EXHIBIT 10.8
[IN THE AGREED TERMS]
[DATE]
BALFOUR ▇▇▇▇▇▇ PLC
and
MACQUARIE EUROPEAN INFRASTRUCTURE PLC
and
MACQUARIE YORKSHIRE LIMITED
and
CONNECT M1-A1 LIMITED
and
CONNECT M1-A1 HOLDINGS LIMITED
and
MACQUARIE YORKSHIRE LLC
and
MACQUARIE INFRASTRUCTURE COMPANY LLC
DEED OF NOVATION IN RELATION TO THE SHAREHOLDERS
AGREEMENT
LINKLATERS
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THIS DEED is made on [ ], 2004 BETWEEN:
(1) BALFOUR ▇▇▇▇▇▇ PLC (registered number 395826) whose registered office is
at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ("BB");
(2) MACQUARIE EUROPEAN INFRASTRUCTURE PLC (registered number 3724230) whose
registered office is at ▇▇▇▇▇ ▇▇ and 30, ▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇ ("MEIP");
(3) MACQUARIE YORKSHIRE LIMITED (registered number 4712996) whose registered
office is at ▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇, ▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ("MYL");
(4) CONNECT M1-A1 LIMITED (registered number 2999303) whose registered office
is at ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ (formerly
Yorkshire Link Limited) ("CONNECT");
(5) CONNECT M1-A1 HOLDINGS LIMITED (registered number 3059235) whose
registered office is at ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇ (formerly Yorkshire Link (Holdings) Limited) ("CONNECT
HOLDINGS");
(6) MACQUARIE YORKSHIRE LLC whose principal executive office is at ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇ ("MY LLC"); and
(7) MACQUARIE INFRASTRUCTURE COMPANY LLC whose principal executive office is
at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇ (formerly
Macquarie Infrastructure Assets LLC) ("MICL" or the "GUARANTOR").
WHEREAS:
(A) BB, MEIP, MYL, Connect and Connect Holdings have entered into the
Shareholders Agreement (as defined in this Deed).
(B) Pursuant to a share purchase agreement entered into between 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 (the "SHARE PURCHASE
AGREEMENT").
(C) Prior to Completion (as defined in the Share Purchase Agreement), MICL
intends to notify MEIP that it wishes to nominate MY LLC as the transferee
of the Shares (as defined in the Share Purchase Agreement) pursuant to
paragraph 1 of Part A of Schedule 5 of the Share Purchase Agreement.
(D) MEIP therefore wishes to be released and discharged from the Shareholders
Agreement and the parties have agreed to the novation of the Shareholders
Agreement.
(E) BB has agreed to provide reasonable assistance with respect to the
preparation of certain financial statements and other forms relating to
Connect Holdings as required under US securities laws and regulations.
(F) The Guarantor agrees to guarantee to MEIP, MYL, Connect and Connect
Holdings the obligations of MY LLC under or pursuant to this Deed and the
Replacement Shareholders Agreement (as defined in this Deed).
(G) 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 MY LLC of its obligations under or pursuant
to this Deed.
(H) Yorkshire Link Limited changed its name to Connect M1-A1 Limited on 2 June
2004; Yorkshire Link (Holdings) Limited changed its name to Connect M1-A1
Holdings Limited on 2 June 2004.
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IT IS AGREED:
1 DEFINITIONS AND INTERPRETATION
In this Deed the following expressions shall have the following meanings:
"CONTINUING PARTIES": means BB, Connect Holdings, Connect and MYL;
"EFFECTIVE DATE": means the date of Completion as defined in the Share
Purchase Agreement;
"EXCHANGE ACT": means the US Securities Exchange Act of 1934, as amended;
"REPLACEMENT SHAREHOLDERS AGREEMENT": means the agreement to replace the
Shareholders Agreement as set out in Clause 2.1;
"SECURITIES ACT": means the US Securities Act of 1933, as amended; and
"SHAREHOLDERS AGREEMENT": means the shareholders agreement dated 26 March
1996, as amended and restated on 30 April 2003, between BB, MEIP, MYL,
Connect and Connect Holdings relating to the purposes of (i) regulating,
as between the parties their relationship with each other as shareholders
in Connect Holdings and (ii) regulating, as between all of the parties,
certain aspects of the affairs of Connect Holdings and Connect.
2 NOVATION
With effect from the Effective Date:
2.1 The Shareholders Agreement shall be terminated and the Shareholders
Agreement shall be replaced by the Replacement Shareholders
Agreement, which shall be on identical terms to the Shareholders
Agreement save that:
2.1.1 MY LLC shall be a party in place of MEIP;
2.1.2 references to "Macquarie European Infrastructure PLC
(registered number 3724230) whose registered office is at
▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇" shall be
references to "Macquarie Yorkshire LLC whose principal
executive office is at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇ ▇▇▇▇▇ ▇▇▇ ("MY LLC")";
2.1.3 references to "MEIP" shall be references to "MY LLC";
2.1.4 the definition of "Guarantee" shall be replaced by the "deed
of guarantee entered into on or around the date hereof under
which Macquarie Infrastructure Assets LLC agrees to guarantee
to BB the performance by (i) MY LLC of its obligations under
or pursuant to the Shareholders Agreement Novation and (ii)
MYL of its obligations under or pursuant to this agreement and
the Secondment Agreement Novation and the Secondment
Agreement";
2.1.5 the definition of "Shareholders Agreement Novation" shall be
"the deed of novation of the Shareholders Agreement entered
into on or around the date hereof between BB, MEIP, MYL,
Connect, Connect Holdings, MY LLC and Macquarie Infrastructure
Assets LLC";
2.1.6 the definition of "Secondment Agreement Novation" shall be
"the deed of novation of the Secondment Agreement entered into
on or around the date
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hereof between BB, MIUK, Connect, MYL and Macquarie
Infrastructure Assets LLC";
2.1.7 references to "Yorkshire Link Limited (registered number
2999303) whose registered office is at ▇▇▇▇▇ ▇▇ and 30, ▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇" shall be references to
"Connect M1-A1 Limited (registered number 2999303) whose
registered office is at ▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇, ▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇";
2.1.8 references to "Yorkshire Link (Holdings) Limited (registered
number 3059235) whose registered office is at ▇▇▇▇▇ ▇▇ and 30,
▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇" shall be references to
"Connect M1-A1 Holdings Limited (registered number 3059235)
whose registered office is at ▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇, ▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇";
2.1.9 the following additional definitions shall apply:
"MICL" means Macquarie Infrastructure Assets LLC whose
principal executive office is at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇
"MY LLC" means Macquarie Yorkshire LLC whose principal
executive office is at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇ ▇▇▇▇▇ ▇▇▇; and
2.1.10 the words in Clause 11(5) from "If the MYL Owners receive a
bona fide offer" to the end of that Clause 11(5) shall be
deleted and the following inserted in their place:
"If:
(i) MY LLC receives a bona fide offer to Transfer all or any
part of its shares in MYL; or
(ii) MICL (together with MY LLC for the purposes of this
Clause 11(5), an "OFFEROR") receives a bona fide offer
to Transfer all or any part of its shares in MY LLC
from any bona fide arms length third party purchaser (an
"OFFEREE"), then the relevant Offeror shall within 5 Business
Days give notice to all other Shareholders including in such
notice:
(a) the percentage of shares in MYL, or MY LLC (as the case
may be) which the Offeror is proposing to Transfer
("OFFERED MYL INTERESTS");
(b) the purchase price; and
(c) the material terms of the offer (including whether any
sale is subject to any Approvals) (such notice hereafter
being referred to as the "MYL NOTICE"), and
Clauses 11A(3), 11A(4), 11A(5), 11A(6), 11A(7) and 11A(8)
shall apply except that:
(d) references to "Transfer Notice" shall be construed as a
reference to the "MYL Notice" and references to
"Specified Terms" shall be construed as a reference to
the terms of such MYL Notice;
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(e) references to YHL Shares shall be construed as a
reference to shares in MYL or MY LLC (as the case may
be);
(f) references to "YLL Loan Stock" and "interests in the
Commercial Subordinated Loan Agreement" shall be
disregarded;
(g) references to the "Offered Interests" shall be construed
as references to the "Offered MYL Interests";
(h) references to the "Proposing Transferor" shall be
construed as references to the relevant Offeror;
(i) references to the "Proposing Transferee" shall be
construed as references to the "Offeree"; and
(j) written offers from a Continuing Shareholder shall be
given to the relevant Offeror, the relevant Offeror
shall give notices to (and receive notices from) the
Continuing Shareholder or the Losing Shareholder (as the
case may be) and the relevant Offeror shall make
determinations as to the terms of the offers (in each
case, in lieu of YHL).
For the avoidance of doubt. Clauses 11A(3A) and 11(2A) shall
not apply to any Transfer or prospective Transfer of shares in
MYL or MY LLC (as the case may be)."
2.2 MY LLC undertakes with the Continuing Parties, from the Effective
Date, to accept, observe, perform, discharge and be bound by the
Replacement Shareholders Agreement.
2.3 Notwithstanding this undertaking, nothing in this Deed shall:
2.3.1 require MY LLC to perform any obligation created by or arising
under the Shareholders Agreement falling due for performance,
or which should have been performed by MEIP, before the
Effective Date; or
2.3.2 make MY LLC liable for any act, neglect, default or omission
in respect of the Shareholders Agreement committed by MEIP
occurring before the Effective Date.
2.4 With effect from the Effective Date, the Continuing Parties agree to
the substitution of the Replacement Shareholders Agreement in place
of the Shareholders Agreement and accept MY LLC's undertaking in
Clause 2.2 above to observe, perform, discharge and be bound by the
Replacement Shareholders Agreement.
2.5 The Continuing Parties hereby release and discharge MEIP from all
claims and demands from each of the Continuing Parties, and from
each of its liabilities and obligations, howsoever arising under the
Shareholders Agreement to the extent assumed by MY LLC pursuant to
this Deed and accept the like liabilities and obligations to them of
MY LLC in place of MEIP under the Replacement Shareholders
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 MEIP in relation to the Shareholders
Agreement and arising out of matters prior to the Effective Date.
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2.7 With effect from the Effective Date, MEIP hereby releases and
discharges the Continuing Parties from all claims and demands by
MEIP, and from each of their respective liabilities and obligations
to MEIP, howsoever arising under the Shareholders Agreement.
Notwithstanding this undertaking and release, nothing in this Deed
shall affect or prejudice any claim or demand whatsoever which MEIP
may have against the Continuing Parties in relation to the
Shareholders Agreement and arising out of matters prior to the
Effective Date.
3 INDEMNITY
MEIP hereby undertakes to indemnify MY LLC in respect of all liabilities,
losses, charges, costs, claims or demands incurred or made by MY LLC in
relation to the Shareholders Agreement and arising from acts or omissions
of MEIP prior to the Effective Date.
4 BB'S UNDERTAKING
4.1 BB shall procure that for so long as its employees are seconded to
Connect to perform the UK GAAP accounting function that those
employees will use their reasonable endeavours to provide such
supplementary information as MICL may reasonably request so as to
(i) enable MICL to produce the consolidated financial statements of
Connect Holdings for the 3 months and calendar year to date periods
ended March 31, June 30, September 30 and December 31 of each year,
including the results of activity from January 1 of each year to
such period end, in conformity with accounting principles generally
accepted in the United States, with the Securities Act and with the
Exchange Act; (ii) assist in the review of the periods ended March
31, June 30 and September 30 as required by the independent
accountants in accordance with United States Generally Accepted
Auditing Standards; (iii) assist in the audit for the year ended
December 31 of each year in accordance with United States Generally
Accepted Auditing Standards; and (iv) assist MICL in the preparation
of forms required to be submitted to the Securities and Exchange
Commission under the Securities Act and the Exchange Act, including,
but not limited to, Forms 10-K, 10-Q and 8-K, as needed.
4.2 The Guarantor shall indemnify BB for its reasonable costs incurred
in providing the assistance described in Clause 4.1 above.
5 GUARANTEE
5.1 The Guarantor unconditionally and irrevocably guarantees to MEIP,
MYL, Connect and Connect Holdings the due and punctual performance
and observance by MY LLC of its obligations, commitments,
undertakings, warranties and indemnities under or for breach of this
Deed and the Replacement Shareholders Agreement (the "GUARANTEED
OBLIGATIONS").
5.2 If and whenever MY LLC 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 MEIP, MYL, Connect and Connect Holdings as
they would have
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received if the Guaranteed Obligations had been duly performed and
satisfied by MY LLC.
5.3 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 MEIP, MYL,
Connect and Connect Holdings may now or hereafter have or hold for
the performance and observance of the Guaranteed Obligations.
5.4 The liability of the Guarantor under this Clause 5 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.
6 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.
7 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.
8 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 Shareholders Agreement.
9 GOVERNING LAW
9.1 This Deed and the relationship between the parties shall be governed
by, and interpreted in accordance with English law.
9.2 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 the Replacement
Shareholders Agreement or otherwise arising in connection with this
Deed and for such purposes irrevocably submit to the jurisdiction of
the English Courts.
9.3 MY LLC and 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
Shareholders Agreement. Such agent shall be MYL of ▇▇▇▇▇ ▇▇ and 30,
▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ and any judgment or other notice
of legal process shall be sufficiently served on MY LLC and MICL if
delivered to such agent at its address for the time being. MY LLC
and MICL agree
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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,
MY LLC and MICL irrevocably agree 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.
EXECUTED and DELIVERED
as a DEED by }
[-] as attorney for BALFOUR
▇▇▇▇▇▇ PLC
Witness's signature
Name
Address
Occupation
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EXECUTED and DELIVERED
as a DEED by [-]
as attorney for MACQUARIE }
EUROPEAN
INFRASTRUCTURE PLC
Witness's signature
Name
Address
Occupation
EXECUTED and DELIVERED
as a DEED by
MACQUARIE YORKSHIRE }
LIMITED acting by two
directors/a director and the
secretary
Director:
Director[/secretary]:
EXECUTED and DELIVERED
as a DEED by CONNECT M1-
A1 LIMITED acting by two }
directors/a director and the
secretary
Director:
Director[/secretary]:
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EXECUTED and DELIVERED
as a DEED by
CONNECT M1-A1 HOLDINGS }
LIMITED acting by two
directors/a director and the
secretary
Director:
Director[/secretary]:
EXECUTED and DELIVERED
by [-] as [authorised signatory]
on behalf of MACQUARIE }
YORKSHIRE LLC
and thereby executed by it as
a Deed
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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