Exhibit 10.29
MACQUARIE INFRASTRUCTURE COMPANY LLC
- and -
BALFOUR XXXXXX PLC
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PARENT COMPANY GUARANTEE
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THIS GUARANTEE is made the [0] day of [0], 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 ASSETS LLC
EXECUTED and DELIVERED by [o] 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 Xxxxxx PLC )
acting by and ) -----------------------------
) Director
)
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Director/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 Xxxxxxx Signature: [Sgd CC.R. O'N Xxxxxxx]
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