Transport for LondonPPP Contracts
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Guarantee dated 4 April 2003 between LRT and BCV |
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Recital THIS AMENDED AND RESTATED GUARANTEE is made as a deed on 4 APRIL 2003 Between (2) INFRACO BCV LIMITED whose registered office is at 55 Broadway, London SW1H 0BD ( Infraco ). Whereas (A) Pursuant to proposals to establish a public private partnership for London's Underground Network, LUL and Infraco have entered into a PPP Contract whereby Infraco will provide Infrastructure Services to LUL in respect of the BCV Lines. (B) It is intended by the parties hereto that this Guarantee shall take effect as a deed. It is agreed: |
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Interpretation |
| 1.1 To the extent applicable, the provisions of this Guarantee shall be interpreted in accordance with clause 1.2 of the Master Definitions Agreement dated 1 April 2000 between LUL, Infraco, JNP and SSL as amended and restated ( the MDA ). |
| 1.2 Words and expressions used in this Guarantee shall, to the extent applicable and unless defined herein or the context otherwise requires, have the meaning assigned to them in Schedule 2 of the MDA. |
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1.3 In this Guarantee ( including the recitals ), except where the context otherwise requires: Guaranteed Amounts means any and all amounts whatsoever payable by LUL to Infraco under or by virtue of, and in accordance with, the terms of the Transaction Documents or the Share Purchase Agreement ( including, without limitation, amounts payable by LUL by way of damages ) and references to the Guaranteed Amounts include references to any part of them; LUL means London Underground Limited whose registered office is at 55 Broadway, London SW1H 0BD and any other person being a subsidiary of LRT or TfL in whom all or any of the rights and obligations in the Transaction Documents and/or the Share Purchase Agreement expressed to be rights and obligations of LUL are vested for the time being; references to a contract or an agreement are references to a contract or an agreement as the same may be modified, supplemented, suspended, replaced, transferred or novated ( where applicable ) in accordance with its terms; and winding up includes bankruptcy and any procedure under any applicable law which is analogous to winding up or bankruptcy. |
| 1.4 Headings and the table of contents are for ease of reference only. |
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Guarantee |
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2.1 The Guarantor hereby unconditionally and irrevocably: (b) undertakes to Infraco that, if and each time that LUL does not make payment of any Guaranteed Amount in accordance with the relevant Transaction Document or the Share Purchase Agreement, the Guarantor shall on demand pay to Infraco the amounts not so paid. |
| 2.2 The Guarantor acknowledges having received a copy of the Transaction Documents and the Share Purchase Agreement and confirms its acceptance of the provisions thereof. |
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Continuing Guarantee |
| 3 The guarantee constituted by this Guarantee shall be continuing and shall extend to the ultimate balance of the Guaranteed Amounts, regardless of any intermediate payment or discharge in whole or in part. |
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Discharge and Release |
| 4.1 The Guarantor may not terminate this Guarantee by notice to Infraco or otherwise. |
| 4.2 Subject to clauses 4.1, 4.3 and 4.4, and provided the Guaranteed Amounts have been irrevocably paid in full, Infraco shall, at the request of the Guarantor, discharge or release the Guarantor by written instrument signed by Infraco. |
| 4.3 Without prejudice to any rights which have accrued to Infraco under this Guarantee prior to such time, the Guarantor shall be released from its obligations under this Guarantee in the event that at any time following a Change of Control of LUL, LUL's payment obligations under the Transaction Documents and the Share Purchase Agreement are supported by a letter of credit, in accordance with clause 33.3 of the PPP Contract, from a Qualifying Financial Institution on terms ( including as to amount and drawings on such letter of credit ) no less favourable to Infraco than this Guarantee. |
| 4.4 Any discharge or release or any composition or arrangement which the Guarantor may effect with Infraco shall be deemed to be made subject to the condition that it will be void if any payment, performance or security which Infraco has received or may receive from any person in respect of the Guaranteed Amounts is set aside, refunded or reduced under any applicable law or proves to have been invalid. If such condition is satisfied, Infraco shall be entitled to recover from the Guarantor on demand the value of such security or the amount of any such payment as if such discharge, release, composition or arrangement had not been effected. |
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Waiver of Defences |
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5.1 The liabilities and obligations of the Guarantor under this Guarantee shall remain in force notwithstanding any act, omission, neglect, event or matter whatsoever whether or not known to the Guarantor, LUL or Infraco ( other than the irrevocable payment of the Guaranteed Amounts ) including, without limitation: (b) any insolvency, receivership, winding up, dissolution, administration, reconstruction or reorganisation, suspension of payments to or protection of creditors, legal limitation, disability, incapacity or lack of corporate power or authority or other circumstances of, or any change in the constitution or corporate identity or loss of corporate identity by, LUL, Infraco or any other person; and (c) anything which renders the obligations expressed to be assumed by LUL under any Transaction Document or the Share Purchase Agreement illegal, invalid or unenforceable, and any defence or counterclaim which LUL may be able to assert against Infraco. |
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5.2 Without limiting clause 5.1, none of the liabilities or obligations of the Guarantor under this Guarantee shall be impaired by Infraco: (b) releasing or granting any time or any indulgence of any kind to LUL or any third party ( including, without limitation, the waiver of any pre-conditions under, or of any breach of, any Transaction Document or the Share Purchase Agreement ), or entering into any transaction or arrangements whatsoever with or in relation to LUL and/or any third party; (c) taking, accepting, varying, dealing with, enforcing, abstaining from enforcing, surrendering or releasing any security, right of recourse, set off or combination or other right or interest held by Infraco for the Guaranteed Amounts or in relation to any Transaction Document or the Share Purchase Agreement in such manner as it thinks fit; or (d) claiming, proving for, accepting or transferring any payment in respect of the Guaranteed Amounts in any composition by, or winding up or administration of, LUL and/or any third party or abstaining from so claiming, proving for, accepting or transferring. |
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Demands |
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6 Demands under this Guarantee may be made from time to time, and the liabilities and obligations of the Guarantor under this Guarantee may be enforced, irrespective of: (b) whether or in what order any security to which Infraco may be entitled in respect of the Guaranteed Amounts is enforced. |
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Undertakings |
| 7.1 All payments by the Guarantor under this Guarantee shall be made in full without any set-off or counterclaim or any deduction or withholding for or on account of any present or future taxes, duties, charges or fees of any kind. If the Guarantor is compelled by law to make any such deduction or withholding it will pay to Infraco such additional amounts, if any, as will result in receipt by Infraco of the full amounts which it would have received if there had been no such deduction or withholding. |
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7.2 The Guarantor undertakes with Infraco, from the date of this Guarantee until the Guaranteed Amounts have been unconditionally and irrevocably paid and discharged in full to the satisfaction of Infraco, as follows: (b) the Guarantor shall not claim as a creditor of LUL or any co-surety in competition with Infraco; and (c) if, notwithstanding paragraphs (a) and (b) above, the Guarantor holds or receives any such moneys or property, it shall forthwith pay or transfer the same to Infraco. |
| 7.3 The Guarantor undertakes that, if the Secretary of State and the Funders so request, any grant to be made available to the Guarantor for the purpose of enabling the Guarantor and/or LUL to discharge a liability to pay the Underpinned Amount under the PPP Contract shall be paid direct by the Secretary of State to the extent of such liability outstanding as at the date of such payment to the Funders' security trustee and that this undertaking shall constitute the Guarantor's direction to the Secretary of State that any such direct payment shall be made. |
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Miscellaneous Provisions |
| 8 The following provisions of the PPP Contract, namely, clause 56 ( Waiver ), clause 58 ( Severability ), clause 60 ( Language ) and clause 66 ( Default Interest ) shall apply ( where appropriate ) in relation to this Guarantee as if they were set out herein, but with the references in those clauses to the Contract and to LUL ( in whatever terms ) being replaced respectively by references to this Guarantee and to the Guarantor. |
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Notices |
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9.1 Any notice affecting this Guarantee shall be in writing and shall be served by leaving it at, or sending it by fax, prepaid recorded delivery or special delivery registered post to the address and for the attention of the relevant party as set out in clause 9.2. Proof of posting or despatch of any notice or communication shall be deemed to be proof of receipt: (b) in the case of fax, the Business Day after the despatch; (c) in the case of recorded delivery or special delivery registered post, forty-eight (48) hours from the date of posting. |
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9.2 Notices or communications referred to in clause 9.1 affecting the Contract shall in the case of the Guarantor be addressed to: 9th Floor East Wing 55 Broadway London SW1H 0BD Tel: 020 7918 3160 Fax: 020 7918 3195 Attention: Assistant Company Secretary and in the case of Infraco be addressed to: 30 The South Colonnade London E14 5EU Tel: 020 7308 4709 Fax: 020 7308 4982 Attention: Contract Manager or such person or address as the relevant party may from time to time notify in writing to the other. |
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Assignment |
| 10 Infraco may not assign, transfer, charge or otherwise deal with, in whole or in part, any of its rights or obligations under this Guarantee ( nor grant, declare a trust of, create or dispose of any right or interest in it ) without the prior written consent of the Guarantor, provided that no such consent under this Guarantee shall be required from the Guarantor if such assignment, transfer or charge is entered into by Infraco by way of security. |
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Contracts (Rights of Third Parties) Act 1999 |
| 11 A person who is not a party to this Guarantee shall have no right under the Contracts ( Rights of Third Parties ) Act 1999 to enforce any of its terms. |
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Choice of Law |
| 12 This Guarantee is governed by, and shall be construed in accordance with, English law. |
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Jurisdiction |
| 13.1 The parties agree that the courts of England are to have exclusive jurisdiction to settle any dispute, controversy or claim of whatever nature between the parties ( including claims for set-off and counterclaims ) which may arise under, out of, or in connection with, the creation, validity, effect, interpretation of, or the legal relationships established by, this Guarantee or otherwise arising in connection with this Guarantee and for such purpose irrevocably submit to the jurisdiction of the English courts. |
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13.2 The parties irrevocably agree that a judgment or order of any court referred to in this clause 13 in connection with a dispute referred to in clause 13.1 is conclusive and binding on them and may be enforced against them in the courts of any other jurisdiction. This Guarantee has been duly executed and delivered as a deed on the date first above written. EXECUTED as a DEED under ) COMPANY SEAL THE COMMON SEAL ) of LONDON REGIONAL TRANSPORT ) in the presence of ) Director MARTIN CALLAGHAN [Director]/Secretary FRANCES LOW SIGNED as a DEED by ) COMPANY SEAL and ) for and on behalf of ) INFRACO BCV LIMITED ) Director MARTIN CALLAGHAN [Director]/Secretary FRANCES LOW |
