EXHIBIT 4.58
X X X X X X X X CONFORMED COPY
C H A N C E
P U N D E R
MARCONI COMMUNICATIONS GMBH
AS ASSIGNOR
AND
THE LAW DEBENTURE TRUST CORPORATION P.L.C.
AS SECURITY TRUSTEE
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GLOBAL ASSIGNMENT AGREEMENT
(GLOBALABTRETUNG)
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CONTENTS
CLAUSE PAGE
1. Definitions and languages.................................................................... 3
2. Secured Obligations.......................................................................... 4
3. Assignment................................................................................... 4
4. Transfer of Ancillary Rights................................................................. 5
5. List of Receivables.......................................................................... 5
6. Further Assurance............................................................................ 6
7. Retention of Title........................................................................... 6
8. Blank Notification Letters................................................................... 7
9. Sale of Collateral........................................................................... 7
10. Collection of Receivables and Insurance Proceeds by the Assignor............................. 8
11. Right to Realisation upon Enforcement Event.................................................. 8
12. Limitation of Security....................................................................... 9
13. Release (Sicherheitenfreigabe)............................................................... 10
14. Right of Inspection.......................................................................... 11
15. Bookkeeping and Data-Processing.............................................................. 11
16. Undertakings................................................................................. 12
17. Expenses, Costs and Taxes.................................................................... 13
18. Partial Invalidity; Waiver................................................................... 14
19. Amendment; Waiver............................................................................ 14
20. Notices and their Language................................................................... 14
21. Applicable Law; Jurisdiction................................................................. 16
23. Effectiveness................................................................................ 16
24. Counterparts................................................................................. 17
Schedule 1 List of Receivables........................................................................ 18
Schedule 2 List of Insurances......................................................................... 19
Schedule 3 Form of Notification....................................................................... 20
Schedule 4 Form of Notification....................................................................... 23
Schedule 5 List of Accounts........................................................................... 25
THIS GLOBAL ASSIGNMENT AGREEMENT is made the 16th day of May 2003
BETWEEN:
1. Marconi Communications GmbH, a limited liability company organised
under the laws of the Federal Republic of Germany, having its business
address at XxxxxxxxxxXx 00, D-71522 Backnang, which is registered
in the commercial register (Handelsregister) of the local court
(Amtsgericht) of Backnang under HRB 1563 (the "ASSIGNOR"); and
2. The Law Debenture Trust Corporation p.l.c., having its business address
at Xxxxx Xxxxx, 000 Xxxx Xxxxxx, Xxxxxx, XX0X 0XX, Xxxxxxx in its
capacity as security trustee under the Relevant Documents (the
"SECURITY TRUSTEE").
WHEREAS:
(A) Marconi Corporation p.l.c. (the "ISSUER") has agreed to issue the
following notes:
(i) USD equivalent of GBP 450,000,000 senior secured notes due
2008;
(ii) USD 300,000,000 plus USD equivalent of GBP 117,270,000 of
junior secured notes due 2008;
the notes under (i) being documented in a senior note
indenture dated on or about 19 May 2003 between, inter alios,
the Issuer and Law Debenture Trust Company of New York as
Senior Note Trustee and the notes under (ii) being documented
in a junior note indenture dated on or about 19 May 2003
between, inter alios, the Issuer and JPMorgan Chase Bank as
Junior Note Trustee (together the "INDENTURES").
(B) The security created by or pursuant to this Agreement is to be granted
to and administered by the Security Trustee for itself and as trustee
of the Secured Creditors pursuant to the relevant provisions of a
security trust and intercreditor deed dated on or about 19 May 2003
between, inter alios, the Issuer, Law Debenture Trust Company of New
York as Senior Note Trustee, JPMorgan Chase Bank as Junior Note
Trustee, the Security Trustee and the Obligors (as defined therein
including the Assignor) as amended from time to time (the "SECURITY
TRUST AND INTERCREDITOR DEED").
(C) The Assignor has agreed to assign the Receivables (as defined below) as
security for the payment and discharge of the Secured Obligations (as
defined below) subject to the terms and conditions set out herein.
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NOW, IT IS AGREED as follows:
1. DEFINITIONS AND LANGUAGES
1.1 In this Agreement:
"AUTHORIZATION" has the meaning given to it in Clause 10.
"CONTINUING" in relation to an Enforcement Event, shall be construed as
a reference to an acceleration of any Secured Obligation (other than
Secured Obligations arising under the New Bonding Facility Agreement)
where such acceleration has not been rescinded in writing or a
declaration that the 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 unlawful for a Secured Creditor to perform its obligations
under the Relevant Documents) where such declaration has not been
revoked in writing or any failure by an 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 which has not been waived in writing. For the
purposes of this definition of "continuing" the expression "Secured
Obligations" shall have the same meaning as in the Security Trust and
Intercreditor Deed.
"RECEIVABLES"
(a) all present and future rights and claims owing to the Assignor
and originating from selling goods and/or providing services
(Lieferungen und Leistungen) (including, without limitation,
those specified in Schedule 1 hereto); and
(b) all present and future rights and claims to which the Assignor
now is or hereafter may become entitled to in respect of all
present and future insurance contracts or any part thereof
other than insurances for the benefit of third parties
(including, without limitation, those specified in Schedule 2
hereto) (collectively the "INSURANCE CONTRACTS").
"SECURED OBLIGATIONS" has the meaning given to it under clause 2.
"SECURITY TRUST AND INTERCREDITOR DEED" has the meaning given to it in
Clause (B) of the recitals.
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1.2 Unless otherwise defined herein or unless the context requires,
capitalised terms shall have the same meaning as ascribed thereto in
the Security Trust and Intercreditor Deed.
1.3 This Agreement is made in the English language. For the avoidance of
doubt, the English language version of this Agreement shall prevail
over any translation of this Agreement. However, where a German
translation of a word or phrase appears in the text of this Agreement,
the German translation of such word or phrase shall prevail.
1.4 The parties hereto each acknowledge that the Security Trustee, when
acting hereunder, shall, to the extent permitted under the laws of
Germany, be acting in accordance with and subject to the terms of the
Security Trust and Intercreditor Deed.
2. SECURED OBLIGATIONS
The assignment hereunder (the "ASSIGNMENT") is constituted in order to
secure together with other security granted by the Assignor the prompt
and complete satisfaction of any and all obligations (present and
future, actual and contingent) which are (or are expressed to be) or
become owing by the Assignor to the Secured Creditors or any of them
(including any future assignee or transferee of any of the Secured
Creditors by way of transfer or assignment (including by way of
assumption of debt (Vertragsubernahme)) under the Relevant Documents
(including, but not limited to the parallel obligations of the Assignor
pursuant to clause 3 of the Security Trust and Intercreditor Deed to
pay to the Security Trustee sums equal to the sums owed by the Assignor
to the Secured Creditors or any of them) (the "SECURED OBLIGATIONS") up
to an aggregate amount of EUR 170 million.
3. ASSIGNMENT
3.1 The Assignor hereby assigns the Receivables to the Security Trustee in
its capacity as Security Trustee for the benefit of the Secured
Creditors.
In the event that the Assignor maintains a current account arrangement
(Kontokorrentverhaltnis) with its customers, this Assignment includes
all claims from any existing or future current account balances, the
right to determine the net balance and the right to terminate the
current account relationship.
3.2 The Security Trustee hereby accepts the assignment of the Receivables.
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3.3 The existing Receivables shall pass over to the Security Trustee on
execution of this Agreement, and any future Receivables shall pass over
to the Security Trustee at the date such Receivables arise.
3.4 The parties to this Agreement acknowledge that the assignment of the
Receivables may be subject to consent by third party debtors.
4. TRANSFER OF ANCILLARY RIGHTS
4.1 Together with all the Receivables assigned and transferred in
accordance with this Agreement, all securities, collateral and all
ancillary rights pertaining thereto including transport insurance
claims, as well as all rights resulting from the underlying agreements
(hereinafter together with the Receivables referred to as the
"COLLATERAL"), are hereby transferred and/or assigned to the Security
Trustee, who accepts this transfer and/or assignment, to the extent
such rights are not automatically transferred to the Security Trustee
pursuant to Section 401 of the German Civil Code (Burgerliches
Gesetzbuch). The Assignor's claims to demand repossession against the
direct possessor are assigned to the Security Trustee, who accepts this
assignment, at the same time.
4.2 If and to the extent the Assignor is in direct possession of the
Collateral, the delivery of such Collateral shall be substituted by the
Assignor holding the Collateral in gratuitous custody for the Security
Trustee.
5. LIST OF RECEIVABLES
5.1 Upon the occurrence of an Insolvency Event of Default or upon request
of the Security Trustee if the Security Trustee has been so instructed
pursuant to the Security Trust and Intercreditor Deed upon or at any
time after the occurrence of an Event of Default which is continuing
the Assignor shall, within ten (10) Business Days of the occurrence of
the Insolvency Event of Default or request following an Event of
Default (as the case may be), deliver to the Security Trustee a list on
a computer disk or in such other form as agreed between the Security
Trustee and the Assignor, containing information on the Receivables.
5.2 In the event the Security Trustee, having used its reasonable efforts,
has been unable to access any computer disk, the Assignor undertakes to
provide the Security Trustee, upon request by the Security Trustee,
with a computer print-out of the Receivables in addition to, or instead
of, the computer disks referred to under Clause 5.1.
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5.3 The list referred to in Clause 5.1 is for notification purposes only
and if for any reason whatsoever the relevant Receivables are not, or
are incompletely contained in the list presented, then the assignment
of the Collateral shall not be affected thereby.
5.4 Unless otherwise agreed, the list under Clause 5.1 shall show the names
and addresses of the third-party debtors (each a "DEBTOR" and together
the "DEBTORS") or the insurers (each an "INSURER" and together the
"INSURERS"), as the case my be, as well as the outstanding amounts and
the due dates for payment.
5.5 Upon the occurrence of an Insolvency Event of Default or upon request
of the Security Trustee if the Security Trustee has been so instructed
pursuant to the Security Trust and Intercreditor Deed upon or at any
time after the occurrence of an Event of Default and if the Assignor
employs a third party for its bookkeeping and/or data-processing then
the Assignor hereby authorises the Security Trustee to obtain the lists
directly from such third party at the Assignor's expense.
6. FURTHER ASSURANCE
Insofar as additional documents, declarations or actions (including
making all filings and registrations) are necessary for the creation,
perfection, protection or maintenance of the security interests created
(or purported to be created) hereunder (or any of them) in favour of
the Security Trustee or for the exercise of all rights, powers and
remedies of the Security Trustee provided by or pursuant to this
Agreement or by law or to facilitate (including making all filings and
registrations) the realisation of the security interests created (or
purported to be created) hereunder (or any of them), the Assignor shall
at the Security Trustee's request enter into or provide such documents,
make such declarations and/or undertake such actions at the Assignor's
cost and expense.
7. RETENTION OF TITLE
7.1 If Receivables are assigned pursuant hereto which are subject to
extended retention of title arrangements (verlangerter
Eigentumsvorbehalt), the assignment shall only become effective upon
the termination of the extended retention of title. As long as any
person is only partly entitled to the Receivables as a result of such
person's retention of title arrangement, the assignment of such
receivables to the Security Trustee hereunder shall be limited to the
part of the Receivables to which the Assignor is entitled, the
assignment of the other part shall be effective upon complete
termination of the extended retention of title.
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7.2 If the Assignor is entitled to a reassignment of a claim assigned to a
supplier pursuant to an extended retention of title arrangement or to
the proceeds paid to the supplier by third party debtors, the Assignor
assigns to the Security Trustee the aforementioned claims and rights
with all ancillary rights pertaining thereto. The same applies to any
possible inchoate right (Anwartschaftsrecht) with respect to the
Assignment of any Receivables which is subject to a dissolving
condition. The Security Trustee is authorised but not obligated to
discharge the extended retention of title by paying the relevant funds
to the supplier.
8. BLANK NOTIFICATION LETTERS
The Assignor hereby authorises the Security Trustee to notify the
Debtors and the Insurers on behalf of the Assignor of the Assignment
pursuant to this Agreement. The Security Trustee shall only make use of
such authorization upon (i) the occurrence of an Insolvency Event of
Default or (ii) if the Security Trustee has been so instructed pursuant
to the Security Trust and Intercreditor Deed upon or at any time after
the occurrence of an Event of Default which is continuing.
Upon request by the Security Trustee either (i) after an Insolvency
Event of Default or (ii) if the Security Trustee has been so instructed
pursuant to the Security Trust and Intercreditor Deed upon request by
the Security Trustee upon or at any time after the occurrence of an
Event of Default which is continuing, the Assignor shall deliver to the
Security Trustee notification letters in the form of Schedule 3 and
Schedule 4 (and, if so required by the Security Trustee, translated
into the German language) executed in blank for the purpose of
notifying the Debtors and Insurers of this Agreement. The Assignor
hereby authorises the Security Trustee to copy such blank notification
certificates signed by the Assignor.
9. SALE OF COLLATERAL
So long as the Security Trustee has not revoked the right of the
Assignor to collect the Receivables pursuant to Clause 10, the
Transferor may dispose of or otherwise deal with the Collateral except
as expressly prohibited under the terms of the Indentures.
The sale of Receivables by the Assignor through genuine factoring
transactions shall be restricted as provided in the Relevant Documents.
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10. COLLECTION OF RECEIVABLES AND INSURANCE PROCEEDS BY THE ASSIGNOR
The Security Trustee authorises the Assignor to collect the Receivables
provided that payments on the Receivables are made into the accounts
specified in Schedule 5 or if made elsewhere are transferred by the
Assignor into these accounts (such authorization hereinafter referred
to as the "AUTHORIZATION"). The Security Trustee may revoke the
Authorization at any time after the occurrence of an Insolvency Event
of Default and the Security Trustee shall revoke the Authorisation if
the Security Trustee has been so instructed pursuant to the Security
Trust and Intercreditor Deed upon or at any time after the occurrence
of an Event of Default which is continuing, whereupon the Assignor may
continue to collect the Receivables but shall promptly surrender the
proceeds to the Security Trustee. Until the requirements set out in
Clause 11.1 are met the Security Trustee shall treat such proceeds as
additional collateral for the Secured Obligations. To the extent that
the Authorization is revoked, the Security Trustee may request that
copies of all documents relating to the Receivables be handed over to
it and the Assignor hereby agrees to comply with any such request. For
the avoidance of doubt nothing in this Clause 10 shall restrict the
right of the Security Trustee to enforce its rights under Clause 11 if
the requirements set out in Clause 11.1 are met.
11. RIGHT TO REALISATION UPON ENFORCEMENT EVENT
11.1 At any time after the occurrence of an Enforcement Event which is
continuing 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 if any of the Secured
Obligations became due and payable the Security Trustee shall, in its
discretion, be entitled to notify the Debtors of this Agreement and
arrange for the collection or disposal of the Receivables for and on
behalf of the Secured Creditors in accordance with the provisions of
this Clause 11.
11.2 The Security Trustee will notify the Assignor in writing at least five
(5) Business Days prior to the disclosure of any assignment pursuant
hereto. No such notice shall be required if (i) the Assignor has
generally ceased to make payments, (ii) an application for the
institution of insolvency proceedings is filed by or against the
Assignor or (iii) there is reason to believe that observance of the
notice period will affect the security interest of the Security Trustee
in a material adverse way.
11.3 To the extent that the Authorization is revoked, the Security Trustee
may request that originals of all documents relating to the Receivables
be handed over to it and the Assignor hereby agrees to comply with any
such request.
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11.4 The Security Trustee shall realise all or part of the Collateral to the
extent necessary to satisfy any outstanding Secured Obligations by
collecting all or part of the Receivables, it being understood that the
Security Trustee shall apply the proceeds of such realisation towards
the Secured Obligations in accordance with and subject to the terms of
the Security Trust and Intercreditor Deed.
11.5 The Security Trustee may request the Assignor to collect the
Receivables for and on behalf of the Secured Creditors and the Assignor
shall promptly comply with such request.
11.6 If the Security Trustee collects any Receivables pursuant to this
Clause 11, it may take all measures and enter into all agreements with
such Debtors which it considers to be expedient. In particular, the
Security Trustee may grant discounts or indulgence to any Debtors
and/or enter into settlement agreements in relation to existing
receivables at any time.
11.7 With respect to the realisation of the Receivables, the Security
Trustee will take into consideration the legitimate interests of the
Assignor.
12. LIMITATION OF SECURITY
12.1 The right to enforce the security interests created hereunder shall, to
the extent that the Secured Obligations represent those of an
affiliated company (verbundenes Unternehmen) within the meaning of
Section 15 et seq. of the German Stock Corporation Act (Aktiengesetz)
of the Assignor (other than any of the Assignor's subsidiaries), at all
times be limited to an amount equal to the Assignor's assets (the
calculation of which shall take into account the captions reflected in
Section 266 sub-section (2) A, B and C of the German Commercial Code
(Handelsgesetzbuch)) less the sum of (A) the Assignor's liabilities
(the calculation of which shall take into account the captions
reflected in Section 266 subsection (3) B, C and D of the German
Commercial Code), and (B) the stated share capital (Stammkapital) of
the Assignor (the "NET ASSETS").
12.2 The Assignor shall realise, to the extent legally permitted and, in
respect of the Assignor, commercially justifiable, in a situation where
the Assignor does not have sufficient Net Assets to maintain its
registered share capital, any and all of its assets that are shown in
the balance sheet with a book value (Buchwert) that is significantly
lower than the market value of the assets if the asset is not necessary
for the Assignor's business (betriebsnotwendig).
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12.3 The Security Trustee shall enforce any security interest created
hereunder against the Assignor in accordance with the following
procedure:
(i) The Assignor shall, following a notification by the
Security Trustee to the Assignor that an Enforcement
Event has occurred and that the Security Trustee
intends to enforce the security interests created
hereunder, deliver to the Security Trustee within
sixty days of such notification an auditors'
determination from a firm of auditors of
international standard and reputation (the "AUDITORS'
DETERMINATION") stating the value of the Net Assets,
i.e., the amounts which may be claimed against the
Assignor under the security interests created
hereunder having regard to Sections 30 and 31 of the
German Limited Liability Companies Act.
(ii) The Auditors' Determination, i.e., the amount which
may be claimed against the Assignor under the
security interests created hereunder, having regard
to Section 30 and 31 of the German Limited Liability
Companies Act, shall take into account the generally
accepted accounting principles applicable from time
to time in Germany (GAAP) and be based on the same
principles that were applied when establishing the
previous year's balance sheet.
(iii) The amount specified in the relevant Auditors'
Determination pertaining to the Assignor shall be
up-to-date and in any event such Auditors'
Determination shall have been prepared as of a date
no earlier than 15 business days prior to the date of
notification by the Security Trustee to the Assignor
that it intends to enforce the security interests
created hereunder.
(iv) If the Assignor fails to deliver the Auditors'
Determination to the Security Trustee within the
sixty day period stated in (i) above, the Security
Trustee shall be entitled to enforce the security
interests created hereunder against the Assignor
without limitation.
13. RELEASE (SICHERHEITENFREIGABE)
13.1 Upon complete and irrevocable satisfaction of the Secured Obligations,
the Security Trustee shall (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) at the cost
and expense of the Assignor reassign and/or transfer, as the
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case may require, to the Assignor, which shall accept such
re-assignment and/or re-transfer, the Collateral and surrender the
excess proceeds, if any, resulting from any realisation thereof. The
Security Trustee will, however, transfer any Receivables to a third
person if so required by law.
13.2 At any time when the total value of the aggregate security granted by
the Assignor to secure the Secured Obligations (the "SECURITY") which
can be expected to be realised in the event of an enforcement of the
Security (realisierbarer Xxxx) exceeds 110% of the Secured Obligations
(the "LIMIT") not only temporarily, the Security Trustee shall (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) on demand of the Assignor release such
part of the Security (Sicherheitenfreigabe) as the Security Trustee may
in its discretion determine so as to reduce the realisable value of the
Security to the Limit.
14. RIGHT OF INSPECTION
14.1 The Assignor undertakes to provide the Security Trustee promptly at its
request with all information and documents which are necessary for
perfecting and/or enforcing the security created hereby.
14.2 The Assignor authorises the Security Trustee during the term of this
Agreement and upon notice to inspect its records during normal business
hours, or to have them inspected by any one or more representatives,
agents and advisors of the Security Trustee for the purpose of
inspecting and checking any of the Collateral. Following an Event of
Default, the Security Trustee may inspect such records at any time with
or without prior notice.
15. BOOKKEEPING AND DATA-PROCESSING
15.1 If proof or documents which are necessary to identify the Collateral
have been handed over by the Assignor to a third party (in particular a
bookkeeping firm or a tax consultant) the Assignor hereby transfers (on
condition of (aufschiebende Bedingung) (i) the occurrence of an
Insolvency Event of Default or (ii) notice by the Security Trustee if
the Security Trustee has been so instructed pursuant to the Security
Trust and Intercreditor Deed upon or at any time after the occurrence
of an Event of Default which is continuing) to the Security Trustee,
who accepts this transfer, its right to demand from such third party
the return of the information and documents. The Assignor hereby
undertakes to instruct the third party upon such transfer to provide
the Security Trustee upon its demand with such information and
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documents which are necessary to perfect and/or enforce the security
created hereby.
15.2 If details concerning the Collateral or any part thereof have been
stored in an electronic data-processing system, then, upon the
occurrence of an Insolvency Event of Default or upon request by the
Security Trustee if the Security Trustee has been so instructed
pursuant to the Security Trust and Intercreditor Deed upon or at any
time after the occurrence of an Event of Default which is continuing,
the Assignor shall allow the Security Trustee access to the computer,
including the peripheral equipment and all data concerning the
Collateral or such part thereof. Moreover, software operators shall be
made available insofar as so required, and any assistance required
shall be provided to the Security Trustee. If a third party handles the
electronic processing of data, the Assignor hereby transfers (on
condition of (aufschiebende Bedingung) (i) the occurrence of an
Insolvency Event of Default or (ii) notice by the Security Trustee if
the Security Trustee has been so instructed pursuant to the Security
Trust and Intercreditor Deed upon or at any time after the occurrence
of an Event of Default which is continuing) to the Security Trustee,
who accepts this transfer, all rights against such third party relating
to these services. The Assignor hereby undertakes to instruct the third
party upon such transfer to handle the processing of data for the
Security Trustee upon its demand as it did for the Assignor.
15.3 After transfer of the rights to the Security Trustee as contemplated in
Clauses 15.1 and 15.2, the Security Trustee shall promptly upon request
of the Assignor or after the Security Trustee receiving instructions
pursuant to the Security Trust and Intercreditor Deed instruct the
third party to provide the Assignor with such services and information
as necessary for the Assignor in connection with the preparation and
delivery of the Auditors' Determination.
16. UNDERTAKINGS
As far as necessary for the creation, perfection or maintenance of the
security over the Collateral the Assignor undertakes to inform the
Security Trustee promptly of any attachments (Pfandung) in respect of
the Collateral or any part thereof. In the event of an attachment, the
Assignor undertakes to forward to the Security Trustee upon request a
copy of the attachment order (PfandungsbeschluB), the garnishee
order (UberweisungsbeschluB) and all other documents necessary for
a defence against the attachment. The Assignor shall inform the
attaching creditor immediately of the Security Trustee's security
interests.
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17. EXPENSES, COSTS AND TAXES
17.1 EXPENSES
The Assignor 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 sub-clause (i) of this Clause 17, such
costs and expenses must be properly incurred) in connection with:
(i) the execution, release and discharge of this
Agreement and the security created or intended to be
created in respect of the Collateral and the
perfection of the 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 Collateral;
(ii) 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;
(iii) the foreclosure of any Collateral; and
(iv) the preservation and/or enforcement of the security
created or intended to be created in respect of the
Collateral,
which shall carry interest (before and after any judgment and
to the extent interest at a default rate is not otherwise
being paid on such sum) from the date of such demand until so
reimbursed calculated on a daily basis at the rate determined
in accordance with the provisions of clause 18.4 (Interest on
Demands) of the Security Trust and Intercreditor Deed.
17.2 TAXES
The Assignor 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 Collateral and shall, from time to time,
indemnify the Security
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Trustee promptly on demand against any liabilities, costs, claims and
expenses resulting from any failure to pay by the Assignor or any delay
by the Assignor in paying any such Taxes or fees.
18. PARTIAL INVALIDITY; WAIVER
18.1 If at any time, any one or more of the provisions hereof is or becomes
invalid, illegal or unenforceable in any respect under the law of any
jurisdiction, that provision shall as to that jurisdiction be
ineffective to the extent necessary without affecting or impairing the
validity, legality and enforceability of the remaining provisions of
this Agreement or of such provisions in any other jurisdiction. The
invalid or unenforceable provision shall be deemed replaced by a valid,
legal and enforceable provision which comes as close as possible to the
original intent of the parties as to the invalid, illegal or
unenforceable provision. This shall apply analogously in the case of
gaps.
18.2 No failure to exercise, nor any delay in exercising, on the part of the
Security Trustee, any right or remedy hereunder shall operate as a
waiver thereof, nor shall any single or partial exercise of any right
or remedy prevent any further or other exercise thereof or the exercise
of any other right or remedy. The rights and remedies provided
hereunder are cumulative and not exclusive of any rights or remedies
provided by law.
19. AMENDMENT; WAIVER
This Agreement may be amended, modified or waived only in writing in an
agreement signed by the Security Trustee. This also applies to this
Clause 19.
20. NOTICES AND THEIR LANGUAGE
20.1 Each communication under or in connection with this Agreement shall be
made in writing and, unless otherwise stated, may be made by fax or
letter.
20.2 Any communication or document to be made or delivered under or in
connection with this Agreement shall be made or delivered to the
following addresses or fax numbers (and for the attention of the
department or officer noted):
For the Assignor: Marconi Communications GmbH
Address: XxxxxxxxxxXx 00
D-71522 Backnang
Fax: 00000 00 0000
Attention: Xxxx-Xxxxxx Xxxxxxxxx
- 14 -
Legal Advisor
For the Security Trustee: The Law Debenture Trust Corporation p.l.c.
Address: Xxxxx Xxxxx
000 Xxxx Xxxxxx
Xxxxxx XX0X 0XX
England
Fax: x00 00 0000 0000
Attention: Manager Trust Adminstration
or to such other address as the recipient may notify or may have
notified to the other party in writing.
20.3 DELIVERY
20.3.1 Any communication or document made or delivered by one person to
another under or in connection with this Agreement will only be
effective:
(a) if by way of fax, when received in legible form; or
(b) if by way of letter, when it has been left at the address
specified in Clause 20.2 above or five Business Days after
being deposited in the post postage prepaid in an envelope
addressed to the addressee at that address,
and, if a particular department or officer is specified as part of that
address, if addressed to that department or officer.
20.3.2 Notwithstanding the provisions of sub-clause 20.3.1 (b) above, any
communication or document to be made or delivered to the Security
Trustee will be effective only when actually received by the Security
Trustee and then only if it is expressly marked for the attention of
the department or officer identified in Clause 20.2 (or any substitute
department or officer as such person shall specify for this purpose).
20.4 Any notice given under or connection with this Agreement shall be in
the English language. All other documents provided under or in
connection with this Agreement (other than copies to be provided
pursuant to Clause 16.1) shall be in the English language or, if in any
other language, accompanied by a translation into English which if
reasonably requested by the Security Trustee shall be a certified
translation. In the event of any conflict between the English text and
the text in any
- 15 -
other language, the English text shall prevail, unless the document is
a constitutional, statutory or other official document.
21. APPLICABLE LAW; JURISDICTION
21.1 APPLICABLE LAW
This Agreement shall be governed by and construed in accordance with
the laws of the Federal Republic of Germany.
21.2 GERMAN COURTS
The courts of Frankfurt am Main have exclusive jurisdiction to settle
any dispute (a "DISPUTE") arising out of or in connection with this
Agreement (including a dispute regarding the existence, validity or
termination of this Agreement or the consequences of its nullity).
21.3 CONVENIENT FORUM
The parties agree that the court of Frankfurt am Main are the most
appropriate and convenient court to settle Disputes between them and,
accordingly, that they will not argue to the contrary.
21.4 NON-EXCLUSIVE JURISDICTION
This Clause 21 is for the benefit of the Secured Creditors only. As a
result it does not prevent any Secured Creditor from taking proceedings
relating to a Dispute ("PROCEEDINGS") in any other courts with
jurisdiction. To the extent allowed by law, the Secured Creditors may
take concurrent Proceedings in any number of jurisdictions.
22. ASSIGNMENT
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. To the extent legally permissible the
Security Trustee shall be entitled to disclose such information
concerning the Assignor 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.
23. EFFECTIVENESS
This Agreement shall become effective only subject to the condition
precedent and at the time of the first original issuance of the Senior
Notes.
- 16 -
24. COUNTERPARTS
This Agreement may be executed in any number of counterparts and by
different parties hereto on separate counterparts each of which, when
executed and delivered, shall constitute an original, but all the
counterparts shall together constitute but one and the same instrument.
- 17 -
SCHEDULE 1
LIST OF RECEIVABLES
- 18 -
SCHEDULE 2
LIST OF INSURANCES
n.a.
- 19 -
SCHEDULE 3
FORM OF NOTIFICATION
To: [Insurer]
Date:
Dear Sirs,
We hereby give you notice that pursuant to an assignment agreement entered into
by us in favour of The Law Debenture Trust Corporation p.l.c. (the "SECURITY
TRUSTEE") dated [ ] 2003 we have assigned all our right, title and interest in
and to all present and future claims against you in respect of [ ], details of
which are set out below, to the Security Trustee.
After your receipt of this notice:
(i) all payments under or arising from the [ ] should be made to the
Security Trustee into the following bank account: [bank account];
(ii) all remedies [provided] for [in] the [ ] or available at law or in
equity are exercisable by the Security Trustee;
(iii) all rights to compel performance of the [ ] are exercisable by the
Security Trustee;
(iv) all rights, interests and benefits whatsoever accruing to or for the
benefit of ourselves arising from the [ ] belong to the Security
Trustee.
Please acknowledge receipt of this notice and declare your consent to the
assignment and the above terms by signing the acknowledgement on the enclosed
copy letter and returning the same to the Security Trustee at Xxxxx Xxxxx, 000
Xxxx Xxxxxx, Xxxxxx XX0X 0XX, England, attention: Manager Trust Administration.
Details of insurance policies
Date Parties Details of Insurance Policies
Yours faithfully,
- 20 -
_______________________
for and on behalf of
[insert name of relevant company]
- 21 -
FORM OF ACKNOWLEDGEMENT
[Letterhead of Insurer]
To: The Law Debenture Trust Corporation p.l.c.
Copy: [-]
Dear Sirs,
We refer to your letter of [ ] in which we are notified of an Assignment
Agreement dated [ ] under which [Assignor] has assigned to yourselves the
[description of all claims assigned] (the "ASSIGNED CLAIMS") together with all
rights pertaining thereto.
We confirm that we have not received notice of any previous arrangements or
changes of or over any of the Assigned Claims or any rights pertaining thereto.
We consent to the assignment and confirm that we shall make all payments in
respect of the Assigned Claims exclusively to the bank account as detailed in
the above mentioned letter or any other account as specified by you from time to
time and that we shall not exercise any right of combination, consolidation or
set off which we may have in respect of the Assigned Claims or any rights
pertaining thereto:
Yours faithfully
__________________________________________
[duly authorised signatory of the Insurer]
- 22 -
SCHEDULE 4
FORM OF NOTIFICATION
To: Debtor
Date:
Dear Sirs,
We hereby give you notice that pursuant to an assignment agreement entered into
by us in favour of The Law Debenture Trust Corporation p.l.c. (the "SECURITY
TRUSTEE") dated [-] 2003 we have assigned all our right, title and interest in
and to all present and future claims against you in respect of [-], details of
which are set out below, to the Security Trustee.
After your receipt of this notice:
(i) all payments under or arising from the [ ] should be made to the
Security Trustee into the follwing account [bank account];
(ii) all remedies [provided] for [in] the [ ] or available at law or in
equity are exercisable by the Security Trustee;
(iii) all rights to compel performance of the [ ] are exercisable by the
Security Trustee;
(iv) all rights, interests and benefits whatsoever accruing to or for the
benefit of ourselves arising from the [ ] belong to the Security
Trustee.
Please acknowledge receipt of this notice and declare your consent to the
assignment and the above terms by signing the acknowledgement on the enclosed
copy letter and returning the same to the Security Trustee at Xxxxx Xxxxx, 000
Xxxx Xxxxxx, Xxxxxx XX0X 0XX, England, attention: Manager Trust Administration.
Details of the debt
Date Parties Details of Claims
Yours faithfully,
- 23 -
______________________
for and on behalf of
[-]
FORM OF ACKNOWLEDGEMENT
[Letterhead of Debtor]
To: The Law Debenture Trust Corporation p.l.c.
Copy: [-]
Dear Sirs,
We refer to your letter of [-] in which we are notified of an Assignment
Agreement dated [-] under which [Assignor] has assigned to yourselves the
[description of all claims assigned] (the "ASSIGNED CLAIMS") together with all
rights pertaining thereto.
We confirm that we have not received notice of any previous arrangements or
changes of or over any of the Assigned Claims or any rights pertaining thereto.
We consent to the assignment and confirm that we shall make all payments in
respect of the Assigned Claims exclusively to the bank account as detailed in
the above mentioned letter or any other account as specified by you from time to
time and that we shall not exercise any right of combination, consolidation or
set off which we may have in respect of the Assigned Claims or any rights
pertaining thereto:
Yours faithfully
___________________________________________
[duly authorised signatory of the Debtor]
- 24 -
SCHEDULE 5
LIST OF ACCOUNTS
---------------------------------------------------------------------------------------------------------------------
Account
Account Name Number Swift Code Currency Bank Name Address Country
---------------------------------------------------------------------------------------------------------------------
Marconi Communications 75010413 XXXXXXXX000 EUR BHF Bank AG Xx.-Xxxxx-Xxx. 00 Xxxxxxx
GmbH 70174 Stuttgart
---------------------------------------------------------------------------------------------------------------------
Marconi Communications 7917917 XXXXXXXX000 EUR Commerzbank AG Xx.-Xxxxxxxxxx-Xxx. 0 Xxxxxxx
XxxX 00000 Backnang
---------------------------------------------------------------------------------------------------------------------
Marconi Communications 7917917GBP XXXXXXXX000 GBP Commerzbank AG Xx.-Xxxxxxxxxx-Xxx. 0 Xxxxxxx
XxxX 00000 Backnang
---------------------------------------------------------------------------------------------------------------------
Marconi Communications 7917917USD XXXXXXXX000 USD Commerzbank AG Xx.-Xxxxxxxxxx-Xxx. 0 Xxxxxxx
XxxX 00000 Backnang
---------------------------------------------------------------------------------------------------------------------
Marconi Communications 7917917JPY XXXXXXXX000 JPY Commerzbank AG Xx.-Xxxxxxxxxx-Xxx. 0 Xxxxxxx
XxxX 00000 Backnang
---------------------------------------------------------------------------------------------------------------------
Marconi Communications 161722400 DEUTDESSXXX EUR DEUTSCHE BANK Xx.-Xxxxx-Xxx. 0 Xxxxxxx
GmbH 70174 Stuttgart
---------------------------------------------------------------------------------------------------------------------
Marconi Communications 16172240003 DEUTDESSXXX GBP DEUTSCHE BANK Xx.-Xxxxx-Xxx. 0 Xxxxxxx
GmbH 70174 Stuttgart
---------------------------------------------------------------------------------------------------------------------
Marconi Communications 16172240005 DEUTDESSXXX USD DEUTSCHE BANK Xx.-Xxxxx-Xxx. 0 Xxxxxxx
GmbH 70174 Stuttgart
---------------------------------------------------------------------------------------------------------------------
Marconi Communications 16172240088 DEUTDESSXXX JPY DEUTSCHE BANK Xx.-Xxxxx-Xxx. 0 Xxxxxxx
GmbH 70174 Stuttgart
---------------------------------------------------------------------------------------------------------------------
Marconi Communications 88778 XXXXXXX0XXX EUR Kreissparkasse Xx Xxxxxxxxx 0 Xxxxxxx
---------------------------------------------------------------------------------------------------------------------
- 25 -
---------------------------------------------------------------------------------------------------------------------
GmbH Waiblingen 71522 Backnang
---------------------------------------------------------------------------------------------------------------------
Marconi Communications 4903323 XXXXXXX0XXX EUR Kreissparkasse Am Obstmarkt 5 Germany
GmbH Waiblingen 71522 Backnang
---------------------------------------------------------------------------------------------------------------------
- 26 -
SIGNATURE PAGE
THIS GLOBAL ASSIGNMENT AGREEMENT HAS BEEN ENTERED INTO ON THE DATE STATED AT THE
BEGINNING BY:
MARCONI COMMUNICATIONS GMBH
By: XXXX XXXXXX
Name: Xxxx Xxxxxx
Title: Attorney
THE LAW DEBENTURE TRUST CORPORATION P.L.C.
By: X. X. XXXXX
Name: X. X. Xxxxx
Title: Director
- 27 -
