EXHIBIT 10.17
YORKSHIRE LINK LIMITED
AND
MACQUARIE INFRASTRUCTURE (UK) LIMITED
AND
BALFOUR BEATTY PLC
_____________________________________
AMENDED AND RESTATED SECONDMENT AGREEMENT
_____________________________________
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CONFORMED COPY
SECONDMENT AGREEMENT
THIS AGREEMENT is made on 26th March, 1996 as amended and restated on 30 April
2003 BETWEEN:
(1) YORKSHIRE LINK LIMITED ("YLL") of (registered number 2999303) whose
registered office is at Level 29 and 30, 1 Ropemaker Street, London
EC2Y 9HD;
(2) MACQUARIE INFRASTRUCTURE (UK) LIMITED ("MIUK") (registered number
1540913) whose registered office is at Level 29 and 30, 1 Ropemaker
Street, London EC2Y 9HD; and
(3) BALFOUR BEATTY PLC ("BB") (registered number 395826) whose registered
office is at 130 Wilton Road, London SWIV 1LQ.
WHEREAS:-
(A) YLL has entered into an agreement on 26 March 1996 with the Secretary
of State for Transport relating to the concession for the M1-Al Link
Road (Lofthouse to Bramham) (the "CONCESSION AGREEMENT").
(B) BB and Trafalgar House Services Limited ("THSL"), being an Affiliate of
one of the original shareholders in YLHL, Trafalgar House Corporate
Development Limited ("THCD"), agreed on 26 March 1996 to second or
procure the secondment to YLL of personnel required by YLL from time to
time to assist YLL in undertaking the M1-Al Link Road project (as
defined in the Concession Agreement) and in particular in the
performance of its obligations under the Concession Agreement
("ORIGINAL SECONDMENT AGREEMENT").
(C) THSL was subsequently renamed Kvaerner Services Ltd ("KSL") and THCD
was subsequently renamed Kvaerner Corporate Development Limited
("KCD").
(D) In 1999, KCD was acquired by Macquarie European Infrastructure Plc and
KCD changed its name to MIUK.
(E) Under a deed of novation dated 3 February 2000 between YLL, KSL, BB and
MIUK, KSL ceased to be a party to the Original Secondment Agreement and
MIUK became a party in its place and various consequential amendments
were made ("DEED OF NOVATION").
(F) The parties now wish to amend and restate the Original Secondment
Agreement as amended by the deed of novation on the terms hereinafter
appearing. As the context may require, personnel seconded by MIUK to
YLL shall hereinafter be called "THE MIUK PERSONNEL" and each and all
personnel seconded by BB to YLL shall hereinafter be called "THE BB
PERSONNEL" and the MIUK Personnel and BB Personnel shall together be
called "THE PERSONNEL").
NOW IT IS HEREBY AGREED as follows:-
1. SUPPLY OF PERSONNEL
1.1 Each of MIUK and BB shall use its reasonable endeavours to provide the
MIUK Personnel or the BB Personnel (as appropriate) to YLL at such
times and for such periods and either on a full or part time basis as
may be required by YLL in its performance of the Concession Agreement.
1.2 The MIUK Personnel and the BB Personnel shall be deemed to be acting
for and on behalf of YLL (to the extent that they would otherwise be
acting for and on behalf of their respective employers in the
performance of their normal duties) and shall at all times receive
their instruction from YLL's Managing Director or his deputy. In the
case of YLL's Managing Director he shall receive his instructions from
the Board of YLL.
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1.3 The MIUK Personnel and the BB Personnel shall be suitably qualified and
professionally competent (the grades, numbers and individuals to be
agreed between the parties). Except where otherwise agreed, each of
MIUK and BB (as appropriate) shall provide YLL with details of their
qualifications and experience.
1.4 MIUK and BB shall not change MIUK Personnel or BB Personnel seconded
hereunder without prior consultation with YLL, provided that each of
MIUK and BB reserves the right to replace MIUK Personnel and BB
Personnel, as appropriate, with other suitably qualified and
professionally competent MIUK Personnel or BB Personnel, as
appropriate.
1.5 The MIUK Personnel and the BB Personnel to be seconded under this
agreement on a full-time and part-time basis are to be agreed between
the parties.
2. PAYMENT
2.1 The fees payable by YLL in respect of the supply of the MIUK Personnel
and the BB Personnel will be those set out in Part 2 of the Schedule
hereto.
2.2 The fees shall be subject to any applicable VAT which, if applicable,
shall be paid by YLL to MIUK or BB on each payment at the relevant rate
in force from time to time.
2.3 Payments by YLL to MIUK or BB shall be made without any deductions or
set-off.
3. DURATION
3.1 The provision of the Personnel to YLL hereunder commenced with effect
from the date hereof and shall continue for such period as YLL shall
determine that the Personnel are required to be supplied to YLL in its
performance of the Concession Agreement. YLL may terminate the
requirement for any of the Personnel on not less than ninety days'
notice.
3.2 In the event that YLL terminates the requirements for any of the
Personnel pursuant to clause 3.1, YLL shall indemnify MIUK or BB (as
appropriate) in respect of all costs, claims, liabilities or expenses
arising therefrom suffered by MIUK or BB and relating only to the
period of secondment hereunder.
3.3 Any party may terminate this Agreement by written notice to the others
if any other party fails materially to observe or perform any of its
obligations under this Agreement and has been notified in writing by
the party aggrieved of the nature of the failure within fifteen days
after its occurrence and has not taken steps to remedy such failure
within thirty days after such notice.
4. [NOT USED]
5. [NOT USED]
6. TRAVELLING AND HOTEL EXPENSES
The Personnel shall be reimbursed their reasonable and proper
travelling and hotel expenses incurred in the course of their
secondment hereunder, in accordance with YLL's internal controls in
force from time to time.
7. ASSIGNMENT
No obligations or rights arising under this Agreement may be assigned
or sublet by any of the parties to any person or assumed by any
successors thereto unless (i) such person is a company within either of
the BB or Macquarie European Infrastructure Plc ("MEIP") groups of
companies and (ii) the prior written consent of the other parties (such
consent not to be unreasonably withheld or delayed) to such
transaction, has been
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obtained. This Agreement shall enure to and be binding upon the
respective permitted assignees, or successors of the parties hereto.
8. LIABILITY
8.1 The liability of MIUK to YLL hereunder by reason of any breach of
contract, tort or otherwise, shall under no circumstances exceed the
aggregate of the fees paid by YLL to MIUK hereunder during the period
of twelve months preceding the cause of action giving rise to such
liability.
8.2 The liability of BB to YLL hereunder by reason of any breach of
contract, tort or otherwise, shall under no circumstances exceed the
aggregate of the fees paid by YLL to BB hereunder during the period of
twelve months preceding the cause of action giving rise to such
liability.
9. CONFIDENTIALITY
9.1 During the period of this agreement and thereafter each party shall
keep confidential and shall not disclose or transfer to or use on
behalf of itself or for the benefit of any third party without the
prior written consent of each other party any technical or confidential
information or documentation of such other party obtained under or as a
result of the implementation of this agreement, provided always that
nothing in this clause is intended to prevent MEIP or BB or any of
their subsidiaries or associates from time to time (subject always to
the terms of the Concession Agreement) using any of the information
knowledge and experience which any of them or their personnel shall
have gained from their involvement in the M1-Al Link Road project or in
any other similar scheme.
9.2 Upon the termination of this Agreement each party shall return to the
other relevant party all documents belonging to one party and provided
to any of the others in connection with the implementation of this
agreement.
10. NOTICES
Notices shall be served upon any party to this agreement at its address
referred to herein or at its last notified address and shall be deemed
served ten days after posting if posted or two days after transmission
if sent by facsimile transmission or if by hand on acknowledgement of
receipt of delivery.
11. LAW
This agreement is governed by and shall be construed in accordance with
English law.
COUNTERPARTS
12. This agreement may be executed in any number of counterparts and by the
several parties hereto on separate counterparts, each of which when so
executed and delivered shall be an original, but all the counterparts
shall together constitute one and the same instrument.
AS WITNESS the hands of the parties (or their duly authorised representatives)
on the date which first appears on page 1.
SIGNED by )
for and on behalf of ) *
YORKSHIRE LINK LIMITED )
SIGNED by )
for and on behalf of )
MACQUARIE INFRASTRUCTURE ) *
(UK) LIMITED )
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SIGNED by )
for and on behalf of ) *
BALFOUR BEATTY PLC )
* This agreement was restated and amended by an Omnibus Deed dated as of
April 30, 2003 between Macquarie Infrastructure (UK) Limited, Macquarie
Yorkshire Limited, Balfour Beatty plc, Yorkshire Link (Holdings) Limited,
Yorkshire Link Limited, Kvaerner plc and Macquarie European Infrastructure
plc, which was executed by the parties thereto as follows:
MACQUARIE INFRASTRUCTURE (UK) LIMITED
/s/ Colin Chanter
Attorney
Witness /s/ Andrew Deszcz
Name: Andrew Deszcz
Address: 65 Fleet Street, London
MACQUARIE YORKSHIRE LIMITED
/s/ Sean MacDonald
Director
/s/ Colin Chanter
Director
BALFOUR BEATTY PLC
/s/ John Fox
Attorney
Witness /s/ Andrew Deszcz
Name: Andrew Deszcz
Address: 65 Fleet Street, London
YORKSHIRE LINK (HOLDINGS) LIMITED
/s/ John Fox
Director
/s/ Peter Dyer
Director
YORKSHIRE LINK LIMITED
/s/ John Fox
Director
/s/ Peter Dyer
Director
KVAERNER PLC
/s/ Nigel Williams
Attorney
Witness /s/ Peter Dyer
Name: Peter Dyer
Address: 14 Crofton Avenue, Chiswick
London W4 3EW
MACQUARIE EUROPEAN INFRASTRUCTURE PLC
/s/ Peter Dyer
Attorney
Witness /s/ Andrew Deszcz
Name: Andrew Deszcz
Address: 65 Fleet Street, London