Exhibit 10.30
MACQUARIE INFRASTRUCTURE COMPANY LLC
PRINCIPAL EXECUTIVE OFFICES: 600 Fifth Avenue, 21st Floor,
New York, New York, 10020, USA
REGISTERED OFFICE IN THE STATE OF DELAWARE: Corporation Trust Center,
1209 Orange Street, City of Wilmington, County of New Castle.
REGISTERED AGENT: The Corporation Trust Company
To: Macquarie European Infrastructure PLC
Levels 29 and 30,
City Point,
1 Ropemaker Street,
London, EC2Y 9HD
14, October 2004
Dear Sirs,
YORKSHIRE LINK
We refer to the sale and purchase agreement between Macquarie Infrastructure
Company LLC (formerly Macquarie Infrastructure Assets LLC) and Macquarie
European Infrastructure PLC relating to the sale and purchase of all the shares
in Macquarie Yorkshire Limited, dated 7 June 2004 (the "AGREEMENT"). Pursuant
to Clause 11.5 of the Agreement and in consideration of each party agreeing to
be bound by the terms set out herein, the Agreement shall be amended as
follows, such amendments to be effective as of the date hereof:
1. in the description of the parties thereto, the reference to "MACQUARIE
INFRASTRUCTURE ASSETS LLC a Delaware limited liability company whose
principal executive office is at 600 Fifth Avenue, 21st floor, 10020,
New York, USA (the "PURCHASER" or "MIAL")" shall be deleted and
replaced by reference to "MACQUARIE INFRASTRUCTURE COMPANY LLC a
Delaware limited liability company whose principal executive office is
at 600 Fifth Avenue, 21st floor, 10020, New York, USA (the "PURCHASER"
or "MICL")".
2. each reference to "MIAL" shall be replaced by reference to "MICL".
3. the deletion of the definition of "September Distribution Amount".
4. the following changes being made to Clause 3 (Consideration):
(i) Clause 3.1 being deleted in its entirety and replaced with
the following words "3.1 The total consideration for the
sale of the Shares shall be the payment by the Purchaser of
the Initial Consideration which shall be increased by L9,750
for each day after 30 September 2004 Completion occurs (the
"COMPLETION AMOUNT")."
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(ii) on the third line of Clause 3.5.1, the insertion of the word
"Company" before the words "Settlement (as defined in Clause 3.5.2
below)".
5. the following change being made to Clause 4 (Debt Repayment):
(i) the deletion of the words "less the September Distribution
Amount" in Clause 4.1.
6. the following change being made to Clause 6.4 (Restrictions on the Vendor):
(i) Clause 6.4.10 being deleted in its entirety and replaced with the
following words "6.4.10 declare, make or pay any dividend
or other distribution from MYL to the Vendor."
7. the addition of the following as a new Clause 12 in the Agreement:
"12. INDEMNITY RELATING TO ROAD ACCIDENT
12.1 For the purposes of this Clause 12, the following terms shall have
the following meanings:
"COSTS" has the meaning given to it in Clause 12.2;
"FINAL AMOUNT" has the meaning given to it in Clause 12.5;
"INCIDENT" means the road accident occurring on MI-A1 motorway on
20 March 2004;
"NOTIFICATION" has the meaning given to it in Clause 12.4(ii);
"PURCHASER ESTIMATE" has the meaning given to it in Clause 12.5;
"PURCHASER NOTICE" has the meaning given to it in Clause 12.5; and
"REVENUE REDUCTION" means a reduction in the revenues of Connect
which is attributable to the suspension or reduction by the
Secretary of State of the DBFO Payment (as such term is defined in
the DBFO Contract) or the termination by the Secretary of State of
the DBFO Contract, in each case as a result of an Event of Default
occurring under Clause 36 of the DBFO Contract which is caused by
or directly related to the Incident.
12.2 Subject to Clause 12.3, 12.6 and 12.9 below, the Vendor agrees to
pay to the Purchaser, from time to time by way of adjustment to
the consideration, an amount equal to any and all losses, costs,
expenses and liabilities including those arising out of any
claims, actions and proceedings (which shall include, but not be
limited to, all legal and other costs and expenses incurred in
connection with the investigation,
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preparation, defence or settlement of any actual or potential claim, action
or proceeding) (hereinafter collectively referred to as the "COSTS") that
are suffered, incurred or made against:
(i) the Purchaser; or
(ii) any MYL Group Company
in connection with or arising out of the commencement of criminal
proceedings against any member of the MYL Group or any officer or director
thereof, in relation to the Incident, provided always that the Vendor's
liability under paragraph (ii) above shall, save in respect of MYL, be
limited to an amount equal to fifty per cent. (50%) of the total aggregate
Costs suffered, incurred or made against such MYL Group Company.
12.3 For the avoidance of doubt the Purchaser shall not be entitled to recover
under Clause 12.2 in respect of any reduction in the revenues of Connect
and any claim by the Purchaser with respect to a Revenue Reduction shall
only be made in accordance with the provision of Clause 12.4 below.
12.4 Without prejudice to the provisions of Clause 12.2 above, but subject to
Clauses 12.5, 12.6 and 12.9 below, the Vendor hereby agrees to pay to the
Purchaser, by way of adjustment to the consideration, as soon as reasonably
practicable (but in any event not more than 10 Business Days) following
receipt of the Purchaser Notice below), an amount equal to fifty per cent.
(50%) of the difference between (a) the net present value of the total
aggregate amount of the Original Cash Flows and (b) the net present value
of the total aggregate amount of the Revised Cash Flows, calculated as
follows:
(i) Original Cash Flows shall be the original aggregate distributions
(comprising all actual dividend distributions and actual payments on
the subordinated debt (whether payments of interest or principal)) to
be made by Connect (directly or indirectly) to shareholders of Connect
or Connect Holdings in connection with the Project from the date of
the Notification up to and including 31 March 2028, as set out in the
financial model referred to at paragraph 7.08 in the Disclosed
Information;
(ii) The Revised Cash Flows shall be the Original Cash Flows derived by
adjusting only the future revenues of the Project to reflect the
effect of any Revenue Reduction notified to Connect by the Secretary
of State in accordance with the provisions of the DBFO Contract (the
"NOTIFICATION") and recalculating these adjusted revenues on the basis
of the assumptions used in the financial model referred to at
paragraph 7.08 in the Disclosed Information.
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(iii) The net present value of the Original Cash Flows and the Revised
Cash Flows shall be calculated using a discount rate of 8.66%
(based on the assumptions used in the financial model referred to
at paragraph 7.08 in the Disclosed Information), such values to be
calculated as of the date of the Notification.
12.5 Upon becoming aware that a Notification has been received by Connect, the
Purchaser must notify the Vendor in writing that the provisions of Clause
12.4 apply (the "PURCHASER NOTICE"). The Purchaser Notice must set out
the Purchaser's calculation of the amount payable by the Vendor to the
Purchaser under Clause 12.4 (The "PURCHASER ESTIMATE"). The Purchaser
Estimate will be deemed to be the agreed amount payable by the Vender to
the Purchaser under Clause 12.4 in respect of a Revenue Reduction unless
the Vendor notifies the Purchaser in writing that it disputes the
Purchaser Estimate within 10 Business Days of receipt of the Purchaser
Estimate. If the Vendor provides timely notice to the Purchaser that it
disputes the Purchaser Estimate the parties shall refer the dispute to an
independent accountant with recognized expertise in financial modelling
selected by the Purchaser (such referral to be made within 10 Business
Days of the Purchaser's selection) to determine the amount payable by the
Vendor pursuant to Clause 12.4 and the following shall apply:
(i) the costs and expenses of the independent accountant shall be
borne equally between the Vendor and the Purchaser;
(ii) both the Purchaser and the Vendor shall have a reasonable
opportunity to make submissions in respect of the amount payable
under Clause 12.4 and the parties shall procure that the
independent accountant gives due consideration to such
submissions; and
(iii) the independent accountant shall make its determination as soon
as practicable and, in any event, within 30 Business Days of the
referral being made.
In making any determination referred to in this Clause 12.5 the independent
accountant shall act as expert not as arbitrator. The determination made by the
independent accountant under this Clause 12.5 shall, in the absence of manifest
error, be final and binding on the Vendor and the Purchaser. The amount the
independent accountant determines to be payable under Clause 12.4 (the "FINAL
AMOUNT") shall be payable to the Purchaser by the Vendor in full discharge of
the Vendor's obligations arising under Clause 12.4 in respect of the Revenue
Reduction. The Final Amount must be paid within 3 Business Days of the
determination being made.
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12.6 If, before the Vendor pays an amount in discharge of any claim under this
Clause 12, the Purchaser or any other MYL Group Company recovers or is
entitled to recover (whether by payment, discount, credit, relief or
otherwise) from a third party a sum which relates to the subject matter
of such claim, the Purchaser shall procure that before steps are taken
against the Vendor pursuant to this Clause 12 all reasonable steps are
taken to enforce such recovery and the Vendor shall not be liable in
respect of any such claim (and any amount determined to be payable under
Clause 12.4 shall be adjusted) to the extent that actual recovery has
been made by the Purchaser or any other MYL Group Company from any other
source, including, without limitation, where:
(i) the losses arising from such claim are covered by a policy of
insurance and payment is made by the relevant insurer; or
(ii) recovery has been made in respect of the same losses arising from
such claim from a third party.
12.7 Where a claim is brought by the Purchaser in respect of losses under this
Clause 12 and an amount is determined to be payable by the Vendor, the
Vendor shall take the benefit by way of subrogation of all rights or
claims of the Purchaser against any third party in respect of the same
losses.
12.8 Following Completion the Purchaser shall promptly supply to the Vendor
details of all claims, actions, proceedings and investigations begun in
relation to any MYL Group Company in respect of the Incident but any
failure to provide such details shall not affect the rights of the
Purchaser save to the extent that the Vendor is prejudiced by such
failure. The Vendor shall be entitled, at its own expense, to direct the
Purchaser, and the Purchaser shall comply with all reasonable directions
of the Vendor, in the conduct of any defence or response to such claims,
actions, proceedings and investigations in connection with the Incident.
The Purchaser shall not and shall procure that no MYL Group Company shall
make any admission of liability in relation to the Incident without the
prior consent of the Vendor.
12.9 The Vendor's liability in respect of the aggregate amount of all claims
brought by the Purchaser pursuant to this Clause 12 shall not exceed
Pound Sterling 2,750,000.
12.10 For the avoidance of doubt, the provisions of Schedule 4 hereto shall not
apply to this Clause 12."
For the avoidance of doubt, all other provisions of the Agreement remain
unchanged and as stated.
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Unless otherwise stated, all capitalised terms in this letter shall have the
same meaning as in the Agreement.
This letter shall be governed by and construed in accordance with English law
and the parties hereto submit to the exclusive jurisdiction of the courts of
England to settle all disputes arising in connection therewith.
Please confirm your agreement to the above by counter-signing this letter in the
space provided below.
Yours faithfully,
/s/ Peter Stokes
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Name: Peter Stokes
Title: Chief Executive Officer
For and on behalf of
MACQUARIE INFRASTRUCTURE COMPANY LLC
We agree to the terms and conditions of this letter as set out above.
/s/ James Craig /s/ Annabelle Hill
- ------------------------------- -------------------------------
Name: James Craig Annabelle Hill
Title: Director Secretary
For and on behalf of
MACQUARIE EUROPEAN INFRASTRUCTURE PLC
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