EXHIBIT 4.78
CONFORMED COPY
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AGREEMENT FOR THE CREATION OF A PLEDGE OVER
BANK ACCOUNTS OF MARCONI HOLDINGS S.P.A.
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CONTENTS
CLAUSE PAGE
1. Recitals And Definitions............................................. 5
2. Creation Of A Pledge Over Bank Account............................... 8
3. Confirmation Of Creation Of Pledge................................... 9
4. Secured Obligations.................................................. 10
5. Validity Of The Security............................................. 11
6. Exercise Of Rights Of Pledge......................................... 12
7. Assignment, Transfer Or Amendments................................... 12
8. Pledgor's Undertakings............................................... 13
9. Security Trustee..................................................... 13
10. Release Of The Pledge................................................ 14
11. Election Of Domicile And Notice...................................... 14
12. Miscellaneous........................................................ 15
13. Governing Law And Jurisdiction....................................... 15
14. Expenses, Cost And Taxes............................................. 15
Schedule A1.............................................................. 17
Schedule A2.............................................................. 20
Schedule B............................................................... 23
Schedule C............................................................... 24
Schedule D............................................................... 29
Schedule E............................................................... 30
Schedule F............................................................... 31
Schedule G............................................................... 33
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CONSTITUTION OF A PLEDGE OVER BANK ACCOUNTS
By this Agreement,
BETWEEN
(1) Marconi Holdings S.p.A. (the "PLEDGOR"), a company incorporated in
Italy, with registered office at Genova, ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇, with
share capital equal to(euro)26,248,560.00, registered under No./Tax
Code 00891140154 of the Companies' Register of Genova, represented,
severally, by ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, born in London, UK, on 11 January
1961; ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, born in Birmingham, UK, on 13 July 1962; ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, born in Dunfermline, Scotland, on 30 July 1969;
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, born in Hereford, UK, on 8 August 1967;
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, born in Poole, UK, on 31 July 1969; ▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, born in Leeds, UK, on 12 November 1948, duly authorised
by virtue of a power of attorney executed on 15 May 2003
AND
(2) The Law Debenture Trust Corporation p.l.c. (the "SECURITY TRUSTEE"), a
company incorporated in England and Wales, with registered office at
▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇ with share
capital equal to L5,000,000, registered under No. 01675231 of the
Companies' Register of England and Wales, Tax code 374/1167019320/A,
which participates in the execution of this Agreement on its own behalf
as Secured Creditor and also as common representative (mandatario con
rappresentanza) in the name and on behalf of the other Secured
Creditors (as defined below) pursuant to the power conferred on it
under Clause 6.5 (Declaration of Trust and Appointment as Administrator
(Italy)) of the Security Trust and Intercreditor Deed (as defined
below), represented by ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, born in Amersham on 30
September 1955, duly authorised by virtue of a resolution of the board
of directors of the Security Trustee dated 30 August 2002;
WHEREAS
(A) Law Debenture Trust Company of New York, as "Senior Note Trustee", and,
among others, Marconi Corporation plc, as "Issuer", executed on or
about 19 May 2003 an indenture denominated "Senior Note Indenture"
(this indenture, as from time to time amended, will be referred to
below as the "SENIOR NOTE INDENTURE"), under which Marconi Corporation
plc issued or will issue US dollar 717,139,584 notes (these notes will
be referred to below as the "SENIOR NOTES"). Schedule A1 to this
Agreement contains a table summarising the main financial terms of the
Senior Note Indenture.
(B) JPMorgan Chase Bank, as "Junior Note Trustee", and, among others,
Marconi Corporation plc, as "Issuer", executed on or about 19 May 2003
an indenture denominated "Junior Note Indenture" (this indenture, as
from time to time amended, will be referred to below as the "JUNIOR
NOTE INDENTURE"), under which Marconi Corporation plc issued or will
issue US dollar 486,881,472 notes (these notes will be
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referred to below as the "JUNIOR NOTES"). Schedule A2 to this Agreement
contains a table summarising the main financial terms of the Junior
Note Indenture.
(C) HSBC Bank plc, as "Agent" and "Security Trustee", and certain financial
institutions as "Banks" have made available to Marconi Bonding Limited
as "Applicant" a committed multicurrency revolving facility for the
issue of bonds in an aggregate amount equal to (pound) 50,000,000
pursuant to a facility agreement executed on 27 March 2003 (the "NEW
BONDING FACILITY AGREEMENT") between HSBC Bank plc, the financial
institutions defined in that agreement as "Banks" and as "Issuing
Banks" (together, the "BONDING FINANCE PARTIES"), Marconi Bonding
Limited as "Applicant", Marconi Corporation plc as "Company" and
certain other companies of the Marconi Group (as defined below) as
"Indemnifying Companies" (together, the "BONDING OBLIGORS").
(D) The New Bonding Facility Agreement has been made available for the
purpose of supporting the obligations owed by the Bonding Obligors to
third parties where such obligations are incurred in the ordinary
course of the Marconi Group's trade or business but not for the purpose
of supporting any obligation of the members of the Marconi Group under
the Indentures (as defined below).
(E) Under the New Bonding Facility Agreement, each Indemnifying Company (as
defined therein) undertakes to indemnify the relevant Issuing Bank (as
defined therein) against any cost, loss or liability incurred by that
Issuing Bank in acting as the Issuing Bank under any Bond (as defined
in the New Bonding Facility Agreement) granted in favour of the
Pledgor.
(F) Schedule B, Part I, to this Agreement contains the list of the New
Bonding Facility Banks and New Bonding Facility Agent to the New
Bonding Facility Agreement. Schedule B, Part II, to this Agreement
contains a table summarising the main financial terms of the New
Bonding Facility Agreement.
(G) The Notes (as defined below) have been issued under the terms of the
Indentures, as described in Schedules A1 and A2 and the New Bonding
Facility Agreement has been granted subject to, among other things, the
granting of the pledge over bank accounts under this Agreement.
(H) Each of the companies listed under Schedule C, Part I, of this
Agreement as "Guarantor" (and among them the Pledgor) have guaranteed,
by executing on or about 19 May 2003 a guarantee denominated "Senior
Note Guarantee" (the "SENIOR GUARANTEE"), the obligations of the Issuer
under the Senior Note Indenture and the Senior Notes.
(I) Each of the companies listed under Schedule C, Part I, of this
Agreement as "Guarantor" (and among them the Pledgor) have guaranteed,
by executing on or about 19 May 2003 a guarantee denominated "Junior
Note Guarantee" (the "JUNIOR GUARANTEE"), the obligations of the Issuer
under the Junior Note Indenture and the Junior Notes.
(J) Each of the companies listed under Schedule C, Part II, of this
Agreement as "Guarantor" (and among them the Pledgor) have guaranteed
by executing on or about 19 May 2003 a guarantee denominated the
Composite Guarantee (the "COMPOSITE GUARANTEE" and, together with the
Senior Guarantee and the Junior Guarantee,
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collectively, the "GUARANTEES"), among other things, certain
obligations under the New Bonding Facility Agreement, the Security
Trust and Intercreditor Deed, as defined below, and any Security
Documents.
(K) The aggregate of the obligations of the Pledgor as guarantor under the
Guarantees are limited under the Security Trust and Intercreditor Deed
to the higher of:
(1) an amount corresponding to the Net Worth (as defined below) of
the Pledgor, as resulting from its last approved financial
statements at the time it executes or accedes to the
Guarantees; and
(2) an amount corresponding to the Net Worth (as defined below) of
the Pledgor, as resulting from its most recent approved
financial statements at the time the Guarantees are enforced.
"NET WORTH" means, for the purposes of this clause, the total value of
the "Patrimonio Netto" of the Pledgor pursuant to the definition of
Article 2424 of the Italian Civil Code.
(L) Marconi Corporation plc and, among others, The Law Debenture Trust
Corporation plc, executed on or about 19 May 2003 an agreement
denominated "Escrow Agreement", under which Marconi Corporation plc has
established certain escrow accounts which HSBC Bank plc as "Escrow
Bank" for the deposit of certain amounts in order to fund the mandatory
redemption of some or all of the Notes (as defined below) and to
satisfy certain obligations on the Existing Performance Bond as defined
in the Escrow Agreement
(M) The Law Debenture Trust Corporation p.l.c., as "Security Trustee", Law
Debenture Trust Company of New York, as "Senior Note Trustee", JPMorgan
Chase Bank, as "Junior Note Trustee", Marconi Corporation plc, as
"Issuer" and, among others, the Pledgor as "Guarantor", executed on or
about 19 May 2003 a security trust and intercreditor deed to regulate,
among other things, the ranking of secured liabilities, the powers of
the Security Trustee, and the enforcement of the security interests
(the "SECURITY TRUST AND INTERCREDITOR DEED").
(N) The Security Trust and Intercreditor Deed, the New Bonding Facility
Agreement and the Guarantees will be referred to below as the "SECURED
CONTRACTS".
(O) The Pledgor currently owns the accounts indicated in the attached
Schedule D, respectively held at the banks listed in the same Schedule
(the "ACCOUNTS").
(P) In relation to the above, the Pledgor intends to grant in pledge, and
hereby so grants in pledge, the amounts at any time credited on the
Accounts and the claims of the Pledgor for the restitution of the
balance from time to time existing on the Accounts, jointly and on a
pro-indiviso basis in favour of the Secured Creditors (as defined
below), as security for the Secured Obligations (as defined below).
THIS BEING AGREED, it is hereby agreed as follows:
1. RECITALS AND DEFINITIONS
1.1 The Recitals and Schedules are an integral and substantial part of this
Agreement.
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1.2 The terms defined in the Security Trust and Intercreditor Deed have the
same meaning where used capitalised in this Agreement, unless otherwise
agreed or specified or the context otherwise requires.
1.3 Headings in this Agreement are for ease of reference only and do not
affect its interpretation.
1.4 Unless the context requires otherwise, every reference in this
Agreement to an Article, Paragraph or Schedule will refer to an
article, paragraph or schedule to or of this Agreement.
1.5 Notwithstanding any provision to the contrary contained herein, the
parties agree that this Agreement is subject in all respects to the
terms of the Security Trust and Intercreditor Deed and for the
avoidance of doubt, in the event of any inconsistency, the provisions
of the Security Trust and Intercreditor Deed shall prevail, subject
however to the application of the mandatory provisions of Italian law.
1.6 The parties hereto each acknowledge that the Security Trustee, when
acting hereunder, shall be acting in accordance with and subject to the
terms of the Security Trust and Intercreditor Deed.
1.7 In this Agreements the term:
1.7.1 "BONDING FACILITY ENFORCEMENT EVENT" shall mean the occurrence
of both of the following circumstances:
(a) an acceleration of any Secured Obligations arising
under the New Bonding Facility Agreement or any
declaration that any Secured Obligations arising
under the New Bonding Facility Agreement are
prematurely due and payable (other than solely as a
result of it becoming unlawful for a Secured Creditor
to perform its obligations under the New Bonding
Facility Agreement) or any failure by any Obligor to
pay any principal amount in respect of any Secured
Obligations arising under the New Bonding Facility
Agreement whether on maturity or otherwise; and
(b) the Security Trustee, in accordance with the terms of
the Security Trust and Intercreditor Deed, having
taken any step or steps to enforce this Agreement
following the occurrence of an Enforcement Event;
1.7.2 "BUSINESS DAY" means a day (other than Saturday or Sunday) on
which commercial banks are open for general business in
London, New York and Milan;
1.7.3 "DEPOSITORY BANKS" means any of the banks listed in Schedule
D;
1.7.4 "ENFORCEMENT EVENT" means the acceleration of any Secured
Obligations (other than Secured Obligations arising under the
New Bonding Facility Agreement) or any declaration that any
Secured Obligations (other than Secured Obligations arising
under the New Bonding Facility Agreement) are prematurely due
and payable (other than solely as a result of it becoming
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unlawful for a Secured Creditor to perform its obligations
under the Secured Contracts) or any failure by any Obligor to
pay any principal amount in respect of any Secured Obligations
(other than Secured Obligations arising under the New Bonding
Facility Agreement) whether on maturity or otherwise;
1.7.5 "EVENT OF DEFAULT" has the meaning given to such term in the
Security Trust and Intercreditor Deed;
1.7.6 "INDENTURES" means the Senior Note Indenture and the Junior
Note Indenture and "INDENTURE" means either of them;
1.7.7 "INTERIM BONDING FACILITY DOCUMENTS" means the Bonding
Documents referred to in the Interim Bonding Facility Letter
(as defined below);
1.7.8 "INTERIM BONDING FACILITY LETTER" means the facility letter
dated 10 May 2002, as amended on 24 October 2002, between HSBC
Bank plc, Barclays Bank p.l.c., JPMorgan Chase Bank and
Marconi Bonding Limited in an amount up to L150,000,000 (or
the equivalent in other currencies) for the issuance of bonds,
guarantees, letters of credit, indemnities and similar
instruments;
1.7.9 "ITALIAN CIVIL CODE" means the Italian civil code, as approved
by Royal Decree no. 262 of 16 March 1942, as subsequently
amended and supplemented;
1.7.10 "MARCONI GROUP" means Marconi Corporation plc and all of its
direct or indirect subsidiaries;
1.7.11 "NOTE TRUSTEES" means the Senior Note Trustee and the Junior
Note Trustee collectively and the "NOTE TRUSTEE" means either
of them;
1.7.12 "NOTES" means the Senior Notes and the Junior Notes,
collectively;
1.7.13 "OBLIGOR" means each of the Issuer and the Guarantors as
defined in the Security Trust and Intercreditor Deed;
1.7.14 "SECURED CREDITORS" means The Law Debenture Trust Corporation
p.l.c. with registered office at ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇, England, in its capacity as Security Trustee;
any Receiver or Delegate; The Bank of New York with registered
office at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇, ▇▇▇, in
its capacity as Depositary, as Senior Noteholder (as defined
in the Senior Guarantee) (for such time as it is the holder of
the Global Senior Notes, as such term is defined in the Senior
Note Indenture), as Junior Noteholder (as defined in the
Junior Guarantee) (for such time as it is the holder of the
Global Junior Notes, as such term is defined in the Junior
Note Indenture), as the Paying Agent and as the Registrar; Law
Debenture Trust Company of New York with registered office at
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, 31st Floor, New York, New York, 10017, USA,
in its capacity as the Senior Note Trustee (for itself and as
trustee for the holders of the Senior Notes); JPMorgan Chase
Bank acting through an office at Trinity Tower, 9 ▇▇▇▇▇▇ ▇▇▇▇
Street, London, E1W 1YT, in its capacity as the Junior Note
Trustee (for itself and as trustee for the holders of the
Junior Notes); HSBC Bank plc, with registered office at City
Corporate
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Banking Centre, ▇▇-▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, in
its capacity as Escrow Bank; the New Bonding Facility Agent
and each of the New Bonding Facility Banks (as defined in the
Security Trust and Intercreditor Deed and as set forth in
Schedule B Part 1); and their assignees ("cessionari") and/or
successors ("successori") whether universal ("a titolo
universale") or singular ("a titolo particolare");
1.7.15 "SECURED OBLIGATIONS" has the meaning specified in Article 4;
1.7.16 "SECURITY" means any security granted by the Pledgor, as of
the date of this Agreement, in favour of the Secured Creditors
or some of them in relation to the Secured Contracts;
1.7.17 "SECURITY TRUSTEE" means The Law Debenture Trust Corporation
p.l.c. (and any Delegate pursuant to Clause 16 (Delegation and
Additional Security Trustee) of the Security Trust and
Intercreditor Deed), appointed by the Secured Creditors
pursuant to the Security Trust and Intercreditor Deed, to act
as common representative ("mandatario con rappresentanza") for
the purpose of entering into this Agreement on their behalf
and undertaking any other actions and exercising any right,
remedy, power and discretion in relation to the creation,
perfection, maintenance, enforcement and release of the
security created by this Agreement;
1.7.18 "TEMPORARY BONDING FACILITY DOCUMENTS" means the Bonding
Documents referred to in the Temporary Bonding Facility
Letter; and
1.7.19 "TEMPORARY BONDING FACILITY LETTER" means the facility letter
dated 8 February 2002 between HSBC Bank plc, Barclays Bank PLC
and Marconi Bonding Limited in an amount up L50,000,000 (or
the equivalent in other currencies) for the issuanCE of bonds,
guarantees, letters of credit, indemnities and similar
instruments.
1.8 In this Agreement the expression "TO DISPOSE OF" shall mean (in
relation to any Account) to withdraw or transfer, and "DISPOSAL" shall
be construed accordingly.
2. CREATION OF A PLEDGE OVER BANK ACCOUNT
2.1 The Pledgor grants in pledge, jointly and on a pro-indiviso basis in
favour of the Secured Creditors, as security for the Secured
Obligations (as defined in Article 4):
2.1.1 each and all of its rights in the Accounts;
2.1.2 all of the sums from time to time credited on the Accounts,
including any future payments made by third parties or by
order of the Pledgor on the Accounts; and
2.1.3 its claim for restitution of the balance from time to time
existing on the Accounts.
2.2 The pledge created by this Agreement shall take effect subject to, and
shall not restrict the ability of the Pledgor to create any (a)
security or (b) other arrangement under which money or claims to, or
the benefit of, a bank or other account may be applied, set-off,
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made subject to a combination of accounts or otherwise subject to time
deposit arrangements or other flawed asset rights (whether or not such
security is or is to be created on, before or after the date of this
Agreement) which secures obligations under and/or in respect of:
2.2.1 the Interim Bonding Facility Documents;
2.2.2 the Temporary Bonding Facility Documents;
2.2.3 the New Bonding Facility Agreement;
2.2.4 the Existing Performance Bonds; and
2.2.5 any other bonding facility expressly permitted pursuant to
Section 4.07 (Limitations on Indebtedness and Preferred Stock)
of the Senior Note Indenture and Section 4.06 (Limitations on
Indebtedness and Preferred Stock) of the Junior Note
Indenture,
in each case as a result of the provision of cash collateral as
permitted pursuant to the terms of the Indentures or any of them, the
Escrow Agreement or the Security Trust and Intercreditor Deed.
3. CONFIRMATION OF CREATION OF PLEDGE
3.1 Within 10 (ten) Business Days after the date of this Agreement, the
Pledgor must serve (i.e. complete service process on) each of the
Depository Banks, by way of a Court Bailiff (i.e. "notifica a mezzo
ufficiale giudiziario"), with a statement duly signed by its legal
representative and bearing a date certain ("data certa"), in the form
indicated in Schedule E, to ensure that the pledge created by this
Agreement benefits from the features indicated in Articles 2787 and
2800 of the Italian Civil Code with reference to each and all rights in
the Accounts, any sums from time to time credited on the Accounts
(including any future payments effected by third parties or by order of
the Pledgor) and the claims for restitution of the balance from time to
time existing on the Accounts. The original of the service report must
be delivered to the Security Trustee within 5 (five) Business Days
following the date of service.
3.2 The obligation as described under Paragraph 3.1 may be replaced by
delivery by the Pledgor to the Security Trustee, within 10 (ten)
Business Days from execution of this Agreement, of a notarised
statement of acceptance of the constitution of pledge rendered by the
Depository Banks in accordance with the form described in Schedule F.
3.3 Without prejudice to Paragraph 3.1, the Pledgor must serve by way of a
Court Bailiff each of the Depository Banks quarterly with copies of the
monthly bank statement referred to the last relevant month ("estratti
▇▇▇▇▇ mensili") in the form described under Schedule G, within 20
(twenty) Business Days from the end of that quarterly period. The
originals of the service reports must be mailed by registered letter or
courier to the Security Trustee within 10 (ten) Business Days from
receipt of the same service reports by the Pledgor. The first such
monthly bank statement shall be delivered within 20 (twenty) Business
Days after the end of June 2003.
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3.4 The obligation to deliver the service reports described under Paragraph
3.3 may be replaced by a statement of acceptance from each of the
Depository Banks, set out at the foot of the bank statement received
from the Pledgor, in accordance with the form set out in Schedule F,
signed before a Notary and bearing a date certain ("data certa"),
pursuant to Article 2704 of the Italian Civil Code. The originals of
the statements of acceptance must be delivered to the Security Trustee
within 10 (ten) Business Days from receipt of the same originals by the
Pledgor.
3.5 In addition to the above, the Security Trustee is authorised, and is
irrevocably empowered by the Pledgor, to act in its name and on its
behalf in this respect, to carry out the service process on the
Depository Banks described under Paragraph 3.1, for and on behalf of
the Pledgor, quoting the balance of each of the Accounts and providing
confirmation that, under this Agreement, the Pledgor's claims for
restitution of the related balance have been granted in pledge in
favour of the Security Trustee on behalf of the Secured Creditors.
3.6 Subject to Paragraph 3.7, the Pledgor may only dispose of sums on the
Accounts in compliance with the provisions of the Secured Contracts,
for the sole purpose of satisfying the debts of the Pledgor vis-a-vis
the Secured Creditors under (i) the Secured Contracts and/or (ii) any
Secured Obligations (as defined under Article 4) due at that time.
3.7 Notwithstanding Paragraph 3.6, the Secured Creditors, acting through
the Security Trustee, consent to the Pledgor making disposals of sums
from the Accounts on a daily basis, it being understood that the
Secured Creditors, also acting through the Security Trustee, have a
right to revoke such consent at any time.
3.8 In both of the above cases under Paragraph 3.6 and 3.7, the relevant
sums will be deemed released from the pledge created by this Agreement,
which will remain in full force and effect in respect of the remaining
balance of the Accounts.
3.9 The right to dispose of any sum deposited on the Accounts will in any
event terminate upon receipt of notification sent by the Security
Trustee, pursuant to Article 6, following which the Depository Banks
must refuse to perform any instructions received from the Pledgor and
must act solely in compliance with instructions received from the
Security Trustee.
4. SECURED OBLIGATIONS
4.1 The pledge created by this Agreement jointly secures, for their entire
value, and without there being any requirement to previously request
payment from, or enforce any other security against ("senza beneficio
della preventiva escussione"), the Pledgor as a guarantor under the
Guarantees, all rights and claims, existing and future, of the Secured
Creditors vis a vis the Pledgor arising under the Secured Contracts.
4.2 Notwithstanding Paragraph 4.1 above, it is understood that:
4.2.1 in respect of Secured Obligations owed by the Pledgor in its
capacity as guarantor (i.e. as person guaranteeing third
parties' obligations or committing itself to perform third
parties' obligations or covenanting to pay third parties'
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obligations) under any of the Secured Contracts, the aggregate
amount of such Secured Obligations under any and all Security
will be subject to the limitation applied to the Guaranteed
Obligations in the Security Trust and Intercreditor Deed as
indicated in Recital (K) above; and
4.2.2 in respect of any Secured Obligations owed by the Pledgor
other than in its capacity as guarantor (as detailed in
Paragraph 4.2.1 above), the aggregate amount of such Secured
Obligations under any and all Security will not be subject to
any limitation.
4.3 It is understood that any parallel debt obligation, covenant to pay
obligation or commitment to perform obligation of the Pledgor
(including, by the way of example, the obligations under Clauses 3.1,
6.3 and 8.4 of the Security Trust and Intercreditor Deed) are subject
to the same limitations indicated in Paragraph 4.2 above in connection
with the nature of the obligations they refer to; that is,
4.3.1 if the parallel debt obligation, covenant to pay obligation or
commitment to perform obligation refers to Secured Obligations
owed by the Pledgor in its capacity as guarantor as detailed
in Paragraph 4.2.1 above, the limitations indicated in
Paragraph 4.2.1 shall apply; and
4.3.2 if the parallel debt obligation, covenant to pay obligation or
commitment to perform obligation refers to Secured Obligations
owed by the Pledgor other than in its capacity as guarantor as
detailed in Paragraph 4.2.1 above, the limitations indicated
in Paragraph 4.2.1 shall not apply.
4.4 The pledge created by this Agreement also secures, equally ("in ▇▇▇▇
▇▇▇▇▇") with the other claims referred to in this Article, any credit
of the Secured Creditors vis-a-vis the Pledgor arising under the
Secured Contracts as a consequence of the provision of any facilities
to be granted by the Secured Creditors in excess of those already
provided under the Secured Contracts, or after their maturity as
originally provided in the Secured Contracts, or after notice of
termination of these contractual relationships.
4.5 The claims which are secured by the pledge created by this Agreement
are referred to as the "SECURED OBLIGATIONS".
5. VALIDITY OF THE SECURITY
5.1 The pledge created by this Agreement will remain in force in its
entirety notwithstanding any partial repayment or satisfaction of the
Secured Obligations, until the Secured Obligations are satisfied in
full, and, unless previously released pursuant to Article 10, until the
relative payments made by the Pledgor, if any, are: (i) not capable of
being declared null or voidable, or (ii) no longer subject to being
declared unenforceable, ineffective or reduced as a consequence of
bankruptcy claw-back ("revocatoria fallimentare") as the relevant
hardening periods provided for under Articles 65 or 67 of the Italian
Bankruptcy Law (R.D., 16 March 1942, No. 267) have expired.
5.2 The pledge created by this Agreement is in addition to any other
security or guarantee of which the Security Trustee may or will have
the benefit now or in the future in respect of all or some of the
Secured Obligations.
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5.3 The pledge created by this Agreement will remain in full force and
effect notwithstanding any subsequent amendments to the Secured
Contracts or to the Secured Obligations, including, for example, any
extension of the terms of repayment, partial or total assignment or
transfer of the Secured Contracts or of the Secured Obligations, or any
other amendments to the terms and conditions applicable under the
Secured Contracts or under the Secured Obligations.
6. EXERCISE OF RIGHTS OF PLEDGE
The Pledgor accepts that for the purposes of enforcing the pledge
created by this Agreement, at any time after the occurrence of an
Enforcement Event or of a Bonding Facility Enforcement Event and the
Security Trustee (acting on instructions received pursuant to the terms
of the Security Trust and Intercreditor Deed) giving notice to the
Issuer thereof and upon receipt by the Pledgor of notice thereof from
the Security Trustee, the Security Trustee has the right, in its
absolute discretion, to give instructions to the Depository Banks to
transfer the amounts resulting from the balance on the Accounts to an
account opened in the name of the Security Trustee and has the right to
retain such amounts on behalf of the Secured Creditors and apply them
in satisfaction of the Secured Obligations, pursuant to Article 2803 of
the Italian Civil Code. In relation to the above, the Depository Banks
are therefore authorised to dispose of the relevant amounts in
accordance with the instructions received from the Security Trustee.
7. ASSIGNMENT, TRANSFER OR AMENDMENTS
7.1 The Security Trustee may assign and transfer all or any of its rights
and obligations under this Agreement in accordance with the Security
Trust and Intercreditor Deed. The Security Trustee shall be entitled to
disclose such information concerning the Pledgor and this Agreement as
the Security Trustee considers appropriate to any actual or proposed
direct or indirect successor or to any person to whom information may
be required to be disclosed by any applicable law.
7.2 To the extent permitted under the Security Trust and Intercreditor
Deed, any assignment or transfer of the Secured Contracts or of the
Secured Obligations will be and take effect as an assignment or
transfer of the contract ("cessione del contratto") and/or the
assignment or transfer of the rights under the contract ("cessione del
credito"), as the case may be, without novative effect ("efficacia
novativa") on the contract themselves or on the Secured Obligations
existing at the time the assignment or transfer is perfected.
7.3 If requested by the Security Trustee, the Pledgor hereby undertakes to
notify the Depository Banks of the transfer of the rights of pledge
following an assignment in favour of any party who will be indicated as
the assignee, in whole or in part, of the Secured Contracts or of any
credit deriving under the same, in any deed of transfer executed
between such party and each Secured Creditor (or its assignee). For the
avoidance of doubt, when such assignment takes place on or after the
exchange of all or any Global Senior Notes or Global Junior Notes for
Definitive Registered Senior Notes or Definitive Registered Junior
Notes (as the case may be), the Pledgor shall only be required to
notify the Depository Banks of such information in respect of
assignments of such Definitive Registered Senior Notes or Definitive
Registered Junior Notes (as the case may be) as it knows or can acquire
using all commercially reasonable and
- 12 -
practicable efforts (including by making request of the Registrar). For
the purposes of this Paragraph 7.3, the terms "Global Senior Notes",
"Definitive Registered Senior Notes", "Global Junior Notes" and
"Definitive Registered Junior Notes" shall have the meanings given to
such terms in the Senior Note Indenture and the Junior Note Indenture
respectively.
7.4 Without prejudice to the Paragraphs above and to Article 8 below, the
Pledgor confirms and accepts that the pledge created by this Agreement
will remain in full force and effect and will be binding on the
Pledgor, its successors and assignees even after any change in all or
any of the Secured Contracts or in all or any of the Secured
Obligations - to the extent such changes are made in compliance with
the provisions of the Secured Contracts (including, without limitation,
the extension of the facilities; the postponement of the terms of
reimbursement of the outstanding amounts; or the accession to any of
the Secured Contracts of any additional obligor), and to this purpose
the Pledgor expressly agrees to the continuation of the pledge created
by this Agreement, in case of changes in all or any of the Secured
Contracts or in all or any of the Secured Obligations (including by way
of novation of all or any of the Secured Contracts under English law);
7.5 Without prejudice to Paragraph 7.3 above, any cost incurred as a result
of transfer or assignments of the rights arising under this Article 7,
are for the account of the Pledgor.
8. PLEDGOR'S UNDERTAKINGS
8.1 The Pledgor must from time to time and at any time, promptly and at its
own expense enter into and execute any further documents and deeds and
undertake all further actions (including making all filings and
registrations) which are necessary and requested by the Security
Trustee in order to create, perfect, protect and maintain the
effectiveness of the pledge created by this Agreement or for the
exercise of all rights, powers and remedies of the Security Trustee
provided by or pursuant to this Agreement or by law and/or to
facilitate the realisation of the rights pledged pursuant to the
Agreement. For the avoidance of doubt, the undertaking in this Article
8 shall include an undertaking by the Pledgor to enter into and execute
any deeds of confirmation under Article 1232 of the Italian Civil Code
which may be requested by the Security Trustee following a change in
all or any of the Secured Contracts or a change in all or any of the
Secured Obligations.
8.2 Except as not expressly prohibited under the terms of the Indentures,
the Pledgor shall not:
(a) create or permit to arise any mortgage, charge or
lien or other security interest on the Accounts or
any interest in or part of the Accounts; or
(b) sell or attempt to sell or otherwise dispose of the
Accounts or any interest in or part of the Accounts.
9. SECURITY TRUSTEE
The Pledgor acknowledges that The Law Debenture Trust Corporation
p.l.c., as Security Trustee, is appointed as "mandatario con
rappresentanza" under Clause 6.5 (Declaration of Trust and Appointment
as Administrator (Italy)) of the Security Trust and Intercreditor Deed.
- 13 -
10. RELEASE OF THE PLEDGE
Upon full and final satisfaction of the Secured Obligations, upon
expiry of any hardening period which may be applicable to the relevant
payments (as provided above under Paragraph 5.1), or if previously, at
the occurrence of the circumstances as specified in Clause 5.3 (Release
of Transaction Security on Discharge of Secured Obligations) and Clause
5.4 (Release of Transaction Security in Connection with Permitted
Disposals) of the Security Trust and Intercreditor Deed, the pledge
created by, and the obligations under, this Agreement will cease to be
in full force and effect, and, at the request and cost of the Pledgor,
the Security Trustee (in accordance with the terms and subject to the
conditions and circumstances set out in the Security Trust and
Intercreditor Deed and without recourse to, or any representation or
warranty by, the Security Trustee or any of its nominees) will consent
to the release of the pledge created by this Agreement, provided that
at the occurrence of the circumstances specified in Clause 5.4 (Release
of Transaction Security in Connection with Permitted Disposals) of the
Security Trust and Intercreditor Deed, the pledge created by, and the
obligations under, this Agreement will cease to be in full force and
effect only in respect of the Accounts and all sums credited to the
Accounts forming part of the Transaction Security (as defined in the
Security Trust and Intercreditor Deed) so released pursuant to that
clause and the Security Trustee's consent to the release of the pledge
created by the Agreement will be limited to the assets so released.
11. ELECTION OF DOMICILE AND NOTICE
For the purpose of this Agreement and of the security rights arising
under this Agreement, the Pledgor elects domicile at the address
referred to below. The Pledgor may be sent any communication relating
to this Agreement and to the pledge rights created by this Agreement at
the elected domicile, including notice of any legal proceedings and
records of any judicial proceedings related to this Agreement and to
the pledge created by this Agreement. Unless otherwise agreed upon, any
notice or communication to be sent to any of the parties to this
Agreement shall be made and delivered in accordance with the provisions
of the Security Trust and Intercreditor Deed.
If to the PLEDGOR:
Marconi Holdings S.p.A.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇,
▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇
Attention: Presidente del ▇▇▇▇▇▇▇▇▇ di Amministrazione
Telephone: +39/010/▇▇▇▇▇▇▇
Fax: +39/010/▇▇▇▇▇▇▇
With copy to:
▇▇. ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ Erede ▇▇▇▇▇▇▇▇▇▇ - Studio Legale
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇/▇
- ▇▇ -
▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇
Telephone: +39/010/84621
Fax: +39/010/813849
If to the SECURITY TRUSTEE:
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
England
Tel. +44/20/7606/5451
Fax. +44/20/7696/5261
To the Attention of: Manager Trust Administration
12. MISCELLANEOUS
12.1 No amendment to the provisions of this Agreement, or to the pledge
created by this Agreement, and no waiver of the rights arising under
this Agreement, will be effective unless the amendment or waiver is in
writing and executed by the Pledgor and by the Security Trustee.
12.2 This Agreement is made in the English language only. However, where an
Italian translation of a word or phrase appears in the text of this
Agreement, the Italian translation of the word or phrase prevails.
13. GOVERNING LAW AND JURISDICTION
13.1 This Agreement and the rights arising under the pledge created by this
Agreement are governed by Italian law.
13.2 Unless otherwise provided for by mandatory law, the Court of Milan has
the exclusive jurisdiction to hear any dispute arising between the
parties out of this Agreement and the pledge created by this Agreement.
Notwithstanding the foregoing, the right of the Secured Creditors to
have recourse to any other competent judge pursuant to any applicable
provision of the law remains unprejudiced.
14. EXPENSES, COST AND TAXES
14.1 EXPENSES
The Pledgor shall, from time to time and promptly on demand by the
Security Trustee, reimburse to the Security Trustee all costs and
expenses (including legal fees) on a full indemnity basis together with
any applicable VAT incurred by the Security Trustee and any Delegate
(provided that in relation to Paragraph 14.1.1 of this Article 14, such
costs and expenses must be properly incurred) in connection with:
14.1.1 the execution, release and discharge of this Agreement and the
Security created or intended to be created in respect of the
Accounts and the perfection of the
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Security contemplated in this Agreement or in any such
documents or forming part of the Security created or intended
to be created in respect of the Accounts:
14.1.2 the actual or contemplated exercise, preservation and/or
enforcement of any of the rights, powers and remedies of, or
the performance of the duties and obligations of, the Security
Trustee or any Delegate, or any amendment or waiver in respect
of this Agreement;
14.1.3 the foreclosure of any Accounts; and
14.1.4 the preservation and/or enforcement of the Security created or
intended to be created in respect of the Accounts,
which shall carry interest from the date of such demand until so
reimbursed at the rate and on the basis as mentioned in Clause 18.4
(Interest on Demands) of the Security Trust and Intercreditor Deed.
14.2 TAXES
The Pledgor shall pay, promptly on demand of the Security Trustee all
stamp, registration, notarial and other similar Taxes or fees paid or
payable by the Security Trustee in connection with any action taken or
contemplated by or on behalf of the Security Trustee for perfecting,
enforcing, releasing, cancelling, reassigning or resolving any doubt
concerning, or for any other purpose in relation to this Agreement any
amendment thereto, any transfer and/or assignment of the rights and/or
obligations under the same or the Security created or intended to be
created in respect of the Accounts and shall, from time to time,
indemnify the Security Trustee promptly on demand against any
liabilities, costs, claims and expenses resulting from any failure to
pay by the Pledgor or any delay by any Pledgor in paying any such Taxes
or fees.
14.3 This Agreement is subject to registration in "caso d'uso", as provided
in Law No. 131 of April 26, 1986, as subsequently amended, as it is an
agreement executed outside the Republic of Italy.
London, 19 May 2003
W ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ HOLDINGS S.P.A.
REPRESENTED BY: _____________________________________
▇. ▇. ▇▇▇▇▇
THE LAW DEBENTURE TRUST CORPORATION p.l.c.
SECURED CREDITOR AND SECURITY TRUSTEE
REPRESENTED BY: ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
- 16 -
SCHEDULE A1
(Summary of Terms and Conditions of the Senior Note Indenture and the Senior
Notes)
ISSUER: Marconi Corporation plc
CURRENCY: US Dollars
NOTIONAL AMOUNT: US $ 717,139,584
ACCRUED INTEREST: 8 per cent. per annum, payable quarterly in arrears
LEGAL MATURITY DATE: 30 April 2008
DEPOSITORY: The Bank of New York
ISSUE DATE: 19 May 2003
RATING: pending
GOVERNING LAW: English
DESCRIPTION OF THE SENIOR NOTES
Each series of each tranche of the Senior Notes will initially be represented by
one or more global notes in bearer form without interest coupons attached (each
a "Global Senior Note" and together the "Global Senior Notes"). Title to the
Global Senior Notes will pass by delivery. The holder of any certificate
representing any series of any tranche of Senior Notes, including any Global
Senior Note (the "holder"), is the person that has possession of the
certificate, in the case of a bearer certificate, and the person in whose name
the certificate is registered, in the case of a certificate in registered form.
The Global Senior Notes will be deposited on issue with The Bank of New York, as
depositary (the "Depositary") pursuant to a Deposit Agreement. Under the Deposit
Agreement, the Depositary will issue certificateless depositary interests to The
Depositary Trust Company ("DTC") and certificated depositary interests (and,
together with the certificateless depositary interests, "CDI" or "CDIs") to
Euroclear and/or Clearstream, Luxembourg, which together represent a 100 per
cent. interest in each underlying Global Senior Note. The CDIs will be
registered in the name of Cede & Co., as nominee of DTC (with respect to CDIs
issued to DTC) or the nominee of a common depositary for Euroclear and
Clearstream, Luxembourg (with respect to CDIs issued to Euroclear and/or
Clearstream, Luxembourg). Upon acceptance by DTC, Euroclear and/or Clearstream,
Luxembourg of the CDIs for entry into their respective book-entry settlement
systems, beneficial interests in the CDIs (the "Book-Entry Interests") will be
issued by DTC, Euroclear and/or Clearstream, Luxembourg and traded through their
respective book-entry systems.
The Book-Entry Interests will not be held in definitive form. Book-Entry
Interests will be held by or through persons that have accounts with DTC,
Euroclear and/or Clearstream, Luxembourg
- 17 -
(the "direct participants") or persons that hold interests through direct
participants (the "indirect participants" and, together with direct
participants, "participants").
Ownership of the Book-Entry Interest will be shown on, and the transfer of
ownership will be effected only through, records maintained in book-entry from
by DTC, Euroclear, Clearstream, Luxembourg and their participants. Book-Entry
Interests will be transferable only as units in the same authorized
denominations as the Senior Notes of the series to which they correspond. Unless
any series of the Senior Notes is exchanged in whole or in part for other
securities of the Issuer, or the applicable Global Senior Note is exchanged for
the Senior Notes in definitive register form (the "Definitive Registered
Notes"), the CDIs representing notes of a series held by DTC, Euroclear and/or
Clearstream, Luxembourg may not be transferred except as a whole between DTC,
Euroclear and/or Clearstream, Luxembourg, a nominee of DTC, the nominee of a
common depositary for Euroclear and Clearstream, or their respective successors.
So long as the Depositary or its nominee is the holder of the Global Senior
Note(s) representing the Senior Notes of a series, the Depositary or its nominee
will be considered the sole holder of the Global Senior Note(s) for all purposes
under the Senior Note Indenture. Except in the limited circumstances when
Definitive Registered Notes can be issued, described below, no participant or
other person will be entitled to have the Senior Notes registered in its name,
receive or be entitled to receive physical delivery of Definitive Registered
Notes or be considered the owner or holder of the Senior Notes under the Senior
Note Indenture or the Deposit Agreement. Accordingly, each person owning a
Book-Entry Interest must rely on the procedures of the Depositary and DTC,
Euroclear and/or Clearstream, Luxembourg and, if the person is not a direct
participant in DTC, Euroclear and/or Clearstream, Luxembourg, such person must
rely on the procedure of the direct participant or other securities intermediary
through which the person owns its interest, to exercise any rights and
obligations of a holder under the Senior Note Indenture, the applicable series
of Senior Notes or the Deposit Agreement.
So long as DTC, Euroclear and/or Clearstream, Luxembourg hold the CDIs
representing the Senior Notes, the Book-Entry Interests (and corresponding
Global Senior Notes) will not be exchangeable for Definitive Registered Notes
except if:
- DTC, Euroclear or Clearstream, Luxembourg notify the Depositary
that it is unwilling or unable to continue to hold the CDI or CDIs,
or if at any time DTC is unable to or ceases to be a clearing
agency registered under the US Exchange Act, and in either case a
successor to DTC is not appointed by the Depositary at the written
request of the Issuer within 120 days;
- The Depositary notifies the Issuer and the Senior Note Trustee that
it is unwilling or unable to continue to act as Depositary, and the
Issuer is unable to appoint a successor depositary within 120 days;
- Upon request of DTC, Euroclear, Clearstream, Luxembourg, the Issuer
or the Trustee, in the event that a winding up of the Issuer or an
Event of Default under the Senior Note Indenture has occurred and
is continuing;
- 18 -
- Euroclear or Clearstream, Luxembourg is closed for business for a
continuous period of 14 days (other than by reason of legal
holiday) or announces an intention permanently to cease business;
or
Any Global Senior Note that is exchangeable pursuant to the above shall be
exchangeable for Definitive Registered Notes of the same series bearing interest
at the same rate, having the same date of issuance, the same date or dates from
which such interest shall accrue, the same Interest Payment Dates on which such
interest shall be payable, the same Stated Maturity, redemption provisions,
Relevant Currency and other terms and of different denominations aggregating a
like amount as the Global Senior Note of the series so exchangeable.
- 19 -
SCHEDULE A2
(Summary of Terms and Conditions of the Junior Note Indenture and the Junior
Notes)
ISSUER: Marconi Corporation plc
CURRENCY: US Dollars
NOTIONAL AMOUNT: US $ 486,881,472
ACCRUED INTEREST: 10 per cent. per annum, or 12 per cent. if the Issuer
elects to pay interest in the form of PIK notes
LEGAL MATURITY DATE: 31 October 2008
DEPOSITORY: The Bank of New York
ISSUE DATE: 19 May 2003
RATING: Pending
GOVERNING LAW: English
DESCRIPTION OF THE JUNIOR NOTES
Each series of each tranche of the Junior Notes will initially be represented by
one or more global notes in bearer form without interest coupons attached (each
a "Global Junior Note" and together the "Global Junior Notes"). Title to the
Global Junior Notes will pass by delivery. The holder of any certificate
representing any series of any tranche of Junior Notes, including any Global
Junior Note (the "holder"), is the person that has possession of the
certificate, in the case of a bearer certificate, and the person in whose name
the certificate is registered, in the case of a certificate in registered form.
The Global Junior Notes will be deposited on issue with The Bank of New York, as
depositary (the "Depositary") pursuant to a Deposit Agreement. Under the Deposit
Agreement, the Depositary will issue to The Depositary Trust Company ("DTC")
certificateless depositary interests and certificated depositary interests (and,
together with the certificateless depositary interests, the "CDI" or "CDIs") to
Euroclear and/or Clearstream, Luxembourg CDIs, which together represent a 100
per cent. interest in each underlying Global Junior Note. The CDIs will be
registered in the name of Cede & Co., as nominee of DTC (with respect to CDIs
issued to DTC) or the nominee of a common depositary for Euroclear and
Clearstream, Luxembourg (with respect to CDIs issued to Euroclear and/or
Clearstream, Luxembourg). Upon acceptance by DTC, Euroclear and/or Clearstream,
Luxembourg of the CDIs for entry into their respective book-entry settlement
systems, beneficial interests in the CDIs (the "Book-Entry Interests") will be
issued by DTC, Euroclear and/or Clearstream, Luxembourg and traded through their
respective book-entry systems.
- 20 -
The Book-Entry Interests will not be held in definitive form. Book-Entry
Interests will be held by or through persons that have accounts with DTC,
Euroclear and/or Clearstream, Luxembourg (the "direct participants") or persons
that hold interests through direct participants (the "indirect participants"
and, together with direct participants, "participants").
Ownership of the Book-Entry Interest will be shown on, and the transfer of
ownership will be effected only through, records maintained in book-entry form
by DTC, Euroclear, Clearstream, Luxembourg and their participants. Book-Entry
Interests will be transferable only as units in the same authorized
denominations as the Junior Notes of the series to which they correspond. Unless
any series of the Junior Notes is exchanged in whole or in part for other
securities of the Issuer, or the applicable Global Junior Note is exchanged for
the Junior Notes in definitive register form (the "Definitive Registered
Notes"), the CDIs representing notes of a series held by DTC, Euroclear and/or
Clearstream, Luxembourg may not be transferred except as a whole between DTC,
Euroclear and/or Clearstream, Luxembourg, a nominee of DTC, the nominee of a
common depositary for Euroclear and Clearstream, or their respective successors.
So long as the Depositary or its nominee is the holder of the Global Junior
Note(s) representing the Junior Notes of a series, the Depositary or its nominee
will be considered the sole holder of the Global Junior Note(s) for all purposes
under the Junior Note Indenture. Except in the limited circumstances when
Definitive Registered Notes can be issued, described below, no participant or
other person will be entitled to have the Junior Notes registered in its name,
receive or be entitled to receive physical delivery of Definitive Registered
Notes or be considered the owner or holder of the Junior Notes under the Junior
Note Indenture or the Deposit Agreement. Accordingly, each person owning a
Book-Entry Interest must rely on the procedures of the Depositary and DTC,
Euroclear and/or Clearstream, Luxembourg and, if the person is not a direct
participant in DTC, Euroclear and/or Clearstream, Luxembourg, such person must
rely on the procedure of the direct participant or other securities intermediary
through which the person owns its interest, to exercise any rights and
obligations of a holder under the Junior Note Indenture, the applicable series
of Junior Notes or the Deposit Agreement.
So long as DTC, Euroclear and/or Clearstream, Luxembourg hold the CDIs
representing the Junior Notes, the Book-Entry Interests (and corresponding
Global Junior Notes) will not be exchangeable for Definitive Registered Notes
except if:
- DTC, Euroclear or Clearstream, Luxembourg notify the Depositary
that it is unwilling or unable to continue to hold the
certificateless depositary interest or interests, or if at any time
DTC is unable to or ceases to be a clearing agency registered under
the US Exchange Act, and in either case a successor to DTC is not
appointed by the Depositary at the written request of the Issuer
within 120 days;
- The Depositary notifies the Issuer and the Junior Note Trustee that
it is unwilling or unable to continue to act as Depositary, and the
Issuer is unable to appoint a successor depositary within 120 days;
- Upon request of DTC, Euroclear, Clearstream, Luxembourg, the Issuer
or the Trustee, in the event that a winding up of the Issuer or an
Event of Default under the Junior Note Indenture has occurred and
is continuing;
- 21 -
- Euroclear or Clearstream, Luxembourg is closed for business for a
continuous period of 14 days (other than by reason of legal
holiday) or announces an intention permanently to cease business;
or
Any Global Junior Note that is exchangeable pursuant to the above shall be
exchangeable for Definitive Registered Notes of the same series bearing interest
at the same rate, having the same date of issuance, the same date or dates from
which such interest shall accrue, the same Interest Payment Dates on which such
interest shall be payable, the same Stated Maturity, redemption provisions,
Relevant Currency and other terms and of different denominations aggregating a
like amount as the Global Junior Note of the series so exchangeable.
- 22 -
SCHEDULE B
PART I
(List of the New Bonding Facility Banks and New Bonding Facility Agent)
NEW BONDING FACILITY BANKS
HSBC Bank plc, with registered office at ▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇.
JPMorgan Chase Bank, acting through an office at ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇.
NEW BONDING FACILITY AGENT
HSBC Bank plc, with registered office at ▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇.
PART II
(Summary of Terms and Conditions of the New Bonding Facility Agreement)
FACILITY: Multicurrency revolving facility
MAXIMUM AGGREGATE PRINCIPAL AMOUNTS: E50,000,000
INTEREST RATE: fronting fee of 0.10% per annum plus bonding fee of 0.50% per
annum;
DEFAULT INTEREST: the default interest rate shall be the interest rate equal to
the applicable LIBOR plus 2.0% per annum plus 0.50% per annum plus the
applicable mandatory cost (if any) for successive interest period;
REPAYMENT: the availability period under the New Bonding Facility Agreement will
end on the date which is 18 (eighteen) months after the Effective Date of the
Scheme, provided that such availability period may be extended to a date which
is up to 30 (thirty) months after the Effective Date of the Scheme, but, in each
case, letters of credit which have been made available during such availability
period may continue after the availability period has come to the end. When used
in this Schedule, the terms "Effective Date" and "Scheme" shall have the meaning
given to such terms in the New Bonding Facility Agreement.
- 23 -
SCHEDULE C
(LIST OF GUARANTORS)
PART I
Marconi Communications Inc.
Marconi Networks Worldwide, Inc.
Marconi Communications Technology, Inc.
Marconi Communications Federal, Inc.
Marconi Acquisition Corp.
Marconi Intellectual Property (Ringfence) Inc.
Marconi Communications Limited, a private limited company incorporated under the
laws of England and Wales
Marconi Communications Optical Networks Limited
Marconi Communications, S.A. de ▇.▇.
▇▇▇▇▇▇▇ Communications de Mexico, S.A. de ▇.▇.
▇▇▇▇▇▇▇ Communications Exportel, S.A. de C.V.
Administrativa Marconi Communications, S.A. de ▇.▇.
▇▇▇▇▇▇▇ Communications BV
Marconi Communications GmbH, a private company incorporated under the laws of
Germany
Metapath Software International Limited
Mobile Systems International Holdings Limited
GPT Special Project Management Limited
Marconi Communications Limited, a private limited company incorporated under the
laws of the Republic of Ireland
Marconi Communications International Limited
Marconi Communications China Limited
Marconi Communications International Investments Limited
Marconi Communications International Holdings Limited
Marconi Communications Investments Limited
Marconi Communications Holdings Limited
- 24 -
Marconi (▇▇▇▇▇▇ Street) Limited
Marconi (DGP1) Limited
Marconi (DGP2) Limited
Marconi Bonding Limited
Marconi Optical Components Limited
Associated Electrical Industries Limited
English Electric Company Ltd
Marconi (▇▇▇▇▇▇▇ Automation) Limited
▇▇▇▇▇▇▇-Automation Holdings Limited
Marconi Aerospace Unlimited
Marconi UK Intellectual Property Limited
Marconi (NCP) Limited
Highrose Limited
Marconi Inc.
Marconi Holdings, LLC
Marconi Communications North America Inc.
FS Holdings Corp.
FS Finance Corp.
Marconi Software International, Inc.
Metapath Software International (US), Inc.
Metapath Software International, Inc.
Marconi Intellectual Property (US), Inc.
Regents Place, Inc.
Marconi Communications Holdings GmbH
Marconi Communications GmbH, a private company incorporated under the laws of
Switzerland
Marconi Communications Real Estate GmbH
Marconi Holdings S.p.A.
Marconi Communications S.p.A.
- 25 -
Marconi Sud S.p.A.
Marconi Australia Holdings Pty Limited
Marconi Australia Pty Limited
Marconi Communications Asia Limited
G.E.C. (Hong Kong) Limited
▇▇▇▇▇▇ Street Overseas Investments Limited
PART II
Marconi Communications Inc.
Marconi Networks Worldwide, Inc.
Marconi Communications Technology, Inc.
Marconi Communications Federal, Inc.
Marconi Acquisition Corp.
Marconi Intellectual Property (Ringfence) Inc.
Marconi Communications Limited, a private limited company incorporated under the
laws of England and Wales
Marconi Communications Optical Networks Limited
Marconi Communications, S.A. de ▇.▇.
▇▇▇▇▇▇▇ Communications de Mexico, S.A. de ▇.▇.
▇▇▇▇▇▇▇ Communications Exportel, S.A. de C.V.
Administrativa Marconi Communications, S.A. de ▇.▇.
▇▇▇▇▇▇▇ Communications BV
Marconi Communications GmbH, a private company incorporated under the laws of
Germany
Metapath Software International Limited
Mobile Systems International Holdings Limited
GPT Special Project Management Limited
Marconi Communications Limited, a private limited company incorporated under the
laws of the Republic of Ireland
Marconi Communications International Limited
- 26 -
Marconi Communications China Limited
Marconi Communications International Investments Limited
Marconi Communications International Holdings Limited
Marconi Communications Investments Limited
Marconi Communications Holdings Limited
Marconi (▇▇▇▇▇▇ Street) Limited
Marconi (DGP1) Limited
Marconi (DGP2) Limited
Marconi Bonding Limited
Marconi Optical Components Limited
Associated Electrical Industries Limited
English Electric Company Ltd
Marconi (▇▇▇▇▇▇▇ Automation) Limited
▇▇▇▇▇▇▇-Automation Holdings Limited
Marconi Aerospace Unlimited
Marconi UK Intellectual Property Limited
Marconi (NCP) Limited
Highrose Limited
Marconi Inc.
Marconi Holdings, LLC
Marconi Communications North America Inc.
Regents Place Inc.
FS Holdings Corp.
FS Finance Corp.
Marconi Software International, Inc.
Metapath Software International (US), Inc.
Metapath Software International, Inc.
Marconi Intellectual Property (US), Inc.
- 27 -
Regents Place, Inc.
Marconi Communications Holdings GmbH
Marconi Communications GmbH, a private company incorporated under the laws of
Switzerland
Marconi Communications Real Estate GmbH
Marconi Holdings S.p.A.
Marconi Communications S.p.A.
Marconi Sud S.p.A.
Marconi Communications Telemulti Ltda
Marconi Australia Holdings Pty Limited
Marconi Australia Pty Limited
Marconi Communications Asia Limited
G.E.C. (Hong Kong) Limited
▇▇▇▇▇▇ Street Overseas Investments Limited
- 28 -
SCHEDULE D
(Accounts)
DEPOSITORY ACCOUNT BALANCE AS OF
BANK NAME NUMBER ADDRESS ABI/CAB 30/04/2003 CURRENCY
-----------------------------------------------------------------------------------------------------
BANCA
COMMERCIALE via XXV Aprile
ITALIANA 2430702-01-55 5r, Genova 03069/01456 5,479.87 EUR
-----------------------------------------------------------------------------------------------------
UNICREDIT
▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇,
▇'▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ 03226/01400 1,589.68 EUR
-----------------------------------------------------------------------------------------------------
BANCA
NAZIONALE ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇,
▇▇▇ ▇▇▇▇▇▇ 370 Genova 01005/01410 1,224.32 EUR
-----------------------------------------------------------------------------------------------------
▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇
▇▇▇▇ ▇▇▇▇▇,▇▇ Sestri 5r, Genova 03002/01412 2,247.83 EUR
-----------------------------------------------------------------------------------------------------
▇▇▇ ▇▇▇▇▇▇▇ ▇,
▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ Genova 01025/01400 3,111,710.7 EUR
-----------------------------------------------------------------------------------------------------
MONTE DEI
PASCHI DI ▇▇▇ ▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇ ▇▇▇▇/▇▇ ▇▇▇▇▇▇ 01030/01403 372,024.16 EUR
-----------------------------------------------------------------------------------------------------
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇ CARIGE 17154/80 Genova 06175/01421 3,004,705.94 EUR
-----------------------------------------------------------------------------------------------------
- 29 -
SCHEDULE E
[Pledgor's letterhead]
NOTIFICATION TO DEPOSITORY BANKS PURSUANT TO ARTICLE 3.1
TO: [-]
[-]
Dear Sirs,
CONSTITUTION OF A PLEDGE OVER BANK ACCOUNTS
We hereby notify you that by way of a pledge agreement executed on 19 May 2003
between Marconi Holdings S.p.A. (hereinafter the "PLEDGOR") and The Law
Debenture Trust Corporation p.l.c. (the "SECURITY TRUSTEE") on its behalf and as
representative of the other Secured Creditors (as defined therein), the Pledgor
created a pledge over its claim for restitution of the balance from time to time
existing on the accounts indicated hereunder (hereinafter the "ACCOUNTS"). The
undersigned also hereby grants you an irrevocable mandate to withdraw or
transfer the sums deposited on the Accounts for and in favour of the Secured
Creditors. Until notified to the contrary by the Security Trustee, the Pledgor
is authorised to withdraw or transfer the sums on the Accounts. You shall not be
held liable for the withdrawal or transfer of the sums deposited on the Account
by the Pledgor, unless you have acted with gross negligence or wilful
misconduct. Any sums withdrawn or transferred shall be deemed as released from
the pledge, which shall, however, remain in full force and effect in respect of
the balance from time to time existing on the Accounts.
Kind Regards.
[locations] [date]
MARCONI HOLDINGS S.p.A.
Account:
Account No. 1 [-]
- 30 -
[Carta intestata della Societa]
NOTIFICA ALLE BANCHE DEPOSITARIE AI SENSI DELL'ARTICOLO 3.1
A: [-]
[-]
Egregi Signori,
COSTITUZIONE IN PEGNO DEI ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ BANCARI
Con la presente Vi notifichiamo che, con contratto costitutivo di pegno
sottoscritto in data 19 ▇▇▇▇▇▇ 2003 tra Marconi Holdings S.p.A. (in seguito il
"COSTITUENTE") e The Law Debenture Trust Corporation p.l.c. (il "SECURITY
TRUSTEE"), il ▇▇▇▇▇ ▇▇ agito per proprio conto e per conto dei Creditori
Garantiti (Secured Creditors) ivi indicati, il Costituente ha costituito in
pegno il credito per la restituzione del saldo in ogni tempo esistente ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇ bancari indicati in ▇▇▇▇▇ ▇▇▇▇ presente (in seguito i "▇▇▇▇▇
▇▇▇▇▇▇▇▇"). Con la presente, inoltre, la scrivente Vi conferisce ▇▇▇▇▇▇▇
irrevocabile a prelevare o trasferire somme depositate ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ per
▇▇▇▇▇ ▇ ▇ favore dei Creditori Garantiti. Sino a diversa comunicazione da parte
del Security Trustee, il Costituente potra prelevare o trasferire le somme a
valere ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇. Non sarete ritenuti responsabili per il ritiro o il
trasferimento di somme depositate nei ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ non in caso di colpa
grave o dolo. Laddove prelevate o trasferite si intenderanno liberate ▇▇▇ ▇▇▇▇▇
il ▇▇▇▇▇ rimarra comunque in piena efficacia rispetto ▇▇ ▇▇▇▇▇ in ogni tempo
esistente ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇.
Cordiali saluti.
[luogo] [data]
MARCONI HOLDINGS S.p.A.
CONTO CORRENTE:
Account No. 1 [-]
SCHEDULE F
(Statement of Acceptance by Depository Banks Pursuant to Article 3.2)
- 31 -
TO: The Law Debenture Trust Corporation p.l.c. (in its capacity as Security
Trustee of the Secured Creditors)
Att.: [-]
COPY TO: [-]
Att.: [-]
Dear Sirs,
Following the communication sent to us, we hereby acknowledge and accept that on
19 May 2003 an agreement creating a pledge over bank accounts (the "PLEDGE
AGREEMENT") was executed between Marconi Holdings S.p.A. (hereinafter the
"PLEDGOR") and The Law Debenture Trust Corporation p.l.c. (the "SECURITY
TRUSTEE") on its behalf and as representative of the other Secured Creditors (as
defined therein), by which the Pledgor created a pledge for the benefit of the
Security Trustee (for itself and as representative of the other Secured
Creditors) over the claim for restitution of the balance from time to time
existing on the bank accounts indicated below (the "ACCOUNTS"). The undersigned
entity acknowledges and accepts its obligation to withdraw or transfer the sums
deposited on the Accounts for and in favour of the Secured Creditors. We
acknowledge that until notified to the contrary by the Security Trustee, the
Pledgor is authorised to withdraw or transfer the sums on the Account. Any sums
withdrawn or transferred shall be deemed as released from the pledge, which
shall, however, remain in full force and effect in respect of the balance from
time to time existing on the Accounts. The undersigned entity will not be held
responsible for the utilisation of the sums by the Pledgor unless such
undersigned entity has acted with gross negligence or wilful misconduct.
This statement is issued by [-], in its capacity as Depository Bank for the
pledged Account.
Kind Regards.
[location, date]
_______________________
[DEPOSITORY BANK]
ACCOUNT:
Account No. 1 [-]
DICHIARAZIONE DI ACCETTAZIONE DELLE BANCHE DEPOSITARIE AI SENSI
DELL'ARTICOLO 3.2
A: The Law Debenture Trust Corporation p.l.c. (in qualita di Security
Trustee dei Creditori Garantiti)
- 32 -
Att.: [-]
COPIA A:
Att.: [-]
Egregi Signori,
facendo seguito alla comunicazione inviataci, con la presente prendiamo ▇▇▇▇ ▇▇
accettiamo che in data 19 ▇▇▇▇▇▇ 2003 e stato sottoscritto un contratto
costitutivo di pegno ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (il "▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇") tra ▇▇▇▇▇▇▇
Holdings S.p.A. (il "COSTITUENTE") e The Law Debenture Trust Corporation p.l.c.
(il "SECURITY TRUSTEE"), che ha agito per proprio ▇▇▇▇▇ ▇▇ in rappresentanza
degli altri Creditori Garantiti (Secured Creditors) ivi indicati, mediante il
▇▇▇▇▇ e stato costituito in pegno a favore del Security Trustee (per proprio
conto nonche in rappresentanza degli altri Creditori Garantiti), il credito per
la restituzione del saldo in ogni tempo esistente ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ bancari
indicati in ▇▇▇▇▇ ▇▇▇▇ presente (i "▇▇▇▇▇ ▇▇▇▇▇▇▇▇"). Il sottoscritto ente
prende atto ▇▇ ▇▇▇▇▇▇▇ l'obbligo di disporre delle somme depositate ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇ per ▇▇▇▇▇ ▇ ▇ favore del Security Trustee (per proprio conto nonche in
rappresentanza degli altri Creditori Garantiti) nel momento in cui riceva
comunicazione da parte dei The Law Debenture Trust Corporarion p.l.c., in
qualita di Security Trustee. Sino a diversa comunicazione da parte del Security
Trustee, il Costituente potra prelevare o trasferire somme a valere ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇ in conformita del contratto sopra menzionato. Laddove prelevate o
trasferite le somme si intenderanno liberate ▇▇▇ ▇▇▇▇▇, il ▇▇▇▇▇ rimarra
comunque in piena efficacia rispetto ▇▇ ▇▇▇▇▇ in ogni tempo esistente ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇. La scrivente non ▇▇▇▇ ritenuta responsabile dal Costituente per il
ritiro o il trasferimento delle somme depositate nei ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ non in
caso di colpa grave o dolo.
La presente dichiarazione viene rilasciata da [-], in qualita di Banca
Depositaria dei ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ costituiti in pegno.
Cordiali saluti.
[luogo e data]
_______________________
[BANCA DEPOSITARIA]
ACCOUNT:
Account No. 1 [-]
SCHEDULE G
(LETTER OF NOTIFICATION TO THE DEPOSITORY BANKS)
TO: [-]
- 33 -
COPY TO: The Law Debenture Trust Corporation p.l.c. (in its capacity as Security
Trustee of the Secured Creditors)
Pursuant to the agreement for the creation of a pledge over bank accounts
executed on 19 May 2003 between Marconi Holdings S.p.A. and The Law Debenture
Trust Corporation p.l.c., the undersigned Marconi Holdings S.p.A. confirms that:
the amount of Euro [ - ], which at the date hereof is the balance of the account
held at your bank, number [-] in the name of [-]
is constituted in pledge in favour of the Secured Creditors, as defined in the
above mentioned agreement in compliance with the terms of the same.
[certain date]
____________
[[-]]
Schedule: written printout of the bank statement of the Account
- 34 -
LETTERA DI NOTIFICA ALLE BANCHE DEPOSITARIE
A: [-]
COPIA A: The Law Debenture Trust Corporation p.l.c. (in qualita di Security
Trustee dei Creditori Garantiti
Ai sensi della scrittura per la costituzione di diritti di pegno ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇ bancari sottoscritta in data 19 ▇▇▇▇▇▇ 2003 tra Marconi Holdings S.p.A.
(in seguito il "COSTITUENTE") e The Law Debenture Trust Corporation p.l.c. (in
seguito il "SECURITY Trustee"), la scrivente Marconi Holdings S.p.A. conferma
che:
▇▇ ▇▇▇▇▇ di Euro [-] costituente il saldo in data ▇▇▇▇▇▇▇ del conto corrente
acceso presso di Voi, numero [-], intestato ad [-]
sono costituite in pegno a favore dei Creditori Garantiti, cosi come definiti
nella suddetta scrittura e secondo i ▇▇▇▇▇▇▇ ▇▇▇▇▇ stessa.
[data certa]
____________
[[-]]
All.: stampa cartacea dell'estratto conto di ciascuno dei ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
- 35 -
