EXHIBIT 4.53
XXXXXXXX CONFORMED COPY
CHANCE
PUNDER
MARCONI COMMUNICATIONS REAL ESTATE GMBH
AS PLEDGOR
THE LAW DEBENTURE TRUST CORPORATION p.l.c.
AS PLEDGEE AND SECURITY TRUSTEE
AND
OTHERS
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ACCOUNT PLEDGE AGREEMENT
(Kontoverpfandung)
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CONTENTS
CLAUSE PAGE
1. Definitions and language...................................................................... 4
2. Secured Obligations........................................................................... 5
3. Pledge........................................................................................ 5
4. Pledgor's Right of Disposal................................................................... 5
5. Enforcement of the Pledges.................................................................... 6
6. Limitation of Pledge.......................................................................... 7
7. Undertakings of the Pledgor................................................................... 8
8. Notification of Pledge........................................................................ 9
9. Super Priority of cash collateral............................................................. 9
10. Expenses, Costs and Taxes..................................................................... 9
11. Duration and Independence..................................................................... 10
12. Release (Pfandfreigabe)...................................................................... 11
13. General Business Conditions.................................................................. 11
14. Partial Invalidity; Waiver................................................................... 11
15. Amendments; Waiver........................................................................... 12
16. Notices and their Language................................................................... 12
17. Applicable Law; Jurisdiction................................................................. 13
19. Effectiveness................................................................................ 14
20. Counterparts................................................................................. 14
Schedule 1 List of Accounts........................................................................... 15
Schedule 2 Notice of Pledge........................................................................... 16
Schedule 3 Notice of Enforcement of Pledge............................................................ 18
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THIS ACCOUNT PLEDGE AGREEMENT is made the 16th day of May 2003
BETWEEN:
(1) Marconi Communications Real Estate GmbH, a limited liability company
organised under the laws of the Federal Republic of Germany, having its
business address at Gerberstra(beta)e 33, D-71522 Backnang, which is
registered in the commercial register (Handelsregister) of the local
court (Amtsgericht) of Backnang under HRB 1561 (the "PLEDGOR"); 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" or the "PLEDGEE")
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 Pledgor) as amended from time to time (the "SECURITY
TRUST AND INTERCREDITOR DEED").
(C) Subject to the terms and conditions set out herein, in particular
Clause 13 below, the Pledgor has agreed to grant a first ranking pledge
over its bank accounts held
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within the Federal Republic of Germany (as specified below) as security
for the payment and discharge of the Secured Obligations (as defined
below)
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NOW, IT IS AGREED as follows:
1. DEFINITIONS AND LANGUAGE
1.1 In this Agreement:
"ACCOUNTS" means the bank accounts listed in Schedule 1 hereto and all
bank accounts which the Pledgor holds in Germany in the future, other
than those opened for the purpose of depositing cash collateral
referred to in Clause 9, and "Account" means any of them.
"ACCOUNT BANK" means a bank administering any of the Accounts.
"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.
"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.
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
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accordance with and subject to the terms of the Security Trust and
Intercreditor Deed.
2. SECURED OBLIGATIONS
The pledges hereunder are constituted in order to secure together with
other security granted by the Pledgor 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
Pledgor to the Pledgee under the Relevant Documents (including, but not
limited to the parallel obligations of the Pledgor 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 Pledgor to the Secured
Creditors or any of them) (the "SECURED OBLIGATIONS") up to an
aggregate amount of EUR 30 million.
3. PLEDGE
3.1 Subject to Clause 13 below, the Pledgor hereby pledges to the Pledgee a
first priority pledge over all present and future credit balances,
including all interest payable, from time to time standing to the
credit on the Accounts (including any sub-account, renewal,
redesignation or replacement thereof) (each a "PLEDGE" and together the
"PLEDGES").
3.2 The Pledgee accepts the Pledges.
3.3 The validity and effect of each of the Pledges shall be independent
from the validity and the effect of the other Pledges created
hereunder.
3.4 Each of the Pledges is in addition, and without prejudice, to any other
security the Pledgee may now or hereafter hold in respect of the
Secured Obligations.
3.5 Subject to clause 13 the Pledges shall rank ahead of any other security
interest or third party right now in existence or created in the future
in or over any of the Accounts.
3.6 For the avoidance of doubt, the parties agree that nothing in this
Agreement shall exclude a transfer of all or part of the Pledges
created hereunder by operation of law upon the transfer or assignment
(including by way of assumption (Vertragsubernahme)) of all or part of
the Secured Obligations by the Pledgee to a future pledgee.
4. PLEDGOR'S RIGHT OF DISPOSAL
Unless, following the occurrence of an Enforcement Event, the Security
Trustee gives notice to the contrary to the Account Bank in
substantially the form set out
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in Schedule 3 attached to this Agreement with a copy to the Pledgor,
the Pledgor shall have the right to exercise all rights and powers in
respect of the Accounts without limitation.
5. ENFORCEMENT OF THE PLEDGES
5.1 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 the requirements set forth
in Section 1204 et seq. of the German Civil Code (Burgerliches
Gesetzbuch) with regard to the enforcement of any of the Pledges are
met (Pfandreife), in particular, if any of the Secured Obligations has
become due and payable, then in order to enforce the Pledges, the
Pledgee, in its discretion, may at any time hereafter avail itself of
all rights and remedies that a pledgee has upon occurrence of the
requirements with regard to the enforcement of the Pledges under the
laws of the Federal Republic of Germany (Pfandreife).
5.2 Notwithstanding Section 1277 of the German Civil Code, the Pledgee is
entitled to exercise its rights without obtaining a final judgment or
other instrument (vollstreckbarer Titel) against the Pledgor in any
relevant court or tribunal.
5.3 The Pledgee will enforce the Pledges (or any of them) by collecting the
credit balance from the Accounts only to the extent necessary in order
to ensure that the outstanding amounts under the Secured Obligations
are satisfied. After complete, full and irrevocable satisfaction of all
Secured Obligations any remaining surplus shall be promptly
retransferred to the Pledgor.
5.4 The Security Trustee shall notify the Pledgor of the intention to
realise the Pledges with a period of notice of no less than 5 (five)
Business Days. Such notice period is not necessary if the Pledgor has
generally ceased to make payments or the commencement of bankruptcy
proceedings is filed against the Pledgor.
5.5 If the Pledgee should seek to enforce the Pledges under this Clause 5,
the Pledgor shall, at its own expense, render forthwith all necessary
assistance in order to facilitate the prompt realisation of the Pledges
(or any of them) and/or the exercise by the Pledgee of any other right
they may have as Pledgee.
5.6 If the Pledges are enforced, no rights of the Pledgee shall pass to the
Pledgor by subrogation or otherwise unless and until all of the Secured
Obligations have been satisfied and discharged in full. In the case of
enforcement, Section 1225 of the German Civil Code shall not apply.
Until full discharge of the Secured Obligations, the Pledgee shall be
entitled to treat all enforcement proceeds as
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additional collateral for the Secured Obligations, or to seek
satisfaction from such proceeds at any time.
5.7 The Pledgee may, in its sole discretion, determine which of several
security interests, if applicable, shall be used to satisfy the Secured
Obligations.
5.8 The Pledgor hereby expressly waives all defences of revocation (Einrede
der Anfechtbarkeit) and set-off (Einrede der Aufrechenbarkeit) pursuant
to Sections 770, 1211 of the German Civil Code.
5.9 With respect to the enforcement of the Pledges the Pledgee will take
into consideration the legitimate interest of the Pledgor.
6. LIMITATION OF PLEDGE
6.1 The right to enforce the Pledges 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 Pledgor (other
than any of the Pledgor's subsidiaries), at all times be limited to an
amount equal to the Pledgor'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 Pledgor'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 Pledgor (the "NET ASSETS").
6.2 The Pledgor shall realise, to the extent legally permitted and, in
respect of the Pledgor, commercially justifiable, in a situation where
the Pledgor 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 Pledgor's business (betriebsnotwendig).
6.3 The Security Trustee shall enforce any Pledge created hereunder against
the Pledgor in accordance with the following procedure:
(i) The Pledgor shall, following a notification by the
Security Trustee to the Pledgor that an Enforcement
Event has occurred and that the Security Trustee
intends to enforce the Pledges, 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 Pledgor under the
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Pledges 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 Pledgor under the Pledges,
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 Pledgor 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 Pledgor
that it intends to enforce the Pledges.
(iv) If the Pledgor 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 Pledges
against the Pledgor without limitation.
7. UNDERTAKINGS OF THE PLEDGOR
During the term of this Agreement, the Pledgor undertakes to the
Pledgee:
7.1 upon the opening of any other account in the Federal Republic of
Germany, other than an account opened for the purpose of depositing
cash collateral referred to in Clause 9, to notify the Pledgee of the
account details with reference to the definition of "Account" of this
Agreement within 10 (ten) Business Days; and
7.2 insofar as additional documents, declarations or actions (including
making all filings and negotiations) are necessary for the creation,
perfection, protection or maintenance of the Pledges created (or
purported to be created) hereunder (or any of them) in favour of the
Pledgee 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 the realisation of the Pledges created (or purported to
be created) hereunder (or any of them), the Pledgor shall at the
Security Trustee's request enter into or provide such documents, make
such declarations and/or undertake such actions at the Pledgor's cost
and expense.
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8. NOTIFICATION OF PLEDGE
8.1 The Pledgor hereby undertakes to notify the relevant Account Banks of
the Pledges within 5 Business Days of the date of this Agreement in
substantially the form set out in Schedule 2 attached to this Agreement
requesting the Account Bank to acknowledge receipt of the notification
and acceptance of the terms thereof to the Pledgee.
8.2 If the Pledgor does not comply with its obligations under Clause 8.1,
the Pledgee is authorised and is irrevocably empowered by the Pledgor,
to act in its name and on its behalf in this respect, to notify the
relevant Account banks in accordance with Clause 8.1.
8.3 The Pledgee may, following the occurrence of an Enforcement Event,
deliver to the relevant Account Banks, a notice in substantially the
form set out in Schedule 3 attached to this Agreement.
9. SUPER PRIORITY OF CASH COLLATERAL
The security created herunder shall take effect subject to, and shall
not restrict the ability of the Pledgor to create, any security
(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 (i) the Interim Bonding Facility Letter (ii) the
New Bonding Facility Agreement, (iii) the Existing Performance Bonds
and (iv) 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.
10. EXPENSES, COSTS AND TAXES
10.1 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 sub-clause (i) of this Clause 10, 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 Pledges and the perfection
of the security contemplated in this
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Agreement or in any such documents or forming part of
the security created or intended to be created in
respect of the Pledges;
(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 Pledges; and
(iv) the preservation and/or enforcement of the security
created or intended to be created in respect of the
Pledges,
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.
10.2 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 Pledges 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 the Pledgor in paying any such Taxes
or fees.
11. DURATION AND INDEPENDENCE
11.1 This Agreement shall remain in full force and effect until complete
satisfaction of the Secured Obligations. The Pledges shall not cease to
exist, if the Pledgor has only temporarily discharged the Secured
Obligations.
11.2 This Agreement shall create a continuing security and no change,
amendment, or supplement whatsoever in the Relevant Documents or in any
document or agreement related to any of the Relevant Documents shall
affect the validity or
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the scope of this Agreement nor the obligations which are imposed on
the Pledgor pursuant to it.
11.3 This Agreement is independent from any other security or guarantee
which may have been or will be given to the Pledgee. None of such other
security shall prejudice, or shall be prejudiced by, or shall be merged
in any way with this Agreement.
12. RELEASE (PFANDFREIGABE)
12.1 Upon complete and irrevocable satisfaction of the Secured Obligations,
the Pledgee shall (in accordance with the terms and subject to the
conditions 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 Pledgor
confirm the release of the Pledges (Pfandfreigabe) to the Pledgor as a
matter of record. For the advoidance of doubt, the parties are aware
that upon full and complete satisfaction of the Secured Obligations the
Pledges, due to their accessory nature (Akzessoritat) cease to exist by
operation of German law.
12.2 At any time when the total value of the aggregate security granted by
the Pledgor 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 Pledgee on demand of the
Pledgor shall (in accordance with the terms and subject to the
conditions 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) 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.
13. GENERAL BUSINESS CONDITIONS
Subject to Clause 9, the Pledgor undertakes to use its best effort to
procure that each Account Bank subordinates any existing pledge over
any of the Accounts, including, but without limitation, any pledge
existing by operation of its general business conditions, to the
Pledges so that the Pledges will rank ahead of all other pledges
affecting the Accounts.
14. PARTIAL INVALIDITY; WAIVER
14.1 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
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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.
14.2 No failure to exercise, nor any delay in exercising, on the part of the
Pledgee, 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.
15. AMENDMENTS; WAIVER
This Agreement may be amended, modified or waived only in writing,
unless notarial form by operation of law is required. This also applies
to this Clause 15.
16. NOTICES AND THEIR LANGUAGE
16.1 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.
16.2 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 Pledgor: Marconi Communications Real Estate GmbH
Address: XxxxxxxxxxXx 00
X-00000 Xxxxxxxx
Fax: 00000 00 0000
Attention: Xxxx-Xxxxxx Xxxxxxxxx
Legal Advisor
For the Pledgee: 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 Administration
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or to such other address as the recipient may notify or may have
notified to the other party in writing.
16.3 DELIVERY
16.3.1 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 16.2 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.
16.3.2 Notwithstanding the provisions of sub-clause 16.3.1 (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 16.2 (or any substitute
department or officer as such person shall specify for this purpose).
16.4 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 shall be in the English language or, if
in any other language, accompanied by a translation into English which
if reasonably required by the Security Trustee shall be a certified
translation. In the event of any conflict between the English text and
the text in any other language, the English text shall prevail unless
the document is a constitutional, statutory or other official document.
17. APPLICABLE LAW; JURISDICTION
17.1 APPLICABLE LAW
This Agreement shall be governed by and construed in accordance with
the laws of the Federal Republic of Germany.
17.2 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
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a dispute regarding the existence, validity or termination of this
Agreement or the consequences of its nullity).
17.3 CONVENIENT FORUM
The parties agree that the courts of Frankfurt am Main are the most
appropriate and convenient courts to settle Disputes between then and,
accordingly, that they will not argue to the contrary.
17.4 NON-EXCLUSIVE JURISDICTION
This Clause 17 is for the benefit of the Pledgee only. As a result it
does not prevent the Pledgee from taking proceedings relating to a
Dispute ("PROCEEDINGS") in any other courts with jurisdiction. To the
extent allowed by law, the Pledgee may take concurrent Proceedings in
any number of jurisdictions.
18. 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 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.
19. 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.
20. 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.
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SCHEDULE 1
LIST OF ACCOUNTS
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Account
Account Name Number Swift Code Currency Bank Name Address Country
------------------------------------------------------------------------------------------------------------------------
Marconi Communications Real 161724000 DEUTDESSXXX EUR DEUTSCHE BANK Xx.-Xxxxx-Xxx. 0 Xxxxxxx
Xxxxxx XxxX 00000 Stuttgart
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SCHEDULE 2
NOTICE OF PLEDGE
From: [Pledgor]
To: [Account Bank]
Date:
Dear Sirs
RE: [Account No(s). (THE "ACCOUNT(s)")]
We hereby give you notice that by an account pledge agreement dated [ ] 2003
(the "ACCOUNT PLEDGE AGREEMENT") we have pledged in favour of The Law Debenture
Trust Corporation p.l.c. (the "SECURITY TRUSTEE") all of our right, title and
interest in and to the above account(s) (which shall include all sub-accounts,
renewals, replacements and redesignations thereof) and all monies and interest
from time to time standing or accruing to the credit thereof. A copy of the
Account Pledge Agreement is attached hereto.
Until notice to the contrary from the Security Trustee to be served on you as
Account Bank we may continue to operate the Account(s) and in particular may
dispose of the amounts standing to the credit of the Account(s). Upon receipt of
such aforesaid notice to the contrary you, as Account Bank, shall not allow any
dispositions by ourselves of amounts standing to the credit of the Account(s).
Please acknowledge receipt of this notice and your agreement to the terms hereof
by signing the enclosed copy and returning the same to The Law Debenture Trust
Corporation p.l.c. at Xxxxx Xxxxx, 000 Xxxx Xxxxxx, Xxxxxx XX0X 0XX, Xxxxxxx,
attention: Manager Trust Administration .
Yours faithfully,
__________________________________________
For and on behalf of [Pledgor]
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FORM OF ACKNOWLEDGMENT OF ACCOUNT BANK
To: The Law Debenture Trust Corporation p.l.c. (the "SECURITY TRUSTEE")
Cc: Marconi Corporation p.l.c. (the "COMPANY")
Date: [ ]
Dear Sirs
ACCOUNT PLEDGE AGREEMENT DATED [ ] BETWEEN [PLEDGOR] AND THE LAW DEBENTURE
TRUST CORPORATION p.l.c. (THE "ACCOUNT PLEDGE AGREEMENT")
We refer to the pledged accounts with account numbers [ ] (account names
[ ]) held with us (the "ACCOUNT(s)") and a notice of pledge from [Pledgor]
dated [ ] in connection with the Account Pledge Agreement (the "NOTICE").
At the request of the Company we acknowledge receipt of the Notice and confirm
that:
(a) we accept the instructions contained in the Notice and agree to comply
with the Notice;
(b) we have not received any previous notice of pledge in relation to the
Account(s) nor are we aware of any third party rights in relation to the
Account(s);
(c) we hereby:
(i) grant our consent on behalf of ourselves and our
legal successors in title to the pledge of any claims
arising out of the Account(s).
(ii) irrevocably and unconditionally waive our rights in
respect of and agree not to make any set-off or
deduction from the Account(s) or invoke any rights of
retention in relation to the Account(s);
(d) we agree that the pledge in our favour over the Account(s) granted
pursuant to our General Business Conditions shall rank behind all the
pledges over the Account(s) granted to the Security Trustee by the Pledgor
pursuant to the Account Pledge Agreement of which we have been notified by
the Pledgor.
Yours faithfully
_________________________________________
for and on behalf of
[Account Bank]
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SCHEDULE 3
NOTICE OF ENFORCEMENT OF PLEDGE
From: The Law Debenture Trust Corporation p.l.c.
To: [Account Bank]
CC: [Pledgor]
Date:
Dear Sirs
RE: [Account No(s). (THE "ACCOUNT(s)")]
We refer to the notice of pledge dated [insert date of notice pursuant to
Schedule 1] by which [Pledgor] has informed you that by an account pledge
agreement dated [ ] 2003 (the "ACCOUNT PLEDGE AGREEMENT") [Pledgor] has
pledged in favour of ourselves all of its right, title and interest in and to
the above account(s) (which shall include all sub-accounts, renewals,
replacements and redesignations thereof) and all monies and interest from time
to time standing or accruing to the credit thereof. A copy of the Account Pledge
Agreement has been provided you.
We hereby give you notice that we enforce our rights under the Account Pledge
Agreement and instruct you that upon receipt by you of this notice:
(i) [Pledgor] may not continue to operate the Account(s);
(ii) [Pledgor] may not dispose of the amounts standing to the credit of the
Account(s); and
(iii) you, as Account Bank, shall not allow any dispositions by [Pledgor] of
amounts standing to the credit of the Account(s).
We further instruct you:
(iv) to disclose to us without any reference to or further authority from
[Pledgor] and without any enquiry by you as to the justification of such
disclosure, such information relating to the Account(s) and the sums
therein as we may at any time and from time to time request;
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(v) to hold all sums from time to time standing to the credit of the
Accounts to our order;
(vi) to pay or release all or any part of the sums from time to time
standing to the credit of the Account(s) in accordance with our written
instructions at any time or times;
(vii) to comply with the terms of any written notice or instructions in any
way relating to, or purporting to relate to, the Account Pledge
Agreement and the sums standing to the credit of the Account(s) from
time to time which you receive at any time from us without any reference
to or further authority from [Pledgor] and without any enquiry by you as
to the justification for or validity of such notice or instruction; and
(viii) to pay all monies received by you for the Account(s) to (and only to)
the credit of those Accounts.
Please note that [Pledgor] is not permitted to withdraw any amount from (any) of
the Account(s) without our prior written consent.
Please also note that these instructions are not to be revoked or varied without
our prior written consent.
Please acknowledge receipt of this notice and your agreement to the terms hereof
by signing the enclosed copy and returning the same to The Law Debenture Trust
Corporation p.l.c. at Xxxxx Xxxxx, 000 Xxxx Xxxxxx, Xxxxxx XX0X 0XX, England,
attention: Manager Trust Administration.
Yours faithfully,
______________________________________________
For and on behalf of [Security Trustee]
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FORM OF ACKNOWLEDGEMENT
To: The Law Debenture Trust Corporation p.l.c.
Dear Sirs,
We confirm receipt from The Law Debenture Trust Corporation p.l.c. of a notice
dated [ ] relating to certain account(s) (the "ACCOUNT(s)") of [Pledgor] with
us.
We confirm that:
(i) we accept the instructions and authorisations contained in that notice
and we undertake to act in accordance with the terms of that notice;
(ii) we have not received notice of the interest of any third party in the
Account(s);
(iii) we have neither claimed or exercised nor will claim any rights to make
any set-off or deduction from the Account(s) nor have invoked or will
invoke any rights of retention or rights in relation to the Account(s)
without your prior written consent;
(iv) we shall pay all monies received by us for the Account(s) to (and only
to) the credit of the Account(s) unless otherwise consented to by you;
and
(v) we shall not permit any amount to be withdrawn from (any of) the
Account(s) without your prior written consent.
Yours faithfully,
_____________________________________
On behalf of [Account Bank]
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SIGNATURE PAGE
THIS ACCOUNT PLEDGE AGREEMENT HAS BEEN ENTERED INTO ON THE DATE STATED AT THE
BEGINNING BY
MARCONI COMMUNICATIONS REAL ESTATE GmbH
By: XXXX XXXXXX
Name: Xxxx Xxxxxx
Title: Attorney
THE LAW DEBENTURE TRUST CORPORATION p.l.c.
By: XXXXXX XXXXX-XXXX
Name: Xxxxxx Xxxxx-Xxxx
Title: Director
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