EXHIBIT 10.19
[IN THE AGREED TERMS]
[DATE]
BALFOUR ▇▇▇▇▇▇ PLC
and
MACQUARIE INFRASTRUCTURE (UK) LIMITED
and
CONNECT M1-A1 LIMITED
and
MACQUARIE YORKSHIRE LIMITED
and
MACQUARIE INFRASTRUCTURE COMPANY LLC
DEED OF NOVATION RELATING TO THE
SECONDMENT AGREEMENT
LINKLATERS
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THIS DEED is made on [-], 2004 BETWEEN:
(1) BALFOUR ▇▇▇▇▇▇ PLC (registered number 395826) whose registered office is
at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇ (formerly BICC PLC) ("BB");
(2) MACQUARIE INFRASTRUCTURE (UK) LIMITED (registered number 1540913) whose
registered office is at ▇▇▇▇▇ ▇▇ and 30, ▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇ (formerly Trafalgar House Corporate Development Limited) ("MIUK");
(3) CONNECT M1-A1 LIMITED (registered number 2999303) whose registered office
is at ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ (formerly
Yorkshire Link Limited) ("CONNECT"); and
(4) MACQUARIE YORKSHIRE LIMITED (registered number 4712996) whose registered
office is at ▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇, ▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ("MYL");
(5) MACQUARIE INFRASTRUCTURE COMPANY LLC whose principal executive office is
at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇, ▇▇▇ (formerly Macquarie
Infrastructure Assets LLC) ("MICL" or the "GUARANTOR").
WHEREAS:
(A) BB, MIUK and Connect have entered into the Secondment Agreement (as
defined in this Deed).
(B) Pursuant to a share purchase agreement entered into between Macquarie
European Infrastructure PLC ("MEIP") and MICL on or around the date
hereof, MEIP will sell and MICL will purchase the 5,000,000 ordinary
shares owned by MEIP in MYL.
(C) MIUK therefore wishes to be released and discharged from the Secondment
Agreement and the parties have agreed to the novation of the Secondment
Agreement from MIUK to MYL.
(D) The Guarantor agrees to guarantee to MIUK and Connect the obligations of
MYL under or pursuant to this Deed and the Replacement Secondment
Agreement (as defined in this Deed).
(E) The Guarantor and BB have separately entered into a guarantee on or around
the date hereof pursuant to which the Guarantor agrees to guarantee to BB,
inter alia, the performance by MYL of its obligations under or pursuant to
this Deed.
(F) Yorkshire Link Limited changed its name to Connect M1-A1 Limited on 2 June
2004.
IT IS AGREED
1 DEFINITIONS AND INTERPRETATION
In this Deed the following expressions shall have the following meanings:
"CONTINUING PARTIES": means BB and Connect;
"EFFECTIVE DATE": means the date of this Deed;
"REPLACEMENT SECONDMENT AGREEMENT": means the agreement to replace the
Secondment Agreement as set out in Clause 2.1; and
"SECONDMENT AGREEMENT": means the secondment agreement dated 26 March 1996
as amended and restated on 30 April 2003, between BB, Connect and MIUK.
2 NOVATION
With effect from the Effective Date:
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2.1 The Secondment Agreement shall be terminated and the Secondment
Agreement shall be replaced by the Replacement Secondment Agreement,
which shall be on identical terms to the Secondment Agreement save
that:
2.1.1 MYL shall be a party in place of MIUK;
2.1.2 references to "Macquarie Infrastructure (UK) Limited
(registered number 1540913) of ▇▇▇▇▇ ▇▇ and 30, ▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇" shall be references to "Macquarie
Yorkshire Limited (registered number 4712996) of ▇▇▇▇▇ ▇▇ ▇▇▇
▇▇, ▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇";
2.1.3 from Recital (f) onwards references to "MIUK" shall be
references to "MYL";
2.1.4 from Clause 1 onwards references to "Macquarie European
Infrastructure plc" shall be references to "Macquarie
Infrastructure Assets LLC"; and
2.1.5 from Clause 1 onwards references to "MEIP" shall be references
to "MICL".
2.1.6 from Clause 1 onwards references to "YLL" shall be references
to "Connect".
2.1.7 references to "Yorkshire Link Limited of (registered number
2999303) whose registered office is at ▇▇▇▇▇ ▇▇ and 30, ▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇" shall be references to
"Connect M1-A1 Limited of (registered number 2999303) whose
registered office is at ▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇, ▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇".
2.2 MYL undertakes with the Continuing Parties, from the Effective Date,
to accept, observe, perform, discharge and be bound by the
Replacement Secondment Agreement.
2.3 Notwithstanding the undertaking provided in Clause 2.2, nothing in
this Deed shall:
2.3.1 require MYL to perform any obligation created by or arising
under the Secondment Agreement falling due for performance, or
which should have been performed by MIUK, before the Effective
Date; or
2.3.2 make MYL liable for any act, neglect, default or omission in
respect of the Secondment Agreement committed by MIUK
occurring before the Effective Date.
2.4 With effect from the Effective Date, the Continuing Parties agree to
the substitution of the Replacement Secondment Agreement in place of
the Secondment Agreement and accept MYL's undertaking in Clause 2.2
above to observe, perform, discharge and be bound by the Replacement
Secondment Agreement.
2.5 The Continuing Parties hereby release and discharge MIUK from all
claims and demands from each of the Continuing Parties, and from
each of its liabilities and obligations, howsoever arising under the
Secondment Agreement to the extent assumed by MYL pursuant to this
Deed and accept the like liabilities and obligations to them of MYL
in place of MIUK under the Replacement Secondment Agreement.
2.6 Notwithstanding Clause 2.5, nothing in this Deed shall affect or
prejudice any claim or demand whatsoever which the Continuing
Parties may have against MIUK in relation to the Secondment
Agreement and arising out of matters prior to the Effective Date.
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2.7 With effect from the Effective Date, MIUK hereby releases and
discharges the Continuing Parties from all claims and demands by
MIUK, and from each of their respective liabilities and obligations
to MIUK, howsoever arising under the Secondment Agreement.
Notwithstanding this undertaking and release, nothing in this Deed
shall affect or prejudice any claim or demand whatsoever which MIUK
may have against the Continuing Parties in relation to the
Secondment Agreement and arising out of matters prior to the
Effective Date.
3 INDEMNITY
MIUK hereby undertakes to indemnify MYL in respect of all liabilities,
losses, charges, costs, claims or demands incurred or made by MYL in
relation to the Secondment Agreement and arising from acts or omissions of
MIUK prior to the Effective Date.
4 GUARANTEE
4.1 The Guarantor unconditionally and irrevocably guarantees to MIUK and
Connect the due and punctual performance and observance by MYL of
its obligations, commitments, undertakings, warranties and
indemnities under or for breach of this Deed and the Replacement
Secondment Agreement (the "GUARANTEED OBLIGATIONS").
4.2 If and whenever MYL defaults for any reason whatsoever in the
performance of any of the Guaranteed Obligations, the Guarantor
shall forthwith upon demand unconditionally perform (or procure
performance of) and satisfy (or procure satisfaction of) the
Guaranteed Obligations in respect of which there has been default in
the manner prescribed by this Deed and so that the same benefits
shall be conferred on MIUK and Connect as they would have received
if the Guaranteed Obligations had been duly performed and satisfied
by MYL.
4.3 This guarantee is a continuing guarantee and is to remain in force
until all the Guaranteed Obligations have been performed or
satisfied. This guarantee is in addition to and without prejudice to
and not in substitution for any rights or security which MIUK and
Connect may now or hereafter have or hold for the performance and
observance of the Guaranteed Obligations.
4.4 The liability of the Guarantor under this Clause 4 shall not be
released or diminished by any variation of the Guaranteed
Obligations or any forbearance, neglect or delay in seeking
performance of the Guaranteed Obligations or any granting of time
for such performance and shall not be affected or impaired by reason
of any other fact or event which in the absence of this provision
would or might constitute or afford a legal or equitable discharge
or release or a defence to a guarantor.
5 FURTHER ASSURANCE
Each of the parties agrees to perform (or procure the performance of) all
further acts and things, and execute and deliver (or procure the execution
and delivery of) such further documents, as may be required by law or as
may be necessary or reasonably desirable to implement and/or give effect
to this Deed.
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6 COUNTERPARTS
This Deed may be executed in any number of counterparts and by the parties
to it on separate counterparts, each of which is an original but all of
which together constitute one and the same instrument.
7 NO RIGHTS UNDER CONTRACTS (RIGHTS OF THIRD PARTIES) ACT 1999
A person who is not a party to this Deed shall have no right under the
Contracts (Rights of Third Parties) ▇▇▇ ▇▇▇▇ to enforce any of the terms
of this Deed or the Replacement Secondment Agreement.
8 GOVERNING LAW
8.1 This Deed and the relationship between the parties shall be governed
by, and interpreted in accordance with English law.
8.2 All parties agree that the Courts of England are to have exclusive
jurisdiction to settle any dispute (including claims for set-off and
counterclaim) which may arise in connection with the creation,
validity, effect, interpretation or performance of, or the legal
relationships established by this Deed or otherwise arising in
connection with this Deed or the Replacement Secondment Agreement
and for such purposes irrevocably submit to the jurisdiction of the
English Courts.
8.3 MICL 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 Deed or the Replacement
Secondment Agreement. Such agent shall be MYL of ▇▇▇▇▇ ▇▇ and 30, ▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ and any judgment or other notice
of legal process shall be sufficiently served on MICL if delivered
to such agent at its address for the time being. MICL agrees to
inform each party 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,
MICL irrevocably agrees to appoint a new process agent in England
and to deliver to each party within 14 days a copy of a written
acceptance of appointment by the process agent.
AS WITNESS this Deed has been executed by the parties hereto and is hereby
delivered on the date first above written.
SIGNED as a DEED by the said
[-] as attorney for BALFOUR }
▇▇▇▇▇▇ PLC
in the presence of:
Witness's signature
Name
Address
Occupation
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SIGNED as a DEED by the said
[-] as attorney for MACQUARIE
INFRASTRUCTURE (UK) }
LIMITED
in the presence of:
Witness's signature
Name
Address
Occupation
SIGNED as a DEED by the said
[-] as attorney for CONNECT }
M1-A1 LIMITED
in the presence of:
Witness's signature
Name
Address
Occupation
SIGNED as a DEED by the said
[-] as attorney for MACQUARIE }
YORKSHIRE LIMITED
in the presence of:
Witness's signature
Name
Address
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Occupation
EXECUTED and DELIVERED
by [-] as [authorised signatory]
on behalf of MACQUARIE }
INFRASTRUCTURE COMPANY
LLC and thereby executed by it
as a Deed
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