agreement; or
(b) the occurrence of the Closing under the Merger Agreement.
Notwithstanding the foregoing, this Agreement shall terminate if the Merger
Agreement is not executed and delivered in the form attached hereto as Exhibit A
or in such other form acceptable to all Investors by the parties thereto on or
before July 10, 2006.
Section 6. No Recourse. Notwithstanding anything that may be expressed
or implied in this Agreement, each of the Company, Parent and each Investor
covenants,
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agrees and acknowledges that no Person other than Parent, the Investors, and any
general partners of any of the Investors, and any assignee of any of the
Investors shall have any obligations hereunder or under the Merger Agreement or
the Stock Purchase Agreement; provided however, that any obligations of any
general partner of an Investor shall be limited in proportion to such general
partners' percentage of partnership interest in such Investor and none of the
Company, Parent or any Investor shall assert any claim against any such general
partner in excess of such percentage of such general partner's percentage of
partnership interest. No recourse hereunder or under any documents or
instruments delivered in connection herewith or in connection with this
Agreement, the Merger Agreement or the Stock Purchase Agreement shall be had
against any former, current or future director, officer, trustee, employee,
agent, limited partner, manager, member, stockholder, affiliate or assignee of
the Investors, Parent or Merger Sub or any former, current or future director,
officer, trustee, employee, agent, limited partner, manager, member,
stockholder, affiliate or assignee of any of the foregoing, whether by the
enforcement of any assessment or by any legal or equitable proceeding, or by
virtue of any statute, regulation or other applicable law, it being expressly
agreed and acknowledged that no personal liability whatsoever shall attach to,
be imposed on or otherwise be incurred by, any former, current or future
director, officer, trustee, employee, agent, limited partner, manager, member,
stockholder, affiliate or assignee of the undersigned or any former, current or
future director, officer, trustee, employee, agent, limited partner, manager,
member, stockholder, affiliate or assignee of any of the foregoing, as such, for
any obligation of the undersigned under this Agreement, the Merger Agreement or
the Stock Purchase Agreement or for any claim based on, in respect of or by
reason of such obligation or their creation. In addition, each of the Company,
Parent and each Investor covenants, agrees and acknowledges the terms of
liability with respect to Trustees and Responsible Entities attached hereto as
Exhibit F.
Section 7. Miscellaneous.
(a) For purposes of this Agreement, "affiliate" means: (i)
with respect to any Person that is a Fund or holds shares for a Fund,
any other Person or Fund or subsidiary of a Fund (other than a Fund
which is or is proposed to be listed or quoted on an investment
exchange with a purpose of effectively achieving an indirect listing or
quotation of Shares in the Parent) which is advised by, or the
business, operations or assets of which are managed (whether solely or
jointly with others) from time to time by or whose parent is managed
by, the manager or adviser of the Fund (or a Person that, directly or
indirectly through one or more intermediaries, Controls, is Controlled
by, or is under common Control with, that manager or adviser);
provided, however, (X) the term "adviser" shall mean an entity which
provides a Person with advice in relation to the management of
investments of that Person, which, in the case of a Fund (other than in
relation to actually making decisions to implement such advice), is
substantially the same as the services which would be provided by a
manager of the Fund and such adviser effectively forms part of the
structure of the Fund, except that Macquarie Bank Limited and its
affiliates will not be treated as an adviser of a Fund solely as a
result of any services provided or agreed to be provided by Macquarie
Bank Limited or any of its affiliates to the Fund under an
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agreement pursuant to which those services are to be provided solely in
relation to an investment by the Fund in the Parent; (Y) the term
"manager" with respect to any Fund shall mean any general partner,
trustee, responsible entity, nominee, manager, adviser or other entity
performing a similar function with respect to such Fund; and (Z) no
Person which is or holds shares for a complying superannuation fund for
the purposes of the Australian Superannuation Industry (Supervision)
Xxx 0000 shall deemed to be an affiliate of any Person which is or
holds shares for any other such Fund by reason of this definition; and
(ii) with respect to any Person that is not a Fund and does not hold
shares for a Fund, any other Person that, directly or indirectly
through one or more intermediaries, Controls, is Controlled by, or is
under common Control with, such Person. A "Fund" means any unit trust,
investment trust, investment company, limited partnership, general
partnership or other collective investment scheme, pension fund,
insurance company or any body corporate or other entity, in each case,
the business, operations or assets of which are managed professionally
for investment purpose. "Control" means the possession, direct or
indirect, of the power to direct or cause the direction of the
management and policies of a Person, whether through the ownership of
securities, by contract or otherwise, which, for the avoidance of
doubt, shall include through a Person's capacity as general partner,
trustee, Responsible Entity, nominee, manager or adviser or otherwise.
(b) This Agreement shall be binding upon, shall inure to the
benefit of, and shall be enforceable by, the parties hereto and their
respective successors and permitted assigns. Each Investor may, at its
election and without the consent of any other Investor, Parent or the
Company, assign its rights and obligations under this Agreement to any
affiliate of such Investor so long as any such affiliate has available
funds or committed capital that equals or exceeds such Investor's
Investor Contribution Amount; provided that, without the written
consent of each Investor and the Company, no such assignment shall
relieve such Investor from any obligation under this Agreement; and
provided further that, without the written consent of each Investor and
the Company, no assignment shall adversely affect or delay or result in
a need to re-file or seek any additional Company Required Statutory
Approval or Parent Required Statutory Approval or otherwise have
adverse tax effects on Parent or any Investor. In furtherance of the
foregoing, the Company agrees that GIF(II)A, GIF(II)B and M-FIT, prior
to August 1, 2006, may assign their interests to a newly formed Person
wholly-owned by them and having the requisite financial resources;
provided that, without the written consent of each Investor and the
Company, no such assignment shall relieve such Investor from any
obligation under this Agreement; and provided further that, without the
written consent of each Investor and the Company, no assignment shall
adversely affect or delay or result in a need to re-file or seek any
additional Company Required Statutory Approval or Parent Required
Statutory Approval or otherwise have adverse tax effects on Parent or
any Investor. Notwithstanding anything in this Section 7(b), Parent
may, at its election and without consent of any Investor or the
Company, make a security assignment of its rights under this Agreement
to any lender providing financing to Parent or its permitted assigns in
connection with the Merger Agreement (it being
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understood that any rights under this Agreement shall only be exercised
by Parent or its permitted assigns (or the Company, to the extent
provided below) and that no assignee pursuant to any security
assignment shall be entitled to directly exercise any rights under this
Agreement); provided that Parent may not make any security assignment
of the Default Amount; and provided further that Parent may not make
any security assignment of the Purchased Shares.
(c) The parties expressly acknowledge and agree that Company
is an intended third party beneficiary of this Agreement and that, as
such, the Company shall be entitled to directly exercise the rights of
Parent and enforce the obligations of the Investors hereunder without
the concurrence of Parent; provided that the Company acknowledges and
agrees that that (A) no Liability or other liability pursuant to the
Merger Agreement, the Stock Purchase Agreement or this Agreement shall
include any damages based on any theory of liability for any special,
indirect, consequential (including lost profits) or punitive damages;
(B) in no event shall a Liability or other liability of Parent, Merger
Sub or any Investor to the Company arising out of or relating to any
material and willful breaches of the Merger Agreement, the Stock
Purchase Agreement and this Agreement exceed, in aggregate, the Default
Amount, and (C) under no circumstances shall any Investor or advisor to
Parent or Merger Sub have any Liability or other liability pursuant to
the Merger Agreement, the Stock Purchase Agreement or this Agreement to
the Company except in respect of the Escrow Account. The Company, as an
intended third party beneficiary of this Agreement, acknowledges,
accepts and agrees to the foregoing and the other terms and conditions
of this Agreement.
(d) This Agreement, together with the agreements referenced
herein, constitutes the entire agreement, and supersedes all prior
agreements, understandings, negotiations and statements, both written
and oral, among the parties or any of their affiliates with respect to
the subject matter contained herein except for such other agreements as
are referenced herein which shall continue in full force and effect in
accordance with their terms.
(e) All notices and other communications required or permitted
by this Agreement or by law to be served upon or given to a party
hereto (or Company) by any party hereto shall be addressed (i) if to
Company or Parent, as provided in the Merger Agreement, or (ii) if to
the Investors, as provided in Exhibit E.
(f) This Agreement may not be amended or otherwise modified or
terminated except by a written agreement signed by all parties hereto
including the Company.
(g) THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING
EFFECT TO ANY CHOICE OR CONFLICT OF LAWS PROVISION OR RULE THAT WOULD
CAUSE THE
11
APPLICATION OF THE LAWS OF ANY JURISDICTION OTHER THAN NEW YORK.
(h) EACH PARTY HEREBY IRREVOCABLY SUBMITS TO THE EXCLUSIVE
PERSONAL JURISDICTION OF ANY STATE OR FEDERAL COURT LOCATED IN THE CITY
OF NEW YORK OVER ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR
RELATING TO OR CONCERNING THIS AGREEMENT. In addition, each party (i)
agrees that it will not attempt to deny or defeat such personal
jurisdiction by motion or other request for leave from such court, (ii)
waives any claim of improper venue or any claim that the courts of the
State of New York are an inconvenient forum for any action, suit or
proceeding between any of the parties hereto arising out of this
Agreement or any transaction contemplated hereby, (iii) agrees that it
will not bring any action relating to this Agreement in any court other
than the courts of the State of New York, (iv) agrees that the forum
designated by this Section 7(g) has a reasonable relation to this
Agreement and to the transactions contemplated by this Agreement, and
(v) irrevocably appoints CT Corporation System, 000 0xx Xxxxxx, Xxx
Xxxx, XX 00000 as its agent for service of process in New York in
connection with any such action, suit or proceeding and consents to
such service of process being made through such agent.
(i) EACH PARTY HERETO ACKNOWLEDGES AND AGREES THAT ANY
CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE
COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE EACH SUCH PARTY HEREBY
IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO
A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY
ARISING OUT OF OR RELATING TO THIS AGREEMENT, OR THE TRANSACTIONS
CONTEMPLATED HEREBY.
(j) In the event that any provision hereof would, under
applicable law, be invalid or unenforceable in any respect, such
provision shall be construed by modifying or limiting it so as to be
valid and enforceable to the maximum extent compatible with, and
possible under, applicable law. The provisions hereof are severable,
and in the event any provision hereof should be held invalid or
unenforceable in any respect, it shall not invalidate, render
unenforceable or otherwise affect any other provision hereof
(k) The terms, conditions, covenants, representations and
warranties hereof may be waived only by a written instrument executed
by the party waiving compliance. No waiver may adversely affect the
Company without its consent. The failure of a party at any time or from
time to time to require performance of any provisions hereof shall in
no manner affect its rights at a later time to enforce the same. No
waiver by a party of any condition or any breach of any term, covenant,
representation or warranty contained in this Agreement in any one or
more instances shall be deemed to be, or be construed as, a further or
continuing
12
waiver of any such condition or breach of any other term, covenant,
representation or warranty.
(l) Except for the Company (as provided above), no person
other than the parties hereto, or their successors or permitted
assigns, shall have any rights hereunder.
(m) This Agreement may be signed by facsimile or by emailing a
pdf file and may be signed in counterparts, each of which shall be
deemed an original and all of which together shall constitute one and
the same Agreement. This Agreement shall be effective only when signed
by Parent and Investors representing 100% of the Aggregate Contribution
Amount.
[Signatures Follow On Next Page]
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
PARENT:
CASTOR HOLDINGS LLC
By: /s/ Xxxx Xxxx
----------------------------------------
Name: Xxxx Xxxx
Its: Authorized Person
DUET:
)
SIGNED IN NEW YORK BY )
)
XXXX XXXX )
as attorney for DUET )
INVESTMENT HOLDINGS )
LIMITED under power of attorney )
dated 30 June 2006: )
) /s/ Xxxx Xxxx
) ------------------------------
) Xxxx Xxxx
) By executing this deed the
) attorney states that the
) attorney has received no notice
) of revocation of the power of
) attorney
IFM:
)
SIGNED BY )
)
as director and director/secretary of )
INDUSTRY FUNDS ) /s/ Xxxxxx Xxxxxxx
MANAGEMENT (NOMINEES) ) --------------------------
LIMITED ) Director
as TRUSTEE of the IFM )
(INTERNATIONAL )
INFRASTRUCTURE) )
WHOLESALE TRUST )
) /s/ Xxxxx Xxxxxx
) --------------------------
) Director/Secretary
CLH HOLDINGS, GP:
By: MACQUARIE INFRASTRUCTURE PARTNERS CANADA, L.P.
By: Macquarie Infrastructure Partners Canada GP Ltd., its general
partner
By: Macquarie Infrastructure Partners Inc., its manager and attorney-
in-fact
By: /s/ Xxxxx Xxxxxx
--------------------------
Its: President
-------------------------
And By: /s/ Xxxx Xxxx
----------------------
Its: Treasurer
-------------------------
And By: MACQUARIE INFRASTRUCTURE PARTNERS A, L.P.
By: Macquarie Infrastructure Partners U.S. GP LLC, its general
partner
By: Macquarie Infrastructure Partners Inc., its manager and attorney-
in-fact
By: /s/ Xxxxx Xxxxxx
--------------------------
Its: President
-------------------------
And By: /s/ Xxxx Xxxx
----------------------
Its: Treasurer
-------------------------
GIF(II)A:
)
SIGNED BY )
)
as attorney for MACQUARIE )
SPECIALISED ASSET )
MANAGEMENT LIMITED in its )
capacity as RESPONSIBLE )
ENTITY for MACQUARIE )
GLOBAL INFRASTRUCTURE )
FUND IIA under power of attorney )
dated July 3, 2006 in the presence )
of: )
)
)
) /s/ Xxxxxxx Xxxxxxx
) ..............................
) Xxxxxxx Xxxxxxx
)
) By executing this deed the
) attorney states that the
) attorney has received no
) notice of revocation of the
) power of attorney
GIF(II)B:
)
SIGNED BY )
)
as attorney for MACQUARIE )
SPECIALISED ASSET )
MANAGEMENT 2 LIMITED )
in its capacity as RESPONSIBLE )
ENTITY for MACQUARIE )
GLOBAL INFRASTRUCTURE )
FUND IIB under power of attorney )
dated July 3, 2006 in the presence )
of: )
)
)
) /s/ Xxxxxxx Xxxxxxx
) ..............................
) Xxxxxxx Xxxxxxx
)
) By executing this deed the
) attorney states that the
) attorney has received no
) notice of revocation of the
) power of attorney
M-FIT:
)
SIGNED BY )
)
as attorney for MACQUARIE )
SPECIALISED ASSET )
MANAGEMENT LIMITED in its )
capacity as RESPONSIBLE )
ENTITY for MACQUARIE-FSS )
INFRASTRUCTURE TRUST )
under power of attorney dated July )
3, 2006 in the presence of: )
)
)
)
) /s/ Xxxxxxx Xxxxxxx
) ..............................
) Xxxxxxx Xxxxxxx
)
) By executing this deed the
) attorney states that the
) attorney has received no
) notice of revocation of the
) power of attorney
MTAA:
)
SIGNED BY )
)
as attorney for MOTOR TRADES )
ASSOCIATION OF )
AUSTRALIA )
SUPERANNUATION FUND )
PTY LIMITED under power of )
attorney dated )
in the presence of: )
)
)
/s/ Xxxx Xxxxxxxx ) /s/ Xxxxxx Xxxxxxx
.................................. ) ..............................
Signature of witness ) Xxxxxx Xxxxxxx
)
X. Xxxxxxxx ) By executing this deed the
.................................. ) attorney states that the
) attorney has received no
) notice of revocation of the
) power of attorney
STATE SUPER:
)
SIGNED BY )
)
as attorney for SAS TRUSTEE )
CORPORATION, as trustee for )
the STC funds, as that expression is ) /s/ Xxxxxxx Xxxxx
defined by the Superannuation ) ..............................
Administration Act 1996 (NSW), ) Xxxxxxx Xxxxx
under power of attorney dated )
in the presence of: )
)
) /s/ Xxxxxxxxx Xxxxxx
/s/ Xxxx Xxxxxxxx ) ..............................
.................................. ) Xxxxxxxxx Xxxxxx
Signature of witness )
) By executing this deed the
) attorney states that the
) attorney has received no
.................................. ) notice of revocation of the
Xxxx Xxxxxxxx ) power of attorney
As contemplated by Section 7(c) hereof,
Accepted and Agreed:
-------------------
COMPANY
By: /s/ Xxxxxx X. X'Xxxxx
------------------------------------------------
Name: /s/ Xxxxxx X. X'Xxxxx
Its: President & CEO
EXHIBIT LIST
------------
EXHIBIT A Merger Agreement (not attached)
---------
EXHIBIT B Stock Purchase Agreement (not attached)
---------
EXHIBIT C Investor Contribution Amounts (attached)
--------- --------
EXHIBIT D Escrow Agreement (not attached)
---------
EXHIBIT E Notices (attached)
--------- --------
EXHIBIT F Trustees and Responsible Entities (attached)
--------- --------
EXHIBIT G Opinions Required for Signing (not attached)
---------
EXHIBIT C
INVESTOR CONTRIBUTION AMOUNTS
INVESTOR OWNERSHIP INTEREST INVESTOR CONTRIBUTION
-------- ------------------ ---------------------
DUET 28.9068% US$ 326,470,000
IFM 22.8311% US$ 257,780,000
MIP 22.1386% US$ 250,000,000
GIF(II)A 6.6416% US$ 75,000,000
GIF(II)B 6.6416% US$ 75,000,000
M-FIT 6.6416% US$ 75,000,000
MTAA 6.6416% US$ 75,000,000
STATE SUPER 6.1988% US$ 70,000,000
EXHIBIT E
NOTICES
-------
PARTY NOTICE INFORMATION
----- ------------------
--------------------------------------------------------------------------------
Castor Holdings LLC
Level 22, 000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
PARENT Attn: Xxxxx Xxxxxx
Phone: 0 (000) 000 0000
Fax: 0 (000) 000 0000
--------------------------------------------------------------------------------
DUET Investment Holdings Limited
Xxxxx 00, 0 Xxxxxx Xxxxx
Xxxxxx XXX 0000 Xxxxxxxxx
DUET Attention: Xxxxx Xxxxx, Chief Executive Officer
Phone: (000) 0000 0000
Fax: (000) 0000 0000
--------------------------------------------------------------------------------
Industry Funds Management (Nominees) Limited
Xxxxx 00, Xxxxxxxxx Xxxxx, 0 Xxxxxxxx Xxxxxx, Xxxxxxxxx
0000, Xxxxxxxx, Xxxxxxxxx
IFM Attention: Company Secretary
Phone: (00 0) 0000 0000
Fax: (00 0) 0000 0000
--------------------------------------------------------------------------------
Xxxx Xxxx
Macquarie Infrastructure Partners
000 Xxxx 00xx Xx
Xxx Xxxx, XX, 00000
MIP United States
Phone: 0 (000) 000 0000
Fax: 0 (000) 000 0000
Email: Xxxx.Xxxx@xxxxxxxxx.xxx
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Macquarie Specialised Asset Management Limited
Responsible Entity for
Macquarie Global Infrastructure Fund IIA
Level 11, 0 Xxxxxx Xxxxx
XXX(XX)X Xxxxxx XXX 0000 Xxxxxxxxx
Attention: Company Secretary
Phone: (000) 0000 0000
Fax: (000) 0000 0000
--------------------------------------------------------------------------------
Macquarie Specialised Asset Management 2 Limited,
Responsible Entity for
Macquarie Global Infrastructure Fund IIB
Level 11, 0 Xxxxxx Xxxxx
XXX(XX)X Xxxxxx XXX 0000 Xxxxxxxxx
Attention: Company Secretary
Phone: (000) 0000 0000
Fax: (000) 0000 0000
--------------------------------------------------------------------------------
Macquarie Specialised Asset Management Limited
Responsible Entity for Macquarie-FSS Infrastructure Trust
Xxxxx 00, 0 Xxxxxx Xxxxx
Xxxxxx XXX 0000 Xxxxxxxxx
M-FIT Attention: Company Secretary
Phone: (000) 0000 0000
Fax: (000) 0000 0000
--------------------------------------------------------------------------------
Motor Trades Association of
Australia Superannuation Fund Pty Limited
Xxxxxxx Xxxxxxx, Principal Executive Officer
and Fund Secretary
MTAA Xxxxx 0, XXX Xxxxx
00 Xxxxxxxx Xxxxxx
Xxxxxx, XXX, 0000 Xxxxxxxxx
Phone: (000) 0000 0000
Fax: (000) 0000 0000
--------------------------------------------------------------------------------
Xxxx Xxxxxxxx
Access Economics Pty Limited
Xxxxx 0, 00 Xxxxxxxx Xxxxxx,
XXXXX SUPER Xxxxxx XXX 0000 Xxxxxxxxx
Phone: (000) 0000 0000
Fax: (000) 0000 0000
Email: Xxxx.Xxxxxxxx@XxxxxxXxxxxxxxx.xxx.xx
--------------------------------------------------------------------------------
Duquesne Light Holdings, Inc.
000 Xxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
COMPANY Attn: Chief Legal Officer
Phone: (000) 000-0000
Fax: (000) 000-0000
--------------------------------------------------------------------------------
EXHIBIT F
LIABILITY OF TRUSTEES AND RESPONSIBLE ENTITIES
----------------------------------------------
1. If (i) a Person ("Trustee") enters into this Agreement as trustee or
responsible entity of a trust ("its Trust") and (ii) the Trustee notifies the
Company or another party that it is acting as trustee or responsible entity of
its Trust, the following provisions shall apply in respect of the Trustee and
its Trust:
(i) the Trustee enters into this Agreement and holds limited liability
company interests only in its capacity as responsible entity or trustee
(as applicable) of its Trust and in no other capacity. To the fullest
extent permitted by law, liability arising under or in connection with
this Agreement or the Certificate of Formation is limited to, and can
be enforced against the Trustee only to, the extent to which it can be
satisfied out of the assets of its Trust out of which the Trustee is
actually indemnified for such liability. To the fullest extent
permitted by law, this limitation of the Trustee's liability applies
despite any other provision of this Agreement or the Certificate of
Formation and extends to all liabilities and obligations of the
relevant party in any way connected with any representation, warranty,
conduct, omission, agreement or transaction related to this Agreement
or the Certificate of Formation;
(ii) to the fullest extent permitted by law, no party may xxx the Trustee in
any capacity other than as responsible entity or trustee (as
applicable) of its Trust, including to seek the appointment of a
receiver (except in relation to property of its Trust), a liquidator,
an administrator, or any similar person to the Trustee or prove in any
bankruptcy, insolvency, liquidation, administration or arrangement of
or affecting the Trustee (except in relation to property of its Trust);
(iii) the provisions of this clause 1 do not apply to any obligation or
liability of the Trustee to the extent that it is not satisfied because
under the agreement governing its Trust or by operation of law there is
a reduction in the extent of the Trustee's indemnification out of the
assets of its Trust, as a result of the Trustee's fraud, negligence or
breach of trust;
(iv) no attorney, agent, receiver or receiver and manager appointed in
accordance with this Agreement has authority to act on behalf of the
Trustee in a way which exposes the Trustee to any personal liability,
and no act or omission of any such person will be considered fraud,
negligence or breach of trust of the relevant party for the purpose of
clause 1(iii);
(v) the Trustee warrants to each party to this Agreement that it has the
rights of indemnification referred to in clause 1(i) (the "Trustee
Indemnity"); and
(vi) the Trustee warrants to each party to this Agreement that it has not
done and has omitted to do, and undertakes that it will not, during the
term of this Agreement,
do or omit to do, anything which has or would limit, affect, amend or
in any manner whatsoever restrict the Trustee Indemnity.
2. For the avoidance of doubt, Section 1 above applies to each representation
and warranty given by the Trustee in Section 3(a), including those given in
respect of its Trust in Section 3(a)(vi).
