Dated 21 December 2006 MACQUARIE YORKSHIRE LLC - and - - and - M1-A1 INVESTMENTS LIMITED - and - BALFOUR BEATTY PLC - and - MACQUARIE INFRASTRUCTURE COMPANY LLC SALE AND PURCHASE AGREEMENT relating to the sale and purchase of all the shares in...
Dated
21
December 2006
MACQUARIE
YORKSHIRE LLC
-
and
-
MIC
EUROPEAN FINANCING S.AR.L
-
and
-
M1-A1
INVESTMENTS LIMITED
-
and
-
BALFOUR
XXXXXX PLC
-
and -
MACQUARIE
INFRASTRUCTURE COMPANY LLC
___________________________________________________________
relating
to the sale and purchase of all the shares in
Macquarie
Yorkshire Limited and the acquisition of the benefit of
certain
debts owed by Macquarie Yorkshire Limited
___________________________________________________________
THIS
AGREEMENT
is made
on 21 December 2006
BETWEEN:
(1)
|
MACQUARIE
YORKSHIRE LLC
a
limited liability company registered under the laws of Delaware whose
principal executive office is at 000 Xxxx 00xx
Xxxxxx, Xxx Xxxx, XX, 00000, XXX (the "Vendor"
or "MY
LLC");
|
(2)
|
MIC
EUROPEAN FINANCING S.AR.L
a
société à responsabilité limitée incorporated under the laws of Luxembourg
whose registered address is x/x Xxxxx Xxxxx, 0, xxx Xxxxxxxxx Xxxxx,
XX
0000, X-0-00 Xxxxxxxxxx ("MEFS");
|
(3)
|
M1-A1
INVESTMENTS LIMITED a
company incorporated in England and Wales (Registered No. 6003363)
whose
registered office is at 8th
Floor, 20 St Xxxxx’ Street, London SW1A 1ES (the "Purchaser"
or "NewCo");
|
(4)
|
BALFOUR
XXXXXX PLC a
public limited liability company registered in England under number
395826
whose registered office is at Xxxxxxxx Xxxxx, 000 Xxxxxx Xxxx, Xxxxxx
XX0X
0XX (the "Purchaser
Guarantor"
or "BB");
and
|
(5)
|
MACQUARIE
INFRASTRUCTURE COMPANY LLC
a
limited liability company registered under the laws of Delaware whose
principal executive office is at 000 Xxxx 00xx
Xxxxxx, Xxx Xxxx, XX, 00000, XXX (the "Vendor
Guarantor"
or "MICL").
|
WHEREAS:
(A)
|
The
Vendor wishes to sell the Shares and the Purchaser wishes to purchase
the
Shares (as defined in this Agreement) in each case on the terms and
subject to the conditions of this
Agreement.
|
(B)
|
The
Vendor wishes to transfer and the Purchaser wishes to assume certain
rights and obligations of the Vendor associated with the ownership
of the
Shares pursuant to the Completion Documents (as defined in this
Agreement).
|
(C)
|
The
Vendor and MEFS wish to assign, and the Purchaser wishes to acquire,
the
benefit of the MYL Debt (as defined in this
Agreement).
|
IT
IS AGREED
as
follows:
1.
|
INTERPRETATION
|
In
this
Agreement, unless the context otherwise requires, the provisions in this Clause
1
apply:
1.1
|
Definitions
|
"Accounts"
means
the consolidated unaudited accounts of Connect Holdings and of the Company
as at
their respective Accounts Dates;
"Accounts
Date"
means
31 March 2006 in respect of Connect Holdings and 30 June 2006 in respect of
the
Company;
2
"Affiliate"
means
in relation to any person:
(a)
|
(i)
its parent undertaking (within the meaning of section 258 of the
Companies
Act 1985); (ii) any subsidiary undertaking (within the meaning of
that
section) of such body corporate or of its parent undertaking; or
(iii) or
any other entity which is not a body corporate but which ultimately
controls that party from time to
time;
|
(b)
|
any
unit trust, investment fund, partnership (whether a limited partnership,
limited liability partnership or other form of legally recognized
partnership) or other fund or other entity of which any entity referred
to
in paragraph (i) of this definition is the general partner, trustee,
principal or manager (either directly or indirectly);
and
|
(c)
|
any
nominee or trustee of any entity falling within paragraphs (a) and
(b) of
this definition acting in such capacity (whether on a change of nominee
or
trustee or otherwise);
|
"agreed
terms"
means,
in relation to any document, such document in the terms agreed between the
Vendor and the Purchaser and signed for the purposes of identification by the
Vendor's Solicitors and the Purchaser's Solicitors;
"Agreement"
means
this agreement, including the Recitals and Schedules;
"ARIA"
means
the intercreditor agreement dated 26 March 1996 as amended and restated on
20
October 1997 and further amended and restated on 4 September 2001 and now
between Connect, Connect Holdings, MYL, MIUK, ABN Amro Bank NV, European
Investment Bank, European Investment Fund, BB and certain other financial
institutions;
"Business
Day"
means a
day on which banks are open for business in London (excluding Saturdays, Sundays
and public holidays);
"CBFA"
means
the commercial bank facility agreement dated 26 March 1996 as amended and
restated on 20 October 1997 and further amended and restated on 4 September
2001
and now between Connect and ABN Amro Bank NV;
"Commercial
Subordinated Loan Agreement"
means
the commercial subordinated loan agreement dated 26 March 1996 as amended and
restated on 20 October 1997 and further amended and restated on 4 September
2001
and now between Connect, MYL and BB;
"Company"
or
"MYL"
means
Macquarie Yorkshire Limited details of which are contained in Schedule
1;
"Company's
Connect Loan Notes"
means
the Connect Loan Notes in the amount of £2,854,419.00 registered in the name of
the Company;
"Completion"
means
the completion of the sale and purchase of the Shares pursuant to Clause
6;
"Completion
Date"
means
the date of Completion;
3
"Completion
Documents"
means
the documents in the agreed terms listed in Part C of Schedule 5;
"Conditions
Precedent"
means
each of the matters listed in Schedule 2;
"Connect"
means
Connect M1-A1 Limited (formerly Yorkshire Link Limited) whose registered office
is at 6th Floor, 000 Xxxxxx Xxxx, Xxxxxxx Xxxxx, Xxxxxx XX0 0XX (registered
number 2999303);
"Connect
Documents"
means
the Project Documents as defined in the CBFA and the Finance Documents as
defined in the ARIA;
"Connect
Holdings"
means
Connect M1-A1 Holdings Limited (formerly Yorkshire Link (Holdings) Limited)
whose registered office is at 6th Floor, 000 Xxxxxx Xxxx, Xxxxxxx Xxxxx, Xxxxxx
XX0 0XX (registered number 3059235);
"Connect
Holdings Shares"
means
the 1,500,000 fully paid issued ordinary shares of £1.00 each which the Company
holds in the capital of Connect Holdings;
"Connect
Loan Notes"
means
the £12,000,000 15 per cent. secured subordinated loan stock 2020 constituted by
Connect under an instrument dated 26 March 1996 and issued subject to the
provisions of that instrument and of an intercreditor agreement dated 26 March
1996 as amended and restated on 20 October 1997 and further amended and restated
on 4 September 2001
"Connect
Shares"
means
the 3,000,001 fully paid issued ordinary shares of £1.00 each which Connect
Holdings holds in the capital of Connect;
"Consideration"
has the
meaning given to it in Clause 3;
"DBFO
Contract"
means
the contract dated 26 March 1996 between the Secretary of State and
Connect;
"Disclosed
Information"
means
the documentation and information relating to the MYL Group made available
to
the Purchaser by the Vendor and listed in Schedule 7 of this
Agreement;
"EIB
Facility Agreement"
means
the EIB facility agreement dated 26 March 1996 as amended and restated on 20
October 1997 and further amended and restated on 4 September 2001 between
Connect and the European Investment Bank;
"EIF
Facility Agreement"
means
the EIF Senior Guarantee Facility Agreement between the European Investment
Fund
and Yorkshire Link Limited dated 26 March 1996, and amended and restated on
4
September 2001;
"Encumbrance"
means
any claim, charge (fixed or floating), mortgage, pledge, security, lien, option,
right to acquire, equity, power of sale, hypothecation, assignment by way of
security, trust arrangement for the purpose of providing security or other
third
party rights, retention of title, right of pre-emption, right of first refusal
or security interest of any kind and any agreement to create any of the
foregoing;
4
"Finance
Documents"
means
the Finance Documents (as defined in the Intercreditor Agreement) and the MYL
Debt;
"Financial
Model"
means
the financial model in respect of the Project, which is referred to at 7.17.33
in Schedule 7;
"Group
Relief"
has the
meaning given to it in the Tax Deed;
"MEFS
Debt"
means
the outstanding intra-group debt being £11,850,000 owed by the Company to MEFS,
as evidenced by a loan agreement dated 2 March 2005;
"MEFS
Warranties"
means
the warranties set out in Part B of Schedule 3;
"MIUK"
means
Macquarie Infrastructure (UK) Limited whose registered office is at Xxxxx 00
xxx
00, Xxxx Xxxxx, 0 Xxxxxxxxx Xxxxxx, Xxxxxx XX0X 0XX;
"MY
LLC Debt"
means
the outstanding intra-group debt being £6,420,710.36 owed by the Company to the
Vendor, as evidenced by a loan agreement dated 22 December 2004;
"MYL
Debt"
means
the MY LLC Debt and the MEFS Debt;
"MYL
Group Companies"
or
"MYL
Group"
means
any of or all of Connect, Connect Holdings and MYL, as the context requires
and
"MYL
Group Company"
shall
be construed accordingly;
"Parent
Company Guarantee"
means
the guarantee from MICL to BB dated 22 December 2004;
"Project"
means
the operation and maintenance of the X0/X0 Xxxx Xxxx;
"Project
Documents"
has the
meaning given thereto in the DBFO Contract;
"Purchaser's
Group"
means
the Purchaser and its Affiliates from time to time;
"Purchaser's
Solicitors"
means
Linklaters of Xxx Xxxx Xxxxxx, Xxxxxx XX0X 0XX;
"Purchaser's
Warranties"
means
the warranties set out in Part C of Schedule 3;
"Related
Party"
means
any Affiliate, shareholder, partner or joint venturer of the
Purchaser;
"Relevant
Date"
means
28 February 2007;
"Secondment
Agreement"
means
the secondment agreement dated 22 December 2004 and now between Connect, MYL
and
BB;
"Secretary
of State"
means
the Secretary of State for Transport;
"Shareholders'
Agreement"
means
the shareholders' agreement dated 22 December 2004 between Connect, Connect
Holdings, MYL, MY LLC and BB;
5
"Shareholders'
Agreement Novation"
means a
novation of the Shareholders' Agreement between inter
alia
the
Purchaser, MYL, Connect Holdings, Connect, BB and MY LLC in the agreed
terms;
"Shares"
means
the 5,000,000 fully paid issued ordinary shares of £1 each in the capital of the
Company owned by the Vendor;
"Subordination
Agreement"
means
the subordination agreement dated 2 March 2005 entered into between MY LLC,
MEFS
and the Company in relation to the MYL Debt;
"TCGA"
means
the UK Taxation of Chargeable Gains Xxx 0000;
"Tax"
or
"tax"
means
any tax, levy, impost, duty or other charge or withholding of a similar nature
(including any penalty or interest payable in connection with any failure to
pay
or delay in paying any of the same) and "Taxation"
shall
be construed accordingly;
"Tax
Authority"
means
any authority, body, agency or official having or purporting to have power
or
authority in relation to Tax;
"Taxes
Act"
means
the UK Income and Corporation Taxes Xxx 0000;
"Tax
Deed"
means
the tax deed entered into between the Vendor and the Purchaser of even date
with
this Agreement;
"Tax
Disclosure Letter"
means
the disclosure letter relating to the Tax Warranties to be delivered by the
Vendor to the Purchaser on the date of this Agreement;
"Tax
Return"
means
any return, notice, computation or document in relation to Tax;
"Tax
Warranties"
means
the warranties and representations set out in paragraph 16 of Part A of Schedule
3 and "Tax
Warranty"
shall
be construed accordingly;
"Third
Party Consents"
means
those consents listed in Part A of Schedule 2;
"Transaction
Documents"
means
this Agreement, the Shareholders' Agreement Novation, the Tax Deed and the
Tax
Disclosure Letter;
"VATA"
means
the UK Value Added Tax Xxx 0000;
"VAT"
means
Tax chargeable under VATA;
"Vendor's
Solicitors"
means
Shearman & Sterling (London) LLP of Xxxxxxxxx Xxxx, 0 Xxxxxx Xxxxxx, Xxxxxx,
XX0X 0XX;
"Vendor’s
Warranties"
means
the warranties set out in Part A of Schedule 3; and
"Warranties"
means
the Vendor's Warranties, the MEFS Warranties and the Purchaser's Warranties
and
"Warranty"
shall
be construed accordingly.
6
1.2
|
Subordinate
Legislation
|
References
to a statutory provision include any subordinate legislation made from time
to
time under that provision which is in force at the date of this
Agreement.
1.3
|
Modification
etc. of Statutes
|
References
to a statute or statutory provision include that statute or provision as from
time to time modified, re-enacted or consolidated whether before or after the
date of this Agreement so far as such modification, re-enactment or
consolidation applies or is capable of applying to any transactions entered
into
in accordance with this Agreement prior to Completion and (so far as liability
thereunder may exist or can arise) shall include also any past statute or
statutory provision (as from time to time modified, re-enacted or consolidated)
which such statute or provision has directly or indirectly replaced except
to
the extent that any statute or statutory provision made or enacted after the
date of this Agreement would create or increase a liability of the Vendor or
the
Purchaser under this Agreement.
1.4
|
Clauses,
Schedules etc.
|
References
to this Agreement include any Recitals and Schedules to it and references to
Clauses and Schedules are to Clauses of and Schedules to this Agreement.
References to paragraphs are to paragraphs of the Schedules.
1.5
|
Amendments
to Documents
|
References
to this Agreement or any other document include this Agreement or such other
document as varied, modified or supplemented from time to time.
1.6
|
Headings
|
Headings
shall be ignored in construing this Agreement.
1.7
|
Subsidiaries,
Holding Companies
|
The
expressions "subsidiary" and "holding company" shall have the same meanings
in
this Agreement as their respective definitions in the Companies Xxx
0000.
1.8
|
Warranties
|
Where
any
statement is qualified by the expression "so far as the Vendor is aware" or
"to
the best of the Vendor's knowledge, information and belief" or any similar
expression, that expression or statement shall be deemed to be made on the
basis
of all matters of which the Chief Executive Officer and the Chief Finance
Officer of the Vendor has actual knowledge or ought reasonably to have actual
knowledge having made all reasonable enquiries of each of Xxxxxxx Xxxx, Xxxx
XxxXxxxxx, Xxxxxx Xxxx, Xxxxx Xxxxxxxx, Xxxxx Xxxxxxx and Xxxxxxxxx Helps,
in
each case as at the date of this Agreement.
1.9
|
References
to a "person"
shall be construed so as to include any individual, firm, company,
government, state or agency of a state or any joint venture, association
or partnership (whether or not having separate legal
personality).
|
7
1.10
|
The
singular includes the plural and vice versa and references to one
gender
include all genders.
|
2.
|
AGREEMENT
TO SELL THE SHARES AND MYL
DEBT
|
2.1
|
Sale
of Shares
|
(a)
|
The
Vendor agrees to sell with full title guarantee and the Purchaser
agrees
to purchase the Shares together with, subject to clauses 2.3 and
2.4, all
rights and advantages now or in the future attaching to the
Shares.
|
(b)
|
The
Vendor shall sell to the Purchaser the Shares free from any Encumbrance.
|
(c)
|
The
Vendor shall use reasonable endeavours to procure that on or prior
to
Completion any and all rights of pre-emption over the Shares are
waived
irrevocably by the persons entitled
thereto.
|
(d)
|
The
Purchaser shall not be obliged to complete the purchase of any of
the
Shares unless the purchase of all the Shares is completed
simultaneously.
|
2.2
|
Assignment
of MYL Debt
|
(a)
|
MY
LLC agrees to assign, and the Purchaser agrees to purchase, all rights,
title, interest and benefit in and to the MY LLC Debt (including,
without
limitation, all interest, if any, due in respect of the MY LLC Debt
or to
become due).
|
(b)
|
MEFS
agrees to assign, and the Purchaser agrees to purchase, all rights,
title,
interest and benefit in and to the MEFS Debt (including, without
limitation, all interest, if any, due in respect of the MEFS Debt
or to
become due).
|
Income
2.3
|
For
the avoidance of doubt:
|
(a)
|
the
Vendor shall be entitled to
receive:
|
(i)
|
in
respect of the Shares and Connect Holdings Shares, all dividends
and
distributions (whether of income or capital) declared, paid or made
by the
Company or Connect Holdings (as the case may be) provided such dividends
and distributions do not exceed the amounts specified in the Financial
Model and are not likely to prejudice the projections in the Financial
Model; and
|
(ii)
|
in
respect of the Company's Connect Loan Notes and the Commercial
Subordinated Loan Agreement, all interest due, accrued or
payable,
|
in
respect of any period ending on or before 30 September 2006; and
(b)
|
the
Purchaser shall, subject to Completion occurring, only be entitled
to
receive:
|
8
(i)
|
in
respect of the Shares and Connect Holdings Shares, all dividends
and
distributions (whether of income or capital) declared, paid or made
by the
Company or Connect Holdings (as the case may be);
and
|
(ii)
|
in
respect of the Company's Connect Loan Notes and the Commercial
Subordinated Loan Agreement, all interest due, accrued or
payable,
|
in
respect of the any period commencing on or after 1 October 2006.
2.4
|
The
Vendor and the Purchaser agree
that:
|
(a)
|
the
Purchaser shall forthwith account to the Vendor for any dividends
and
distributions (whether of income or capital) it may receive in respect
of
the Shares and Connect Holdings Shares and/or any interest it may
receive
in respect of the Company's Connect Loan Notes and pursuant to the
Commercial Subordinated Loan Agreement in respect of any period ending
on
or before 30 September 2006; and
|
(b)
|
the
Vendor shall forthwith account to the Purchaser for any dividends
and
distributions (whether of income or capital) it may receive in respect
of
the Shares and Connect Holdings Shares and/or any interest it may
receive
in respect of the Company's Connect Loan Notes and pursuant to the
Commercial Subordinated Loan Agreement in respect of any period commencing
on or after 1 October 2006,
|
in
each
case by payment to such bank account as the relevant party shall notify to
the
other in writing.
2.5
|
If
Completion has not occurred by the Relevant Date, and the parties
have not
agreed in writing to extend the Relevant Date, the Purchaser shall
no
longer be entitled to receive any dividends, distributions and/or
interest
pursuant to clause 2.3(b) and shall be required forthwith to account
to
the Vendor for any dividends, distributions and/or interest it may
have
received pursuant to clause 2.3(b) in each case by payment to such
bank
account as the Vendor shall notify to the
Purchaser.
|
2.6
|
Completion
Documents
|
(a)
|
The
Vendor wishes to transfer and the Purchaser wishes to assume certain
rights and obligations of the Vendor associated with its ownership
of the
Shares pursuant to the Completion Documents. Each of the Purchaser
and the
Vendor agrees to execute, or procure that any MYL Group Company executes,
any Completion Document to which it is expressed to be a party in
accordance with Part C of Schedule
5.
|
(b)
|
Each
of the Vendor and MEFS agrees to execute, and procure that the Company
acknowledges receipt of, a notice of assignment in respect of the
assignment of the MY LLC Debt and the MEFS Debt in accordance with
Part C
of Schedule 5.
|
9
3.
|
CONSIDERATION
|
3.1
|
The
total consideration for the sale of the Shares and the assignment
of the
MYL Debt shall be the payment by the Purchaser to MY LLC and MEFS,
in
accordance with Clause 3.3, of £43,627,000 (the "Consideration").
For the avoidance of doubt, the Consideration is payable to the Vendor
or
MEFS (as the case may be) in addition to any sum which the Vendor
is
entitled to receive under clause
2.3.
|
3.2
|
The
Consideration shall be increased by £7,000.00 for each day after 30
September 2006 that Completion occurs.
|
3.3 | The Consideration will be apportioned as follows: |
(a)
|
in
consideration for the assignment to the Purchaser of the MY LLC Debt,
the
Purchaser will pay to the Vendor the outstanding face value of the
MY LLC
Debt as at Completion ("Amount
A");
|
(b)
|
in
consideration for the assignment to the Purchaser of the MEFS Debt,
the
Purchaser will pay to MEFS the outstanding face value of the MEFS
Debt,
plus any accrued interest, as at Completion ("Amount
B");
and
|
(c)
|
in
consideration for the sale of the Shares to the Purchaser, the Purchaser
will pay to the Vendor a sum equal to the Consideration (as adjusted,
if
necessary, pursuant to Clause 3.2) less the aggregate of Amount A
and
Amount B ("Amount
C").
|
4.
|
CONDITIONS
|
4.1
|
Conditions
Precedent
|
The
obligations to sell and purchase the Shares and assign the MYL Debt contained
in
Clauses 2.1
and
2.2
are
conditional upon (and accordingly beneficial ownership in the Shares, and
rights, title, interest and benefit in and to the MYL Debt, will not pass until)
satisfaction of the Conditions Precedent or their satisfaction subject only
to
Completion of this Agreement.
4.2
|
Responsibility
for Satisfaction
|
(a)
|
Each
of the Vendor and Purchaser shall use reasonable endeavours to ensure
the
satisfaction of the Conditions Precedent as soon as practicable and
in any
event by the Relevant Date or as otherwise agreed in writing by the
parties.
|
(b)
|
Without
prejudice to Clause 4.2(a),
the Vendor and the Purchaser agree that, prior to Completion, all
requests
and enquiries from the Secretary of State or any other governmental
agency, court or body, any lender, agent or security trustee under
any
relevant financing or any party to the Shareholders' Agreement shall
be
dealt with by the Vendor following due consultation with the Purchaser
and
the Vendor shall ensure that all such requests and enquiries are
promptly
notified to the Purchaser.
|
(c)
|
The
Vendor and the Purchaser shall promptly co-operate with and provide
all
necessary information and assistance reasonably required by such
governmental agency, court or body, any lender, agent or security
trustee
under any relevant financing or any party to the Shareholders' Agreement
upon being requested to do so by the
other.
|
10
(d)
|
The
Secretary of State shall not be requested to provide its consent
pursuant
to paragraph 1 of Schedule 2 until the Conditions Precedent which
do not
require the consent of the Secretary of State (listed in paragraphs
2 to 5
of Schedule 2) have been satisfied, unless the parties determine
otherwise.
|
4.3
|
Non-satisfaction
|
If
any
Condition Precedent is not satisfied on or before the Relevant Date or such
later period of time as the Purchaser and the Vendor may agree in writing,
then,
save as otherwise expressly provided, this Agreement shall terminate and no
party shall have any claim against the other party under it. The provisions
of
Clauses 1,
10.1,
10.3,
11.1,
11.2,
11.3,
11.4,
11.8,
11.9, 11.10,
11.11
and
11.15
shall
survive any termination of this Agreement and the rights and liabilities of
the
parties which have accrued before termination or in relation to these Clauses
shall survive termination.
5.
|
ACTION
PENDING COMPLETION
|
5.1
|
Amendments
|
Until
the
earlier of Completion and the termination of this Agreement in accordance with
Clause 4.3,
the
Vendor shall not:
(a)
|
agree
to any amendment, modification or waiver, or grant any consent in
respect
of, any Connect Documents without the consent of the Purchaser; or
|
(b)
|
agree
to any matter, involving the Company in its capacity as shareholder
without the written consent of the Purchaser, other than the declaration,
payment or making of a dividend or distribution to the Vendor in
respect
of any period ending on or before 30 September
2006,
|
except
to
the extent required to comply with its obligations under this Agreement and
provided that such consent shall not be unreasonably withheld or delayed or
made
subject to any unreasonable conditions.
5.2
|
Access
|
Pending
Completion, the Vendor (subject to being able to obtain the consent of any
relevant third party) shall:
(a)
|
procure
that the Purchaser, its agents and representatives are given reasonable
access to the properties and to the books and records of any member
of the
MYL Group; and
|
(b)
|
provide
to the Purchaser, its agents and representatives information regarding
the
businesses and affairs of any member of the MYL Group as the Purchaser
may
reasonably request.
|
11
5.3
|
Conduct
of Business
|
Pending
Completion, the Vendor shall, in each case following consultation with the
Purchaser, exercise its voting rights in MYL, and procure (to the extent it
is
legally able to do so) that the directors it has nominated to the board of
any
MYL Group Company vote in a manner consistent with the MYL Group Companies
only
carrying on business in the ordinary course in compliance with their obligations
under the Project Documents and the Finance Documents.
6.
|
COMPLETION
|
6.1
|
Date
and Place
|
Completion
shall take place at the offices of the Vendor's Solicitors within two weeks
of
the date of satisfaction of all the Conditions Precedent.
6.2
|
Completion
Obligations
|
(a)
|
At
Completion the Vendor shall provide to the Purchaser copies of each
Third
Party Consent listed in Schedule 2.
|
(b)
|
The
Vendor shall procure that the obligations listed in Part A (other
than
paragraph 4(b)) and (to the extent within its power) Part C of Schedule
5
are fulfilled.
|
(c)
|
MEFS
shall procure that the obligations listed in paragraph 4(b) of Part
A and
(to the extent within its power) Part C of Schedule 5 are
fulfilled.
|
(d)
|
The
Purchaser shall procure that the obligations listed in Part B and
(to the
extent within its power) Part C of Schedule 5 are
fulfilled.
|
(e)
|
Neither
the Vendor nor the Purchaser shall be obliged to complete the sale
and
purchase of the Shares pursuant to this Agreement unless the Vendor,
MEFS
and the Purchaser comply fully with its obligations under Clause
6.2(b),
Clause 6.2(c)
and Clause 6.2(d) respectively and Schedule
5.
|
6.3
|
Payments
at Completion
|
At
Completion the Purchaser shall make the following payments to the Vendor and
MEFS, in each case free of any deduction or withholding for or on account of
any
Tax, bank charges and commissions in immediately available funds:
(a)
|
Amount
A and Amount C shall be paid to SWIFT: IRVTGB2X at The Bank of New
York,
London for further credit to SWIFT: XXXXXX0X at The Bank of New York,
New
York for the benefit of account number 000 000 0000 in the name of
MICL;
and
|
(b)
|
Amount
B shall be paid to the account with IBAN number XX00 0000 0000 0000
0000
GBP, with SWIFT: XXXXXXXX, at ING Luxembourg SA in the name of
MEFS.
|
12
7.
|
OBLIGATIONS
AFTER COMPLETION
|
7.1
|
Without
delay after Completion, the Purchaser shall procure that the Company
complies with the requirements of Schedule
6.
|
7.2
|
After
Completion, the Purchaser will use its reasonable endeavours to provide
(at reasonable cost to the Vendor or MEFS as the case may be) such
supplementary information as the Vendor or MEFS, as the case may
be, may
reasonably request so as to enable the Vendor or MEFS, as the case
maybe,
to comply with their respective accounting and tax obligations with
respect to the sale of the Shares and/or the assignment of the MYL
Debt.
|
8.
|
WARRANTIES
|
Vendor's
Warranties
8.1
|
The
Vendor warrants to the Purchaser that each of the Vendor's Warranties
is
true and accurate in all respects and not misleading in any respect
at the
date of this Agreement in each case subject only
to:
|
(a)
|
any
matter which is fully and fairly disclosed in the Disclosed Information
or
in the Tax Disclosure Letter; and
|
(b)
|
any
matter expressly provided for under the terms of this
Agreement.
|
8.2
|
The
Vendor accepts that the Purchaser is entering into the agreement
for the
sale and purchase of the Shares and the assignment of the MY LLC
Debt in
reliance upon each of the Vendor’s
Warranties.
|
8.3
|
The
provisions of Schedule 4 shall apply in respect of the Vendor’s
Warranties.
|
MEFS
Warranties
8.4
|
MEFS
warrants to the Purchaser that each of the MEFS Warranties is true
and
accurate in all respects and not misleading in any respect at the
date of
this Agreement in each case subject only
to:
|
(a)
|
any
matter which is fully and fairly disclosed in the Disclosed Information;
and
|
(b)
|
any
matter expressly provided for under the terms of this
Agreement.
|
8.5
|
MEFS
accepts that the Purchaser is entering into the agreement for the
assignment of the MEFS Debt in reliance upon each of the MEFS
Warranties.
|
8.6
|
The
provisions of Schedule 4 shall apply in respect of the MEFS
Warranties.
|
8.7
|
The
Purchaser's Warranties
|
The
Purchaser warrants to the Vendor and MEFS that each of the Purchaser’s
Warranties is true and accurate in all respects and not misleading in any
respect at the date of this Agreement.
13
8.8
|
Separation
of Warranties, Effect of
Completion
|
(a)
|
Each
of the Vendor's Warranties, the MEFS Warranties and the Purchaser's
Warranties shall be construed as a separate and independent warranty
and
(except where expressly provided to the contrary) shall not be limited
or
restricted as to its meaning by reference to or inference from the
terms
of any other Warranty or any other term of this
Agreement.
|
(b)
|
The
Vendor's Warranties, the MEFS Warranties and the Purchaser's Warranties
and all other provisions of this Agreement insofar as the same shall
not
have been performed at Completion shall not be extinguished or affected
by
Completion, or by any other event or matter whatsoever except by
a
specific and duly authorised written waiver or release by the relevant
party.
|
8.9
|
Any
payment by the Vendor or MEFS to the Purchaser or the Purchaser to
the
Vendor or MEFS in relation to a breach of Warranty shall, to the
extent
possible, be treated as an adjustment to Amount A or Amount C paid
to the
Vendor or to Amount B paid to MEFS (as the case may
be).
|
9.
|
GUARANTEES
|
Vendor
Guarantee
9.1
|
In
consideration of the Purchaser entering into this Agreement, the
Vendor
Guarantor, at the request of the Vendor, unconditionally and irrevocably
guarantees as a primary obligation to the Purchaser and its assigns
the
due and punctual performance and observance by the Vendor of the
Vendor's
obligations, and the punctual discharge by the Vendor of the Vendor's
liabilities to the Purchaser, arising under clauses 8.1, 8.2 and
8.8 and
paragraphs 1 to 16 of Part A of Schedule 3 to this Agreement.
|
9.2
|
If
the Vendor defaults in the payment when due of any amount payable
to the
Purchaser as a result of any claim made in relation to paragraphs
clauses
8.1, 8.2 and 8.8 and 1 to 16 of Part A of Schedule 3 to this Agreement,
the Vendor Guarantor shall, immediately on demand by the Purchaser,
unconditionally pay that amount to the Purchaser in the manner prescribed
in this agreement as if it were the Vendor provided that under no
circumstance whatsoever shall the liabilities of the Vendor Guarantor
pursuant to this clause 9.2 either individually or in aggregate exceed
the
liability which the Vendor has under this
Agreement.
|
MEFS
Guarantee
9.3
|
In
consideration of the Purchaser entering into this Agreement, the
Vendor
Guarantor, at the request of MEFS, unconditionally and irrevocably
guarantees as a primary obligation to the Purchaser and its assigns
the
due and punctual performance and observance by MEFS of MEFS's obligations,
and the punctual discharge by MEFS of MEFS's liabilities to the Purchaser,
arising under clauses 8.4, 8.5 and 8.8 and Part B of Schedule 3 to
this
Agreement.
|
9.4
|
If
MEFS defaults in the payment when due of any amount payable to the
Purchaser as a result of any claim made in relation to clauses 8.4,
8.5
and 8.8 and Part B of Schedule 3 to this Agreement, the Vendor Guarantor
shall, immediately on demand by the Purchaser, unconditionally pay
that
amount to the Purchaser in the manner prescribed in this agreement
as if
it were MEFS provided that under no circumstance whatsoever shall
the
liabilities of the Vendor Guarantor pursuant to this clause 9.4 either
individually or in aggregate exceed the liability which MEFS has
under
this Agreement.
|
14
Purchaser
Guarantee
9.5
|
In
consideration of the Vendor and MEFS entering into this Agreement,
the
Purchaser Guarantor unconditionally and irrevocably guarantees as
a
primary obligation to the Vendor and MEFS and their respective assigns
the
due and punctual performance and observance by the Purchaser of the
Purchaser's obligations, and the punctual discharge by the Purchaser
of
the Purchaser's liabilities to the Vendor, arising under this Agreement
and the Transaction Documents.
|
9.6
|
If
the Purchaser defaults in the payment when due of any amount payable
to
the Purchaser as a result of any claim made in relation to this Agreement
or any of the Transaction Documents, the Purchaser Guarantor shall,
immediately on demand by the Vendor or MEFS (as the case may be),
unconditionally pay that amount to the Vendor or MEFS (as the case
may be)
in the manner prescribed in this agreement as if it were the Purchaser
provided that under no circumstance whatsoever shall the liabilities
of
the Purchaser Guarantor pursuant to this clause 9.4 either individually
or
in aggregate exceed the liability which the Purchaser has under this
Agreement.
|
10.
|
ENTIRE
AGREEMENT AND REMEDIES
|
10.1
|
Entire
Agreement
|
This
Agreement sets out the entire agreement between the parties to this Agreement
in
respect of the transactions contemplated by this Agreement to the exclusion
of
any terms implied by law which may be excluded by contract and supersedes any
previous written or oral agreement between the parties in relation to the
matters dealt with in this Agreement.
10.2
|
Acknowledgement
|
The
Purchaser acknowledges that it has not been induced to enter into this Agreement
by any representation, warranty or undertaking not expressly incorporated into
it.
10.3
|
Remedies
|
So
far as
permitted by law and except in the case of fraud, each party agrees and
acknowledges that its only right and remedy in relation to any warranty,
representation or undertaking made or given in connection with this Agreement
shall be for breach of the terms of this Agreement to the exclusion of all
other
rights and remedies (including those in tort or arising under
statute).
10.4
|
Reasonableness
of this Clause
|
Each
party to this Agreement confirms it has received independent legal advice
relating to all the matters provided for in this Agreement, including the
provisions of this Clause 10,
and
agrees, having considered the terms of this Clause 10
and the
Agreement as a whole, that the provisions of this Clause 10
are fair
and reasonable.
15
11.
|
OTHER
PROVISIONS
|
11.1
|
Announcements
|
No
announcement or circular in connection with the existence or the subject matter
of this Agreement shall be made or issued by or on behalf of the Vendor or
the
Purchaser without the prior written approval of, in the case of the Purchaser,
the Vendor or, in the case of the Vendor, the Purchaser. This shall not affect
any announcement, circular or regulatory filing required by law or any
regulatory body or the rules of any recognised stock exchange but the party
with
an obligation to make such an announcement or regulatory filing or issue such
a
circular shall consult with the other insofar as is reasonably practicable
before complying with such an obligation and the other party shall act
reasonably during any such consultation process. Each party agrees to act
reasonably and without delay to reach agreement regarding the form of a press
announcement.
11.2
|
Confidentiality
|
(a)
|
Subject
to Clause 11.1
and Clause 11.2(c),
each of the Vendor and MEFS undertakes to the Purchaser to treat
as
confidential, and to procure that its Affiliates treat as confidential,
and not to disclose or use, and to procure that its Affiliates do
not
disclose or use, any information which relates
to:
|
(i)
|
the
provisions of this Agreement and any agreement entered into pursuant
to
this Agreement; or
|
(ii)
|
the
negotiations relating to this Agreement (and such other agreements);
or
|
(iii)
|
the
Purchaser's and the Purchaser's Affiliates' business, financial or
other
affairs and the MYL Group's business, financial or other affairs
(including future plans and
targets).
|
(b)
|
Subject
to Clause 11.1
and Clause 11.2(c),
the Purchaser shall treat as confidential, and shall procure that
the
Related Parties treat as confidential and do not disclose or use,
any
information which relates to:
|
(i)
|
the
provisions of this Agreement and any agreement entered into pursuant
to
this Agreement; or
|
(ii)
|
the
negotiations relating to this Agreement (and such other agreements)
including the Disclosed Information;
or
|
(iii)
|
either
the Vendor's or MEFS business, financial or other affairs and the
MYL
Group's business, financial or other affairs (including future plans
and
targets).
|
(c)
|
Neither
Clause 11.2(a)
nor 11.2(b)
shall prohibit disclosure or use of any information if and to the
extent:
|
16
(i)
|
the
disclosure or use is required by law, any regulatory body or the
rules and
regulations of any recognised stock
exchange;
|
(ii)
|
the
disclosure or use is required to vest the full benefit of this Agreement
in the Vendor or MEFS or the Purchaser, as the case may
be;
|
(iii)
|
the
disclosure or use is required for the purpose of any judicial proceedings
arising out of this Agreement or any other agreement entered into
under or
pursuant to this Agreement or the disclosure is reasonably required
to be
made to a Tax Authority in connection with the Tax affairs of the
disclosing party;
|
(iv)
|
the
disclosure is made to a Related Party, a representative or professional
advisers of the Vendor or MEFS or the Purchaser provided that such
disclosure is made in terms that such professional advisers, auditors
or
bankers undertake to comply with the provisions of Clauses 11.2(a)
or
11.2(b)
(as the case may be) in respect of such information as if they were
a
party to the Agreement;
|
(v)
|
the
information is or becomes publicly available (other than through
the fault
of that party or the fault of any person to whom such information
is
disclosed in accordance with sub-paragraph
(iv);
|
(vi)
|
the
Vendor, MEFS or the Purchaser (as the case may be) has given prior
written
approval to the disclosure or use;
or
|
(vii)
|
the
information is independently developed after
Completion,
|
provided
that prior to disclosure or use of any information pursuant to Clause
11.2(c)(i),
(iii)
or (iv) (except in the case of disclosure to a Tax authority), the party
concerned shall, if permitted, promptly notify the Vendor, MEFS or the Purchaser
(as the case may be) of such requirement with a view to providing the other
party with the opportunity to contest such disclosure or use or otherwise to
agree the timing and content of such disclosure or use.
(d)
|
Any
reference to "information" in this Clause 11.2
includes oral communication, visual presentation, books, records
or other
information in any form including paper, electronically stored data,
magnetic media, film, computer disk and compact
disk.
|
(e)
|
If
Completion does not take place, the Purchaser
shall:
|
(i)
|
return
all written information of or relating to the Vendor, MEFS and the
MYL
Group provided to the Purchaser and the Related
Parties;
|
(ii)
|
destroy
all information, analyses, compilations, notes, studies, memoranda
or
other documents derived from information received or provided by
the
Vendor or MEFS;
|
17
(iii)
|
as
far as practicable, remove any information received or provided by
the
Vendor or MEFS from any computer, word processor or other device;
and
|
(iv)
|
be
permitted, to the extent that it is required by applicable law or
its
record keeping policies to retain any routinely prepared memoranda,
correspondence or internal analysis based on the information, provided
those materials remain subject to the obligations of confidentiality
set
out in this Agreement.
|
(f)
|
If
Completion does not take place, the Vendor and MEFS
shall:
|
(i)
|
return
all written information of or relating to the Purchaser provided
to the
Vendor, MEFS and their respective
Affiliates;
|
(ii)
|
destroy
all information, analyses, compilations, notes, studies, memoranda
or
other documents derived from information received or provided by
the
Purchaser;
|
(iii)
|
as
far as practicable, remove any information received or provided by
the
Purchaser from any computer, word processor or other device;
and
|
(iv)
|
be
permitted, to the extent that it is required by applicable law or
its
record keeping policies to retain any routinely prepared memoranda,
correspondence or internal analysis based on the information, provided
those materials remain subject to the obligations of confidentiality
set
out in this Agreement.
|
(g)
|
Subject
to Clause 11.2(h),
this Clause 11.2
contains the whole agreement between the parties and their Affiliates,
or
in the case of the Purchaser, Related Parties, relating to confidentiality
and disclosure and supersedes any previous written or oral agreement
between the parties and their Affiliates, or in the case of the Purchaser,
Related Parties, in relation to such
matters.
|
(h)
|
Subject
to the giving of effect to all waivers granted pursuant thereto,
the
Purchaser agrees to comply fully with the confidentiality requirements
set
out in the DBFO Contract as if the Purchaser was a party to the DBFO
Contract.
|
11.3
|
Successors
and Assigns
|
(a)
|
Subject
to clause 11.3(b), this Agreement is personal to the parties to it
and
neither the Purchaser nor the Vendor nor MEFS may, without the prior
written consent of the other, assign, hold on trust or otherwise
transfer
the benefit of all or any of the other's obligations under this
Agreement.
|
(b)
|
Notwithstanding
the provisions of clause 11.3(a), the Purchaser
may:
|
(i)
|
grant
security over; and/or
|
(ii)
|
at
law or in equity, assign,
|
18
any
of
its rights under this Agreement, other than its right to acquire the Shares
and
the MYL Debt, to any of its Affiliates, or to any lender to any of its
Affiliates.
11.4
|
Third
Party Rights
|
A
person
who is not a party to this Agreement shall have no right under the Contracts
(Rights of Third Parties) Xxx 0000 to enforce any of its terms.
11.5
|
Variation
|
No
variation of this Agreement shall be effective unless in writing and signed
by
or on behalf of both parties to this Agreement.
11.6
|
Effects
of Completion
|
The
terms
of this Agreement (insofar as not performed at Completion and except as
specifically otherwise provided in this Agreement) shall remain in full force
and effect after and notwithstanding Completion for a period of two
years.
11.7
|
Time
of the Essence
|
Time
shall be of the essence in this Agreement.
Further
Assurance
11.8
|
The
Vendor shall at its own expense use reasonable endeavours to do or
procure
to be done all such further acts and things, and execute or procure
the
execution of all such other deeds or documents, as the Purchaser
may from
time to time reasonably require, whether before, on or after Completion,
for the purpose of giving to the parties to this Agreement the full
benefit of all of the provisions of this Agreement, and in particular
to
vest any of the Shares in the
Purchaser.
|
11.9
|
The
Vendor shall use reasonable endeavours to procure the convening of
all
meetings, the giving of all waivers and consents and the passing
of all
resolutions as are necessary under statute, its constitution or any
agreement or obligation affecting it or the Company to give effect
to this
Agreement.
|
11.10
|
Costs
|
Except
as
otherwise stated in this Agreement, each party shall pay its own costs and
expenses in relation to the preparation, negotiation and entry into this
Agreement and the sale of the Shares. For the avoidance of any doubt, stamp
duty
arising on the acquisition of MYL shall be paid by the Purchaser.
11.11
|
Notices
|
(a)
|
Any
notice or other communication in connection with this Agreement shall
be
in writing (a "Notice")
and shall be sufficiently given or served if delivered or
sent:
|
19
(i)
|
in
the case of the Vendor to:
|
Macquarie
Yorkshire LLC
Xxxxx
00
xxx 00, Xxxx Xxxxx
0
Xxxxxxxxx Xxxxxx
Xxxxxx
XX0X 0XX
Fax:
x00
00 0000 0000
Attention:
Annabelle Helps and Xxxx XxxXxxxxx
(ii)
|
in
the case of MEFS to:
|
MIC
European Financing S.ar.l
Xxxxx
00
xxx 00, Xxxx Xxxxx
0
Xxxxxxxxx Xxxxxx
Xxxxxx
XX0X 0XX
Fax:
x00
00 0000 0000
Attention:
Annabelle Helps and Xxxx XxxXxxxxx
(iii)
|
in
the case of the Purchaser to:
|
M1-A1
Investments Limited
0xx
Xxxxx
00
Xx
Xxxxx’ Xxxxxx
Xxxxxx
XX0X 0XX
Attention:
Xxxxxxx Xxxx
(iv)
|
in
the case of the Purchaser Guarantor
to:
|
Balfour
Xxxxxx plc
Xxxxxxxx
Xxxxx
000
Xxxxxx Xxxx
Xxxxxx
XX0X 0XX
Attention:
Company Secretary
(v)
|
in
the case of the Vendor Guarantor
to:
|
Macquarie
Infrastructure Company LLC
000
Xxxx
00xx Xxxxxx
Xxx
Xxxx
XX,
00000
XXX
Attention:
Company Secretary
or
to
such other address or fax number as the relevant party may have notified to
the
other in accordance with this Clause.
(b)
|
Any
Notice may be delivered by hand, or sent by fax or prepaid first
class
post. Without prejudice to the foregoing, any Notice shall conclusively
be
deemed to have been received on the next Business Day in the place
to
which it is sent, if sent by fax, or three Business Days if sent
by post,
or at the time of delivery, if delivered by
hand.
|
20
11.12
|
Waiver
|
No
delay
or omission by any party to this Agreement in exercising any right, power or
remedy provided by law or under this Agreement or any other documents referred
to in it shall affect that right, power or remedy or operate as a waiver
thereof.
11.13
|
Invalidity
|
If
any
term in this Agreement shall be held to be illegal, invalid or unenforceable,
in
whole or in part, under any enactment or rule of law, such term or part shall
to
that extent be deemed not to form part of this Agreement but the legality,
validity or enforceability of the remainder of this Agreement shall not be
affected.
11.14
|
Counterparts
|
This
Agreement may be entered into in any number of counterparts, all of which taken
together shall constitute one and the same instrument. Either party may enter
into this Agreement by executing any such counterpart.
11.15
|
Governing
Law and Submission to
Jurisdiction
|
(a)
|
This
Agreement shall be governed by and construed in accordance with English
law.
|
(b)
|
The
parties irrevocably agree that the courts of England are to have
exclusive
jurisdiction to settle any dispute which may arise out of or in connection
with this Agreement. The parties irrevocably submit to the jurisdiction
of
such courts and waive any objection to proceedings in any such court
on
the ground of venue or on the ground that proceedings have been brought
in
an inconvenient forum.
|
21
In
witness
whereof
this Agreement has been duly executed.
SIGNED
by
|
/s/
Xxxxx Xxxxxx
|
Name:
|
Xxxxx
Xxxxxx
|
Title:
|
Chief
Executive Officer
|
on
behalf of MACQUARIE
INFRASTRUCTURE COMPANY LLC
|
|
as
Managing Member of MACQUARIE
YORKSHIRE LLC
|
SIGNED
by
|
/s/
Xxxxx Xxxxxx
|
Name:
|
Xxxxx
Xxxxxx
|
Title:
|
Manager
|
on
behalf of MIC
EUROPEAN FINANCING S.AR.L
|
SIGNED
by
|
/s/
Xxxxxx Xxxxxxx
|
Name:
|
Xxxxxx
Xxxxxxx
|
Title:
|
Attorney
|
under
a Power of Attorney
on
behalf of M1-A1
INVESTMENTS LIMITED
|
SIGNED
by
|
/s/
Xxxxxx Xxxxxxx
|
Name:
|
Xxxxxx
Xxxxxxx
|
Title:
|
Attorney
|
under
a Power of Attorney
on
behalf of BALFOUR
XXXXXX PLC
|
22
SIGNED
by
|
/s/
Xxxxx Xxxxxx
|
Name:
|
Xxxxx
Xxxxxx
|
Title:
|
Chief
Executive Officer
|
on
behalf of MACQUARIE
INFRASTRUCTURE COMPANY
LLC
|
23
SCHEDULE
1
Company
Details
Part
B
Particulars
of the Company
Registered
Number:
|
04712996
|
Registered
Office:
|
Xxxxx
00, XxxxXxxxx, 0 Xxxxxxxxx Xxxxxx, Xxxxxx XX0X 0XX
|
Date
and place of incorporation:
|
00
Xxxxx 0000, Xxxxxx Xxxxxxx
|
Secretary:
|
Xxxxxxxxx
Xxxxxx Helps
|
Directors:
|
Xxxxx
Xxxxxxx Xxxxxxxx
Xxxx
Xxxxxx XxxXxxxxx
Xxxxx
Xxxxx Xxxxxxx
|
Accounting
Reference Date:
|
30
December
|
Authorised
Share Capital:
|
Ordinary
shares 5,000,000 of £1 each
|
Issued
and fully paid-up Share Capital:
|
Allotted,
called-up, fully paid:
|
Member:
|
Ordinary
shares 5,000,000 of £1 each
Full
name: Macquarie Yorkshire LLC
Address:
000 Xxxx 00xx
Xxxxxx, Xxx Xxxx, XX 00000, XXX
Number
of Shares held: 5,000,000
|
24
SCHEDULE
2
Conditions
Precedent
1.
|
Secretary
of State
|
Consent
from the Secretary of State pursuant to Clauses 2.3.2, 41.2 and 41.3 of the
DBFO
Contract.
2.
|
Balfour
Xxxxxx PLC
|
Side
letter from BB confirming no Material Adverse Effect (as defined in the
Commercial Subordinated Loan Agreement) on the interests of BB and that the
form, terms and parties of any substitute for any Project Document or any new
Project Documents are satisfactory and approved by BB pursuant to Clauses 16.7,
16.8 and 16.9 of the Commercial Subordinated Loan Agreement.
3.
|
European
Investment Bank
|
Side
letter from EIB confirming no Material Adverse Effect (as defined in the CBFA)
on the interests of EIB and that the form, terms and parties of any substitute
for any Project Document or any new Project Documents are satisfactory and
approved by EIB pursuant to Clause 8.5 of the EIB Facility
Agreement.
4.
|
European
Investment Fund
|
Side
letter from EIF confirming no Material Adverse Effect (as defined in the CBFA)
on the interests of EIF and that the form, terms and parties of any substitute
for any Project Document or any new Project Documents are satisfactory and
approved by EIF pursuant to Clause 8.2 of the EIF Facility
Agreement.
5.
|
Banks
(as defined in the CBFA) and Majority Banks (as defined in the
CBFA)
|
Side
letter by the Agent (as defined in the CBFA) confirming no Material Adverse
Effect (as defined in the CBFA) and that the form, terms and parties of any
substitute for any Project Document or any new Project Documents are
satisfactory, and approved by, the Majority Banks pursuant to Clauses 21.7,
21.8
and 21.9 of the CBFA.
25
SCHEDULE
3
Warranties
Part
A - Vendor's Warranties
1.
|
Capacity
|
1.1
|
The
Vendor has the legal right and full power and authority to enter
into and
perform each Transaction Document or Completion Document to be entered
into by it.
|
1.2
|
Each
Transaction Document or Completion Document to be entered into by
it will,
when executed, constitute valid and binding obligations on the Vendor
in
accordance with its respective
terms.
|
1.3
|
The
Vendor has taken or will have taken by Completion all corporate action
required by it to authorise it to enter into and to perform each
Transaction Document or Completion Document to be entered into by
it.
|
2.
|
No
Breach
|
The
execution and delivery of, and the performance by the Vendor of its obligations
under each Transaction Document or Completion Document to be entered into by it
will not result in a breach of any provision of or any obligations under the
constitutional documents of the Vendor, or of the MYL Group Companies or the
Shareholders' Agreement.
3.
|
The
Shares and the MY LLC Debt
|
3.1
|
The
Vendor is entitled to sell and transfer to the Purchaser the full
legal
and beneficial ownership of the Shares on the terms of this Agreement
free
from all Encumbrances.
|
3.2
|
All
the issued shares of the MYL Group Companies are fully paid up and
have
been properly and validly allotted and
issued.
|
3.3
|
The
Vendor is entitled to assign to the Purchaser all rights, title,
interest
and benefit in the MY LLC Debt on the terms of this Agreement free
from
all Encumbrances.
|
4.
|
Accuracy
of information
|
The
particulars relating to the Company set out in Schedule 1 to this Agreement
are
correct.
5.
|
Ownership
of Connect Holdings Shares, Connect Shares and Company's Connect
Loan
Notes
|
5.1
|
The
Company is the sole legal and beneficial owner of the Connect Holdings
Shares and the Company's Connect Loan Notes which constitute,
respectively, 50% of the total issued and allotted share capital
of
Connect Holdings and 50% of the Connect Loan Notes and the Connect
Holdings Shares and the Company's Connect Loan Notes are free from
Encumbrances.
|
26
5.2
|
Connect
Holdings is the sole legal and beneficial owner of the Connect Shares
which constitute all of the total issued and allotted share capital
of
Connect and which are free from
Encumbrances.
|
5.3
|
The
Company has no subsidiaries (within the meaning of sections 736 and
736A
CA85).
|
6.
|
Due
Incorporation
|
So
far as
the Vendor is aware, each of the MYL Group Companies is a company duly
incorporated and validly existing under the laws of England.
7.
|
Pre-emption
Rights and Encumbrances
|
7.1
|
No
person is entitled, or has claimed to be entitled, to require any
of the
MYL Group Companies to issue any share or loan capital either now
or at
any future date and whether contingently or
not.
|
7.2
|
There
is no option, right of pre-emption, right to acquire, mortgage, charge,
pledge, lien or other form of security or encumbrance on, over or
affecting, any of the Shares nor is there any commitment to give
or create
any of the foregoing, and no person has claimed to be entitled to
any of
the foregoing.
|
8.
|
Memorandum
and Articles of
Association
|
8.1
|
The
copies of the memorandum and articles of association of Connect Holdings
and Connect contained in the Disclosed Information are accurate and
complete in all respects.
|
8.2
|
The
Company and, so far as the Vendor is aware, each of Connect Holdings
and
Connect has complied in all material respects with its respective
memorandum and articles of
association.
|
9.
|
Litigation
|
9.1
|
Neither
the Company, nor so far as the Vendor is aware Connect Holdings nor
Connect are engaged in any litigation or arbitration proceedings
as
claimant or defendant or other party in any claim and neither the
Company,
nor so far as the Vendor is aware Connect Holdings nor Connect have
received any letter or notice threatening or indicating that such
proceedings are to be commenced.
|
9.2
|
So
far as the Vendor is aware, no MYL Group Company is the subject of
any
investigation or inquiry by any governmental administrative, revenue
or
regulatory body. So far as the Vendor is aware, no MYL Group Company
has
received written notice from any governmental administrative, revenue
or
regulatory body informing them that an investigation or inquiry is
to be
commenced.
|
9.3
|
So
far as the Vendor is aware there are no material undisputed or outstanding
judgments affecting any MYL Group
Company.
|
27
9.4
|
So
far as the Vendor is aware, no MYL Group Company has given written
notice
to any third party that such party is in material or persistent default
under any material contract.
|
10. | Employees |
No
MYL
Group Company has any employees nor is there any liability in respect of any
persons who may have been previously employed by an MYL Group
Company.
11.
|
Default
Notices
|
No
subsisting notices have been issued to the Vendor or any MYL Group Company,
giving notice of a substantial breach under any of the Project Documents or
Finance Documents.
12.
|
Insolvency
|
In
respect of the Vendor, and each MYL Group Company:
12.1
|
no
receiver or administrative receiver has been appointed over the whole
or
any part of its business or assets;
|
12.2
|
no
administration order has been made and no application has been made
for
the appointment of an
administrator;
|
12.3
|
no
order has been made and no resolution has been passed for the winding
up
of, or the appointment of a provisional
liquidator;
|
12.4
|
no
distress or execution or other process has been
levied;
|
12.5
|
no
arrangement with creditors has been made;
and
|
12.6
|
no
event analogous to any of the foregoing has occurred in any jurisdiction
outside England.
|
13.
|
Business
|
No
MYL
Group Company has, since its respective incorporation, undertaken any business
other than the entering into and the performance of the Project Documents to
which it is a party.
14.
|
Project
Documents
|
So
far as
the Vendor is aware, no MYL Group Company is in breach of any provision of
any
Project Document to which it is a party.
15.
|
Information
|
The
Vendor has not knowingly withheld from the Purchaser any document or information
that could be material to the decision of a prudent and responsible financial
institution to acquire the Shares on the terms of this
Agreement.
28
16.
|
Tax
|
16.1
|
All
notices, returns, computations and registrations of the Company and,
so
far as the Vendor is aware, Connect Holdings and Connect for the
purposes
of Taxation have been made punctually on a proper basis and are correct
in
all material respects.
|
16.2
|
The
Company and, so far as the Vendor is aware, Connect Holdings and
Connect
have duly submitted all claims and disclaimers, which have been assumed
to
have been made for the purposes of the Accounts where the last date
for
making such claims or disclaimers has
passed.
|
16.3
|
The
Company is not involved in any material dispute with any Tax Authority
nor
is any such dispute pending or threatened by or against the Company.
|
16.4
|
So
far as the Vendor is aware, neither Connect Holdings nor Connect
are
involved in any material dispute with any Tax Authority nor is any
such
dispute pending or threatened by or against Connect Holdings or
Connect.
|
16.5
|
The
Company and, so far as the Vendor is aware, Connect Holdings and
Connect
has preserved and retained (to the extent required by law) materially
complete and accurate records relating to its Tax affairs. The Company
and, so far as the Vendor is aware, Connect Holdings and Connect
have
sufficient records relating to past events to permit accurate calculation
of the Taxation liability or relief which would arise upon a disposal
or
realisation on completion of each asset owned by that company at
the
Accounts Date or acquired by that company since that date but before
Completion.
|
16.6
|
The
Accounts reserve or provide in full for all current Taxation for
which the
Company and/or, so far as the Vendor is aware, Connect Holdings or
Connect
(as appropriate) was liable as at the Accounts
Date.
|
16.7
|
The
Company and, so far as the Vendor is aware, Connect Holdings and
Connect
have paid all Taxation that has become due and are under no liability
to
pay any penalty, interest, surcharge or fine in connection with any
Taxation.
|
16.8
|
The
Company and, so far as the Vendor is aware, Connect Holdings and
Connect
have made all deductions and withholdings in respect of, or on account
of,
any Taxation from any payments made by it which it is obliged or
entitled
to make (and to the extent required to do so) has accounted in full
to the
relevant Tax Authority.
|
16.9
|
The
Company and, so far as the Vendor is aware, Connect Holdings and
Connect
are not and have never been liable to Taxation in any jurisdiction
other
than the United Kingdom.
|
16.10
|
Any
arrangements to which the Company and/or, as far as the Vendor is
aware,
Connect Holdings or Connect (as appropriate) are/is or were /was
a party
to which the provisions of section 770A and Schedule 28AA Taxes Act
apply
were entered into and are as at Completion on arm’s length terms.
|
16.11
|
The
Tax Disclosure Letter contains full particulars of all claims and
elections made under sections 152 or 153 TCGA insofar as they could
affect
the chargeable gain or allowable loss which would arise in the event
of a
disposal by the Company of any assets (except where the relevant
gain is
treated as having accrued prior to the Accounts
Date).
|
29
16.12
|
So
far as the vendor is aware, the Tax Disclosure Letter contains full
particulars of all claims and elections made under sections 152 or
153
TCGA insofar as they could affect the chargeable gain or allowable
loss
which would arise in the event of a disposal by Connect Holdings
or
Connect of any assets (except where the relevant gain is treated
as having
accrued prior to the Accounts
Date).
|
16.13
|
No
rents, interest, annual payments or other sums of an income nature
paid or
payable by the Company or, so far as the Vendor is aware, Connect
Holdings
or Connect or which the Company or, so far as the Vendor is aware,
Connect
Holdings or Connect is under an existing written contractual obligation
to
pay in the future, in each of the foregoing circumstances in excess
of
£10,000 and other than in relation to the MYL Debt, are or may be
wholly
or partially disallowable under any law in force as at Completion
as
deductions, management expenses or charges in computing profits for
the
purposes of corporation tax.
|
16.14
|
The
execution or completion of this Agreement or any other event since
the
Accounts Date will not result in any chargeable asset being deemed
to have
been disposed of and reacquired by the Company or, so far as the
Vendor is
aware, Connect Holdings or Connect (as appropriate) for Taxation
purposes
pursuant to section 178 or 179 TCGA or as a result of any other event
since the Accounts Date.
|
16.15
|
The
Company and/or, so far as the Vendor is aware, Connect Holdings or
Connect
are not and will not be liable to make any payment or repayment for
any
Group Relief surrendered to them within the last six years ending
on the
Completion Date.
|
16.16
|
The
Company is not registered for the purposes of VAT and is not required
to
be so registered.
|
16.17
|
So
far as the Vendor is aware, Connect Holdings or Connect is a member
of a
group of companies within the meaning of section 43 VATA (the “VAT Group”)
and has not been for VAT purposes treated as a member of any group
of
companies other than the VAT Group and no act or transaction has
occurred
in consequence whereof Connect Holdings or Connect is or may be held
liable for any VAT arising from supplies made by another
company.
|
16.18
|
So
far as the Vendor is aware, the representative member of the VAT
Group has
complied in all material respects with all statutory provisions,
rules,
regulations, orders and directions in respect of
VAT.
|
16.19
|
The
Tax Disclosure Letter sets out full details of any assets of the
Company,
Connect Holdings and Connect which, in the case of the Company, and
so far
as the Vendor is aware in the case of Connect Holdings or Connect
are
capital items subject to the Capital Goods Scheme under Part XV of
the VAT
Regulations 1995.
|
16.20
|
All
documents (other than those which have ceased to have any legal effect)
by
virtue of which the Company has any right have been duly
stamped.
|
30
16.21
|
The
Company and, so far as the Vendor is aware, Connect Holdings and
Connect
has not claimed any relief or exemption from stamp duty land tax
or sought
any deferral of stamp duty land
tax.
|
Part
B
MEFS
Warranties
1.
|
Capacity
|
1.1
|
MEFS
has the legal right and full power and authority to enter into and
perform
each Transaction Document and/or Completion Document to be entered
into by
it.
|
1.2
|
Each
Transaction Document and/or Completion Document to be entered into
by it
will, when executed, constitute valid and binding obligations on
MEFS in
accordance with its respective
terms.
|
1.3
|
MEFS
has taken or will have taken by Completion all corporate action required
by it to authorise it to enter into and to perform each Transaction
Document and/or Completion Document to be entered into by
it.
|
2.
|
No
Breach
|
The
execution and delivery of, and the performance by MEFS of its obligations under
each Transaction Document and/or Completion Document to be entered into by
it
will not result in a breach of any provision of or any obligations under the
constitutional documents of MEFS.
3.
|
The
MEFS Debt
|
MEFS
is
entitled to assign to the Purchaser all rights, title, interest and benefit
in
the MEFS Debt on the terms of this Agreement free from all
Encumbrances.
Part
C
Purchaser's
Warranties
1.
|
Incorporation
|
The
Purchaser is a limited partnership duly organised and validly existing under
the
laws of England and Wales.
2.
|
Authority
|
2.1
|
The
Purchaser has the legal right and full power and authority to enter
into
and perform the Transaction Documents and/or Completion Documents
to be
entered into by it, which will, when executed, constitute valid and
binding obligations on the Purchaser in accordance with their
terms.
|
2.2
|
The
Purchaser has taken or will have taken by Completion all corporate
action
required by it to authorise it to enter into and to perform the
Transaction Documents and/or Completion Documents to be entered into
by
it.
|
31
3.
|
No
Breach
|
The
execution and delivery of, and the performance by the Purchaser of its
obligations under each Transaction Document and/or Completion Document to be
entered into by it will not result in a breach of any provision of or any
obligations under the Purchaser's constitutional documents.
4.
|
Breach
of Warranty
|
Neither
the Purchaser nor any member of the Purchaser's Group nor any of the directors
and/or officers and/or employees of the Purchaser or of any member of the
Purchaser's Group is actually aware of any fact, matter or circumstance existing
at the date of this agreement which constitutes a breach of warranty and would
entitle the Purchaser to bring a claim for breach of warranty.
32
SCHEDULE
4
Limitation
of Vendor's Liability
1.
|
General
Limitations
|
1.1
|
Neither
the Vendor nor MEFS shall be liable under this Agreement or the Tax
Deed
to the extent that the Purchaser has recovered any amount under the
terms
of any insurance policy in force at the date of this Agreement (or
which
would have been covered if such policy of insurance had been maintained
beyond the date of this Agreement on no less favourable terms) or
otherwise under this Agreement or the Tax Deed in respect of the
same
loss, damage or deficiency.
|
1.2
|
Neither
the Vendor nor MEFS shall be liable under this Agreement to the extent
that:
|
(a)
|
the
subject of the claim is specifically provided for in the Accounts
or
fairly disclosed or noted in the Accounts or has been included in
calculating creditors or deducted in calculating debtors in the Accounts
and (in the case of creditors or debtors) is identified in the records
of
the Company and/or Connect and/or Connect Holdings made available
to the
Purchaser prior to Completion;
|
(b)
|
a
claim under this Agreement arises or is
increased:
|
(i)
|
as
a result of any act or omission on the part of the Vendor or MEFS
(as the
case may be) occurring at the request of or with the written consent
of
the Purchaser prior to Completion;
|
(ii)
|
as
a result of any act (otherwise than in the ordinary course of trading)
or
omission of the Purchaser's Group after Completion (which, for the
avoidance of doubt, shall include the
Company);
|
(iii)
|
as
a result of an act or omission compelled by
law;
|
(iv)
|
wholly
or partly as a result of the passing or coming into force of or any
change
in: (i) any enactment, law, regulation, directive, requirement or
any
published practice of any government, government department or agency
or
Regulatory Authority (including extra-statutory concessions of any
relevant Tax Authority); or (ii) any generally accepted accounting
interpretation or application of any legislation or accounting principle,
after Completion, whether or not having retrospective
effect;
|
(v)
|
as
a result of a change after Completion in the accounting policies
of the
Purchaser's Group;
|
(c)
|
the
fact, matter or circumstance giving rise to the claim has been fairly
disclosed in the Disclosed Information or the Tax Disclosure
Letter.
|
1.3
|
Neither
the Vendor nor MEFS shall be liable under this Agreement or the Tax
Deed
in respect of any liability which is contingent unless and until
such
contingent liability becomes an actual liability and is due and
payable.
|
33
1.4
|
The
Purchaser shall be deemed to have full knowledge
of:
|
(a)
|
any
matter fully and fairly disclosed in the Disclosed Information or
the Tax
Disclosure Letter;
|
(b)
|
any
information which would be revealed upon an inspection (whether or
not
made) of the publicly available records in England and Wales at Companies
House as at midday on the day before the date of this
Agreement;
|
(c)
|
any
matter referred to in the Transaction Documents;
and
|
(d)
|
all
matters provided for or noted in the
Accounts.
|
2.
|
Quantum
|
2.1
|
The
liability of the Vendor and MEFS in respect of any claim under this
Agreement or the Tax Deed:
|
(a)
|
shall
not arise unless and until the amount of any claim arising from a
single
circumstance exceeds £250,000 save that claims relating to a series of
connected matters shall be aggregated for this purpose and provided
that
any claim in relation to Tax shall be treated as arising out of a
single
circumstance;
|
(b)
|
shall
not at any time (when aggregated with the amount of all other claims
made
against the Vendor and MEFS):
|
(i)
|
in
the case of any claim under the Vendor's Warranties contained in
paragraphs 6 to 16 of Part A of Schedule 3, exceed the amount of
a sum
equal to fifty per cent. of the Consideration;
and
|
(ii)
|
in
the case of any claim under the Vendor’s Warranties contained in
paragraphs 1 to 5 of Part A of Schedule 3 or the Tax Deed or under
the
MEFS Warranties, exceed the amount of sum equal to one hundred per
cent.
of the Consideration, for the avoidance of doubt, having regard to
the
obligations of the Vendor under the provisions of clause 12 of the
Tax
Deed.
|
3.
|
Time
limits
|
3.1
|
The
liability of the Vendor and MEFS in respect of any claim under this
Agreement or the Tax Deed shall
cease:
|
(a)
|
in
the case of any claim the subject matter of which relates to Taxation,
seven years; and
|
(b)
|
in
the case of any other claim, one
year,
|
after
Completion, except in respect of matters which before that period expires have
been the subject of a bona fide written claim made by or on behalf of the
Purchaser to the Vendor or MEFS (as the case may be) which identifies the
provisions of the Agreement to which the claim relates and provides reasonable
detail of the claim including (if practicable) an estimate as to the amount
of
such claim.
34
3.2
|
Any
such claim shall (if it has not previously been satisfied, settled
or
withdrawn) be deemed to have been withdrawn within 90 days of such
notification to the Vendor unless legal proceedings in respect of
it have
been commenced by both being issued and served and are being pursued
with
reasonable diligence.
|
3.3
|
As
soon as reasonably practicable, and in any case within 30 days, after
the
Purchaser becomes aware of the entitlement or reasonable prospect
of
entitlement to make a claim, the Purchaser shall give the Vendor
or MEFS
(as the case may be) all reasonable information in its possession
in
connection with such claim or entitlement to claim and the Purchaser
shall
continue to provide the Vendor or MEFS (as the case may be) with
any
information having a material affect on such claim or entitlement
to
claim.
|
4.
|
|
Mitigation
of Loss
|
4.1
|
The
Purchaser shall take or procure that any member of the Purchaser's
Group
takes all reasonable steps to avoid or mitigate any losses which
in the
absence of mitigation might give rise to a liability in respect of
any
claim under this Agreement.
|
4.2
|
Without
prejudice to the Purchaser's obligation to mitigate the
claim:
|
(a)
|
the
Vendor and MEFS shall (subject to indemnifying the Purchaser and
any
members of the Purchaser's Group against all reasonable costs and
expenses
incurred in connection therewith) be entitled to require the Purchaser
or
any member of the Purchaser's Group to take all such reasonable steps
or
proceedings as the Vendor and MEFS may consider necessary and not
detrimental to the Purchaser's interest or the goodwill of its business
in
order to mitigate any claim and the Purchaser shall procure that
any
member of the Purchaser's Group shall act in accordance with any
such
requirements; and
|
(b)
|
for
the purpose of enabling the Vendor and MEFS to remedy a breach or
to
mitigate or otherwise determine the amount of any claim or to decide
what
steps or proceedings should be taken in order to mitigate any claim,
the
Purchaser shall:
|
(i)
|
promptly
and in any event within 30 days of any breach or circumstances giving
rise
to a breach of any of the Vendor's Warranties or the MEFS Warranties
(as
the case may be) or other terms of the Agreement coming to its notice
or
to the notice of the Company give notice of the same to the Vendor
or
MEFS; and
|
(ii)
|
make
or procure to be made available to the Vendor or MEFS or their duly
authorised representatives upon reasonable notice during normal business
hours all relevant books of account, records and correspondence of
the
relevant company which relate to the claim and permit (at the cost
of the
Vendor and MEFS) the Vendor or MEFS to ascertain or extract any relevant
information therefrom.
|
35
5.
|
Vendor's
Warranties
|
The
Vendor's Warranties shall be actionable only by the Purchaser (or its permitted
assigns) and no other party shall be entitled to make any claim or take any
action whatsoever against the Vendor under or arising out of or in connection
with this Agreement.
6.
|
MEFS
Warranties
|
The
MEFS
Warranties shall be actionable only by the Purchaser (or its permitted assigns)
and no other party shall be entitled to make any claim or take any action
whatsoever against MEFS under or arising out of or in connection with this
Agreement.
7.
|
Notice
period for Vendor's Warranties and the MEFS
Warranties
|
A
breach
of the Vendor's Warranties or the MEFS Warranties (as the case may be) which
is
capable of remedy shall not entitle the Purchaser to compensation unless the
Vendor or MEFS (as the case may be) is given written notice of such breach
and
such breach is not remedied to the reasonable satisfaction of the Purchaser
within 30 days after the date on which such notice is served on the Vendor
or
MEFS (as the case may be).
8.
|
Tax
Limitations
|
The
provisions of Clause 2.4 of the Tax Deed shall apply to limit the Vendor's
liability for breach of the Tax Warranties mutatis mutandis.
36
SCHEDULE
5
Completion
Obligations
Part
A - Vendor's Obligations
At
Completion the Vendors shall:
1.
|
deliver
to the Purchaser, transfers in respect of the Shares duly executed
by the
registered holders in favour of the Purchaser and share certificates
for
the Shares in the name of the relevant transferors (or an express
indemnity in a form reasonably satisfactory to the Purchaser in the
case
of any certificate found to be missing) and any power of attorney
under
which any transfer is executed on behalf of the Vendor or
nominee;
|
2.
|
deliver
to the Purchaser such waivers or consents as the Purchaser may require
to
enable the Purchaser or its nominee to be registered as holder of
the
Shares;
|
3.
|
procure
that the following documents in the agreed terms are executed and
delivered to the Purchaser's
Solicitors:
|
(a)
|
Shareholders'
Agreement Novation duly executed by the Vendor;
and
|
(b)
|
Release
of the Parent Company Guarantee duly executed by the Vendor.
|
4.
|
deliver
to the Purchaser's solicitors copies
of:
|
(a)
|
an
assignment notice addressed to, and countersigned by, MYL in relation
to
the assignment of the MY LLC Debt;
|
(b)
|
an
assignment notice addressed to, and countersigned by, MYL in relation
to
the assignment of the MEFS Debt;
and
|
(c)
|
a
letter agreement executed by MY LLC, MEFS and the Company confirming
termination of the Subordination
Agreement;
|
5.
|
deliver
to the Purchaser (or to any person whom the Purchaser may nominate)
(or
otherwise make available in a manner reasonably acceptable to the
Purchaser) such of the following as the Purchaser may
require:
|
(a)
|
the
statutory books (which shall be written up to but not including the
Completion Date), the certificate of incorporation (and any certificate
of
incorporation on change of name) and common seal (if any) of the
Company
and share certificates or other documents of title in respect of
all the
issued share capital of each subsidiary which is owned directly or
indirectly by the Company;
|
(b)
|
the
written resignations of each of the directors and company secretary
of the
Company and the nominee directors of the Vendor and its Affiliates
of
Connect Holdings and Connect from their office as a director or secretary
in the agreed terms to take effect on the date of Completion in each
case
acknowledging that he or she has no claim against any MYL Group Company
whether for loss of office or
otherwise;
|
37
(c)
|
a
copy of the minutes of a duly held meeting of the directors of the
managing member of the Vendor authorising the execution by the Vendor
of
the Transaction Documents to which the Vendor is
party;
|
6.
|
procure
board meetings of each MYL Group Company to be held at
which:-
|
(a)
|
in
the case of the Company, it shall be resolved that the transfer relating
to the Shares shall be approved for registration and (subject only
to the
transfer being duly stamped) the Purchaser to be registered as the
holder
of the Shares concerned in the register of
members;
|
(b)
|
each
of the persons nominated by the Purchaser (such persons to be nominated
in
writing not less than five Business Days prior to Completion) shall
be
appointed directors and/or secretary, as the case may be, such
appointments to take effect on the Completion
Date;
|
(c)
|
the
resignations of the directors and secretaries referred to in paragraph
5(b) above shall be tendered and
accepted;
|
and
the
Vendor shall procure that minutes of each duly held board meeting referred
to
above are delivered to the Purchaser;
7.
|
deliver,
for information purposes only, accounts of the Company for the period
commencing 1 July 2006 and ending on the closest practicable date
preceding Completion, such accounts to be prepared on the same basis
as
the management accounts of the Company prepared for the period ended
30
June 2006; and
|
8.
|
deliver
the Tax Deed duly executed by the
Vendor.
|
Part
B - Purchaser's Obligations
At
Completion the Purchaser shall deliver to the Vendor's Solicitors:
1.
|
Shareholders'
Agreement Novation in the agreed terms, duly executed by the
Purchaser;
|
2.
|
Release
of Parent Company Guarantee duly executed by
BB;
|
3.
|
copy
of the minutes of a duly held meeting of the directors of the Purchaser
authorising the execution by the Purchaser of the Transaction Documents
to
which the Purchaser is a party; and
|
4.
|
Tax
Deed duly executed by the
Purchaser.
|
38
Part
C - Completion Documents
The
Vendor and the Purchaser shall use their respective reasonable endeavours to
procure that any required third party executes the Completion Documents at
or
prior to Completion.
Document
|
Parties
|
Shareholders'
Agreement Novation
|
Connect,
Connect Holdings, MYL, MY LLC, BB, MICL, the Purchaser and
others
|
Release
of Parent Company Guarantee
|
BB
and the Vendor
|
Notice
of assignment of MY LLC Debt
|
MY
LLC and the Company
|
Notice
of assignment of MEFS Debt
|
MEFS
and the Company
|
Subordination
Agreement termination letter
|
MY
LLC, MEFS and the Company
|
Deed
of release relating to the Secondment Novation Agreement
|
MICL,
MIUK and Connect
|
39
SCHEDULE
6
Post
Completion Obligations
1.
|
Purchaser's
Obligations
|
1.1
|
Secretary
of State
|
Certified
conformed copies of each amendment, release, waiver or agreement being entered
into to be delivered to the Secretary of State within 15 days of being entered
into pursuant to Clause 2.3.4 of the DBFO Contract.
1.2
|
The
Agent (pursuant to the
CBFA)
|
Certified
conformed copies of each amendment, release, waiver or agreement being entered
into that are delivered to the Secretary of State (pursuant to Clause 2.3.4
of
the DBFO) together with certified copies of any further Connect Documents
entered into pursuant to Clauses 19.18 and 19.23 of the CBFA.
1.3
|
European
Investment Bank
|
European
Investment Bank to be provided with information relating to the appointment
of
any consultant or information relating to the financial outcome of the Project
pursuant to Clause 8.2(e) of the EIB Facility Agreement.
1.4
|
European
Investment Fund
|
European
Investment Fund to be provided with information relating to the financial
outcome of the Project pursuant to Clause 8.2(f) of the EIF Facility
Agreement.
40
Dated 29
December 2006
MACQUARIE
YORKSHIRE LLC
-
and -
M1-A1
INVESTMENTS LIMITED
_____________________________________
TAX
DEED
_____________________________________
THIS
DEED
is made
on
2006
BETWEEN:
(1)
|
MACQUARIE
YORKSHIRE LLC a
limited liability company registered under the laws of Delaware
whose
principal executive office is at 000 Xxxx 00xx
Xxxxxx, Xxx Xxxx, XX, 00000, XXX (the "Vendor");
and
|
(2) | M1-A1 INVESTMENTS LIMITED, a company incorporated in England and Wales (Registered No. 6003363) whose registered office is at 0xx Xxxxx, 00 Xx Xxxxx’ Xxxxxx, Xxxxxx XX0X 0XX (the "Purchaser"). |
RECITAL
This
deed
is entered into pursuant to the provisions of an agreement (the "Sale
Agreement")
made on
the same date as this deed pursuant to which the Purchaser agreed to purchase
all of the issued shares in the capital of Macquarie Yorkshire
Limited.
NOW
THIS DEED WITNESSES AS FOLLOWS:
1.
|
INTERPRETATION
|
1.1
|
Subject
to clause 1.2 and unless the context otherwise indicates, words,
expressions and abbreviations defined in the Sale Agreement shall
have the
same meanings in this deed and any provisions of the Sale Agreement
concerning matters of construction or interpretation shall mutatis
mutandis apply to this deed.
|
1.2
|
The
following words, expressions and abbreviations used in this deed
shall,
unless the context otherwise requires, have the following
meanings:
|
"Accounts
Relief"
means
(i) any Relief to the extent that the same has either been shown or taken
into
account as an asset in the Financial Model as at 30 September 2006 or been
taken
into account in computing, and so reducing or extinguishing any provision
for
current Tax which appears, or would otherwise have appeared, in the Financial
Model; (ii) the assumed carried forward tax losses as at 30 September 2006
of
MYL, Connect Holdings and/or Connect of a total amount of £7,750,000; (iii) the
assumed industrial buildings allowances as at 30 September 2006 of MYL, Connect
Holdings and/or Connect of a total amount of £163,400,000; and (iv) the assumed
general pool of capital allowances as at 30 September 2006 of MYL, Connect
Holdings and/or Connect of a total amount of £1,068,000; or any of items (i) to
(iv);
"Actual
Tax Liability"
means
any liability to make an actual payment of Tax, including an Instalment,
or in
respect of Tax (including in relation to a group payment arrangement entered
into in accordance with section 36 of the Finance Act 1998), in which case
the
amount of the Actual Tax Liability shall be the amount of the actual payment;
-1-
"Claim
for Tax"
means:
(a)
|
any
claim, assessment, demand, notice, determination or other document
issued
or action taken by or on behalf of any Tax Authority or any other
person
by virtue of which a company has or may have a Tax Liability;
and/or
|
|
(b)
|
any
self-assessment made by a company in respect of any Tax Liability
which it
considers that it is or may become liable to
pay;
|
"Company"
means
(i)
for the purposes of clauses 2.4 and 3, MYL where a claim is brought pursuant
to
clause 2.1, Connect Holdings where a claim is brought pursuant to clause
2.2 and
Connect where a claim is brought pursuant to clause 2.3, and (ii) for the
purposes of clauses 4 and 11 any one or more of MYL, Connect Holdings or
Connect
(as the context requires);
"Connect"
means
Connect M1-A1 Ltd.;
"Connect
Debt"
means
the non-interest bearing loans made by Connect to MYL or Balfour Xxxxxx before
Completion and outstanding as at Completion;
"Connect
Holdings"
means
Connect M1-A1 Holdings Ltd.;
"Connect
Recovered Amount"
has the
meaning given in clause 4.3;
"Deemed
Tax Liability"
means:
(a)
|
the
loss, non-availability or reduction of any Accounts Relief, in
which case
the amount of the Deemed Tax Liability shall be the amount of
Tax paid
which would not have been paid but for such loss, non-availability
or
reduction;
|
|
(b)
|
the
utilisation or set-off of a Purchaser's Relief available against
any
Actual Tax Liability or against any income, profits or gains
where, but
for such setting off, the Purchaser would have been entitled
to make a
claim under this deed, in which case the amount of the Deemed
Tax
Liability shall be equal to the amount which would have been
payable in
the absence of that Purchaser's Relief;
|
|
(c)
|
the
loss in whole or in part of the right to receive any payment
for Group
Relief to the extent that the payment or right to receive such
payment has
been reflected in the net assets as shown by the Financial Model,
in which
case the amount of the Deemed Tax Liability shall be the amount
of such
payment; or
|
|
(d)
|
any
liability to make any payment for Group Relief to the extent
that (a) the
surrender of such Group Relief for no payment has been reflected
in the
net assets as shown by the Financial Model or (b) the surrender
of Group
Relief does not relate to activities in the ordinary and proper
course of
the business of MYL, Connect Holdings or Connect as at present
carried on
and is in connection with any arrangements made on or before
Completion
but was not reflected in the Financial Model, in which case the
amount of
the Deemed Tax Liability shall be the amount of such
liability;
|
|
(e)
|
any
Actual Tax Liability for which the relevant company would not
have been
liable but for being treated prior to Completion as being or
having been a
member of the same group for Tax purposes as or associated with
the Vendor
or any member of the Vendor’s Group (or which would have been an Actual
Tax Liability had it not been for the use of a Purchaser’s
Relief).
|
-2-
"Financial
Model" has
the
meaning given in the Sale Agreement;
"Group
Relief " means
any
of the following:
(a) | relief surrendered or claimed pursuant to Chapter IV Part X of TA 1988; | |
(b) | advance corporation tax surrendered or claimed pursuant to section 240 of the TA 1988; | |
(c) | a tax refund relating to an accounting period as defined by section 102(3) of the Finance Xxx 0000 in respect of which a notice has been given pursuant to section 102(2) of the Finance Xxx 0000; |
"income,
profits or gains" includes
any other measure by reference to which Tax is computed;
"Instalment"
means
any payment which is or becomes due and payable in accordance with the
Instalment Payments Regulations;
"Instalment
Payments Regulations" means
the
Corporation Tax (Instalment Payments) Regulations 1998;
"MYL" means
Macquarie Yorkshire Ltd.;
"MYL
Debt" means
the
MY LLC Debt or the MEFS Debt;
"MYL
Recovered Amount"
has the
meaning given in clause 4.2;
"Post-Completion
Tax Payment" means
£548,000, being the aggregate of cash tax payments of £320,000 and £228,000
which are assumed for the purpose of the Financial Model to be payable
post-Completion in relation to tax liabilities of MYL, Connect or Connect
Holdings arising in or in relation to pre-Completion periods;
"Purchaser's
Group" has
the
meaning ascribed to it in the Sale Agreement;
"Purchaser's
Relief"
means:
(a) | any Accounts Relief; and/or | |
(b) | any Relief to the extent that the same arises in respect of periods commencing on or after Completion; |
"Relevant
Event"
means every event, act, omission, or transaction done or omitted
to be
done by the Vendor, MYL, Connect Holdings or Connect or which in
any way
concerns or affects (whether or not done or omitted to be done
by) MYL,
Connect Holdings or Connect or the
Vendor;
|
-3-
"Relief"
means
any allowance, credit, exemption, deduction or relief from or in computing
Tax
or any right to the repayment of Tax;
"Shares"
has the
meaning given in the Sale Agreement;
"TA
1988"
means
the Income and Corporation Taxes Xxx 0000;
"Tax
Authority"
means
any taxing or other authority (whether within or outside the United Kingdom)
competent or authorised to impose any Tax;
"Tax
Liability"
means
either an Actual Tax Liability or a Deemed Tax Liability;
"Tax
Returns"
means
all computations and returns relating to Tax matters (and correspondence
and
documentation relating thereto);
"taxation
statutes"
means
all statutes, statutory instruments, decrees, orders, enactments, laws,
directives and regulations, whether domestic or foreign, providing for or
imposing any Tax;
"Tax"
or
"tax"
has the
meaning given in the Sale Agreement;
"Vendor's
Group" means
the
Vendor and any Affiliate from time to time;
1.3
|
For
the purposes of this deed, and in particular for determining to
what
extent any liability for Tax arises in respect of or by reference
to any
income, profits or gains earned, accrued or received on or before
Completion or otherwise relates to the period ending on the date
of
Completion, the date of Completion shall be deemed to be an actual
accounting date of the relevant company for the purposes of section
12 of
the TA 1988 (or its equivalent in any other jurisdiction) and without
prejudice to the generality of the
foregoing:
|
(a)
|
any
Relief which would on that basis arise after the date of Completion
shall
be deemed for the purposes of this deed to be a Relief which arises
in
respect of a period after Completion or in respect of any Relevant
Event
occurring after Completion;
|
(b)
|
any
income, profits or gains which would on that basis accrue after
the date
of Completion shall be deemed for the purposes of this deed to
be income,
profits or gains earned, accrued or received after
Completion;
|
(c)
|
any
Relief which would on that basis arise on or before the date of
Completion
shall be deemed for the purposes of this deed to be a Relief which
arises
in respect of a period on or before Completion or in respect of
any
Relevant Event occurring on or before
Completion;
|
(d)
|
any
income, profits or gains which would on that basis accrue on or
before the
date of Completion shall be deemed for the purposes of this deed
to be
income, profits or gains earned, accrued or received on or before
Completion.
|
-4-
2.
|
INDEMNITY
|
2.1
|
Subject
to clause 2.4, the Vendor hereby covenants with the Purchaser to
pay from
time to time to the Purchaser an amount equal
to:
|
(a)
|
any
Actual Tax Liability of MYL which
arises:
|
(i)
|
as
a consequence of a Relevant Event occurring or entered into on
or before
Completion; or
|
(ii)
|
in
respect of any income, profits or gains earned, accrued or received
on or
before Completion;
|
(b)
|
any
Deemed Tax Liability of MYL; and
|
(c)
|
any
costs and expenses reasonably and properly incurred or payable
in
connection with any Tax Liability which is the subject of a successful
claim under this clause 2.1.
|
2.2
|
Subject
to clause 2.4, the Vendor hereby covenants with the Purchaser to
pay from
time to time to the Purchaser an amount equal to fifty per cent.
(50%)
of:
|
(a)
|
any
Actual Tax Liability of Connect Holdings which
arises:
|
(i)
|
as
a consequence of a Relevant Event occurring or entered into on
or before
Completion; or
|
(ii)
|
in
respect of any income, profits or gains earned, accrued or received
on or
before Completion;
|
(b)
|
any
Deemed Tax Liability of Connect Holdings;
and
|
(c)
|
any
costs and expenses reasonably and properly incurred or payable
in
connection with any Tax Liability which is the subject of a successful
claim under this clause 2.2.
|
2.3
|
Subject
to clause 2.4, the Vendor hereby covenants with the Purchaser to
pay from
time to time to the Purchaser an amount equal to fifty per cent.
(50%)
of:
|
(a)
|
any
Actual Tax Liability of Connect which
arises:
|
(i)
|
as
a consequence of a Relevant Event occurring or entered into on
or before
Completion; or
|
(ii)
|
in
respect of any income, profits or gains earned, accrued or received
on or
before Completion;
|
(b)
|
any
Deemed Tax Liability of Connect;
and
|
-5-
(c)
|
any
costs and expenses reasonably and properly incurred or payable
in
connection with any Tax Liability which is the subject of a successful
claim under this clause 2.3.
|
2.4
|
The
covenants contained in clauses 2.1 to 2.3 (inclusive) shall not
apply to
any Tax Liability to the extent
that:
|
(a)
|
it
has been paid on or before Completion and such payment is reflected
in or
has been taken into account for the purpose of the Financial Model
or it
has been taken into account for the purpose of computing or establishing
the Post-Completion Tax Payment;
|
(b)
|
it
arises as a result of or by reference to income, profits or gains
actually
earned or received by or actually accrued to the Company on or
before
Completion and not reflected in the Financial Model;
|
(c)
|
it
would not have arisen or is increased as a result of any failure
by the
Company or the Purchaser to comply with its obligations under this
deed;
|
(d)
|
it
would not have arisen but for the passing of or any change in,
after the
date of Completion, any law, rule, regulation, interpretation of
the law
or administrative practice of any government, governmental department,
agency or regulatory body or an increase in the rate of Tax or
any
imposition of Tax not actually or prospectively in force at the
date of
the Sale Agreement or any withdrawal of any extra-statutory concession
after such date;
|
(e)
|
it
comprises interest or penalties arising by virtue of any underpayment
of
Tax prior to Completion under the Instalment Payments Regulations
insofar
as any such underpayment would not have been an underpayment but
for a
bona fide estimate made prior to Completion of the amount of income,
profits or gains to be earned, which proves to be incorrect by
reason of a
Relevant Event occurring after Completion or it arises as a result
of the
Company ceasing on or after Completion to be eligible either for
the
corporation tax starting rate or the small companies rate of Tax
(as the
case may be);
|
(f)
|
it
would not have arisen but for:
|
(i)
|
any
claim, election, surrender or disclaimer made, or notice or consent
given,
or any other thing done after the date of Completion (other than
one the
making, giving or doing of which was taken into account in computing
or
establishing the Post-Completion Tax Payment or for the purpose
of the
Financial Model) by the Purchaser, the Company or any member
of the
Purchaser's Group otherwise
than:
|
|
(A)
|
either (i) in the ordinary course of the business of the Company as carried on at Completion, (ii) as compelled by law in force on or prior to Completion, or (iii) pursuant to a legally binding obligation of the Company created on or before the date of this deed; and |
-6-
(B) |
where
the Purchaser or the Company knew, or
ought reasonably to have known, that such claim, election, surrender
or
disclaimer made or notice or consent given, or other thing done
would give
rise to such Tax Liability (a reference to the Purchaser or Company’s
knowledge or reasonable knowledge for the purpose of this clause
2.4(f)(i)
shall include a reference to any matters set out or referred
to in the Tax
Disclosure Letter and any matters which the Purchaser or the
Company ought
to be aware of if it had sought and obtained appropriate professional
advice in relation to the impact of the claim, election, surrender,
disclaimer, notice, consent or other thing done on the Tax affairs
of the
Company).
|
(ii)
|
the
failure or omission by the Company to make any claim, election,
surrender
or disclaimer, or give any notice or consent or do any other thing
the
making, giving or doing of which was taken into account in computing
or
establishing the Post-Completion Tax Payment or for the purpose
of the
Financial Model but only to the extent that the Purchaser has been
notified in writing within a reasonable amount of time of the need
to make
any such claim, election, surrender or disclaimer or knew or ought
reasonably to have known about the need to do so (a reference to
the
Purchaser or Company’s knowledge or reasonable knowledge for the purpose
of this clause 2.4 (f)(ii) shall include a reference to any matters
set
out or referred to in the Tax Disclosure Letter and any matters
which the
Purchaser or the Company ought to be aware of if it had sought
and
obtained appropriate professional advice in relation to the Tax
affairs of
the Company);
|
(g)
|
it
would not have arisen but for some act, omission, transaction or
arrangement carried out at the written request or with the written
approval of the Purchaser prior to Completion or which is expressly
authorised by the Sale Agreement (excluding, for the avoidance
of doubt,
the sale of the Shares or the assignment of the MYL Debt pursuant
to the
Sale Agreement);
|
(h)
|
any
Relief (other than a Purchaser's Relief but including the surrender
to the
Company of any Reliefs or losses by the Vendor or any member of
the
Vendor's Group at no cost to the Company) is available to the Company
to
set against or otherwise mitigate the Tax Liability in question
or would
be available on the making of an appropriate
claim;
|
(i)
|
it
arises as a result of any change after Completion in any accounting
policy
(including the length of any accounting period for Tax purposes),
any Tax
or accounting basis or practice of the Company other than any change
necessary to comply with the law in force at Completion or intended
to
bring the accounting policy of the Company into line with generally
accepted accounting practice as used by companies carrying on the
same
type of business as the Company as at
Completion;
|
(j)
|
it
would not have arisen but for a cessation of or any change in the
nature
or conduct of any business carried on by the Company being a cessation
or
change occurring on or after
Completion;
|
-7-
(k)
|
the
Company has satisfied such Tax Liability at no cost to the Company
by
receiving cash from a person or persons other than the Purchaser
or any
member of the Purchaser's Group;
|
(l)
|
any
amount in respect of such Tax Liability has been recovered under
the
Warranties or otherwise under the Sale Agreement or this deed (or
in
either case would have been so recovered but for a threshold or
de minimis
provision limiting liability) or the Vendor's Group has made payment
in
respect of such Tax Liability pursuant to sections 767A and 767AA
of the
TA 1988 or any other provision in the United Kingdom or elsewhere
imposing
liability on the Vendor or any member of the Vendor's Group for
Tax
primarily chargeable against the
Company;
|
(m)
|
the
Tax Liability arises by virtue of the application of Schedule 28AA
of the
TA 1988 (as amended from time to time) and may be mitigated by
the making
of balancing payments as provided for in Schedule 28AA of the TA
1988
(whether or not such balancing payments are in fact made, except
that
where balancing payments may be made to the Company by the Vendor
or any
member of the Vendor’s Group, such balancing payments must actually be
made in order for this Clause 2.4(n) to
apply);
|
(n)
|
the
liability of the Vendor in respect thereof is limited or restricted
pursuant to the provisions of schedule 4 (Limitation on Liability)
of the
Sale Agreement where those provisions are expressly stated to apply
in
relation to the Tax Deed; or
|
(o)
|
it
arises in connection with the MYL Debt or the Connect Debt (or
any
payments made or assumed to be made in connection with either the
MYL Debt
or the Connect Debt) in either case after
Completion.
|
2.5
|
Any
payment made under this deed between the parties (including in
particular
any payments made pursuant to clauses 2.1, 2.2 or 2.3 hereof by
the Vendor
to the Purchaser) shall be treated as an adjustment to the consideration
paid by the Purchaser under the Sale Agreement for the
Shares.
|
3.
|
TIMING
|
Where
the
Vendor becomes liable to make any payment pursuant to clauses 2.1, 2.2 or
2.3,
the due date for the making of that payment shall be the later of seven days
after the date of demand therefor and:
(a)
|
insofar
as the claim relates to an Actual Tax Liability, three days before
the
last day on which a payment of that Tax may be made by the Company
without
incurring any liability to interest and/or
penalties;
|
(b)
|
insofar
as the claim arises in respect of a Deemed Tax
Liability:
|
(i)
|
which
relates to the loss, non-availability or reduction of a repayment
of Tax,
three days before the day on which such repayment (or increased
repayment)
of Tax would have been due;
|
-8-
(ii)
|
which
relates to the loss, non-availability or reduction of any Accounts
Relief
other than a repayment of Tax, three days before the last date
on which
the Company must (to avoid any charge to interest/penalties) pay
any Tax
which it would not, but for such loss, non-availability or reduction
have
had to pay;
|
(iii)
|
which
relates to the utilisation or set-off of a Purchaser's Relief against
any
Actual Tax Liability, three days before the last date on which
the Company
would, but for such utilisation or set-off have been liable to
pay such
Actual Tax Liability to avoid any charge to
interest/penalties;
|
(iv)
|
which
relates to the loss by the Company of any right to receive any
payment for
Group Relief, three days before the date on which such payment
would
otherwise have been received;
|
(v)
|
which
relates to any liability of the Company to make any payment for
Group
Relief, three days before the day on which the Company is liable
to pay
such amount;
|
(vi) | which relates to any liability to make a payment of Tax which the relevant company would not have been liable but for being associated with the Vendors Group, three days before the last day on which the payment of that Tax must be made in order to avoid incurring any liability to interest and/or penalties |
(c)
|
insofar
as the claim arises pursuant to clause 2.1(c), clause 2.2(c) or clause
2.3(c), the day on which the costs and expenses fall due for
payment.
|
4.
|
RIGHT
TO REIMBURSEMENTS AND CREDITS
|
4.1
|
If
the Purchaser or the Company is or becomes entitled to recover
from some
other person any amount as a result of or by reference to any Tax
Liability which is likely to result or has resulted in a payment
by the
Vendor to the Purchaser under this deed , then the Purchaser shall
promptly notify the Vendor of the said entitlement and, if so required
by
the Vendor and if the Vendor undertakes to pay all reasonable costs
and
expenses properly incurred by the Purchaser and the Company, shall
and
shall procure that MYL and shall use reasonable endeavours to procure
that
Connect Holdings or Connect shall enforce that recovery (keeping
the
Vendor fully informed of progress) and shall apply the same in
accordance
with clauses 4.2 or 4.3 (as
appropriate).
|
4.2
|
If
the Purchaser or MYL receives a recovery as mentioned in clause
4.1 or a
Relief as a result of a Tax Liability which gives rise to a claim
by the
Purchaser under the terms of this deed
then:
|
(a)
|
where
the Vendor has previously paid any amount in respect of such Tax
Liability
under this deed, the Purchaser shall promptly pay to the Vendor
an amount
equal to so much of the recovery or Relief received (less any Tax
paid by
the recipient and any reasonable costs and expenses incurred by
the
Purchaser or MYL (to the extent not already recovered from the
Vendor) in
respect thereof) as does not exceed the amount which the Vendor
has
previously paid under this deed (together with so much of any interest
or
repayment supplement paid to the recipient of the recovery or Relief
in
respect thereof as corresponds to the proportion of the recovery
or Relief
accounted for under this clause);
|
-9-
(b)
|
where
the Vendor has not yet paid any amount in respect of such Tax Liability,
the amount of such recovery or Relief (less any Tax paid by the
recipient
and any reasonable costs and expenses incurred by the Purchaser
or MYL (to
the extent not already recovered from the Vendor) in respect thereof,
but
together with any interest or repayment supplement received) (together
the
“MYL
Recovered Amount”)
shall be offset against any subsequent payment which the Vendor
would
otherwise have been liable to make.
|
4.3
|
If
Connect Holdings or Connect receives a recovery as mentioned in
clause 4.1
or a Relief as a result of a Tax Liability which gives rise to
a claim by
the Purchaser under the terms of this deed
then:
|
(a)
|
where
the Vendor has previously paid any amount in respect of such Tax
Liability
under this deed, the Purchaser shall use reasonable endeavours
to procure
that Connect Holdings or Connect (as the case may be) shall promptly
pay
to the Purchaser an amount equal to so much of the recovery or
Relief
received (less any Tax paid by the recipient in respect thereof)
as does
not exceed the amount which the Vendor has previously paid under
this deed
(together with so much of any interest or repayment supplement
paid to the
recipient of the recovery or Relief in respect thereof as corresponds
to
the proportion of the recovery or Relief accounted for under this
clause)
provided that the amount so paid to the Purchaser by Connect Holdings
or
Connect shall not be required to exceed 50% of any recovery or
Relief
received and upon receipt of such amount the Purchaser shall pay
to the
Vendor such amount (less any Tax paid by the Purchaser in respect
thereof);
|
(b)
|
where
the Vendor has not yet paid any amount in respect of such Tax Liability,
50% of the amount of such recovery or Relief (less 50% of any Tax
paid by
the recipient in respect thereof, but together with 50% of any
interest or
repayment supplement received) (together the “Connect
Recovered Amount”)
shall be offset against any subsequent payment which the Vendor
would
otherwise have been liable to make.
|
4.4
|
To
the extent MYL Recovered Amount or the Connect Recovered Amount
exceeds
the amount which the Vendor has previously paid under this deed
or the
amount of any subsequent payment which would otherwise have been
made in
respect of that Tax Liability, then such excess shall be carried
forward
and set off against any future claims made against the Vendor under
this
deed.
|
5.
|
OVERPROVISIONS
|
5.1
|
The
Vendor may require the auditors for the time being of MYL to certify
(at
the Vendor's expense) the existence and amount of any overprovision
and
the Purchaser shall provide, or procure that MYL provides, any
information
or assistance reasonably required for the purpose of production
by the
auditors of a certificate to that effect.
|
5.2 |
The
Vendor may require the Purchaser to use reasonable endeavours to
require
the auditors for the time being of Connect Holdings or Connect
to certify
(at the Vendor's expense) the existence and amount of any overprovision
and the Purchaser shall use reasonable endeavours to procure that
Connect
Holdings or Connect provides, any information or assistance reasonably
required for the purpose of production by the auditors of a certificate
to
that effect.
|
-10-
5.3 | If the relevant auditors certify in accordance with clauses 5.1 or 5.2 that any liability, contingency or provision in or made for the purpose of the Financial Model has proved to be an overprovision, then the amount of such overprovision shall be dealt with in accordance with clause 5.4. |
5.4 | Where it is provided under clause 5.3 that any amount is to be dealt with in accordance with this clause 5.4: |
(a)
|
the
amount of the overprovision shall first be set against any payment
then
due from the Vendor under this deed or the Sale
Agreement;
|
(b)
|
to
the extent there is an excess, a refund shall be made to the Vendor
of any
previous payment or payments made by the Vendor under this deed
or the
Sale Agreement (and not previously refunded) up to the amount of
the
excess; and
|
(c)
|
to
the extent that the excess referred to in clause 5.4(b) is not
exhausted
under that clause, the remainder of that excess shall be carried
forward
and set against any future payment or payments which become due
from the
Vendor to the Purchaser under this deed or the Sale
Agreement.
|
5.5.
|
For
the purposes of this clause 5 an overprovision exists
if:
|
(a)
|
either
any liability in respect of Tax or the Post-Completion Tax Payment
has
been overstated in or for the purpose of the Financial Model, or
such
liability has been discharged or satisfied below the amount attributed
thereto in or for the purpose of the Financial Model (including
the
Post-Completion Tax Payment);
|
(b)
|
any
contingency or provision in respect of Tax (including the Post-Completion
Tax Payment) in or for the purpose of the Financial Model proves
to be
overstated; or
|
(c)
|
any
amount in respect of any Accounts Relief has been understated in
or for
the purpose of the Financial Model.
|
6.
|
REFUNDS
|
6.1
|
The
Purchaser shall promptly notify the Vendor of any repayment or
right to a
repayment of Tax which the Company is or becomes entitled to or
receives
in respect of a Relevant Event occurring or period prior to Completion,
where or to the extent that such right or repayment was not included
in or
for the purpose of the Financial Model as an asset (a "Refund").
|
6.2
|
Any
Refund obtained by MYL (less any reasonable costs of obtaining
it) shall
promptly be paid by the Purchaser to the
Vendor.
|
6.3
|
The
Purchaser shall use reasonable endeavours to procure that 50% of
any
Refund obtained (less 50% of any reasonable costs of obtaining
it) by
Connect Holdings or Connect shall be paid by the relevant Company
to the
Purchaser. Upon receipt of any such amounts, the Purchaser shall as soon
as practicable pay such amounts (less any reasonable costs of obtaining
such amounts) to the Vendor.
|
-11-
7.
|
RESISTANCE
OF CLAIMS IN RELATION TO
MYL
|
7.1
|
If
the Purchaser or MYL becomes aware of any Claim for Tax which may
result
in the Purchaser having a claim against the Vendor under this deed
(or
which would so result in any such case but for the provisions of
clause
2.4), the Purchaser shall give notice to the Vendor in the manner
provided
by the Sale Agreement and in any event by the later of (a) 21 days
prior
to the expiry of any time limit in which an appeal against the
Claim for
Tax has to be made and (b) 7 days after the Purchaser has become
so aware
and the Vendor shall be entitled at its sole discretion (but after
consultation with the Purchaser) to resist such Claim for Tax in
the name
of the Purchaser or MYL or any of them but at the expense of the
Vendor
and to have the conduct of any appeal or incidental negotiations
PROVIDED
THAT:
|
(a)
|
the
Purchaser shall be kept informed of all relevant material matters
pertaining to the Claim for Tax;
|
(b)
|
no
material written communication pertaining to the Claim for Tax
(and in
particular no proposal for or consent to any settlement or compromise
thereof or that may affect the future liability to Tax of the Purchaser,
MYL, Connect Holdings or Connect) shall be transmitted to the relevant
Tax
Authority or governmental body or authority without the same having
been
submitted to and approved by the Purchaser, such approval not to
be
unreasonably withheld or delayed;
|
(c)
|
the
Vendor shall take account of all reasonable comments of the Purchaser
in
relation to resisting such Claim for Tax;
and
|
(d) | the Vendor shall take all reasonable steps and use its reasonable endeavours to agree the Claim for Tax with the applicable Tax Authority within a reasonable time. |
7.2
|
The
Purchaser shall give and shall procure that MYL gives the Vendor
all
reasonable co-operation, access and assistance, technical or otherwise,
for the purpose of resisting such Claim for
Tax.
|
8.
|
RESISTANCE
OF CLAIMS IN RELATION TO CONNECT HOLDINGS AND
CONNECT
|
8.1
|
If
the Purchaser becomes aware of any Claim for Tax which may result
in the
Purchaser having a claim against the Vendor under clauses 2.2 or
2.3 of
this deed, the Purchaser shall give notice to the Vendor in the
manner
provided by the Sale Agreement and in any event by the later of
(a) 21
days prior to the expiry of any time limit in which an appeal against
the
Claim for Tax has to be made and (b) 7 days after the Purchaser
has become
so aware and the Vendor shall be entitled at its sole discretion
(but
after consultation with the Purchaser) to have the same rights
in relation
to resisting such Claim for Tax and conduct of any appeal or incidental
negotiations as the Purchaser has in relation to Connect Holdings
and
Connect or any of them but at the expense of the Vendor PROVIDED
THAT:
|
(a)
|
the
Purchaser shall be kept informed of all relevant material matters
pertaining to the Claim for Tax;
|
-12-
(b)
|
no
material written communication pertaining to the Claim for Tax
(and in
particular no proposal for or consent to any settlement or compromise
thereof) shall be transmitted to the relevant Tax Authority or
governmental body or authority without the same having been submitted
to
and approved by the Purchaser, such approval not to be unreasonably
withheld or delayed;
|
(c)
|
the
Vendor shall take account of all reasonable comments of the Purchaser
in
relation to resisting such Claim for Tax;
and
|
(d)
|
the
Vendor shall take all reasonable steps and use its reasonable endeavours
to agree the Claim for Tax with the applicable Tax Authority within
a
reasonable time.
|
8.2
|
The
Purchaser shall give and shall use its reasonable endeavours to
procure
that Connect Holdings and Connect give the Vendor all reasonable
co-operation, access and assistance, technical or otherwise, for
the
exercising of the Vendor’s rights pursuant to clause
8.1.
|
8.3 |
The Vendor’s rights under clauses 7 and
8
shall cease and the Purchaser shall have the conduct of resisting
the
Claim for Tax absolutely (without prejudice to its rights under
this deed)
and shall be free to pay or settle the Claim for Tax on such terms
as the
Purchaser or MYL in its absolute discretion see fit,
if:
|
(a)
|
the Vendor does not request
that conduct
of resisting the Claim for Tax be delegated to the Vendor in
accordance
with 7.1 or 8.1 (as appropriate) within a reasonable amount of
time having
regard to the nature of the Claim for Tax and the existence of
any time
limit in relation to avoiding, disputing or defending, resisting,
appealing or compromising such Claim for Tax and which period
shall not in
any event:
|
(i)
|
exceed
a period of 30 days commencing with the date of the notice given
pursuant
to clauses 7.1 or 8.1 as appropriate);
|
(ii) |
end later than 7 days prior
to the last
date on which an appeal may be made in relation to the Claim
for Tax in
question provided that the Vendor has had at least 7 days notice
of the
Claim for Tax in question;
|
(b)
|
The Vendor notifies the
Purchaser of the
Company to the effect that it no longer wishes to resist
the Claim for
Tax;
|
(c) |
a Tax Authority alleges
that (prior to
Completion) there was any action or omission by MYL or that
(at any time)
there was any action or omission by the Vendor in relation
to MYL which
constitutes fraudulent conduct; or
|
(d) |
in the reasonable opinion
of the
Purchaser, the Vendor is in material non-remedial breach
of its
obligations under clause 7.1 or 8.1 (as appropriate) or are
in material
remedial breach and fail to remedy such breach within 14
days following
service by the Purchaser of a written notice specifying the
breach and
requiring it to be remedied.
|
-13-
9.
|
TAX
RETURNS ETC. OF MYL
|
9.1
|
Subject
to clause 9.2, the Vendor or its duly authorised agent shall at
the cost
of MYL be responsible for and have the conduct of preparing, submitting
and agreeing all Tax Returns of MYL for all accounting periods
ending on
or before the date of Completion. The Purchaser shall afford (or
procure
to be afforded) to the Vendor or its duly authorised agent such
information and assistance as may reasonably be required to prepare,
submit and agree all such Tax Returns.
|
9.2 | The Vendor shall, or shall procure that their duly authorise agents shall: |
(a)
|
submit
any Tax Returns referred to in clause 9.1 and all other correspondence
and
documents that are to be submitted in connection with such Tax
Returns
which have not been submitted to the applicable Tax Authority
before
Completion to the Purchaser at least 21 days before the date
on which it
is required to be filed with the applicable Tax Authority without
incurring interest and penalties;
|
|
(b)
|
take
account of all reasonable comments of the Purchaser in relation
to such
Tax Returns, correspondence and other documents;
|
|
(c)
|
not
without the prior written consent of the Purchaser (not to be
unreasonably
withheld or delayed) agree any matter with any Tax
Authority;
|
|
(d)
|
keep
the Purchaser fully and promptly informed of the progress of
any
negotiations with any Tax Authority;
|
|
(e)
|
take
all reasonable steps and use its reasonable endeavours to ensure
that the
Tax returns referred to in clause 9.1 above are prepared and
agreed with
the applicable Tax Authority as soon as possible.
|
9.3 |
The Purchaser shall procure
that MYL shall
cause the Tax Returns referred to in clause 9.1 and all such claims,
disclaimers, surrenders and elections as may be directed by the
Vendors
relating to all accounting periods ending on or before the date
of
Completion (and such other claims, surrenders and elections necessary
to
mitigate any Tax Liability which has given or would otherwise give
rise to
a claim under this deed) to be authorised, signed and returned
to the
Vendor or its duly authorised agent for submission to the appropriate
Tax
Authority without undue or unreasonable delay provided that the
Purchaser
shall not be required to take any such action in relation to any
such
document that is not full, true and accurate in all material respects.
|
9.4 . | The Purchaser agrees that the Vendor shall at the cost of MYL have the sole conduct of any correspondence, negotiations or dispute relating to the Tax Returns referred to in clause 9.1 and of any appeal in relation thereto (subject to the provisions of clause 7) and the Purchaser shall give and shall procure that MYL gives to the Vendor all such assistance as may reasonably be necessary for the Vendor or its duly authorised agent to have the aforementioned conduct provided that the Purchaser shall be informed of the outcome of any such dispute |
9.5
|
The
Purchaser or its duly authorised agents shall (subject to clause
9.2) be
responsible for and have the conduct of preparing, submitting and
agreeing
the Tax Return for the accounting period in which Completion takes
place
subject to such Tax Return being submitted in draft form to the
Vendor or
its duly authorised agent for comment a reasonable time before
the same is
due to be sent to the relevant Tax Authority. The Vendor or its
agent
shall comment within 21 days of such submission and if the Purchaser
has
not received comments within that period, the Vendor or its agents
shall
be deemed to have approved such draft computations. If the Vendor
or its
agents have any comments or suggestions, the Purchaser or its agents
shall
not unreasonably refuse to adopt such comments or suggestions provided
always that nothing herein shall oblige the Purchaser to submit
any
computation or other document unless the Purchaser is satisfied
that the
same is accurate and complete in all material respects. The Vendor
and the
Purchaser shall respectively afford (or procure to be afforded)
to the
other or its duly authorised agents such information and assistance
as may
reasonably be required to prepare, submit and agree such Tax Return.
|
-14-
9.6 |
Subject to clauses 8.3 of this
deed, the
Purchaser shall procure that no Claim for Tax, Tax Liability, action
or
issue in respect of which the Vendor could be required to make
a payment
under this deed is settled or otherwise compromised without the
Vendor’s
prior written consent, such consent not to be unreasonably withheld,
and
the Purchaser shall and shall procure that MYL and its advisers
do not
submit any correspondence or return or send any other document
to any Tax
Authority in circumstances where the Purchaser or any such person
is aware
or could reasonably be expected to be aware that the effect of
submitting
such correspondence or return or sending such document would or
could be
to put such Tax Authority on notice of any matter which could give
rise
to, or could increase, a claim under this deed without first affording
the
Vendor a reasonable opportunity to comment thereon and without
taking
account of such comments so far as it is reasonable to do
so.
|
10.
|
TAX
RETURNS ETC. OF CONNECT HOLDINGS AND
CONNECT
|
10.1
|
In
relation to Connect Holdings and Connect, the Purchaser shall use
all
reasonable endeavours to ensure that all tax returns and communications
with any Tax Authority of which the Purchaser is aware and which
may
affect the Tax position of Connect Holdings and Connect or either
of them
shall first be sent in draft to the Vendor and the Purchaser shall
use
reasonable endeavours to procure that Connect Holdings and Connect
incorporate any reasonable comments of the Vendor.
|
10.2
|
Subject
to clause 8.3 of this deed, the Purchaser shall use reasonable
endeavours
to procure that no Claim for Tax, Tax Liability, action or issue
in
respect of which the Vendor could be required to make a payment
under
clauses 2.2 or 2.3 of this deed is settled or otherwise compromised
without the Vendor’s prior written consent, such consent not to be
unreasonably withheld, and the Purchaser shall and shall use reasonable
endeavours to procure that Connect Holding, Connect and its advisers
do
not submit any correspondence or return or send any other document
to any
Tax Authority in circumstances where the Purchaser or any such
person is
aware or could reasonably be expected to be aware that the effect
of
submitting such correspondence or return or sending such document
would or
could be to put such Tax Authority on notice of any matter which
could
give rise to, or could increase, a claim under this deed without
first
affording the Vendor a reasonable opportunity to comment thereon
and
without taking account of such comments so far as it is reasonable
to do
so.
|
-15-
11.
|
COUNTER
INDEMNITY
|
11.1
|
The
Purchaser hereby covenants with the Vendor to pay to the Vendor,
an amount
equal to any of the following:
|
(a)
|
any
liability for Tax for which the Vendor or any member of the Vendor’s Group
becomes liable by virtue of the operation of sections 767A, 767AA
and 767B
of the TA 1988 in circumstances where the taxpayer company (as
referred to
in section 767A(1)) and/or the transferred company (as referred
to in
section 767AA(1)) is the Company;
|
(b)
|
any
liability for Tax (arising by reference to income, profits or gains
of the
Company arising after Completion) for which any member of the Vendor’s
Group becomes liable by virtue of the relationship between that
member of
the Vendor’s Group and the Company at any time on or before
Completion;
|
(c)
|
any
liability or increased liability to Tax of any member of the Vendor’s
Group which arises as a consequence of or by reference to any of
the
following occurring or being deemed to occur after
Completion:
|
(i)
|
the
disposal by the Company of any asset or of any interest in or right
over
any asset;
|
(ii)
|
the
making by the Company of any such payment or deemed payment as
constitutes
a chargeable payment for the purposes of section 214 of the TA
1988;
|
(iii)
|
the
Company ceasing to be resident in the United Kingdom for the purposes
of
any Tax;
|
(iv)
|
the
effecting by the Company of any such payment or transfer of assets
as
constitutes the receipt by another person of an abnormal amount
by way of
dividend (as defined in section 709 of the TA 1988);
|
(d)
|
any
liability or increased liability to Tax of the Vendor or any member
of the
Vendor’s Group which arises as a result of or by reference to any
reduction or disallowance of Group Relief that would otherwise
have been
available to the Vendor or the relevant member of the Vendor’s Group where
and to the extent that such reduction or disallowance occurs as
a result
of or by reference to:
|
(i)
|
any
total or partial withdrawal effected by the Company after Completion
of
any surrender of Group Relief that was submitted by the Company
to the
relevant Tax Authority on or before Completion in respect of any
accounting period ended on or before Completion; or
|
(ii)
|
any
total or partial disclaimer made by the Company after Completion
of any
capital allowances available to the Company in respect of any accounting
period ended on or before Completion where the claiming of such
capital
allowances was taken into account in computing (and so reducing)
the
provision or reserve for Tax or deferred Tax in the Financial
Model,
|
-16-
save
where any such withdrawal or disclaimer is made at the express written request
of the Vendor; and
(e)
|
any
other liability to Tax for which the Vendor or any member of the
Vendor’s
Group becomes liable as a result of the failure by the Company
or any
member of the Purchaser's Group to discharge the
same.
|
11.2
|
The
covenant contained in clause 11.1
shall:
|
(a)
|
extend
to all costs reasonably and properly incurred by the Vendor or
such other
person in connection with such liability to Tax under clause 11.1;
|
(b)
|
not
apply to any liability to Tax to the extent that the Purchaser
could claim
payment in respect of it under clause 2.1, 2.2 or 2.3 provided
that such
liability to Tax does not arise as a consequences of the failure
by the
Purchaser or any member of the Purchaser’s Group to discharge any Tax
Liability of the Company in respect of which the Purchaser has
previously
recovered from the Vendor under this Deed;
|
(c)
|
not
apply to the extent that an amount has been recovered by the Vendor
or a
member of the Vendor’s Group under any relevant tax statute (and the
Vendor shall procure that no such recovery is sought under any
relevant
tax statute from the Purchaser or any member of the Purchaser’s Group to
the extent that payment is made under this clause 11);
and
|
(d)
|
apply
mutatis mutandis to any liability to Tax for which the Vendor or
any other
person is liable as a result of the application in any jurisdiction
other
than the United Kingdom of any rule of law or legislation equivalent
to
that mentioned in clause 11.1(a) and
11.1(c).
|
11.3
|
Clauses
3 and 7 of this deed shall apply to the covenants contained in
this clause
11 as they apply to the covenants contained in clauses 2.1, 2.2
and 2.3,
replacing references to the Vendor by the Purchaser (and vice versa)
and
making any other necessary
modifications.
|
12.
|
GROSS
UP
|
12.1
|
All
sums payable by either party to the other under this deed shall
be paid
free and clear of all deductions or withholdings (including Tax)
unless
the deduction or withholding is required by law, in which event,
or in the
event that the recipient shall incur any liability for Tax chargeable
or
assessable in respect of any payment pursuant to this deed, the
payer
shall pay such additional amounts as shall be required to ensure
that the
net amount received and retained by the recipient (after Tax) will
equal
the full amount which would have been received and retained by
it had no
such deduction or withholding been made and/or no such liability
to Tax
been incurred and in applying this clause 12, account shall be
taken of
the extent to which any liability for Tax may be mitigated or offset
by
any Tax actually saved by the
recipient.
|
12.2
|
If,
following the payment of an additional amount under clause 12.1
above, the
recipient subsequently obtains a saving, reduction, credit or payment
in
respect of the deduction or withholding giving rise to such additional
amount, the recipient shall pay to the payer a sum equal to the
amount of
such saving, reduction, credit or payment (in each case to the
extent of
the additional amount) such payment to be made within seven days
of the
receipt of the saving, reduction, credit or payment as the case
may
be.
|
-17-
12.3 |
If the Purchaser assigns or
transfers the
benefit of this deed to any other party in accordance with clause
11.3 of
the Sale Agreement, clause 12.1 shall only apply to the extent
that it
would have applied had the benefit of this deed not been so assigned
or
transferred provided that the Vendor is not worse off as a result
of the
assignment or transfer of the benefit of this deed by the Purchaser
or any
successor in title.
|
13.
|
MISCELLANEOUS
|
13.1
|
In
determining the amount of any recovery, the amount of any Relief
or other
benefit received by any company or person for the purposes of this
deed,
any party hereto shall be entitled to require that the auditors
of the
company or person in question (or if the auditors are unwilling
or unable
to act such other firm of chartered accountants as may be agreed
between
the parties or may, in default of agreement, be appointed at the
request
(and expense) of either party by the President or next available
officer
of the Institute of Chartered Accountants) shall be instructed
to
determine the amount in question or whether any earlier determination
in
respect thereof remains correct in the light of all relevant circumstances
including circumstances which have only become known since such
earlier
determination and the fees of such auditors or accountants shall
be paid
by such of the parties as the auditors or accountants may themselves
determine as being fair and reasonable. Any determination made
by the
auditors or accountants shall be binding upon the parties who shall
make
such adjusting payments (if any) as may be required to reflect
the same as
soon as practicable thereafter.
|
13.2
|
The
provisions of clauses 10 (Entire
Agreement and Remedies)
and 11 (Other
Provisions)
of the Sale Agreement shall apply to this deed as if the same were
incorporated herein mutatis mutandis.
|
IN
WITNESS whereof
this deed has been executed on the date first above written.
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EXECUTED
and DELIVERED
|
)
|
|
as
a DEED on behalf
|
)
/s/ Xxxxx Xxxxxx
|
|
of
MACQUARIE YORKSHIRE LLC acting
by
|
)
)
|
|
Name:
Xxxxx
Xxxxxx
Chief
Executive Officer on behalf of Macquarie Infrastructure Company
LLC as
Managing Member of Macquarie Yorkshire LLC
|
||
EXECUTED
and DELIVERED as a
|
)
|
|
DEED
under a Power of Attorney on behalf of
|
)
/s/ Xxxxxx Xxxxxxx
|
|
M1-A1
INVESTMENTS LIMITED
|
)
|
|
Name(s):
Xxxxxx Xxxxxxx
|
||
Attorney
|
||
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