EXHIBIT 4.38
[XXXXXXXX CHANCE LOGO] LIMITED LIABILITY PARTNERSHIP
CONFORMED COPY
MARCONI CORPORATION PLC
AS ISSUER
THE LAW DEBENTURE TRUST CORPORATION p.l.c.
AS SECURITY TRUSTEE
THE PERSONS LISTED IN SCHEDULE 1
AS GUARANTORS
LAW DEBENTURE TRUST COMPANY OF NEW YORK
AS SENIOR NOTE TRUSTEE
JPMORGAN CHASE BANK
AS JUNIOR NOTE TRUSTEE
HSBC BANK plc
AS NEW BONDING FACILITY AGENT AND ESCROW BANK
THE BANK OF NEW YORK
AS DEPOSITARY, PAYING AGENT AND REGISTRAR
THE PERSONS LISTED IN PART A SCHEDULE 2
AS INTRA-GROUP CREDITORS
THE PERSONS LISTED IN PART B SCHEDULE 2
AS INTRA-GROUP BORROWERS
THE PERSONS LISTED IN SCHEDULE 3
AS NEW BONDING FACILITY BANKS
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SECURITY TRUST AND INTERCREDITOR DEED
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CONTENTS
CLAUSE PAGE
1. Definitions And Interpretation........................................... 2
2. Additional Parties....................................................... 16
3. Parallel Debt Obligation................................................. 18
4. Consent To Relevant Documents............................................ 18
5. The Security And The Guarantees.......................................... 18
6. Trust For Secured Creditors.............................................. 23
7. Amendments, Consents And Waivers......................................... 26
8. Ranking Of Secured Obligations And Priorities............................ 30
9. Undertakings............................................................. 33
10. Action And Enforcement Action............................................ 38
11. Turnover By The Secured Creditors........................................ 41
12. Sharing.................................................................. 42
13. Security Trustee As Party To Escrow Agreement............................ 43
14. Security Trustee's Actions............................................... 43
15. Resignation Of Security Trustee.......................................... 52
16. Delegation And Additional Security Trustee............................... 54
17. Power Of Attorney........................................................ 55
18. Fees, Expenses And Stamp Taxes........................................... 56
19. Indemnities.............................................................. 58
20. Notices.................................................................. 60
21. Benefit Of Deed.......................................................... 62
22. Preservation............................................................. 63
23. Priorities Not Affected.................................................. 63
24. Miscellaneous............................................................ 64
25. Winding Up Of Trust...................................................... 65
26. Perpetuity Period........................................................ 65
27. Counterparts............................................................. 66
28. Governing Law And Jurisdiction........................................... 66
Schedule 1 GUARANTORS........................................................... 67
Schedule 2 INTRA-GROUP PARTIES.................................................. 69
Part A Intra-Group Creditors............................................. 69
Part B Intra-Group Borrowers............................................. 70
Schedule 3 NEW BONDING FACILITY BANKS........................................... 72
Schedule 4 PRE-ACCELERATION PAYMENT PRIORITIES.................................. 73
Schedule 5 POST-ACCELERATION PAYMENT PRIORITIES................................. 74
Schedule 6 SECURITY TRUSTEE RESERVED MATTERS.................................... 75
Schedule 7 ACCESSION LETTERS.................................................... 76
Part A Intra-Group Accession Letter...................................... 76
Part B Guarantor Accession Letter........................................ 78
Schedule 8 AGENT/TRUSTEE/NEW BONDING FACILITY BANK ACCESSION LETTER............. 80
Schedule 9 GUARANTEE LIMITATIONS................................................ 81
THIS DEED is dated 19 May 2003
BETWEEN:
(1) MARCONI CORPORATION PLC as the issuer of the Senior Notes and the
Junior Notes (each as defined below) (the "ISSUER");
(2) THE LAW DEBENTURE TRUST CORPORATION P.L.C. as security trustee (the
"SECURITY TRUSTEE");
(3) THE PERSONS LISTED IN SCHEDULE 1 (GUARANTORS) as subsidiary guarantors
(together with any person who accedes to this Deed as a "Guarantor"
(the "GUARANTORS"));
(4) LAW DEBENTURE TRUST COMPANY OF NEW YORK as senior note trustee (the
"SENIOR NOTE TRUSTEE");
(5) JPMORGAN CHASE BANK as junior note trustee (the "JUNIOR NOTE TRUSTEE");
(6) HSBC BANK plc as security trustee and agent under the New Bonding
Facility Agreement (the "NEW BONDING FACILITY AGENT" and the "ESCROW
BANK");
(7) THE PERSONS LISTED IN SCHEDULE 3 (NEW BONDING FACILITY BANKS) as banks
under the New Bonding Facility Agreement (together with any person who
accedes to this Deed as a "New Bonding Facility Bank" (the "NEW BONDING
FACILITY BANKS"));
(8) THE BANK OF NEW YORK as depositary, paying agent and registrar (the
"DEPOSITARY", the "PAYING AGENT" and the "REGISTRAR");
(9) THE PERSONS LISTED IN PART A OF SCHEDULE 2 (INTRA-GROUP PARTIES) as
intra-group creditors (together with any person who accedes to this
Deed as an "Intra-Group Creditor" (the "INTRA-GROUP CREDITORS")); and
(10) THE PERSONS LISTED IN PART B OF SCHEDULE 2 (INTRA-GROUP PARTIES) as
intra-group borrowers (together with any person who accedes to this
Deed as an "Intra-Group Borrower" (the "INTRA-GROUP BORROWERS")).
WHEREAS:
(A) The Issuer has issued or is to issue the Senior Notes pursuant to the
Senior Note Indenture.
(B) The Issuer has issued or is to issue the Junior Notes pursuant to the
Junior Note Indenture.
(C) The obligations of the Issuer in respect of the Notes are secured by
Security in favour of the Security Trustee, as security trustee for the
Secured Creditors, over certain of the Issuer's assets.
(D) The obligations of the Issuer in respect of the Notes are guaranteed by
each of the Guarantors under the Guarantees (other than Marconi
Communications Telemulti Ltda, (a Brazilian company) that will neither
provide a Guarantee nor provide any Security
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(but the quotas (equity interests) in which will be pledged as Security
by its parent company) and which will be deemed to be a Guarantor for
the purposes of the covenants in the Indentures and this Deed). The
obligations of each of the Guarantors are secured by Security in favour
of the Security Trustee, as security trustee for the Secured Creditors,
over certain assets of certain of the Guarantors.
(E) Marconi Bonding Limited, the Issuer, certain Subsidiaries of the Issuer
(the "INDEMNIFYING COMPANIES"), the New Bonding Facility Agent and the
New Bonding Facility Banks have on 27 March 2003, entered into the New
Bonding Facility Agreement.
(F) The obligations of the Indemnifying Companies under the New Bonding
Facility Agreement are guaranteed by the Issuer and the obligations of
the Issuer under such Guarantee are guaranteed by each Guarantor (other
than Marconi Communications Telemulti Ltda, (a Brazilian company) that
will neither provide a Guarantee nor provide any Security (but the
quotas (equity interests) in which will be pledged as Security by its
parent company) and which will be deemed to be a Guarantor for the
purposes of the covenants in the Indentures and this Deed). Such
obligations are secured by Security in favour of the Security Trustee,
as security trustee for the Secured Creditors, over certain of the
Issuer's assets and over certain assets of certain of the Guarantors.
(G) The Intra-Group Creditors and the Intra-Group Borrowers have agreed
that, subject to the terms and conditions of this Deed, the Intra-Group
Liabilities shall be subordinated in right of payment to the Secured
Obligations.
(H) The parties hereto have entered into this Deed in order to regulate the
claims of the Secured Creditors and the Intra-Group Creditors against
the Obligors under the Relevant Documents and in respect of the
Intra-Group Liabilities and the rights of priority and enforcement of
the Secured Creditors in respect of the Security Documents.
(I) It is intended by the parties hereto that this Deed shall take effect
as a deed.
IT IS AGREED as follows:
1. DEFINITIONS AND INTERPRETATION
1.1 DEFINITIONS
In this Deed:
"ACTION" means:
(a) the acceleration of any Secured Obligations or any Intra-Group
Liabilities or any declaration that any Secured Obligations or
any Intra-Group Liabilities 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) or (other than in respect of an Intra-Group
Liability which is payable on demand in accordance with its
original terms) payable on demand;
(b) the exercise of any right of set-off or the taking or
receiving of any payment (other than in each case in respect
of Permitted Payments whilst permitted under
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Clause 9.5 (Permitted Payments)) in respect of any Secured
Obligations or any Intra-Group Liabilities;
(c) suing for, commencing or joining any legal or arbitration
proceedings to recover, or in respect of, any Secured
Obligations or any Intra-Group Liabilities;
(d) the entering into of any composition, assignment or
arrangement with any Obligor in connection with any Secured
Obligations or any Intra-Group Liabilities of that Obligor
(other than any arrangement whereby the Intra-Group
Liabilities of any Intra-Group Borrower owed to any
Intra-Group Creditor are waived or released);
(e) petitioning, applying or voting for, or taking any steps
(including the appointment of any liquidator, receiver,
examiner, administrator, custodian, manager, assignee,
trustee, sequestrator or similar officer) in relation to, the
winding up, dissolution, administration, examinership or
reorganisation of any Obligor, or any analogous procedure or
step in any jurisdiction; and
(f) the exercise of any right to require any Obligor to pay,
prepay, redeem, purchase, terminate or otherwise acquire any
of the Secured Obligations (other than in each case in respect
of Permitted Payments whilst permitted under Clause 9.5
(Permitted Payments)).
"ADDITIONAL AMOUNTS" shall have the meaning ascribed to it in the
applicable Indenture.
"ADDITIONAL GUARANTOR" means any member of the Group which accedes to
this Deed as a Guarantor in accordance with Clause 2.3 (Additional
Guarantors).
"ADDITIONAL REMUNERATION" has the meaning ascribed to it in Clause 18.1
(Security Trustee Fee).
"ADDITIONAL REMUNERATION FEE LETTER" has the meaning ascribed to it in
Clause 18.1 (Security Trustee Fee).
"AGENCY AGREEMENT" means the agency agreement between the Issuer, the
Guarantors, the Note Trustees, the Paying Agent and the Registrar dated
on or about the date of this Deed.
"AGENT/TRUSTEE/NEW BONDING FACILITY BANK ACCESSION LETTER" means an
accession letter substantially in the form set out in Schedule 8
(Agent/Trustee/New Bonding Facility Bank Accession Letter).
"AMERICAN GUARANTOR" means for the purposes of Clause 24.5 (Guarantee
Limitations) and Schedule 9 (Guarantee Limitations) only, any Guarantor
whose Relevant Jurisdiction is a state of the United States of America
or the District of Columbia.
"APPLICABLE SECURITY DOCUMENTS" means the Brazilian Security Documents,
the Guernsey Security Documents and the Mexican Security Documents.
"ASSET SALE" shall have the meaning ascribed to it in the Indentures.
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"ATTORNEY" has the meaning ascribed to it in sub-clause 17.1.2 of
Clause 17.1 (Appointment).
"AUSTRALIAN GUARANTOR" means any Guarantor whose Relevant Jurisdiction
is a state or territory of Australia.
"BANKRUPTCY LAW" means Title 11 of the United States Code (11 U.S.C.
101 et. seq.), or any similar United States federal or state law or any
relevant law in any other jurisdiction of organisation or location of
any assets of any Obligor or Significant Subsidiary or any similar law
(including, without limitation, (a) the laws of the United Kingdom
relating to moratorium, administration, bankruptcy, insolvency,
receivership, winding-up, liquidation, reorganisation or relief of
debtors, and (b) the laws of any other jurisdictions relating to
bankruptcy, moratorium, insolvency, receivership, reorganisation or
other relief of debtors and composition with creditors or any amendment
to, succession to or change in such law).
"BRAZILIAN SECURITY DOCUMENTS" means all Security Documents governed by
Brazilian law and "BRAZILIAN SECURITY DOCUMENT" means any of them.
"BUSINESS DAY" means a day (other than a Saturday or Sunday) on which
commercial banks are open for general business in London and New York
and (in relation to any date for payment or purchase of a currency
other than euro) the principal financial centre of that currency.
"DEBT REPRESENTATIVE" means, in relation to the Senior Notes, the
Senior Note Trustee, in relation to the Junior Notes, the Junior Note
Trustee and, in relation to the New Bonding Facility Agreement, the New
Bonding Facility Agent.
"DEFAULT" has the meaning ascribed to it in the applicable Relevant
Document.
"DELEGATE" means any delegate, agent, attorney, Attorney, co-trustee or
additional but separate trustee (including any trustee under any deeds
of trust for the purpose of the US Security Documents (referred to in
Schedule 2 of the Indentures)), custodian, depository or Receiver
appointed by the Security Trustee in accordance with the terms hereof
and/or the Security Documents.
"DEPOSIT AGREEMENT" means the deposit agreement dated on or about the
date of this Deed between the Issuer and the Depositary.
"DOLLAR EQUIVALENT" means with respect to any monetary amount in a
currency other than United States Dollars, at any time of determination
thereof, the amount of United States Dollars obtained by translating
the amount of such foreign currency into United States Dollars at the
Bloomberg Composite Spot Rate for the purchase of United States Dollars
with the applicable currency at 11.30 on the previous Business Day
prior to such determination.
"DUTCH GUARANTOR" means any Guarantor whose Relevant Jurisdiction is
The Netherlands.
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"ENFORCEMENT ACTION" means:
(a) the taking of any steps to enforce or collect or require the
enforcement or collection of any of the Transaction Security
(including the crystallisation of any floating charge forming
part of the Transaction Security);
(b) the making of any demand in relation to any Guarantee,
indemnity or other assurance against loss in respect of any
Secured Obligations or the exercising of any right to require
any Obligor to pay, prepay, redeem, purchase, terminate or
otherwise acquire any of the Secured Obligations (other than
in each case in respect of Permitted Payments whilst permitted
under Clause 9.5 (Permitted Payments)); and
(c) in relation to the Italian Mortgages, the giving of
instructions to the Secured Creditors who are the
beneficiaries under the Italian Mortgages to take the actions
set out in (a) and (b) above.
"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 unlawful for a Secured Creditor to perform its obligations
under the Relevant Documents) 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.
"ENGLISH GUARANTOR" means any Guarantor whose Relevant Jurisdiction is
England or Wales.
"ESCROW ACCOUNTS" means the Existing Performance Bond Escrow Account
and the Mandatory Redemption Escrow Account.
"ESCROW AGREEMENT" means the escrow agreement dated on or about the
date of this Deed and made between the Security Trustee, the Issuer,
the New Bonding Facility Agent, the New Bonding Facility Security
Trustee (as defined therein) and the Escrow Bank establishing and
setting out the terms and conditions of each of the Escrow Accounts.
"EVENT OF DEFAULT" means any event or circumstance specified as such in
any of the Relevant Documents.
"EXISTING PERFORMANCE BONDS" means surety bonds, appeal bonds, bid
bonds, performance bonds, letters of credit, bank guarantees or other
obligations of a like nature issued by a bank, insurance company or
other financial institution on behalf of the Issuer or any of its
Subsidiaries in existence on the Issue Date and not issued pursuant to
an Interim Bonding Facility, until such bonds, letters of credit,
guarantees or other obligations expire, terminate or are cancelled.
"EXISTING PERFORMANCE BOND ESCROW ACCOUNT" means the escrow account
established pursuant to the Escrow Agreement to be used to satisfy any
liabilities owed by the Issuer
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and/or its Subsidiaries to certain providers of Existing Performance
Bonds for a period of 12 months from such Issue Date.
"FEE LETTER" has the meaning ascribed to it in Clause 18.1 (Security
Trustee Fee).
"GERMAN GUARANTOR" means any Guarantor whose Relevant Jurisdiction is
the Federal Republic of Germany.
"GERMAN SECURITY" means any Security held by or granted to or through
the Security Trustee or any Secured Creditor, as the case may be,
pursuant to any German Security Document and held and/or administered
by the Security Trustee on behalf of or in trust for all or any of the
Secured Creditors hereunder, and any addition or replacement or
substitution thereof.
"GERMAN SECURITY DOCUMENTS" means all Security Documents governed by
German law and "GERMAN SECURITY DOCUMENT" means any of them.
"GROUP" means the Issuer and its Subsidiaries from time to time.
"GUARANTEE" means any guarantee of any of the Secured Obligations.
"GUARANTEE LIMITATIONS" means the guarantee limitations set out in
Schedule 9 (Guarantee Limitations).
"GUARANTEED OBLIGATIONS" means the Secured Obligations guaranteed by
the Guarantors under the Guarantees.
"GUARANTOR ACCESSION LETTER" means an accession letter substantially in
the form set out in Part B of Schedule 7 (Accession Letters) pursuant
to which a member of the Group accedes to this Deed as a Guarantor.
"GUERNSEY SECURITY DOCUMENTS" means all Security Documents governed by
Guernsey law and "GUERNSEY SECURITY DOCUMENT" means any of them.
"HONG KONG GUARANTOR" means any Guarantor whose Relevant Jurisdiction
is The Hong Kong SAR.
"INDEMNIFYING COMPANIES" has the meaning given to it in paragraph (E)
of the recitals of this Deeds.
"INDENTURES" means the Senior Note Indenture and the Junior Note
Indenture collectively and "INDENTURE" means either of them.
"INITIAL SECURITY DOCUMENTS" means the Guarantees guaranteeing the
Secured Obligations and the security documents, each to be dated on or
before the Issue Date that are set forth in the Indentures.
"INSOLVENCY EVENT" means any of the following events:
(1) the entry by a court of competent jurisdiction of (a) a decree
or order for relief in respect of any Obligor or any
Significant Subsidiary, in an involuntary case or proceeding
under any Bankruptcy Law or (b) a decree or order (i)
adjudging
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any Obligor or any Significant Subsidiary bankrupt or
insolvent, (ii) approving as properly filed a petition seeking
moratorium, reorganization, arrangement, adjustment or
composition of or in respect of any Obligor or any Significant
Subsidiary under any Bankruptcy Law, (iii) appointing a
custodian, administrator, receiver, administrative receiver,
manager, liquidator, assignee, trustee, sequestrator or other
similar official of any Obligor or any Significant Subsidiary
or of any substantial part of their respective properties, or
(iv) ordering the winding up or liquidation of the affairs of
any Obligor or any Significant Subsidiary, and in each case
any such decree or order for relief continues to be in effect,
or any such other decree or order continues unstayed and in
effect, for a period of 60 consecutive calendar days, in the
case of each of clauses (a) and (b) otherwise than, in the
case of a Subsidiary, for the purposes of or pursuant to an
amalgamation, reorganization or restructuring while solvent on
terms approved by the Senior Note Trustee (in the case of the
Senior Notes) or the Junior Note Trustee (in the case of the
Junior Notes) or by the Relevant Holders of the Senior Notes
(in the case of the Senior Notes) or the Junior Notes (in the
case of the Junior Notes);
(2)
(a) commencement by any Obligor or any Significant Subsidiary of a
voluntary case or proceeding or process (whether or not
requiring the order of a court or tribunal) under any
Bankruptcy Law or of any other case or proceeding to be
adjudicated bankrupt or insolvent, or filing for or having
been granted a moratorium on payment of its debts or filing
for bankruptcy or having been declared bankrupt,
(b) consent by any Obligor or any Significant Subsidiary to the
entry of a decree or order for relief in respect of any
Obligor or any Significant Subsidiary in an involuntary case
or proceeding under any Bankruptcy Law or to the commencement
of any bankruptcy or insolvency case or proceeding against any
Obligor or any Significant Subsidiary,
(c) filing of a petition or answer or consent by any Obligor or
any Significant Subsidiary seeking reorganization or relief
under any Bankruptcy Law,
(d) any Obligor or any Significant Subsidiary (i) consenting to
the filing of such petition or to the appointment of, or
taking possession by, an administrator, custodian, receiver,
manager, liquidator, assignee, trustee, sequestrator or other
similar official of any Obligor or such Significant Subsidiary
or of any substantial part of their respective properties,
(ii) making an assignment for the benefit of its creditors
generally or (iii) admitting in writing its inability to pay
its debts generally as they become due,
(e) the approval by stockholders of any Obligor or any Significant
Subsidiary of any plan or proposal for the liquidation or
dissolution of any Obligor or any Significant Subsidiary,
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(f) the whole or any substantial part of the assets of any Obligor
or any Significant Subsidiary being placed under
administration or receivership or administrative receivership
or any other analogous proceedings under the laws of any
relevant jurisdiction, or
(g) any Obligor or any Significant Subsidiary taking any corporate
action in furtherance of any such actions in this definition,
in the case of each of clauses (a) through (g) otherwise than, in the
case of a Subsidiary of the Issuer, for the purposes of or pursuant to
an amalgamation, reorganization or restructuring while solvent on terms
approved by the Senior Note Trustee (in the case of the Senior Notes)
or the Junior Note Trustee (in the case of the Junior Notes) or by
Relevant Holders of the Senior Notes (in the case of the Senior Notes)
or the Junior Notes (in the case of the Junior Notes).
"INSOLVENCY EVENT OF DEFAULT" means an Insolvency Event that is an Event of
Default under the applicable Indenture.
"INSTRUCTING TRUSTEE" means:
(a) prior to the discharge in full of the Secured Obligations
under the Senior Notes and the Senior Note Indenture, the
Senior Note Trustee acting on the instructions of the Relevant
Holders of the Senior Notes; and
(b) following the discharge in full of the Secured Obligations
under the Senior Notes and the Senior Note Indenture and prior
to the discharge in full of the Secured Obligations under the
Junior Notes and the Junior Note Indenture, the Junior Note
Trustee acting on the instructions of the Relevant Holders of
the Junior Notes.
"INTERIM BONDING FACILITY" has the meaning ascribed to it in the
Indentures.
"INTRA-GROUP ACCESSION LETTER" means an accession letter substantially
in the form set out in Part A of Schedule 7 (Accession Letters)
pursuant to which a member of the Group accedes to this Deed as an
Intra-Group Creditor or an Intra-Group Borrower.
"INTRA-GROUP DOCUMENTS" means any and all agreements and other
instruments under or by which any Intra-Group Liabilities are
outstanding or evidenced including any instrument pursuant to which the
same is novated, varied, supplemented or amended from time to time.
"INTRA-GROUP LIABILITIES" means all present or future sums, liabilities
and obligations whatsoever (actual or contingent) payable, owing, due
or incurred by any Intra-Group Borrower to any Intra-Group Creditor
(whether pursuant to an Intra-Group Document or otherwise), other than
sums, liabilities and obligations arising in the ordinary course of
business which do not constitute Indebtedness (as defined in the
Indentures).
"INTRA-GROUP PARTIES" means the Intra-Group Borrowers and the
Intra-Group Creditors from time to time.
"IRISH GUARANTOR" means any Guarantor whose Relevant Jurisdiction is
Ireland.
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"ISSUE DATE" has the meaning ascribed to it in the Indentures.
"ITALIAN GUARANTOR" means any Guarantor whose Relevant Jurisdiction is
Italy.
"ITALIAN MORTGAGE" means the mortgages (ipoteche), governed by Italian
law, granted by any Italian Guarantor in favour of any of the Secured
Creditors party to such mortgages as the beneficiaries and "Italian
Mortgage" means any of them.
"JUNIOR NOTE INDENTURE" means the indenture pursuant to which the
Junior Notes are issued.
"JUNIOR NOTES" means the dollar denominated Guaranteed Junior Secured
Notes due 2008 plus any Junior PIK Notes issued or to be issued by the
Issuer in accordance with the Junior Note Indenture.
"JUNIOR PIK NOTES" means any Junior Notes issued and constituting
interest or Additional Amounts paid in kind on outstanding Junior
Notes.
"MANDATORY REDEMPTION ESCROW ACCOUNT" means the escrow account
established pursuant to the Escrow Agreement into which, in accordance
with the Junior Note Indenture and the Senior Note Indenture, certain
amounts will be paid to be applied, inter alia, towards the mandatory
redemption of the Junior Notes and/or the Senior Notes.
"MATERIAL AMENDMENT" means any amendment or waiver to the Senior Notes,
the Senior Note Indenture or the New Bonding Facility Agreement which:
(a) increases or changes the basis on which interest accrues or is
payable;
(b) alters any provisions relating to the amount, currency or date
of any repayment;
(c) increases the maximum principal amount of the Senior Notes or
the amount of the available commitment under the New Bonding
Facility Agreement from the principal amount and available
commitment as at the date hereof;
(d) changes the basis on which fees or other like payments are
made or calculated;
(e) in relation to the Senior Notes and the Senior Note Indenture
only, amends the definition of Asset Sale or Section 4.03
(Asset Sales) of the Senior Note Indenture; or
(f) in relation to the Senior Notes and the Senior Note Indenture
only, introduces any new covenants, Defaults or Events of
Default or amends the provisions of Section 6.01(4) or the
related provisions of Section 6.03, 6.10 or 6.15 of the Senior
Note Indenture.
"MCHI" means Marconi Communications Holdings, Inc., a Delaware
corporation.
"MCHI PLAN OF LIQUIDATION AND DISSOLUTION" shall have the meaning
ascribed to it in the Indentures.
"NEW BONDING FACILITY AGREEMENT" means the L50,000,000 (or the
equivalent in other currencies) committed revolving bonding facility
agreement dated 27 March 2003
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among the New Bonding Facility Agent, the New Bonding Facility Banks,
Marconi Corporation plc, Marconi Bonding Limited and the Indemnifying
Companies for the issuance of bonds, guarantees, letters of credit,
indemnities and similar instruments.
"NEW BONDING FACILITY FINANCE PARTIES" means the Finance Parties (as
defined in the New Bonding Facility Agreement).
"NON-US GUARANTORS" means any Subsidiary of the Issuer which is a
Guarantor, other than a US Guarantor.
"NOTE TRUSTEES" means each of the Senior Note Trustee and the Junior
Note Trustee and "NOTE TRUSTEE" means either of them.
"NOTES" means the Senior Notes and the Junior Notes, collectively.
"OBLIGOR" means each of the Issuer and the Guarantors.
"ORIGINAL TRANSACTION SECURITY" means the Transaction Security as at
the date hereof.
"PARTY" means a party to this Deed.
"PAYMENT DATE" means any date on which a payment, prepayment, purchase
or redemption (whether such payment, prepayment, purchase or redemption
is a payment, prepayment, purchase or redemption of principal, interest
or premium or is a payment or prepayment of Additional Amounts, fees,
commission or otherwise) is made or is permitted to be made by an
Obligor (including, without limitation, whether directly or indirectly
by use of amounts standing to the credit of an Escrow Account in
accordance with the Escrow Agreement) in accordance and in compliance
with the terms of the Relevant Documents.
"PAYMENT STOP EVENT" means:
(a) the failure by any Obligor to pay on the due date any amount
payable under the Senior Notes or the Senior Note Indenture;
and/or
(b) the acceleration of amounts due under the Senior Notes or the
Senior Note Indenture following the occurrence of an Event of
Default under the Senior Notes or the Senior Note Indenture,
PROVIDED THAT a Payment Stop Event shall cease to be continuing if:
(i) the relevant Default under the Senior Notes or the Senior Note
Indenture has been remedied or waived and, if amounts due
under the Senior Notes have been accelerated, any such
acceleration has been rescinded in accordance with the Senior
Note Indenture; or
(ii) the Required Holders of at least a majority of the principal
amount of the then outstanding Senior Notes consent in writing
to the cessation of the relevant Payment Stop Event; or
(iii) the Secured Obligations arising under the Senior Notes and the
Senior Note Indenture have been discharged in full,
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and, in the case of (i), (ii) or (iii), the Senior Note Trustee will
promptly issue a written notice to the other Debt Representatives, the
Security Trustee and the Issuer notifying them that the relevant
Payment Stop Event has ceased to be continuing.
"PERMITTED PAYMENTS" means, in relation to any Relevant Document,
Intra-Group Document or, as the case may be, Intra-Group Liability:
(a) scheduled payments (which shall include the payment on demand
of Intra-Group Liabilities which are payable on demand in
accordance with the original terms of the relevant Intra-Group
Liabilities) and mandatory prepayments of principal, premium,
if any, and interest (including default interest) payable in
accordance with the terms of the Relevant Document or
Intra-Group Document;
(b) the exercise of any right of set-off in relation to
Intra-Group Liabilities;
(c) any payment or reimbursement of costs, expenses, commitment
fees, commissions, Taxes (other than a tax on income), letter
of credit, bond or guarantee issuance fees and fees (including
legal fees) payable to, and sums payable under any indemnity
to, any agent, trustee or issuing bank (which for the
avoidance of doubt shall include the Security Trustee, the
Escrow Bank, the Note Trustees, the New Bonding Facility Agent
and the New Bonding Facility Banks) payable in accordance with
the terms of the Relevant Document, the Intra-Group Documents
or the Interim Bonding Facility;
(d) any payment of any Intra-Group Liabilities arising in respect
of any indemnity, counter-indemnity, reimbursement, Tax
gross-up or increased costs (whether arising under contracts
or applicable law) of any Intra-Group Borrower to any
Intra-Group Creditor in connection with any indemnity (whether
arising under contract or applicable law) given by the
Intra-Group Creditor to certain providers of Existing
Performance Bonds or the Interim Bonding Facility;
(e) sums payable in respect of any applicable indemnity,
counter-indemnity, Tax gross-up or of any increased costs in
accordance with the terms of the Relevant Documents or, as the
case may be, the Intra-Group Documents;
(f) prepayment in accordance with the terms of the Relevant
Document, or as the case may be, of the Intra-Group
Liabilities as a result of it becoming unlawful for an
Obligor, a Secured Creditor, or as the case may be, an
Intra-Group Creditor or an Intra-Group Borrower to perform its
obligations under the Relevant Document or, as the case may
be, in relation to the relevant Intra-Group Liabilities;
(g) voluntary prepayment of Intra-Group Liabilities which are
advanced as term loans under the Intra-Group Documents;
(h) the purchase or acquisition of the Intra-Group Liabilities by
a member of the Group in any manner which is not restricted by
the terms of the Indentures;
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(i) application of amounts standing to the credit of the Escrow
Accounts in prepayment of the Notes in accordance with the
terms of the Escrow Agreement and the Indentures; and
(j) the optional redemption, purchase, repurchase, acquisition or
retiring for value, in the open market or otherwise and at any
price by the Issuer or any Guarantors of any Senior Notes or
Junior Notes in each case in accordance with and subject to
the restrictions contained in the relevant Indenture,
PROVIDED THAT save as expressly permitted by Section 4.11(c)(2)
(Transaction with Affiliates) of the Senior Note Indenture and Section
4.10(c)(2) (Transaction with Affiliates) of the Junior Note Indenture,
payments of any Intra-Group Liabilities owed by the Issuer or a Non-US
Guarantor to a Subsidiary of the US Parent (as defined in the
Indentures) shall be excluded from the definition of Permitted Payment.
"POST-ACCELERATION PAYMENT PRIORITIES" shall mean the payment
priorities set out in Schedule 5 (Post-Acceleration Payment
Priorities).
"PRE-ACCELERATION PAYMENT PRIORITIES" shall mean the payment priorities
set out in Schedule 4 (Pre-Acceleration Payment Priorities).
"RECEIVER" means a receiver or manager or administrative receiver of
the whole or any part of the Transaction Security.
"RELEVANT DOCUMENTS" means this Deed, any Agent/Trustee/New Bonding
Facility Bank Accession Letter, any Guarantor Accession Letter, the
Indentures, the Escrow Agreement, the Notes, the New Bonding Facility
Agreement, the Security Documents (including the Guarantees of the
Senior Notes, the Guarantee of the Junior Notes and the Composite
Guarantee (each as defined in the Indentures), the Fee Letter and any
Additional Remuneration Fee Letter and any notices issued and any other
documents or agreements entered into in connection with or relating to
such documents.
"RELEVANT HOLDERS" means in relation to any tranche of Notes, the
Required Holders of at least 25 per cent. of the principal amount of
the then outstanding Notes in such tranche, PROVIDED THAT in relation
to any instruction to any Note Trustee, if instructions inconsistent
with such instructions have been given to the relevant Note Trustee by
the holders of a majority of the principal amount of the then
outstanding applicable Notes, then the holders of such majority shall
be the "RELEVANT HOLDERS".
"RELEVANT JURISDICTION" means, in relation to a Guarantor, its
jurisdiction of incorporation, or, if not incorporated, its seat or
principal place of business.
"REQUIRED HOLDERS" shall have the meaning ascribed to it in the
applicable Indenture.
"SECURED CREDITORS" means the Security Trustee, any Receiver or
Delegate, the Depositary, the Paying Agent, the Registrar, the Senior
Note Trustee (for itself and as trustee for the holders of the Senior
Notes), the Junior Note Trustee (for itself and as trustee for the
holders of the Junior Notes), the Escrow Bank, the New Bonding Facility
Agent and each of the New Bonding Facility Banks and their successors
and assigns.
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"SECURED OBLIGATIONS" means all present and future indebtedness,
liabilities and obligations (for the avoidance of doubt, including any
liabilities and obligations which have been cash-collateralised by the
Obligors) at any time of any Obligor under the Relevant Documents, both
actual and contingent and whether incurred solely or jointly or in any
other capacity together with any of the following matters relating to
or arising in respect of those liabilities and obligations:
(a) any refinancing, novation, deferral or extension;
(b) any obligation relating to any increase in the amount of such
obligations;
(c) any claim for damages or restitution; and
(d) any claim as a result of any recovery by an Obligor of a
payment or discharge, or non-allowability, on the grounds of
preference,
and any amounts that would be included in any of the above but for any
discharge, non-provability or unenforceability of those amounts in any
insolvency or other proceedings (including interest accruing after the
commencement of any insolvency or other proceedings).
"SECURITY" means a mortgage, charge, pledge, lien or other security
interest securing any obligation of any person or any other agreement
or any guarantee, indemnity or assurance against loss or arrangement
having a similar effect.
"SECURITY DOCUMENTS" means (1) the Initial Security Documents securing
the Secured Obligations, (2) any other pledge agreements, security
agreements, mortgages, deeds of trust and other agreements, instruments
and documents entered into from time to time by the Issuer or any
Subsidiary of the Issuer creating or granting any Guarantee, indemnity
or Security in favour of any of the Secured Creditors or the Security
Trustee, as trustee for the Secured Creditors, as security for any of
the Secured Obligations and (3) any other agreements, instruments and
documents executed and delivered pursuant to any of the foregoing, in
the case of each of clauses (1) through (3), as amended, modified,
restated or supplemented from time to time.
"SECURITY TRUSTEE RESERVED MATTERS" shall have the meaning ascribed to
it in Schedule 6 (Security Trustee Reserved Matters).
"SENIOR NOTE INDENTURE" means the indenture pursuant to which the
Senior Notes are issued.
"SENIOR NOTES" means the US dollar denominated Guaranteed Senior
Secured Notes due 2008 issued or to be issued by the Issuer.
"SIGNIFICANT SUBSIDIARY" shall have the meaning ascribed to it in the
relevant Indenture.
"STANDSTILL EVENT" means the occurrence of a Default under the Senior
Notes.
"STANDSTILL NOTICE" means a notice delivered to the Security Trustee
(with a copy to the Issuer and the other Debt Representatives) by the
Senior Note Trustee in accordance with
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Clause 9.7 (Issue of Standstill Notice), notifying the Security Trustee
of a Standstill Event.
"STANDSTILL PERIOD" means the period from the date of issuance of a
Standstill Notice and ending on the earlier of:
(a) the expiration of a period of 179 days after the date of the
issuance of such Standstill Notice by the Senior Note Trustee;
(b) the date on which the Senior Note Trustee has confirmed in
writing to the Security Trustee (with a copy to the Issuer and
the other Secured Creditors) that the Default under the Senior
Notes in respect of which that Standstill Notice was issued is
no longer continuing;
(c) the date on which the Senior Note Trustee has confirmed in
writing to the Security Trustee (with a copy to the Issuer and
the other Secured Creditors) that the Standstill Notice has
been cancelled by the Senior Note Trustee acting on the
instructions of the Required Holders of at least a majority of
the aggregate principal amount of the then outstanding Senior
Notes; and
(d) the date on which the Senior Note Trustee has confirmed in
writing to the Security Trustee (with a copy to the Issuer and
the other Secured Creditors) that the Secured Obligations
under the Senior Notes and the Senior Note Indenture have been
discharged in full and there are no further liabilities under
the Senior Notes or the Senior Note Indenture.
"SUBSIDIARY" has the meaning ascribed to it in the applicable
Indenture.
"SWISS GUARANTOR" means any Guarantor whose Relevant Jurisdiction is
Switzerland.
"TAX" means any tax, duty, levy, impost, assessment or other
governmental charge of whatever nature (including penalties, interest
and other liabilities related thereto).
"TRANSACTION SECURITY" means any guarantee (including the Guarantees)
guaranteeing the payment of the Secured Obligations and any Security
created or expressed to be created in favour of the Security Trustee or
any Secured Creditor under the Security Documents.
"TRUE UP AMOUNT" has the meaning ascribed to it in Clause 11.1
(Turnover).
"TRUSTEE ACTS" means both the Trustee Xxx 0000 and the Trustee Xxx 0000
of England and Wales.
"US GUARANTORS" means the US Parent (as defined in the applicable
Indenture) and any of its Subsidiaries that are Guarantors.
"VAT" means value added tax as provided for in the Value Added Tax Xxx
0000 and any other tax of a similar nature.
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1.2 INTERPRETATION
1.2.1 Unless a contrary indication appears a reference in this Deed
to:
(a) any "SECURITY TRUSTEE", "JUNIOR NOTE TRUSTEE",
"SENIOR NOTE TRUSTEE", "NEW BONDING FACILITY AGENT",
"NEW BONDING FACILITY BANK", "DEPOSITARY", "PAYING
AGENT", "REGISTRAR", "ESCROW BANK", "GUARANTOR", "US
GUARANTORS", "INTRA-GROUP CREDITOR" or "INTRA-GROUP
BORROWER" shall be construed so as to include its
successors in title, permitted assignees and
permitted transferees and, in the case of the
Security Trustee and the Note Trustees, any person
for the time being appointed as security trustee,
trustee or co-trustee in accordance with this Deed or
the Relevant Document (as the case may be);
(b) "ASSETS" includes present and future properties,
revenues and rights of every description;
(c) "REPAY", "REDEEM", "PREPAY" and "PAY" shall each
include all others and "REPAID", "REPAYABLE" and
"REPAYMENT", "REDEEMED", "REDEEMABLE" and
"REDEMPTION", "PREPAID", "PREPAYABLE", "PREPAYMENT"
and "PAID", "PAYABLE" and "PAYMENT" shall be
construed accordingly;
(d) a "RELEVANT DOCUMENT" or any other agreement or
instrument is a reference to that Relevant Document
or other agreement or instrument, as the same may
have been amended or novated as permitted by this
Deed;
(e) "INDEBTEDNESS" includes any obligation (whether
incurred as principal or as surety) for the payment
or repayment of money, whether present or future,
actual or contingent;
(f) a "MANIFEST ERROR" means an error which is readily
apparent on the face of the particular document
without any reference to any other document;
(g) a "PERSON" means any individual, corporation,
partnership, joint venture, association, joint-stock
company, trust, unincorporated organisation, limited
liability company, state or agency of a state or
government or other entity;
(h) a "REGULATION" includes any regulation, rule,
official directive, request or guideline (whether or
not having the force of law) of any governmental,
intergovernmental or supranational body, agency,
department or regulatory, self-regulatory or other
authority or organisation; and
(i) a provision of law is a reference to that provision
as the same may be amended or re-enacted from time to
time.
1.2.2 Section, Clause and Schedule headings are for ease of
reference only.
1.2.3 An Event of Default is "CONTINUING" if it has not been
remedied or waived.
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1.3 THIS DEED
References herein to "this Deed" mean this deed and include any
accession letter and any deed or other document executed in accordance
with the provisions hereof (as from time to time modified in accordance
herewith) and expressed to be supplemental hereto.
1.4 APPLICATION OF AMOUNTS PAID
If the Security Trustee (on the basis of legal advice received by it
for this purpose) considers that an amount paid to the Security Trustee
or any Secured Creditor for application in or towards repayment of the
Secured Obligations is (having regard to circumstances then existing)
capable of being avoided or otherwise set aside on the liquidation or
administration of any Obligor or otherwise, then such amount shall not
be considered to have been irrevocably paid and such Secured
Obligations shall not be considered to have been discharged in full for
the purposes of this Deed and the other Relevant Documents PROVIDED
THAT the Security Trustee shall be entitled but not obliged,
independently and in the absence of a request by a Secured Creditor, to
investigate, enquire or consider whether a payment can be avoided or
set aside on the liquidation or administration of an Obligor or
otherwise.
1.5 CERTIFICATE OF AMOUNTS OWING
A certificate of the Security Trustee setting forth the amount of any
Secured Obligation (based on information provided to it pursuant to
Clause 5.9 (Information)) owed by an Obligor shall, in the absence of
manifest error, be prima facie evidence that such amount is due from
such Obligor.
1.6 RESERVATION OF RIGHTS
Notwithstanding any other provision of this Deed, the right of any
Holder (as such term is defined in the applicable Indenture) of Notes
to receive payment of principal and interest on, and any premium and
Additional Amounts (if any) on such Notes held by such Holder, on or
after the respective due dates expressed in such Notes, or to institute
suit for the enforcement of any such payment on or after such
respective dates, shall not be impaired or affected without the consent
of such Holder.
1.7 THIRD PARTY RIGHTS
1.7.1 Unless expressly provided to the contrary in this Deed, a
person who is not a Party has no right under the Contracts
(Rights of Third Parties) Xxx 0000 to enforce or to enjoy the
benefit of any term of this Deed.
1.7.2 Notwithstanding any term of this Deed, the consent of any
person who is not a Party is not required to rescind or vary
this Deed at any time.
2. ADDITIONAL PARTIES
2.1 ADDITIONAL INTRA-GROUP PARTIES
If: (i) a member of the Group is obliged under any Relevant Document to
become; or (ii) the Issuer wishes a member of the Group to become, a
Party as an Intra-Group Creditor or an Intra-Group Borrower, the Issuer
shall notify the Security Trustee in writing of the same PROVIDED THAT
in the case where the Issuer wishes a member of the Group to become a
Party as an Intra-Group Creditor or an Intra-Group Borrower (but such
member of the Group is not obliged under any Relevant Document to
become such a
- 16 -
Party) the prior written consent of the Security Trustee (acting on the
instructions of the Instructing Trustee) shall be required before such
member of the Group may become a Party.
2.2 ACCESSION OF INTRA-GROUP PARTIES
The Issuer and the member of the Group that proposes to become an
Intra-Group Party shall deliver to the Security Trustee an Intra-Group
Accession Letter executed by the Issuer and the proposed Intra-Group
Party. If requested by any Debt Representative, the Security Trustee
shall request from the Issuer and/or the proposed Intra-Group Party
details of the Intra-Group Liabilities and/or a copy of the relevant
Intra-Group Documents (if any) to which the proposed Intra-Group Party
is a party and the Issuer shall, or shall procure that the proposed
Intra-Group Party shall, promptly provide the same to the Security
Trustee. The Security Trustee shall promptly deliver such details
and/or a copy of any such Intra-Group Document to the Debt
Representative who made the original request. The Security Trustee
shall be under no obligation to keep copies or records of any such
Intra-Group Liabilities or Intra-Group Documents.
2.3 ADDITIONAL GUARANTORS
If a member of the Group is to become an Additional Guarantor, either
in accordance with the Indentures or at the request of the Issuer, the
Issuer shall notify the Security Trustee of the same in writing and
shall deliver to the Security Trustee:
2.3.1 a duly executed Guarantor Accession Letter in respect of such
member of the Group;
2.3.2 an accession letter to the Guarantees (substantially in the
form set out in such Guarantees) duly executed by the Issuer
and the Additional Guarantor;
2.3.3 an Opinion of Counsel (as defined in the Indentures)
reasonably satisfactory to the Security Trustee as to the
existence of such Additional Guarantor and the validity and
binding effect of this Deed and the Guarantees on such
Additional Guarantor; and
2.3.4 a certificate certifying that the covenants in the Indentures
relating to a member of the Group becoming an Additional
Guarantor and the creation of valid, binding and perfected
Security by such member of the Group have been complied with.
2.4 NOTICE OF ACCESSIONS
Upon receipt by the Security Trustee of a duly completed Intra-Group
Accession Letter in respect of an Intra-Group Party or a Guarantor
Accession Letter in respect of an Additional Guarantor, the Security
Trustee shall give notice thereof to the Secured Creditors and the
Issuer.
2.5 EFFECTIVENESS OF ACCESSION
Any Intra-Group Accession Letter delivered pursuant to Clause 2.2
(Accession of Intra-Group Parties) shall take effect, and the relevant
member of the Group shall become an Intra-Group Party, on the date upon
which the Intra-Group Accession Letter is delivered to the Security
Trustee. Any Guarantor Accession Letter delivered pursuant to Clause
2.3 (Additional Guarantors) shall take effect and the relevant member
of the Group shall
- 17 -
become a Party as a Guarantor, on the date upon which all of the
conditions set out in sub-clauses 2.3.1 to 2.3.4 of Clause 2.3
(Additional Guarantors) are satisfied.
3. PARALLEL DEBT OBLIGATION
3.1 Each Obligor hereby agrees and covenants with the Security Trustee by
way of an abstract acknowledgement of debt that it shall pay to the
Security Trustee sums equal to, and in the currency of, the Secured
Obligations owing by it under the Relevant Documents (the "PRINCIPAL
OBLIGATIONS") as and when the same fall due for payment under the
Relevant Documents (the "PARALLEL OBLIGATIONS").
3.2 The Security Trustee shall have its own independent right to demand
payment of the Parallel Obligations by the Obligors (such demand to be
made in accordance with, and only in the circumstances permitted under,
the Relevant Documents and only if permitted by this Deed). The rights
of the Secured Creditors (other than the Security Trustee) or any
person which a Secured Creditor represents to receive payment of the
Principal Obligations are several from the rights of the Security
Trustee to receive payment of the Parallel Obligations PROVIDED THAT
the payment by an Obligor of its Parallel Obligations to the Security
Trustee in accordance with this Clause 3 shall be a good discharge of
the corresponding Principal Obligations and the payment by an Obligor
of its Principal Obligations in accordance with the provisions of the
Relevant Documents shall be a good discharge of the corresponding
Parallel Obligations. In the event of a good discharge of any Principal
Obligations the Security Trustee shall not be entitled to demand
payment of the corresponding Parallel Obligations and such Parallel
Obligations shall be discharged to the same extent. In the event of a
good discharge of any Parallel Obligations the Secured Creditors or any
person which a Secured Creditor represents shall not be entitled to
demand payment of the corresponding Principal Obligations and such
Principal Obligations shall be discharged to the same extent.
4. CONSENT TO RELEVANT DOCUMENTS
4.1 Each of the Secured Creditors (other than the Security Trustee) hereby
consents, for all purposes, to the entry into and performance of the
Relevant Documents (including this Deed) by the parties thereto and to
the giving by the Obligors of the Transaction Security so that such
actions shall not constitute a Default or an Event of Default under any
of the Relevant Documents or with respect to any of the Secured
Obligations.
4.2 The Intra-Group Parties agree that the governing law of the Security
Documents creating the Transaction Security in respect of the
Intra-Group Liabilities shall apply to the relevant Intra-Group
Document pursuant to which the relevant Intra-Group Liabilities arise
and, if the relevant Intra-Group Liabilities are not evidenced or
outstanding under an Intra-Group Document, shall apply to the relevant
Intra-Group Liabilities themselves. Such governing law shall override
any express choice of law in the relevant Intra-Group Documents or
otherwise agreed between the relevant Intra-Group Parties.
5. THE SECURITY AND THE GUARANTEES
5.1 THE ORIGINAL TRANSACTION SECURITY
5.1.1 The Parties acknowledge and agree that the Original
Transaction Security to be held by, or to the order of, the
Security Trustee upon the trusts contained in this
- 18 -
Deed shall be comprised by the benefit of the Original
Transaction Security arising in favour of the Security Trustee
for itself and/or each of the Secured Creditors under each of
the Security Documents and/or all notices of assignment or
charge given pursuant to any of the Security Documents and all
acknowledgements given in respect of such notices.
5.1.2 Each Intra-Group Party hereby consents to the creation of
Security pursuant to the terms of the Security Documents by
the relevant Intra-Group Creditor to whom it owes Intra-Group
Liabilities (such Security being in relation to all of the
Intra-Group Creditor's right, title and interest from time to
time in and to each of the relevant Intra-Group Liabilities
and the relevant Intra-Group Documents (if any)).
5.2 ADDITIONAL SECURITY
Subject to the provisions of this Deed, the Security Trustee may from
time to time accept the benefit of additional Security (additional to
the Original Transaction Security) granted to it as security for the
Secured Obligations and such additional Security shall be held by, or
to the order of, the Security Trustee upon the trust contained in this
Deed. The Security Trustee shall not be obliged to accept the benefit
of any such Security if in its absolute discretion (such discretion to
be exercised reasonably and in a timely fashion) it considers the
taking of such Security to be prejudicial to it in its capacity as
Security Trustee under the Relevant Documents.
5.3 RELEASE OF TRANSACTION SECURITY ON DISCHARGE OF SECURED OBLIGATIONS
At the written request and cost of the Issuer and having received prior
written instructions from all Debt Representatives (upon which the
Security Trustee may rely without further enquiry) confirming that:
5.3.1 all of the Secured Obligations have been paid and discharged
in full; and
5.3.2 none of the Secured Creditors, nor any person which a Debt
Representative represents, is under any further actual or
contingent obligation to make advances or provide other
financial accommodation to the Issuer or any other Obligor
under any of the Relevant Documents,
the Security Trustee shall release the Transaction Security and where
applicable reassign or transfer any relevant assets, rights or
properties that are subject to the Transaction Security and in doing so
shall take such steps as are specifically and expressly required under
the relevant Security Documents or, as the case may be, required under
the law of the relevant jurisdiction for such purpose as soon as
reasonably practicable. For the avoidance of doubt, it is agreed that
if any Debt Representative (on the basis of legal advice received by it
for this purpose) considers that an amount paid to the Security Trustee
or any Secured Creditor that it represents for application in or
towards repayment of the relevant Secured Obligations is (having regard
to the circumstances then existing) capable of being avoided or
otherwise set aside on the liquidation or administration of any Obligor
or otherwise, such Debt Representative shall not be obliged to provide
the Security Trustee with any confirmation pursuant to this Clause 5.3,
such amount shall not be considered to have been paid and such Secured
Obligations shall not be
- 19 -
considered to have been discharged in full and the Security Trustee
shall not be obliged to release the relevant Transaction Security.
5.4 RELEASE OF TRANSACTION SECURITY IN CONNECTION WITH PERMITTED DISPOSALS
5.4.1 The Security Trustee shall (and is hereby instructed by each
Secured Creditor and every other Party), upon the receipt of a
written request (such request to be delivered to the Security
Trustee at least 5 Business Days before the date of a proposed
disposal) from the Issuer (in which the Issuer certifies
either that the disposal is not an Asset Sale or is not
prohibited by the Indentures) and at the cost of the Issuer,
execute, at or immediately prior to the time of disposal, on
behalf of itself and each other Secured Creditor and every
other Party where required and without the need for any
further referral, instruction or authority from any person,
all releases of or, where applicable, reassignments or
transfers in connection with, any of the Transaction Security
which relates to an asset which is the subject of such a
disposal by any Obligor (PROVIDED THAT in so doing the
Security Trustee shall only take such steps as are
specifically and expressly required under the relevant
Security Documents or, as the case may be, required under the
law of the relevant jurisdiction for the purpose of releasing,
reassigning or transferring the asset subject to the relevant
Transaction Security). For the avoidance of doubt, the
requirements of this sub-clause 5.4.1 shall not apply to any
disposal (not being an Asset Sale or a disposal prohibited by
the Indentures) of an asset where as a matter of law such
asset may be disposed of free of the Security created by the
Security Documents without the need for any action by the
Security Trustee or, as the case may be, the Secured
Creditors. If requested by the Issuer, any other Obligor or
any person, the Security Trustee will issue a certificate of
non-crystallisation (or its equivalent under any applicable
law) in relation to any Security which is, or is the
equivalent of a floating charge, only upon receipt from the
Obligor making the disposal, of a certificate certifying that
there has been no event resulting in a crystallisation of the
floating charge (or its equivalent) in relation to such
Security.
5.4.2 If an asset which is being disposed of by an Obligor consists
of all of the shares in the share capital of a Guarantor or,
as the case may be, an Intra-Group Party or any holding
company of a Guarantor or, as the case may be, any holding
company of an Intra-Group Party, the Security Trustee shall be
(upon receipt of a certificate from such Guarantor (or if such
Intra-Group Party is not a Guarantor, from the Intra-Group
Party) certifying that it is neither owed nor does it owe any
Intra-Group Liabilities) (other than liabilities which are
certified in such certificate as being liabilities owed to
such Guarantor or, as the case may be, such Intra-Group Party
or by such Guarantor or, as the case may be, such Intra-Group
Party which (i) were not in existence as at the date hereof
and (ii) would have been permitted by the definitions of
"PERMITTED DEBT" and/or "PERMITTED INVESTMENTS" contained in
the Indentures or pursuant to the covenants contained in
Section 4.04 of the Senior Indenture and Section 4.03 of the
Junior Note Indenture titled "Restricted Payments" had such
liability been incurred immediately following such disposal)
and is hereby instructed by each
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other Secured Creditor and each Obligor, to execute (at or
immediately before the time of the relevant disposal) on
behalf of each Secured Creditor and each Obligor:
(a) a release of the relevant Guarantor or Intra-Group
Party (as the case may be), and any Subsidiary
thereof which is a Guarantor or Intra-Group Party (as
the case may be), from all liabilities it may have,
both actual and contingent, in its capacity as a
Guarantor or Intra-Group Party (as the case may be)
including, for the avoidance of doubt, all such
liabilities under this Deed (and any liability to any
other Obligor by way of guarantee, contribution or
indemnity in connection with any Transaction Security
provided by such other Obligor); and
(b) a release of or, where applicable, a reassignment or
transfer of the assets in connection with any
Transaction Security granted by that Guarantor or
Subsidiary over any of its assets, rights or
properties under any of the Security Documents
(PROVIDED THAT in so doing the Security Trustee shall
only take such steps as are specifically and
expressly required under the relevant Security
Documents or, as the case may be, required under the
law of the relevant jurisdiction for the purpose of
releasing or reassigning the relevant Transaction
Security).
5.4.3 If any disposal contemplated under sub-clauses 5.4.1 or 5.4.2
of this Clause 5.4 is certified by the Issuer as being an
Asset Sale, the Security Trustee will only take the actions
set out in sub-clause 5.4.1 and sub-clause 5.4.2 of this
Clause 5.4 if the Issuer has provided the Security Trustee,
with a copy to each Debt Representative, with a certificate:
(i) stating that such disposal is permitted under the
Indentures; (ii) stating that no Event of Default has occurred
and is continuing under the Indentures; (iii) detailing the
assets which are subject to the disposal; and (iv) certifying
that the proceeds of such disposal are to be applied in
accordance with the Indentures and the Escrow Agreement,
PROVIDED ALWAYS THAT in the absence of manifest error the
Security Trustee may rely on any such certificate without
further investigation.
5.5 RELEASE OF GERMAN SECURITY
In the event that the Security Trustee is legally obliged to do so
under the laws of the Federal Republic of Germany or by an order of a
German court with jurisdiction, the Security Trustee shall, at the cost
of the relevant Obligor, release the German Security without the need
for any further instruction or authority from any person and where
applicable reassign or transfer any relevant assets, rights or
properties that are subject to the German Security and in doing so
shall take such steps as are specifically and expressly required under
German law for such purpose as soon as reasonably practicable PROVIDED
THAT without prejudice to the foregoing, the Security Trustee shall
promptly provide the Secured Creditors with a copy of any court
documents or orders received by it.
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5.6 AGREEMENT NOT TO SET ASIDE
Save for in relation to a breach by the Security Trustee of its
obligations under Clause 5.3 (Release of Transaction Security on
Discharge of Secured Obligations), Clause 5.4 (Release Transaction
Security in Connection with Permitted Disposals) and Clause 5.5
(Release of German Security), no Obligor shall (and the Issuer shall
ensure that no Obligor will), without the prior written consent of all
Debt Representatives, take any step in connection with any court
proceeding or apply to or petition any court for an order requiring the
Security Trustee to release, reassign or transfer, all or any part of
the Security constituted by the Security Documents.
5.7 RELEASE OF GUARANTEES
At the written request and cost of the Issuer and having received prior
written instructions from the relevant Note Trustee (upon which the
Security Trustee may rely without further inquiry) confirming that the
conditions set out in Section 9.01 (Satisfaction and Discharge) of the
applicable Indenture have been satisfied, the Security Trustee shall
execute on behalf of the relevant Note Trustee a release of each
Guarantor from all liabilities it may have, under the Guarantee to
which it is a party provided that such release shall only be made in
respect of the Guaranteed Obligations arising under the Senior Note and
the Senior Note Indenture or, as the case may be, the Junior Notes and
the Junior Note Indenture.
5.8 RELEASE OF MCHI
At the written request and cost of the Issuer and having received a
certificate from the Issuer addressed to the Security Trustee and the
other Secured Creditors (upon which the Security Trustee may rely
without further inquiry) confirming that, subject to the releases
referred to in paragraphs (a) and/or (b) below MCHI has completed all
distributions to the stockholders of MCHI pursuant to and in accordance
with the MCHI Plan of Liquidation and Dissolution, the Security Trustee
shall (and is hereby instructed by each Secured Creditor and every
other party) execute on behalf of itself and each other Secured
Creditor:
(a) a release of MCHI from all liabilities it may have, both
actual and contingent, in its capacity as a Guarantor
guaranteeing the Secured Obligations and all such obligations
under this Deed; and
(b) a release of any Transaction Security granted by MCHI over any
of its assets, rights or properties under any of the Security
Documents and shall, where applicable, reassign or transfer
any relevant assets, rights or properties of MCHI that are
subject to the Transaction Security (provided that in so doing
the Security Trustee shall only take such steps as are
specifically and expressly required under the relevant
Security Documents or, as the case may be, required under the
law of the relevant jurisdiction for the purpose of releasing
or reassigning the relevant Transaction Security).
5.9 INFORMATION
5.9.1 Each Secured Creditor shall, if requested by the Security
Trustee, provide to the Security Trustee accurate and
up-to-date information (certified by the relevant Secured
Creditor as being accurate and up to date) as to the Secured
Obligations owing to it or to any person whom such Secured
Creditor represents so as to
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enable the Security Trustee to perform its functions and
duties under this Deed. Each such certificate shall be in a
form reasonably required by the Security Trustee. The Security
Trustee shall not take into account for the purpose of the
application of moneys in accordance with this Deed, any
amounts of which it has not been notified by the relevant
Secured Creditor.
5.9.2 Upon becoming aware of any Default or Event of Default under
any Relevant Document, the Issuer shall immediately deliver to
the Security Trustee and the Debt Representatives a notice
specifying such Default or Event of Default.
5.9.3 The Senior Note Trustee shall promptly notify the Security
Trustee in writing (with a copy of such notice to be provided
to the other Debt Representatives and the Issuer) upon the
occurrence of Payment Stop Event and/or Standstill Event (a
notice of a Standstill Event shall be contained in a
Standstill Notice).
6. TRUST FOR SECURED CREDITORS
6.1 DECLARATION OF TRUST
To the extent the Transaction Security is not transferred, charged or
granted to the Security Trustee on trust and subject to the provisions
of Clause 6.4 (Declaration of Trust and Appointment as Administrator
(Germany)), Clause 6.5 (Declaration of Trust and Appointment as
Administrator (Italy)), Clause 6.6 (Declaration of Trust and
Appointment as Administrator (Mexico)), and Clause 6.7 (Appointment of
Security Trustee as Attorney-in-Fact (Brazil)) the Security Trustee
declares itself trustee of the Transaction Security to hold the same on
trust for the Secured Creditors on terms and subject to the conditions
set out in this Deed. The following provisions are supplementary to the
provisions of the Trustee Xxx 0000.
6.2 TRUST
6.2.1 The Security Trustee shall have only those duties, obligations
and responsibilities expressly specified in the Security
Documents, the Escrow Agreement and this Deed and no duties,
obligations and responsibilities shall be inferred or implied.
6.2.2 In performing or carrying out its duties, obligations and
responsibilities, the Security Trustee shall be considered to
be acting only in a mechanical and administrative capacity
(save as expressly provided in the Security Documents, the
Escrow Agreement or this Deed) and shall not have or be deemed
to have any duty, obligation or responsibility to, or
relationship of trust or agency with, any Obligor (save in
respect of certain notification requirements as expressly
provided in the Security Documents and those obligations
referred to in sub-clause 14.4.5 of Clause 14.4 (Excluded
Obligations) of this Deed).
6.3 COVENANT TO PAY
Subject to Clause 24.5 (Guarantee Limitations), each Obligor hereby
covenants with the Security Trustee as trustee for the Secured
Creditors that such Obligor shall on demand of the Security Trustee
discharge all obligations which such Obligor may at any time have to
the Security Trustee (whether for its own account or as
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trustee for the Secured Creditors) or any of the other Secured
Creditors (whether for their own account or as trustee or agent of the
persons who such Secured Creditors represent or for whom they act)
under or pursuant to the Relevant Documents (including this Deed)
including any liability in respect of any further advances made under
the Relevant Documents, whether present or future, actual or contingent
(and whether incurred solely or jointly and whether as principal or as
surety or in some other capacity) and each Obligor shall pay to the
Security Trustee when due and payable every sum at any time owing, due
or incurred by such Obligor to the Security Trustee (whether for its
own account or as trustee for the Secured Creditors) or any of the
other Secured Creditors (whether for their own account or as trustee or
agent of the persons who such Secured Creditors represent or for whom
they act) in respect of any such liabilities.
6.4 DECLARATION OF TRUST AND APPOINTMENT AS ADMINISTRATOR (GERMANY)
6.4.1 The Security Trustee shall:
(a) hold and administer any German Security which is
security assigned
(Sicherungseigentum/Sicherungsabtretung) or otherwise
transferred under a non-accessory security right
(nicht akzessorische Sicherheit) to it as a trustee
(Treuhander) for the benefit of the Secured
Creditors; and
(b) hold and administer any German Security which is
pledged (Verpfandung) or otherwise transferred to it
under an accessory security right (akzessorische
Sicherheit) for the benefit of the Secured Creditors.
6.4.2 Each Secured Creditor (other than the Security Trustee) hereby
authorises the Security Trustee:
(a) to exercise such rights, remedies, powers and
discretions as are specifically delegated to or
conferred upon the Security Trustee by the German
Security Documents together with such powers and
discretions as are reasonably incidental thereto; and
(b) to take such action on its behalf as may from time to
time be authorised under or in accordance with the
German Security Documents.
6.4.3 The Security Trustee shall be exempted from the restrictions
of Section 181 of the German Civil Code.
6.4.4 Each Secured Creditor (other than the Security Trustee) hereby
ratifies and approves all acts previously done by the Security
Trustee on such Secured Creditor's behalf in relation to the
German Security Documents.
6.5 DECLARATION OF TRUST AND APPOINTMENT AS ADMINISTRATOR (ITALY)
Each Secured Creditor (other than the Security Trustee):
6.5.1 appoints the Security Trustee to be its "mandatario con
rappresentanza" (common representative) for the purpose of
executing the Italian Security Documents in the name and on
behalf of the Secured Creditors, with the power to determine
and agree any term and condition of such Italian Security
Documents, execute any other agreement or instrument, give or
receive any notice and take any other action and exercise any
right, remedy, power and
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discretion in relation to the creation, perfection,
maintenance, enforcement and release of the security created
under the Italian Security Documents;
6.5.2 undertakes to ratify and approve such action in the name of
and on behalf of the Secured Creditors by the Security Trustee
acting in such capacity in relation to the Italian Security
Documents; and
6.5.3 agrees that the provisions of this Deed which apply to the
Security Trustee in its capacity as trustee shall apply to it
in its capacity as the Secured Creditors' common
representative.
6.6 DECLARATION OF TRUST AND APPOINTMENT AS ADMINISTRATOR (MEXICO)
Each Secured Creditor (other than the Security Trustee):
6.6.1 hereby authorises the Security Trustee to take such action as
agent on its behalf and for its benefit and to exercise such
powers under this Deed and the other Relevant Documents as are
delegated to the Security Trustee by the terms hereof and
thereof, together with such powers as are reasonably
incidental thereto. Without prejudice to the foregoing, each
Secured Creditor hereby grants in favour of the Security
Trustee a mandate (comision mercantil), as referred to in
Article 273 of the Mexican Code of Commerce (Codigo de
Comercio) pursuant to which the Security Trustee is granted
full authority to carry out, on behalf and for the benefit of
the Secured Creditors, any and all actions necessary to: (a)
comply with and perform its obligations and duties under the
Mexican Security Documents and those arising under this Deed;
and (b) execute and deliver the Mexican Security Documents and
to perform each and every obligation and duty set forth
therein; and
6.6.2 if required by applicable law or reasonably requested by the
Security Trustee, agrees to execute and deliver to the
Security Trustee, and register in every public registry in
Mexico in which such registration is necessary, a notarised
Mexican public deed appointing the Security Trustee and any
officer or agent thereof, as the case may be, its
attorney-in-fact for the purposes of exercising the rights and
remedies of such party referred to in sub-clause 6.6.1 of this
Clause 6.6.
6.7 APPOINTMENT OF SECURITY TRUSTEE AS ATTORNEY-IN-FACT (BRAZIL)
6.7.1 Each of the Secured Creditors (other than the Security
Trustee) irrevocably appoints the Security Trustee to be its
attorney-in-fact for the purposes set out in this Clause 6.7.
6.7.2 The Security Trustee may in the name and on behalf of each
Secured Creditor sign, execute and deliver the Brazilian
Security Documents and any amendments thereto and execute,
deliver and perfect all deeds, instruments and do all acts and
things which may be required (or which a Secured Creditor
considers expedient or desirable) for carrying out any action
specifically designated in the Brazilian Security Documents as
an action to be carried out by the Security Trustee.
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6.7.3 The Security Trustee has full power to delegate the powers
conferred on it by this Clause 6.7 but no such delegation will
preclude the subsequent exercise of such power by the Security
Trustee itself or preclude the Security Trustee from making a
subsequent delegation thereof to some other person and any
such delegation may be revoked by the Security Trustee at any
time.
6.7.4 Each Secured Creditor will ratify and confirm all transactions
entered into by the Security Trustee or any delegate of the
Security Trustee in the exercise or purported exercise of the
Security Trustee's or, as the case may be, Delegate of the
Security Trustee's powers.
6.7.5 Each Secured Creditor will at the request from time to time of
the Security Trustee enter into and duly execute such further
power or powers of attorney in a form and substance acceptable
to the Security Trustee.
6.7.6 The Parties acknowledge and agree that any and all actions
which the Security Trustee is entitled or required to perform
under or in connection with the Brazilian Security Documents
(or any amendments thereto) shall be carried out by the
Security Trustee only in its capacity as attorney-in-fact of
the Secured Creditors.
6.8 NO INDEPENDENT POWER
6.8.1 The Secured Creditors (other than the Security Trustee, a
Receiver or a Delegate) shall have no independent power to
enforce, or have recourse to, any of the Transaction Security
or to exercise any rights or powers arising under the Security
Documents unless the Security Trustee, Receiver or, as the
case may be, Delegate, having been obligated to do so, fails
to do so within a reasonable time and such failure is
continuing or, in the case of the Italian Security Documents,
as otherwise provided for by mandatory provision of Italian
law.
6.8.2 Any money recovered by a Secured Creditor in accordance with
the provisions of this Clause 6.8 shall be immediately turned
over to the Security Trustee in accordance with Clause 11
(Turnover by the Secured Creditors) and the Security Trustee
is hereby irrevocably instructed by the Secured Creditors to
apply such monies in accordance with this Deed.
7. AMENDMENTS, CONSENTS AND WAIVERS
7.1 PROCEDURE FOR AMENDMENTS, CONSENTS AND WAIVERS
7.1.1 The Security Trustee may, if requested by any other Secured
Creditor or the Issuer, without the need to obtain
instructions from the Debt Representatives, agree to any
amendment that has been requested by such Secured Creditor or
the Issuer to be made to this Deed or any other Relevant
Document to which it is a party where in the sole opinion of
the Security Trustee such amendment is to be made to correct a
manifest error or is of a formal, minor, administrative or
technical nature.
7.1.2 Without prejudice to sub-clause 7.1.1 of this Clause 7.1 and
subject to Clause 7.2 (Entrenched Rights) and Clause 7.3
(Entrenched Rights of the Security Trustee), in respect of any
proposed amendment to be made to, and any
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proposed consent or waiver to be made or given in relation to,
any provision of any Relevant Document (other than this Deed)
to which the Security Trustee is a party, the Security Trustee
shall not agree to any such amendment or grant any such waiver
or consent without the prior written instructions of:
(a) prior to the discharge in full of the Secured
Obligations arising under the Senior Notes and the
Senior Note Indenture, the Senior Note Trustee (with
the Senior Note Trustee confirming to the Security
Trustee that it is acting on the instructions of the
Required Holders of the Senior Notes); and
(b) following the discharge in full of the Secured
Obligations arising under the Senior Notes and the
Senior Note Indenture but prior to the payment in
full of the Secured Obligations arising under the
Junior Notes and the Junior Note Indenture, the
Junior Note Trustee (with the Junior Note Trustee
confirming to the Security Trustee that it is acting
on the instructions of the Required Holders of the
Junior Notes).
7.1.3 Without prejudice to sub-clause 7.1.1 of this Clause 7.1 and
subject to Clause 7.2 (Entrenched Rights) and Clause 7.3
(Entrenched Rights of the Security Trustee), the Parties
acknowledge and agree that any amendment to, and any consent
or waiver in relation to any provision of this Deed shall
require the prior written consent of each Debt Representative
and the Issuer.
7.1.4 Except for amendments:
(a) made to correct a manifest error or which relate to
formal, minor, administrative or technical matters;
or
(b) which are required by sub-clause 7.1.7 of this Clause
7.1; or
(c) which are permitted under clauses (2), (3), (4), (5)
and (6) of Section 10.02 (Supplemental Indentures
without Consent of Holders) of the Junior Note
Indenture; or
(d) which are made with the prior written consent of the
Senior Note Trustee,
the Issuer and the Junior Note Trustee hereby acknowledge and
agree that until all Secured Obligations arising under the
Senior Notes and the Senior Note Indenture have been
discharged in full, no amendments to the Junior Notes or the
Junior Note Indenture are permitted and no such amendment will
be made.
7.1.5 Each Secured Creditor acknowledges and agrees that the Senior
Note Trustee (without the need for the consent of the other
Secured Creditors or the Obligors (other than the consent of
the Issuer)) acting on the instructions of the Required
Holders under the Senior Note Indenture, may waive and/or
amend the provisions of the Senior Notes and/or the Senior
Note Indenture PROVIDED THAT the Senior Note Trustee and the
Issuer hereby agree that they will not waive and/or amend the
provisions of the Senior Notes and/or the Senior Note
Indenture:
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(a) without the prior consent of the Required Holders (as
defined in the Junior Note Indenture) of at least a
majority of the principal amount of the then
outstanding Junior Notes, if such amendment or waiver
would constitute a Material Amendment; and
(b) without the relevant consents required and/or set out
in the Senior Note Indenture.
7.1.6 Each Secured Creditor acknowledges and agrees that the New
Bonding Facility Agent may (subject to the terms of the New
Bonding Facility Agreement) with the consent of the Issuer
waive or amend the provisions of the New Bonding Facility
Agreement PROVIDED THAT the New Bonding Facility Agent, the
New Bonding Facility Banks and the Issuer hereby agree that
they will not waive or amend the provisions of the New Bonding
Facility Agreement if such waiver or amendment would:
(a) constitute a Material Amendment;
(b) (without prejudice to the provisions of clause 2.3
(Extension of the Facility) of the New Bonding
Facility Agreement), extend the Availability Period
(as defined in the New Bonding Facility Agreement) of
the New Bonding Facility Agreement;
(c) have the effect of incorporating new covenants and/or
Events of Default into the New Bonding Facility
Agreement; or
(d) have the effect of rendering the existing covenants
and/or Events of Default contained in the New Bonding
Facility Agreement more onerous for the obligors
under the New Bonding Facility Agreement.
7.1.7 Each Secured Creditor acknowledges, and the Junior Note
Trustee and the Issuer hereby undertakes, that if the Senior
Note Trustee confirms to the Junior Note Trustee and the
Issuer that the holders of the Senior Notes have agreed to
waive a Default or Event of Default arising in respect of the
Senior Notes or the Senior Note Indenture and/or have agreed
to amend the terms of any covenant in the Senior Notes and/or
the Senior Note Indenture during any Standstill Period to
address the circumstances which resulted in a Default or Event
of Default, the Issuer and the Junior Note Trustee (without
the need for obtaining the consent of the holders of the
Junior Notes PROVIDED THAT, in the case of any amendment, such
amendment is not a Material Amendment) will enter into a
supplemental indenture and/or any other documents that may be
required to provide a waiver to the same effect and/or amend
the Junior Notes and the Junior Note Indenture to the same
effect.
7.1.8 Each Secured Creditor acknowledges and agrees that the Escrow
Agreement may be amended only with the consent of each party
thereto and each Note Trustee.
7.1.9 Each Obligor, each Intra-Group Creditor and each Intra-Group
Borrower (in each case other than the Issuer) agrees that its
consent will not be required to
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implement any amendments, consents or waivers effected
pursuant to this Clause 7.1 and that it will be bound by any
such amendments, consents or waivers once implemented in
accordance with this Clause 7.1.
7.2 ENTRENCHED RIGHTS
Notwithstanding the provisions of Clause 7.1 (Procedure for Amendments,
Consents and Waivers):
7.2.1 No amendment to or consent or waiver in respect of this Deed
or any other Relevant Document shall be effective if the
proposed amendment, consent or waiver:
(a) changes the ranking or priority of a Secured Creditor
set out in Schedule 4 (Pre-Acceleration Payment
Priorities) or Schedule 5 (Post-Acceleration Payment
Priorities);
(b) has the effect of changing a date on which payment of
principal, interest or any other sum due to a Secured
Creditor is to be made, or has the effect of reducing
the amount of principal, interest or any other sum
due to a Secured Creditor on any date, or altering
the method of calculating the amount of any payment
of any amount or the date for payment to a Secured
Creditor;
(c) has the effect of changing the currency of payment of
any amount due to a Secured Creditor;
(d) has the effect of requiring from a Secured Creditor
additional undertakings or indemnities or has the
effect of increasing the scope of any existing
undertakings or indemnities provided by a Secured
Creditor; or
(e) has the effect of changing any provision of any
Relevant Document that expressly requires the consent
of a Secured Creditor,
unless the Security Trustee, further to a written request from
the Issuer or a Secured Creditor, has requested and has
received from each of the Debt Representatives who are, or who
represent persons who are, affected in a manner set out in
paragraphs (a) to (e) above, such Debt Representative's prior
written approval to such amendment, consent or waiver PROVIDED
THAT an amendment or waiver pursuant to sub-clause 7.1.7 of
Clause 7.1 (Procedure for Amendments, Consents and Waivers)
which falls within paragraph (e) above shall not require the
approvals or consents set out in this sub-clause 7.2.1 of
Clause 7.2 (Entrenched Rights).
7.2.2 No amendment, consent or waiver relating to this Deed or any
other Relevant Document to which the Security Trustee is a
party shall be effective if the proposed amendment, consent or
waiver has the effect of substituting another entity as
principal obligor for any Obligor or:
(a) amends the provisions of this Clause 7.2;
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(b) amends the definition of "Security Documents",
"Obligors", "Relevant Document" or "Secured
Obligations";
(c) releases any of the Transaction Security otherwise
than as envisaged in Clause 5 (The Security); or
(d) amends Clause 12.4 (Preservation of Liabilities) or
Clause 10 (Action and Enforcement Action),
unless the Security Trustee, further to a written request from
the Issuer or a Secured Creditor has requested and has
received the written approval of each Debt Representative to
such amendment, consent or waiver.
7.3 ENTRENCHED RIGHTS OF THE SECURITY TRUSTEE
Notwithstanding the provisions of sub-clause 7.1.2 and 7.1.3 of Clause
7.1 (Procedure for Amendments, Consents and Waivers) and Clause 7.2
(Entrenched Rights), no amendment, consent or waiver with respect to
this Deed or any other Relevant Document to which the Security Trustee
is a party shall, without the Security Trustee's prior written consent,
be made or effected if the Security Trustee, in its sole and absolute
opinion, notifies the Debt Representatives that such amendment, consent
or waiver relates to or would or may have the effect of changing the
Security Trustee Reserved Matters or any of the Security Trustee's
obligations under this Deed or any other Relevant Document to which it
is a party.
8. RANKING OF SECURED OBLIGATIONS AND PRIORITIES
8.1 PERMITTED ACTIONS
8.1.1 Each of the Parties agrees and acknowledges that:
(a) the Obligors may pay, prepay, repay, redeem or
purchase:
(i) the Secured Obligations owing under the
Senior Notes and/or the Senior Note
Indenture on each relevant Payment Date in
accordance with the Senior Notes, the Senior
Note Indenture and this Deed; and
(ii) any Secured Obligations owing under the New
Bonding Facility Agreement (including
payments or repayments by way of cash
collateralisation or the provision of
letters of credit, guarantees or similar
instruments) on each relevant Payment Date
in accordance with the terms thereof and
this Deed;
(b) the Obligors may pay all fees, costs and expenses
owed to, and incurred by, the Security Trustee, the
Depositary, the Note Trustees, the Escrow Bank and
the New Bonding Facility Agent pursuant to the terms
and conditions of the Relevant Documents and this
Deed;
(c) the Obligors may pay, prepay, repay, redeem or
purchase the Secured Obligations owing under the
Junior Notes and/or the Junior Note Indenture
PROVIDED THAT such payments constitute Permitted
Payments and are made in accordance with the Junior
Notes, the Junior Note Indenture and this Deed; and
- 30 -
(d) the Note Trustees, as trustees for the holders of the
relevant Notes, and the New Bonding Facility Agent,
as trustee for the New Bonding Facility Banks, may,
with the Security Trustee's prior written consent
(not to be unreasonably withheld or delayed) take,
accept or receive the benefit of any Security
(additional to the Original Transaction Security)
only if the same Security is at the same time granted
to and held by the Security Trustee as trustee for
the Secured Creditors under the terms of this Deed.
8.1.2 The Intra-Group Creditors acknowledge and agree that any
rights they may have against the Intra-Group Borrowers in
relation to Intra-Group Liabilities are hereby subordinated to
the rights of the Secured Creditors against the Obligors and
the Intra-Group Borrowers in accordance with the terms of this
Deed.
8.2 PRE-ACCELERATION PAYMENT PRIORITIES
8.2.1 Unless the Senior Note Trustee has notified the other Secured
Creditors (other than the Escrow Bank) in writing that a
Payment Stop Event has occurred and is continuing, all monies
credited to the Mandatory Redemption Escrow Account shall be
applied in accordance with the Pre-Acceleration Payment
Priorities and all monies credited to the Existing Performance
Bond Escrow Account shall be applied in accordance with the
terms of the Escrow Agreement.
8.2.2 Upon the occurrence of an Event of Default under clause 24.1
(Non-Payment) of the New Bonding Facility Agreement and at any
time thereafter whilst the same is continuing, but prior to
the New Bonding Facility Agent being notified by the Senior
Note Trustee of the occurrence of a Payment Stop Event, the
New Bonding Facility Agent shall (on its own behalf and on
behalf of the New Bonding Facility Banks), having notified the
other Debt Representatives of the occurrence of such Event of
Default, be entitled to demand, in accordance with the terms
of the New Bonding Facility Agreement, from the Indemnifying
Companies under the New Bonding Facility Agreement an amount
sufficient to ensure that the Secured Obligations arising
under the New Bonding Facility Agreement are fully
cash-collateralised.
8.3 POST-ACCELERATION PAYMENT PRIORITIES
8.3.1 Upon being notified in writing by the Senior Note Trustee that
a Payment Stop Event has occurred and is continuing the
Security Trustee will promptly instruct the Escrow Bank:
(a) to act in accordance with sub-clause 9.8.1 of Clause
9.8 (Standstill Period and Payments from Escrow
Accounts); and
(b) following the date of such notification and whilst
the relevant Payment Stop Event is continuing and
after giving effect to any payment required by
sub-clause 9.8.1, to pay all monies credited to the
Mandatory Redemption Escrow Account to the Security
Trustee and the Security Trustee is hereby
irrevocably instructed by the Secured Creditors to
pay such monies, together with the proceeds of all
recoveries actually received by it in its capacity as
Security Trustee pursuant to any Enforcement Action,
in accordance with the Post-Acceleration Payment
Priorities
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PROVIDED THAT the Security Trustee shall only
instruct the Escrow Bank to make a payment out of the
Mandatory Redemption Escrow Account under this
paragraph (b) if the amounts standing to the credit
of the Mandatory Redemption Escrow Account (as
confirmed by the Escrow Bank) is equal to or greater
than US$4,000,000 (or the Dollar Equivalent). For the
avoidance of doubt, if a Payment Stop Event has
ceased to be continuing and PROVIDED THAT no
Standstill Period is in effect, monies credited to
the Mandatory Redemption Escrow Account shall be
applied in accordance with Clause 8.2
(Pre-Acceleration Payment Priorities).
8.3.2 Upon being notified by the Senior Note Trustee of the
occurrence of (a) an Enforcement Event or (b) a
payment Event of Default under the Senior Notes
and/or the Senior Note Indenture, the Security
Trustee will promptly instruct the Escrow Bank to pay
all monies credited to the Existing Performance Bond
Escrow Account in accordance with the Escrow
Agreement.
8.4 PERMITTED DEDUCTIONS
The Security Trustee shall be entitled to make, pay and set aside by
way of reserve from any money it receives in its capacity as Security
Trustee amounts sufficient to enable it to make and pay:
8.4.1 any liabilities, costs, fees and expenses it or any
of its Delegates may suffer or incur in or as a
consequence of the performance of its obligations
under this Deed or any other Relevant Document to
which the Security Trustee is a party or any
deductions and/or withholdings (on account of Taxes
or otherwise) which it is or may be required by any
applicable law to make from any distribution or
payment made by it under this Deed or any other
Relevant Document to which the Security Trustee is a
party; and
8.4.2 any Taxes (other than in connection with its
remuneration or income for performing its duties
under the Relevant Documents) which may be assessed
against it in respect of any of the Transaction
Security in or as a consequence of its performing its
obligations, or by virtue of its capacity as Security
Trustee, under any of the Relevant Documents.
8.5 GOOD DISCHARGE
8.5.1 Any payment to be made in respect of the Secured
Obligations by the Security Trustee may be made to a
Debt Representative for the benefit of the persons
for which it is a Debt Representative and any such
payment made shall provide a good discharge, to the
extent of that payment, to the Security Trustee.
8.5.2 The Security Trustee shall make payments to the
Secured Creditors in the same currency as that in
which the Secured Obligations owed to the relevant
Secured Creditor or the persons which it represents
are denominated. The Security Trustee shall procure
that any sums it receives from an Obligor which is in
a currency other than that in which the relevant
Secured Obligations are denominated are converted at
such rate of exchange as is offered in the ordinary
course of business by the Escrow Bank to effect such
conversion (subject to any reasonable deduction
applied by such bank for commissions and other
charges)
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and shall, if reasonably requested, provide evidence
of the rate used for such conversion. Any shortfall
arising as a result of such conversion shall be for
the account of the relevant Obligor.
9. UNDERTAKINGS
9.1 UNDERTAKINGS OF SECURED CREDITORS
Each Secured Creditor hereby undertakes that it will not, and the
Issuer hereby acknowledges that no Secured Creditor will, except as
expressly permitted by this Deed:
9.1.1 permit or require the Issuer or any other Obligor to
discharge any of the Secured Obligations owed to such
Secured Creditor or any person which it represents
save to the extent permitted by, and only as provided
in, Clause 8.1 (Permitted Actions), Clause 8.2
(Pre-Acceleration Payment Priorities), Clause 8.3
(Post-Acceleration Payment Priorities), Clause 8.4
(Permitted Deductions) or Clause 9.5 (Permitted
Payments);
9.1.2 permit or require the Issuer or any other Obligor to
pay, prepay, repay, redeem, purchase, voluntarily
terminate or otherwise acquire any of the Secured
Obligations owed to such Secured Creditor or any
person which it represents save to the extent
permitted by Clause 8.1 (Permitted Actions), Clause
8.2 (Pre-Acceleration Payment Priorities), Clause 8.3
(Post-Acceleration Payment Priorities), Clause 8.4
(Permitted Deductions) or Clause 9.5 (Permitted
Payments);
9.1.3 take, accept or receive the benefit of any Security
for, or in respect of any of the Secured Obligations
owed to such Secured Creditor or any person which it
represents other than (a) the Original Transaction
Security, (b) pursuant to the terms of the Relevant
Documents, or (c) to the extent permitted by Clause
8.1 (Permitted Actions);
9.1.4 take or receive from the Issuer or any other Obligor
by cash receipt, set off, any right of combination of
accounts or in any other manner whatsoever, the whole
or any part of the Secured Obligations owed to such
Secured Creditor or any person which it represents
save to the extent permitted by Clause 8.1 (Permitted
Actions), Clause 8.2 (Pre-Acceleration Payment
Priorities), Clause 8.3 (Post-Acceleration Payment
Priorities), Clause 8.4 (Permitted Deductions) or
Clause 9.5 (Permitted Payments);
9.1.5 except as permitted by Clause 7 (Amendments, Consents
and Waivers), agree to any amendment of the Relevant
Documents to which such Secured Creditor is a party;
or
9.1.6 take or omit to take any other action in relation to
the Relevant Documents, the Secured Obligations or
the Transaction Security whereby any ranking and/or
subordination contemplated by this Deed may be
impaired.
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9.2 UNDERTAKINGS OF THE OBLIGORS
Each Obligor hereby undertakes that it will not, and each Secured
Creditor hereby acknowledges that no Obligor will, unless expressly
permitted or required by this Deed:
9.2.1 discharge any of the Secured Obligations save to the extent
permitted by Clause 8.1 (Permitted Actions), Clause 8.2
(Pre-Acceleration Payment Priorities), Clause 8.3
(Post-Acceleration Payment Priorities), Clause 8.4 (Permitted
Deductions) or Clause 9.5 (Permitted Payments);
9.2.2 pay, prepay, repay, redeem, purchase, voluntarily terminate or
otherwise acquire any of the Secured Obligations save to the
extent permitted by Clause 8.1 (Permitted Actions), Clause 8.2
(Pre-Acceleration Payment Priorities), Clause 8.3
(Post-Acceleration Payment Priorities), Clause 8.4 (Permitted
Deductions) or Clause 9.5 (Permitted Payments);
9.2.3 create or permit to subsist any Security for, or in respect
of, any of the Secured Obligations other than (a) the Original
Transaction Security, (b) pursuant to the terms of the
Relevant Documents, or (c) to the extent permitted by Clause
8.1 (Permitted Actions);
9.2.4 discharge the whole or any part of the Secured Obligations by
cash payment, set-off, any right of combination of accounts or
in any other manner whatsoever save to the extent permitted by
Clause 8.1 (Permitted Actions), Clause 8.2 (Pre-Acceleration
Payment Priorities), Clause 8.3 (Post-Acceleration Payment
Priorities), Clause 8.4 (Permitted Deductions) or Clause 9.5
(Permitted Payments);
9.2.5 except as permitted by Clause 7 (Amendments, Consents and
Waivers), agree to any amendment of the Relevant Documents to
which such Obligor is a party; or
9.2.6 take or omit to take any other action in relation to the
Relevant Documents, the Secured Obligations or the Transaction
Security whereby any ranking and/or subordination contemplated
by this Deed may be impaired.
9.3 UNDERTAKINGS OF THE INTRA-GROUP BORROWERS
Each Intra-Group Borrower hereby undertakes that it will not, and the
Intra-Group Creditors and the Issuer hereby acknowledge that the
Intra-Group Borrowers which owe Intra-Group Liabilities to them will
not, except with the prior written consent of the Security Trustee
(acting in accordance with the instructions of the Instructing Trustee)
or as expressly permitted or required by this Deed:
9.3.1 pay, prepay, repay, redeem, make any distribution in respect
of, purchase or acquire, any Intra-Group Liabilities in cash
or in kind or apply any money or property in or towards
discharge of any Intra-Group Liabilities;
9.3.2 discharge any Intra-Group Liabilities by set off, cash
payment, any right of combination of accounts or in any other
manner whatsoever;
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9.3.3 create or permit to subsist any Security for, or in respect
of, any Intra-Group Liabilities unless permitted or required
to do so pursuant to the terms of the Indentures; or
9.3.4 take or omit to take any other action in relation to the
Intra-Group Liabilities, the Intra-Group Documents, the
Relevant Documents, the Secured Obligations or the Transaction
Security whereby the ranking and/or subordination contemplated
by this Deed may be impaired.
9.4 UNDERTAKINGS OF THE INTRA-GROUP CREDITORS
Each Intra-Group Creditor hereby undertakes that it will not and the
Issuer and Intra-Group Borrowers which owe Intra-Group Liabilities to
them hereby acknowledge that the Intra-Group Creditors will not, except
with the prior written consent of the Security Trustee (acting in
accordance with the instructions of the Instructing Trustee) or as
expressly permitted or required by this Deed:
9.4.1 demand or receive payment, prepayment, repayment, redemption
or any distribution in respect of any Intra-Group Liabilities
owed to such Intra-Group Creditor in cash or in kind or apply
any money or property in or towards discharge of any such
Intra-Group Liabilities;
9.4.2 take or receive from the Issuer or other Intra-Group Borrower,
by cash receipt, set-off or any right of combination of
accounts or in any other manner whatsoever, the whole or any
part of Intra-Group Liabilities owed to such Intra-Group
Creditor;
9.4.3 take, accept, permit to subsist or receive the benefit of any
Security for, or in respect of, any Intra-Group Liabilities
owed to such Intra-Group Creditor unless required or permitted
to do so pursuant to the terms of the Indentures; or
9.4.4 take or omit to take any other action in relation to the
Intra-Group Liabilities, the Intra-Group Documents, the
Relevant Documents, the Secured Obligations or the Transaction
Security whereby the ranking and/or subordination contemplated
by this Deed may be impaired.
9.5 PERMITTED PAYMENTS
9.5.1 Unless a Payment Stop Event is continuing or a Standstill
Period is in effect, the Obligors may make Permitted Payments
to the Secured Creditors (whether for their own account or for
the account of the persons they represent) on the relevant
Payment Dates under the Relevant Documents and may, in respect
of the Junior Notes, issue Junior PIK Notes (in accordance
with the provisions of the Junior Notes and/or the Junior Note
Indenture) to the holders of the Junior Notes on the relevant
Payment Dates under the Junior Note Indenture. Notwithstanding
the foregoing or any other provision of this Deed, the New
Bonding Facility Agent, the New Bonding Facility Banks and the
Senior Note Trustee may at all times receive payments on the
applicable Payment Dates. This sub-clause 9.5.1 shall not
prevent (i) the payment of amounts in the Mandatory Redemption
Escrow Account in accordance with sub-clause 8.3.1(a) of
Clause 8.3 (Post-Acceleration Payment Priorities) or
sub-clause 9.8.1 of
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Clause 9.8 (Standstill Period and Payments from Escrow
Accounts) or (ii) the issue of Junior PIK Notes in accordance
with the provisions of Clause 9.9 (Effect of Payment Stop
Event and Standstill Period).
9.5.2 The Intra-Group Borrowers may make, and the Intra-Group
Creditors may accept, any Permitted Payments in respect of
Intra-Group Documents or, as the case may be, Intra-Group
Liabilities PROVIDED THAT:
(a) following the occurrence of an Event of Default which
is continuing under the Senior Notes, the Senior Note
Indenture, the Junior Notes or the Junior Note
Indenture, unless otherwise requested by the Security
Trustee in accordance with Clause 10.6 (Intra-Group
Creditors: No Action), the Intra-Group Borrowers
which are also Guarantors shall only be permitted to
make, and the Intra-Group Creditors shall only be
permitted to accept, such payments to the extent they
are made in order to fund the working capital or for
the cash management requirements of the Group in the
ordinary course of business; and
(b) unless requested by the Security Trustee in
accordance with Clause 10.6 (Intra-Group Creditors:
No Action), such Permitted Payments shall in any
event not be permitted to be made following (i) the
occurrence of an Insolvency Event in relation to the
Intra-Group Creditor owed the relevant Intra-Group
Liabilities, or (ii) the taking of any Action or
Enforcement Action by any Secured Creditor (other
than by any of the New Bonding Facility Finance
Parties).
9.6 PAYMENT OBLIGATIONS CONTINUE
No Obligor shall be released from the obligation to make any payment
(including any payment of default interest) under any Relevant Document
or any Intra-Group Document or in respect of any Intra-Group
Liabilities which are not evidenced by an Intra-Group Document, by the
operation of Clause 9.1 (Undertakings of Secured Creditors), Clause 9.2
(Undertakings of the Obligors), Clause 9.3 (Undertakings of the
Intra-Group Borrowers), Clause 9.4 (Undertakings of the Intra-Group
Creditors), Clause 9.5 (Permitted Payments) or Clause 9.9 (Effect of
Payment Stop Event and Standstill Period) even if its ability to make
that payment is restricted or prohibited at any time by the terms of
Clause 9.1 (Undertakings of Secured Creditors), Clause 9.2
(Undertakings of the Obligors), Clause 9.3 (Undertakings of the
Intra-Group Borrowers), 9.4 (Undertakings of the Intra-Group
Creditors), Clause 9.5 (Permitted Payments) or Clause 9.9 (Effect of
Payment Stop Event and Standstill Period).
9.7 ISSUE OF STANDSTILL NOTICE
9.7.1 If the Senior Note Trustee becomes aware that a Standstill
Event has occurred, it shall deliver to the Security Trustee
(with a copy to the Issuer and the other Debt Representatives)
a Standstill Notice and promptly on receipt of such notice the
Security Trustee shall notify the other Secured Creditors of
such Standstill Event. Each Obligor hereby expressly consents
to each such notification. A Standstill Period shall commence
on the date of the issuance of the Standstill Notice by the
Senior Note Trustee. If the relevant Standstill Event is a
Payment
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Stop Event the Standstill Notice delivered to the Security
Trustee shall state that to be the case.
9.7.2 No Default with respect to the Senior Notes that existed or
was continuing on the date a Standstill Notice was issued
shall be, or be made, the basis of the issuance or an
instruction for the issuance of another Standstill Notice,
unless such Default shall have been cured or waived for a
period of not less than 90 consecutive days.
9.8 STANDSTILL PERIOD AND PAYMENTS FROM ESCROW ACCOUNTS
Upon receipt of a Standstill Notice by the Security Trustee, the
Security Trustee will promptly instruct the Escrow Bank:
9.8.1 on the date of such instruction to pay all monies credited to
the Mandatory Redemption Escrow Account as of the date of such
Standstill Notice, and PROVIDED THAT on the day preceding the
date of such Standstill Notice no Standstill Period was in
effect, to the Security Trustee and the Security Trustee is
hereby irrevocably instructed by the Secured Creditors to pay
such monies in accordance with the Pre-Acceleration Payment
Priorities; and
9.8.2 following such date and whilst a Standstill Period is
continuing, to hold any amounts credited to the Mandatory
Redemption Escrow Account in such account and the Security
Trustee shall not apply such amounts until the earlier of
cessation of such Standstill Period (in accordance with the
definition thereof) and the occurrence of a Payment Stop
Event. Following the cessation of the Standstill Period:
(a) provided no Payment Stop Event is continuing and no
other Standstill Period is in effect, monies standing
to the credit of the Mandatory Redemption Escrow
Account shall be applied in accordance with Clause
8.2 (Pre-Acceleration Payment Priorities); and
(b) if a Payment Stop Event is continuing, monies
standing to the credit of the Mandatory Redemption
Escrow Account shall be applied in accordance with
sub-clause 8.3.1(b) of Clause 8.3 (Post-Acceleration
Payment Priorities).
9.9 EFFECT OF PAYMENT STOP EVENT AND STANDSTILL PERIOD
Whilst a Payment Stop Event is continuing or a Standstill Period is in
effect, the Issuer shall not make and the Junior Note Trustee shall not
accept any payments in respect of the Junior Notes (other than, to the
extent permitted by this Deed, payments out of the Escrow Accounts in
accordance with the priorities set out in this Deed) PROVIDED THAT
nothing contained in this Deed shall prohibit the Issuer from issuing,
and the Issuer shall be permitted to issue, and the Junior Note Trustee
and the holders of the Junior Notes shall be entitled to receive,
Junior PIK Notes in accordance with the terms of the Junior Notes and
the Junior Note Indenture.
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9.10 IMPACT OF PAYMENT STOP EVENT AND STANDSTILL NOTICES
A failure to make a payment due as a result of a Payment Stop Event or
a Standstill Notice shall not prevent the occurrence of a Default or an
Event of Default as a consequence of that non-payment in relation to a
Relevant Document.
9.11 PAYMENTS FOR ACCOUNT OF SECURITY TRUSTEE AND THE DEBT REPRESENTATIVES
The provisions of this Clause 9 shall not prevent any of the Security
Trustee, each Note Trustee and the New Bonding Facility Agent from
receiving payments for its own account.
10. ACTION AND ENFORCEMENT ACTION
10.1 GENERAL RESTRICTION
10.1.1 Except as permitted by this Clause 10 (Action and Enforcement
Action), no Secured Creditor or Intra-Group Party shall take
any Action, and no Debt Representative shall instruct the
Security Trustee to take any Enforcement Action, at any time.
10.1.2 Except as permitted by this Clause 10 (Action and Enforcement
Action), the Secured Creditors who are the beneficiaries under
the Italian Mortgages shall not take any Enforcement Action in
relation to the Italian Mortgages.
10.1.3 The Secured Creditors hereby agree that no Secured Creditor
shall instruct, or purport to instruct, the Security Trustee
to take any Enforcement Action in relation to the Transaction
Security constituted by the Applicable Security Documents, if
the event giving rise to an Enforcement Event (as defined in
the relevant Applicable Security Document) does not also
constitute an Enforcement Event as defined in this Deed.
10.2 THE HOLDERS OF THE JUNIOR NOTES: PERMITTED ACTION
10.2.1 If an Event of Default has occurred and is continuing under
the Junior Notes and/or the Junior Note Indenture and all
Secured Obligations arising under the Senior Notes and/or the
Senior Note Indenture have not been discharged in full, the
Junior Note Trustee (acting on the instructions of the
Required Holders of the Junior Notes) may on the earlier of:
(a) the date on which the Secured Obligations arising
under the Senior Notes and the Senior Note Indenture
have been declared to be immediately due and payable;
or
(b) the termination of any Standstill Period,
take any Action and, if the Senior Note Trustee has given its
prior written consent to the Junior Note Trustee and the
Security Trustee and if an Enforcement Event has occurred in
relation to the Secured Obligations under the Junior Notes
and/or the Junior Note Indenture, instruct the Security
Trustee to take Enforcement Action; PROVIDED, HOWEVER, THAT no
such Enforcement Event is required to have occurred in order
for the Junior Note Trustee to be entitled to instruct the
Security Trustee to take any action and/or give any notice
(including without limitation notices of charge) otherwise
permitted under the
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applicable Security Documents (but subject to any requirements
therein) and relating to (i) the crystallisation of any
floating charge or security interest of a similar nature
and/or (ii) the perfection, preservation or protection of
security.
10.2.2 Following the satisfaction in full of all Secured Obligations
arising under the Senior Notes and the Senior Note Indenture
and PROVIDED THAT an Event of Default has occurred and is
continuing under the Junior Notes and/or the Junior Note
Indenture, the Junior Note Trustee may (acting on the
instructions of the Required Holders of the Junior Notes) take
any Action in relation to the Secured Obligations owing under
the Junior Notes and/or the Junior Note Indenture and, if an
Enforcement Event has occurred in relation to the Secured
Obligations under the Junior Notes or the Junior Note
Indenture, instruct the Security Trustee to take Enforcement
Action; PROVIDED, HOWEVER, THAT no such Enforcement Event is
required to have occurred in order for the Junior Note Trustee
to be entitled to instruct the Security Trustee to take any
action and/or give any notice (including without limitation
notices of charge) otherwise permitted under the applicable
Security Documents (but subject to any requirements therein)
and relating to (i) the crystallisation of any floating charge
or security interest of a similar nature and/or (ii) the
perfection, preservation or protection of security.
10.3 THE HOLDERS OF THE SENIOR NOTES: PERMITTED ACTION
If an Event of Default has occurred and is continuing under the Senior
Notes and/or the Senior Note Indenture, the Senior Note Trustee may
(acting on the instructions of the Required Holders of the Senior
Notes) take any Action in relation to the Secured Obligations owing
under the Senior Notes and/or the Senior Note Indenture and, if an
Enforcement Event has occurred in relation to the Secured Obligations
under the Senior Notes and/or the Senior Note Indentures, instruct the
Security Trustee to take Enforcement Action; PROVIDED, HOWEVER, THAT no
such Enforcement Event is required to have occurred in order for the
Senior Note Trustee to be entitled to instruct the Security Trustee to
take any action and/or give any notice (including without limitation
notices of charge) otherwise permitted under the applicable Security
Documents (but subject to any requirements therein) and relating to (i)
the crystallisation of any floating charge or security interest of a
similar nature and/or (ii) the perfection, preservation or protection
of security.
10.4 NEW BONDING FACILITY AGENT: PERMITTED ACTION
Upon the occurrence of an Event of Default under clause 24.1
(Non-Payment) of the New Bonding Facility Agreement and at all times
thereafter whilst the same is continuing, the New Bonding Facility
Agent may (on its own behalf and on behalf of the New Bonding Facility
Banks):
10.4.1 having notified the other Debt Representatives of the
occurrence of such Event of Default, take the action set out
in sub-clause 8.2.2 of Clause 8.2 (Pre-Acceleration Payment
Priorities) (subject to the restrictions set out in sub-clause
8.2.2); and
10.4.2 on the earlier of:
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(a) the date falling 180 days or more after notice to the
Security Trustee of the occurrence of such Event of
Default under the New Bonding Facility Agreement; and
(b) the date on which the Secured Obligations arising
under the Senior Notes and the Senior Note Indenture
have been accelerated,
take any Action in relation to the Secured Obligations arising
under the New Bonding Facility Agreement.
10.5 THE DEBT REPRESENTATIVES: PERMITTED ACTION ON AN INSOLVENCY EVENT
Notwithstanding the provisions of Clause 10.2 (The Holders of the
Junior Notes: Permitted Action) and Clause 10.4 (New Bonding Facility
Agent: Permitted Action), the Security Trustee (if so instructed by
each Note Trustee and to the extent instructed to do so) shall and the
New Bonding Facility Agent (on behalf of the New Bonding Facility
Finance Parties) may, following the occurrence of an Insolvency Event,
demand payment of and/or xxx for the recovery of the Secured
Obligations, commence any insolvency proceedings and/or prove in the
liquidation of the Obligors (or any of them) for any and all of the
Secured Obligations.
10.6 INTRA-GROUP CREDITORS: NO ACTION
10.6.1 Subject to sub-clause 10.6.2 below, no Intra-Group Creditor
shall (without the prior written consent of the Security
Trustee acting in accordance with the instructions of the
Instructing Trustee) take or be entitled to take any Action in
relation to any Intra-Group Liabilities.
10.6.2 Following the occurrence of a Payment Stop Event which is
continuing each Intra-Group Creditor shall, at the request of
the Security Trustee (acting on the instructions of the
Instructing Trustee):
(a) release each Intra-Group Borrower from all or part of
the Intra-Group Liabilities owed to it; and/or
(b) request that each Intra-Group Borrower provide cash
collateral in favour of the Security Trustee up to an
amount equal to the Intra-Group Liabilities owed by
such Intra-Group Borrower and each Intra-Group
Borrower agrees to provide the same; and/or
(c) subject to Clause 5.2 (Additional Security), assign
the benefit of its claims under all Intra-Group
Documents to which it is a party to the Security
Trustee or, if any Intra-Group Liabilities are not
evidenced by Intra-Group Documents, assign all of its
rights in respect of such Intra-Group Liabilities to
the Security Trustee; and/or
(d) make a claim against the relevant Intra-Group
Borrower for the recovery of all or part of the
Intra-Group Liabilities owed to it and promptly pay
the proceeds of such recovery to the Security
Trustee.
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10.7 PAYMENT OF DISTRIBUTIONS
After the occurrence of an Insolvency Event in relation to any Obligor,
the person responsible for the distribution of the assets of that
Obligor shall be directed by each Debt Representative to pay any
distributions in respect of the Secured Obligations to the Security
Trustee until the Secured Obligations have been paid in full.
11. TURNOVER BY THE SECURED CREDITORS
11.1 TURNOVER
If at any time prior to the discharge in full of the Secured
Obligations, any Secured Creditor (other than the Security Trustee)
receives or recovers:
11.1.1 any payment or distribution in respect of, or any payment on
account of or in relation to, the whole or any part of the
Secured Obligations which is not permitted by Clause 8.1
(Permitted Actions), Clause 8.2 (Pre-Acceleration Payment
Priorities), Clause 8.3 (Post-Acceleration Payment
Priorities), Clause 9.5 (Permitted Payments), or Clause 10
(Action and Enforcement Action);
11.1.2 any amount by way of cash receipt, set-off, any right of
combination of accounts or in any other manner whatsoever in
respect of the whole or any part of the Secured Obligations
which is not permitted by Clause 8.1 (Permitted Actions),
Clause 8.2 (Pre-Acceleration Payment Priorities), Clause 8.3
(Post-Acceleration Payment Priorities) or Clause 9.5
(Permitted Payments);
11.1.3 the proceeds of any enforcement of, or recourse to, any
Transaction Security other than as permitted by this Deed;
11.1.4 any distribution in cash or in kind made as a result of the
occurrence of an Insolvency Event in respect of any Obligor
other than as permitted by this Deed; or
11.1.5 any amount as a result of the enforcement of, or recourse to,
any Transaction Security or the exercise of any rights or
powers under the Security Documents under the circumstances
specified in Clause 6.8 (No Independent Power),
that Secured Creditor will pay an amount equal to that receipt or
recovery to the Security Trustee, to be held on trust by the Security
Trustee for application in accordance with the terms of this Deed
PROVIDED THAT each Note Trustee need only comply with this Clause 11 to
the extent it still holds such amount and is able to pay such amount to
the Security Trustee and any amount which is not so held and not so
capable of being so paid by the relevant Note Trustee shall be notified
(in writing) by the relevant Note Trustee to the Issuer and the
Security Trustee and shall constitute a "TRUE UP AMOUNT" for the
purpose of Clause 8 (Ranking of Secured Obligations and Priorities),
Schedule 4 (Pre-Acceleration Payment Priorities) and Schedule 5
(Post-Acceleration Payment Priorities).
11.2 SUMS RECEIVED BY OBLIGORS
If any Intra-Group Creditor receives any sum in relation to any
Intra-Group Liability other than pursuant to Clause 9.5 (Permitted
Payments), that sum shall be promptly paid to the Security Trustee for
application in accordance with the terms of this Deed, and pending such
payment it shall be held on trust for the Security Trustee.
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12. SHARING
12.1 RECOVERING SECURED CREDITOR'S RIGHTS
12.1.1 Any amount (the "SHARED AMOUNT") paid by a Secured Creditor (a
"RECOVERING SECURED CREDITOR") to the Security Trustee under
Clause 10 (Action and Enforcement Action) or Clause 11
(Turnover by the Secured Creditors) shall be deemed to have
been paid by the relevant Obligor and shall be distributed in
accordance with the terms of this Deed.
12.1.2 On a distribution of a Shared Amount by the Security Trustee,
the Recovering Secured Creditor will be subrogated to the
rights of the Secured Creditors which have shared in the
distribution of the Shared Amount.
12.1.3 If and to the extent that the Recovering Secured Creditor is
not able to rely on its rights under sub-clause 12.1.2 of this
Clause 12.1 the relevant Obligor shall be liable to the
Recovering Secured Creditor for a debt equal to the Shared
Amount received or recovered by the Recovering Secured
Creditor and paid to the Security Trustee which is immediately
due and payable.
12.2 REVERSAL OF REDISTRIBUTION
If any part of the Shared Amount received or recovered by a Recovering
Secured Creditor becomes repayable and is repaid by that Recovering
Secured Creditor, then:
12.2.1 each Secured Creditor which has received a share of the
relevant Shared Amount shall, upon request of the Security
Trustee, pay to the Security Trustee for account of that
Recovering Secured Creditor an amount equal to the appropriate
part of its share of the Shared Amount (together with an
amount as is necessary to reimburse that Recovering Secured
Creditor for its proportion of any interest on the Shared
Amount which that Recovering Secured Creditor is required to
pay); and
12.2.2 that Recovering Secured Creditor's rights of subrogation in
respect of any reimbursement shall be cancelled and the
relevant Obligor will be liable to the reimbursing Secured
Creditors for the amount so reimbursed.
12.3 DEFERRAL OF SUBROGATION
No Secured Creditor or Obligor will exercise any rights which it may
have by reason of the performance by it of its obligations under the
Relevant Documents to take the benefit (in whole or in part and whether
by way of subrogation or otherwise) of any rights under the Relevant
Documents (in this clause the "SUBROGATED RIGHTS") of any Secured
Creditor which ranks ahead of it in accordance with the priorities set
out in Clause 8 (Ranking of Secured Obligations and Priorities) until
such time as all of the Secured Obligations of each Secured Creditor
which rank ahead of it in accordance with the priorities set out in
Clause 8 (Ranking of Secured Obligations and Priorities) have been
discharged in full.
12.4 PRESERVATION OF LIABILITIES
12.4.1 Except where expressly provided by this Deed and subject to
Clause 24.1 (Control Provisions), nothing contained in this
Deed is intended to or shall impair, as between any Obligor
and any Secured Creditor or, as the case may be, between any
Intra-Group Creditor and any Intra-Group Borrower:
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(a) the obligations of any Obligor under the Relevant
Documents to which such Obligor is party; or
(b) the obligations of any Intra-Group Borrower under the
Intra-Group Documents (if any) to which it is a party
and in respect of all of the relevant Intra-Group
Liabilities.
12.4.2 Each Obligor and each Intra-Group Borrower expressly
acknowledges that no failure or delay by a Secured Creditor,
or as the case may be, an Intra-Group Creditor in exercising
any of its respective rights in relation to a default or an
Event of Default as a result of the provisions of this Deed,
shall operate as a waiver or variation of its rights with
respect thereto.
13. SECURITY TRUSTEE AS PARTY TO ESCROW AGREEMENT
13.1 ESTABLISHMENT OF ESCROW ACCOUNTS
The Escrow Bank confirms that as at the date of this Deed each of the
Escrow Accounts has been established and is in operation in accordance
with the terms of the Escrow Agreement.
13.2 SECURITY TRUSTEE TO MAINTAIN MANDATES
The Issuer undertakes that it will ensure that the Escrow Accounts and
any mandates in respect of the Escrow Accounts will continue to be
operative and that the terms of such mandates will not be amended
without the prior written consent of the Debt Representatives and the
Security Trustee.
13.3 FUNDS INVESTED TO CARRY INTEREST
The Escrow Bank will procure that all amounts standing to the credit of
the Escrow Accounts from time to time will carry interest at such rate
as may be agreed from time to time between the Escrow Bank and the
Issuer.
13.4 RECONCILIATIONS
On or before the fifth Business Day of each calendar month, the
Security Trustee shall carry out a reconciliation of the balances of
each Escrow Account for the immediately preceding month against its
record of the directions given by it to the Escrow Bank and shall
promptly contact the Escrow Bank in order to resolve any discrepancy
which may be identified.
14. SECURITY TRUSTEE'S ACTIONS
14.1 SECURITY TRUSTEE'S INSTRUCTIONS
14.1.1 Except as otherwise expressly provided herein or in the other
Relevant Documents to which the Security Trustee is a party,
the Security Trustee shall for the purposes of this Deed and
the other Relevant Documents to which it is a party act solely
in accordance with any written instructions given to it by (or
on behalf of) a Debt Representative and shall assume without
enquiry:
(a) that any instructions received by it from a Note
Trustee are duly given by such Note Trustee as
trustee for the holders of the relevant Notes;
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(b) that any instructions received by it from the New
Bonding Facility Agent are duly given by the New
Bonding Facility Agent as agent and trustee for the
New Bonding Facility Banks; and
(c) unless it has received actual written notice of
revocation, that any instructions or directions given
by a Debt Representative have not been revoked and no
revocation of any such instructions by a Debt
Representative shall affect any action of the
Security Trustee in reliance upon such instruction or
direction prior to actual receipt of the notice of
revocation.
14.1.2 The Security Trustee shall be entitled to request
clarification of any instruction or direction received by it
from (or on behalf of) a Debt Representative, and pending
receipt of such clarification to its satisfaction may refrain
from acting and shall have no liability for the consequences
of its refraining from acting.
14.1.3 The Security Trustee shall be entitled to carry out all
dealings (including the giving of any notice under the
Relevant Documents) with the holders of any Notes and the
lenders under the New Bonding Facility Agreement through the
relevant Debt Representatives.
14.1.4 If in issuing any instruction a Debt Representative breaches
any rights or restrictions set out in the applicable Relevant
Documents or otherwise, this shall not invalidate the
instruction unless the Security Trustee has been informed (in
writing) by the relevant Debt Representative before it
commences to act on such instruction that such instruction was
invalid and should not be acted on. If the Security Trustee is
so informed after it has commenced to act on an instruction
the validity of any action taken shall not be affected but the
Security Trustee shall take no further action in accordance
with such instruction, except to the extent that it has become
legally obliged to do so.
14.1.5 For the purposes of this Deed and any other Relevant Documents
to which it is a party the Security Trustee shall, in the
absence of manifest error, be entitled to rely conclusively
upon any certificates, written notices, written requests or
written instructions received by it pursuant hereto or thereto
without making any further enquiries or incurring any
liability and, in the absence of any such certificates,
written notices, written requests or written instructions,
shall not be bound to take any action or refrain from taking
any action under this Deed or any other Relevant Document to
which it is a party or apply any amounts received or recovered
in connection with the realisation or enforcement of all or
any part of the Transaction Security.
14.1.6 For the purposes of this Deed and any other Relevant Document
to which it is a party, the Security Trustee may carry out
what in its discretion it determines to be administrative acts
(any such determination being, in the absence of manifest
error, binding on all Parties), or acts which are incidental
to any instruction, without any written instructions (though
not contrary to any such written instruction), but so that no
such instruction shall have any effect in relation to
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any administrative or incidental act performed prior to actual
receipt of such instruction by the Security Trustee.
14.1.7 Except as otherwise provided in sub-clause 19.2.3 of Clause
19.2 (Security Trustee's Lien) the Security Trustee is
entitled at all times to act without having been instructed by
a Debt Representative in order to protect its own position and
interests in its personal capacity as Security Trustee
(including its own personal financial interest).
14.1.8 The Security Trustee shall, in the absence of manifest error,
be entitled to assume that all written information, written
notices, written instructions or certifications received from
a Secured Creditor or an Obligor under or in connection with
this Deed and any other Relevant Document to which it is a
party are authentic, true, complete and accurate and have been
issued by a duly authorised representative of such Secured
Creditor or Obligor and shall not be required to make further
enquiries or incur any liabilities in respect thereof.
14.1.9 The Security Trustee shall take such action (including,
without limitation, the exercise of all rights, discretions or
powers and the granting of consents or releases) or, as the
case may be, refrain from taking such action under or pursuant
to this Deed or any other Relevant Document to which it is a
party as the relevant Debt Representative shall specifically
direct the Security Trustee in writing from time to time.
Unless and until the Security Trustee shall have received such
directions, the Security Trustee shall not take any action
under this Deed or any other Relevant Document to which it is
a party PROVIDED THAT it may unless required not to do so (but
shall not be obliged to) take such action permitted under the
terms of this Deed or any other Relevant Document to which it
is a party as it believes necessary or appropriate to protect
the interests of the Secured Creditors thereunder but the
entities granting any Security shall not be concerned with
whether the Security Trustee is acting in accordance with
these provisions and shall be conclusively entitled to assume
that the Security Trustee has all the necessary right, title
and authority.
14.2 SECURITY TRUSTEE'S DISCRETIONS
The Security Trustee may:
14.2.1 assume, unless it has, in its capacity as Security Trustee for
the Secured Creditors, received actual notice to the contrary
from the relevant Debt Representative, that (a) any
representation made or deemed to be made by any party to the
Relevant Documents is true; (b) no Standstill Notice has been
served and (c) no Event of Default, Insolvency Event or
Enforcement Event has occurred;
14.2.2 if it receives any instructions or directions from a Debt
Representative to take any action in relation to this Deed or
any other Relevant Document to which it is a party or to the
Transaction Security, assume that all applicable conditions
for taking that action have been satisfied;
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14.2.3 engage, pay for and rely on the opinion or advice of or a
certificate or any information obtained from any lawyer,
accountant, surveyor or other expert (whether obtained by the
Security Trustee, by any other Secured Creditor or by any
other person) and shall not be responsible for any loss
occasioned by so acting and any such opinion, advice,
certificate or information may be sent or obtained by letter,
facsimile or e-mail transmission and the Security Trustee
shall not be liable for acting on any opinion, advice,
certificate or information purporting to be so conveyed
although the same shall contain some error or shall not be
authentic;
14.2.4 in the absence of manifest error, accept and rely upon:
(a) any written notice, written information, written
communication, certificate, written legal opinion or
other document believed by it to be genuine and
correct;
(b) as to any matters of fact which might reasonably be
expected to be within the knowledge of a Secured
Creditor or an Obligor or any other person or any of
their respective directors, officers, partners or
employees or authorised representatives, any
certificate signed by or on behalf of that person as
sufficient evidence thereof;
(c) any certificate purporting to be duly signed by the
persons giving such notice or certificate as having
been duly signed by or on behalf of such person; and
(d) any certificate to the effect that any particular
dealing or transaction or step or thing is, in the
opinion of the persons so certifying, expedient as
sufficient evidence that it is expedient,
without incurring any liability to such Secured Creditor,
Obligor or other person or any of their respective directors,
officers, partners or employees or authorised representatives
for so accepting and relying, without having any duty to
enquire as to the accuracy thereof and without being bound to
ask for further evidence or authority or otherwise;
14.2.5 without being liable to any person for any delay or loss
caused thereby, refrain from acting in accordance with the
instructions of any Debt Representative (including any
instructions to take any legal action or proceeding arising
out of or in connection with this Deed or any other Relevant
Document to which it is a party) or from taking any other
action pursuant to this Deed and/or any other Relevant
Document to which it is a party unless and until it has been
indemnified and/or provided with such security as it may in
its absolute discretion require (whether by way of payment in
advance or otherwise) against all actions, proceedings, claims
and demands to which it may render itself liable and against
all charges, damages, losses, expenses (including, without
limitation, legal fees and other disbursements), claims and
liabilities (including, without limitation, Tax liabilities)
which it may incur or expend or to which it may be exposed by
so doing;
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14.2.6 in the exercise of any of its rights or performance of any of
its duties, obligations and responsibilities under this Deed
and/or any other Relevant Document to which it is a party, act
through its agents selected by it which may be corporations,
partnerships or individuals, whether or not lawyers or other
professional persons, to transact or conduct, or concur in
transacting or conducting, any business and to do or concur in
doing all acts required to be done by the Security Trustee
(including the receipt and payment of money) and the Security
Trustee shall not be responsible for any misconduct or
omission on the part of, or be bound to supervise the
proceedings or acts of, any such agent PROVIDED THAT the
Security Trustee has exercised reasonable care in appointing
such person. Any such agent shall be entitled to charge and be
paid all usual and properly incurred fees, expenses and other
charges for its services;
14.2.7 retain for its own benefit, without liability to account to
any other person, any fee or other sum properly received by it
for its own account;
14.2.8 provide advisory or other services to or engage in any kind of
business with any person party to or affected by the
arrangements the subject of any Relevant Document and may do
so without any obligation to account to or disclose any such
arrangement to any person; and
14.2.9 assume that all the Obligors are in compliance with their
obligations under the Relevant Documents to which they are a
party until it has actual notice to the contrary.
14.3 SECURITY TRUSTEE'S OBLIGATIONS
The Security Trustee shall promptly send copies to the relevant Debt
Representatives and, to the extent required under the Relevant
Documents, the Issuer of any notice or document received by it in its
capacity as Security Trustee under any Relevant Document to which it is
a party.
14.4 EXCLUDED OBLIGATIONS
Notwithstanding anything to the contrary expressed or implied in this
Deed or any Relevant Document to which it is a party, the Security
Trustee shall not:
14.4.1 be bound to enquire as to (a) the occurrence of any Event of
Default, Insolvency Event or Enforcement Event or any facts or
circumstances leading to the occurrence of any such event; or
(b) the occurrence of any event or otherwise leading to the
issuance of a Standstill Notice or (c) the performance,
default or any breach by any Obligor of its respective
obligations under any of the Relevant Documents to which it is
a party and, for the avoidance of doubt, shall not be under
any obligation to monitor or supervise the actions of any
person under any Relevant Document or any Intra-Group
Document;
14.4.2 be bound to account to any other Secured Creditor or any other
party for any sum or the profit element of any sum properly
received by it for its own account;
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14.4.3 unless ordered to do so by a court of competent jurisdiction,
be bound to disclose to any other person (including any
Secured Creditor or Obligor) any confidential information and
each Secured Creditor and Obligor agrees that it shall not
take any action to obtain from the Security Trustee any such
confidential information;
14.4.4 be under any obligations other than those which are expressly
and specifically provided for in this Deed, the Escrow
Agreement or any Security Documents;
14.4.5 have or be deemed to have any duty, obligation or
responsibility to, or relationship of trust or agency with the
Issuer or any other Obligor (save for the duties, obligations
or responsibilities pursuant to Clause 5.3 (Release of
Transaction Security on Discharge of Secured Obligations),
Clause 5.4 (Release of Transaction Security in Connection with
Permitted Disposals), Clause 8.2 (Pre-Acceleration Payment
Priorities) and Clause 8.3 (Post-Acceleration Payment
Priorities));
14.4.6 have or be deemed to have any duty, obligation or
responsibility whatsoever in respect of the Relevant Documents
(other than as expressly and specifically provided under this
Deed, the Escrow Agreement or any Security Documents) or any
of the terms and conditions relating thereto, or any of the
acts or omissions of any of the parties thereunder;
14.4.7 have any obligation to marshal any Transaction Security;
14.4.8 be required by anything contained in this Deed or any other
Relevant Document to which it is a party to expend or risk its
own funds or otherwise incur any financial liability in the
performance of any of its duties or to exercise any of its
rights thereunder;
14.4.9 in any circumstances be obliged to give its own indemnity to
any Delegate or to become a mortgagee in possession (or the
equivalent under the local law of any of the Security
Documents);
14.4.10 have any obligation to effect or consider the adequacy of any
insurance;
14.4.11 be bound to obtain, request or maintain any foreign exchange
approval necessary for the conversion of any sum received by
the Security Trustee in a currency other than that in which
the Secured Obligations of the relevant Secured Creditors are
denominated; or
14.4.12 have or be deemed to have any duty, obligation or
responsibility whatsoever in respect of monitoring compliance
by any Obligors or any Debt Representative with their
respective obligations under any of the Relevant Documents to
which they are a party.
14.5 EXCLUSION OF SECURITY TRUSTEE'S LIABILITY
Unless caused directly by its negligence or wilful misconduct the
Security Trustee shall not accept responsibility or be liable to any
Obligor or Secured Creditor or any other person:
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14.5.1 for the adequacy, accuracy and/or completeness of any
information supplied by the Security Trustee or any other
person in connection with this Deed and/or the other Relevant
Documents to which it is a party or the transactions
contemplated hereunder or thereunder, or any other agreement,
arrangement or document entered into, made or executed in
anticipation of, pursuant to or in connection with this Deed
and/or the other Relevant Documents to which it is a party;
14.5.2 for the legality, validity, effectiveness, adequacy or
enforceability of the Relevant Documents to which it is a
party or the Transaction Security or any other agreement,
arrangement or document entered into, made or executed in
anticipation of, pursuant to or in connection with the
Relevant Documents to which it is a party or the Transaction
Security;
14.5.3 for any losses to any person or any liability arising as a
result of taking or refraining from taking any action in
relation to any of the Relevant Documents to which it is a
party or the Transaction Security or otherwise, whether in
accordance with an instruction received or otherwise;
14.5.4 for the exercise of, or the failure to exercise, any
judgement, discretion or power given to it by or in connection
with any of the Relevant Documents to which it is a party, the
Transaction Security or any other agreement, arrangement or
document entered into, made or executed in anticipation of,
pursuant to or in connection with the Relevant Documents to
which it is a party or the Transaction Security;
14.5.5 for any shortfall which arises on the enforcement of the
Transaction Security, or for any deficiency or additional
payment, as the case may be, which might arise because the
Security Trustee is subject to any Tax in respect of the
Transaction Security or any part thereof or any income
therefrom or any proceeds thereof;
14.5.6 for any Obligor or any other person acting or failing to act
in accordance with any of the Relevant Documents to which it
is a party, or in respect of any moneys which are received or
for any acts or omissions on the part of any Obligor or any
other person (including any bank, Depositary, manager,
custodian, manager, administrator, servicer or other
intermediary);
14.5.7 for any decline in value due to currency conversions made
pursuant to the Relevant Documents;
14.5.8 for any moneys other than sums actually received by the
Security Trustee which have not been distributed or paid to
the Secured Creditor or the persons entitled or at the time of
payment believed by the Security Trustee to be entitled
thereto; or
14.5.9 for any costs, charges, losses, damages, liabilities or
expenses arising from or connected with any realisation of the
Transaction Security or from any act, default, omission or
misconduct of the Security Trustee or its officers,
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employees or agents in relation to the Transaction Security or
in connection with the Relevant Documents.
14.6 NO PROCEEDINGS
Each Party (other than the Security Trustee) agrees for the benefit of
the Security Trustee and its officers, employees and agents that it
will not assert any claim or take proceedings against any of its
officers, employees and agents in respect of any claim it might have
against the Security Trustee or in respect of any act or omission of
any kind by that officer, employee or agent in relation to the Relevant
Documents and, subject to sub-clause 1.7.2 of Clause 1.7 (Third-Party
Rights) and the provisions of Contracts (Rights of Third Parties) Xxx
0000, any officer, employee or agent of the Security Trustee may rely
on this Clause 14.6.
14.7 OWN RESPONSIBILITY
The Security Trustee is entering into this Deed on the understanding
that at all times each Secured Creditor has itself been, and will
continue to be, solely responsible for making its own independent
appraisal of and investigation into all risks arising under or in
connection with the Relevant Documents including but not limited to:
14.7.1 the financial condition, creditworthiness, condition, affairs,
status and nature of the Obligors or any other person;
14.7.2 the legality, validity, effectiveness, adequacy and
enforceability of each of the Security Documents, the
Transaction Security and any other Relevant Documents,
agreement, arrangement or document entered into, made or
executed in anticipation of, pursuant to or in connection with
the Security Documents, the Transaction Security or the other
Relevant Documents;
14.7.3 whether that Secured Creditor has recourse, and the nature and
extent of that recourse, against any Obligor or any other
person or any of their respective assets under or in
connection with the Relevant Documents, the transactions
contemplated in the Relevant Documents or any other agreement,
arrangement or document entered into, made or executed in
anticipation of, pursuant to or in connection with the
Relevant Documents;
14.7.4 the adequacy, accuracy and/or completeness of any information
provided by any person in connection with the Relevant
Documents, the transactions contemplated in the Relevant
Documents or any other agreement, arrangement or document
entered into, made or executed in anticipation of, pursuant to
or in connection with the Relevant Documents; and
14.7.5 the right or title of any person in or to, or the value or
sufficiency of any part of the Transaction Security, the
priority of any of the Transaction Security or the existence
of any encumbrance affecting the Transaction Security,
and each Secured Creditor warrants to the Security Trustee that it has
not relied on and will not at any time rely on the Security Trustee in
respect of any of these matters.
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14.8 NO RESPONSIBILITY TO PERFECT SECURITY
The Security Trustee shall not be liable for any failure, omission or
defect in perfecting or protecting its rights under the Transaction
Security or the priority of such Transaction Security, including,
without limitation, any failure to:
14.8.1 require the deposit with it of any deed or document
certifying, representing or constituting the title of any
Obligor to any of the Transaction Security;
14.8.2 obtain any licence, consent, approval or other authority from
any person required or necessary for the execution, delivery,
legality, validity, enforceability or admissibility in
evidence of any of the Security Documents or the Transaction
Security or any part thereof;
14.8.3 register, file or record or otherwise protect any of the
Transaction Security (or the priority of any of the Security)
or any Security Documents (or any amendments thereto) under
any applicable laws in any jurisdiction or to give notice to
any person of the execution of any of the Security Documents
(or any amendments thereto) or of the Transaction Security;
14.8.4 take, or require any of the Obligors to take, any steps which
are or might be required to perfect its title to any of the
assets subject to the Transaction Security or to render the
Transaction Security effective or to secure the creation of
any ancillary security interest under the laws of any
jurisdiction;
14.8.5 take, or require any Party to take, any steps which are or
might be required to render (a) the Security Documents, (b)
any amendment to the Security Documents, (c) any assignment
and/or transfer by a Party of all of its rights and
obligations under any of the Relevant Documents, or (d) the
appointment of a successor pursuant to Clause 21.4 (Other
Parties), effective, valid and enforceable under the laws of
any jurisdiction;
14.8.6 require any further assurances in relation to any of the
Security Documents; or
14.8.7 ensure that any sums are received into any account of any
Obligor or any other person or in respect of the receipt of
the same.
14.9 CUSTODIANS AND NOMINEES
The Security Trustee may appoint and pay any person to act as a
custodian or nominee on any terms in relation to any assets of the
trust constituted by this Deed as the Security Trustee may reasonably
determine, including for the purpose of depositing with a custodian any
of the Security Documents and the Security Trustee shall not be
responsible for any loss, liability, expense, demand, cost, claim or
proceedings incurred by reason of the misconduct, omission or default
on the part of any such person appointed by it under this Deed
(PROVIDED THAT the Security Trustee has exercised reasonable care in
appointing such person) or be bound to supervise the proceedings or
acts of any such person.
14.10 ACCEPTANCE OF TITLE
The Security Trustee shall be entitled to accept without enquiry, and
shall not be obliged to investigate, such right and title as any
Obligor may have to any of the assets subject to
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the Transaction Security and shall not be bound to examine or enquire
into or be liable for any defect or failure in the right or title of
any Obligor to any of the assets subject to the Transaction Security or
any part thereof whether such defect or failure was known to the
Security Trustee or might have been discovered upon examination or
enquiry and whether capable of remedy or not.
14.11 REFRAIN FROM ILLEGALITY
The Security Trustee may refrain from doing anything which in its
opinion would or might be contrary to any relevant law, directive or
regulation of any jurisdiction or which would or might otherwise render
it liable to any person, and the Security Trustee may do anything which
is, in its absolute discretion, necessary to comply with any such law,
directive or regulation of any such jurisdiction.
14.12 POWERS SUPPLEMENTAL
The rights, powers and discretions conferred upon the Security Trustee
by this Deed shall be supplemental to those conferred on it by the
Trustee Acts and in addition to any which may be vested in the Security
Trustee by general law or otherwise.
14.13 MERGER, ETC.
Any corporation into which the Security Trustee may be merged or
converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which the
Security Trustee shall be a party, or any corporation succeeding to all
or substantially all the corporate trust business of the Security
Trustee, shall be the successor of the Security Trustee hereunder
without the execution or filing of any paper or any further act on the
part of any Party.
14.14 DISAPPLICATION
Section 1 of the Trustee Act 2000 shall not apply to the duties of the
Security Trustee in relation to the trusts constituted by this Deed.
Where there are any inconsistencies between the Trustee Acts and the
provisions of this Deed, the provisions of this Deed shall, to the
extent allowed by law, prevail and, in the case of any such
inconsistency with the Trustee Xxx 0000, the provisions of this Deed
shall constitute a restriction or exclusion for the purposes of that
Act.
15. RESIGNATION OF SECURITY TRUSTEE
15.1 RESIGNATION OF SECURITY TRUSTEE
Subject to the provisions of this Clause 15, the Security Trustee may
resign at any time without assigning any reason and without being
responsible for any costs, charges or expenses occasioned by such
resignation.
15.2 RESIGNATION OF SECURITY TRUSTEE AND APPOINTMENT OF SUCCESSOR
The Security Trustee may:
15.2.1 resign and appoint one of its affiliates as successor by
giving not less than 15 Business Days notice in writing to the
other Secured Creditors, the Escrow Bank and the Issuer; or
15.2.2 resign, without appointing a successor, by giving not less
than 15 Business Days notice in writing to the other Secured
Creditors, the Escrow Bank and the
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Issuer and requesting the Debt Representatives to appoint a
financial institution of recognised standing in the London
banking market, and acceptable to the Issuer (acting
reasonably), as a successor Security Trustee. If the Debt
Representatives have not appointed a successor Security
Trustee in accordance with this sub-clause 15.2.2 within
fifteen Business Days of the Security Trustee having given
notice in writing of its resignation to the other Secured
Creditors, the Escrow Bank and the Issuer, the Security
Trustee (after consultation with the Debt Representatives) may
appoint a financial institution of recognised standing in the
London banking market as a successor Security Trustee.
15.3 ACTIONS BY OUTGOING SECURITY TRUSTEE
The retiring Security Trustee shall, at the cost of the Issuer, make
available to its successor such documents and records and provide such
assistance as the successor Security Trustee may reasonably request for
the purposes of performing its functions as Security Trustee under the
Relevant Documents to which it is a party.
15.4 EFFECTIVENESS OF SECURITY TRUSTEE'S RESIGNATION
The Security Trustee's resignation notice shall only take effect upon:
15.4.1 the appointment of its successor;
15.4.2 the transfer of all of the Transaction Security (other than
the Transaction Security created pursuant to the Italian
Mortgages) to that successor and, if required by any
applicable laws of any jurisdiction, the re-execution of any
relevant Security Documents in favour of such successor
PROVIDED THAT the benefit of any Transaction Security which
cannot be so transferred within a reasonable time shall be
held on trust for such successor;
15.4.3 the accession of its successor to this Deed by the execution
and delivery of an Agent/Trustee/New Bonding Facility Bank
Accession Letter; and
15.4.4 to the extent that it is required by, necessary or desirable
under the laws of the relevant jurisdiction, the parties to
the other Relevant Documents (to which the Security Trustee is
a party) receiving from the successor Security Trustee a deed
of novation in such form as the parties to such Relevant
Documents may require whereby such successor Security Trustee
undertakes to become a party to and be bound by the terms and
conditions of those Relevant Document.
15.5 FURTHER ASSURANCE ON APPOINTMENT OF SUCCESSOR SECURITY TRUSTEE
Each Obligor, Intra-Group Creditor and Intra-Group Borrower hereby
covenants that following the resignation of the Security Trustee
pursuant to this Clause 15 and, to the extent required by any
applicable laws of any jurisdiction, it will re-execute any Relevant
Documents to which the retiring Security Trustee is a party in favour
of the newly appointed Security Trustee.
15.6 RELEASE OF OUTGOING SECURITY TRUSTEE
Upon the appointment of a successor and the satisfaction of the other
conditions set forth in Clause 15.4 (Effectiveness of Security
Trustee's Resignation), the retiring Security Trustee shall be
discharged from any further obligation under this Deed and any of the
other Relevant Documents to which it is a party but shall remain
entitled (i) to the benefit
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of Clause 14 (Security Trustee's Actions), Clause 18 (Fees, Expenses
and Stamp Taxes) and Clause 19 (Indemnities) and (ii) to enforce any of
its rights under such clauses as if it was still a party to this Deed.
A successor Security Trustee and each of the other Parties shall have
the same rights and obligations amongst themselves as they would have
had if such successor Security Trustee had been an original Party
hereto.
15.7 REMOVAL OF SECURITY TRUSTEE
Either Note Trustee may, by notice to the Security Trustee, require the
Security Trustee to resign in accordance with Clause 15.2 (Resignation
of Security Trustee and Appointment of Successor). Upon receipt of any
such notice from such Note Trustee the Security Trustee shall resign in
accordance with Clause 15.2 (Resignation of Security Trustee and
Appointment of Successor) and, for the avoidance of doubt, the
provisions of Clauses 15.3 (Actions by Outgoing Security Trustee) to
15.6 (Release of Outgoing Security Trustee) shall apply accordingly.
16. DELEGATION AND ADDITIONAL SECURITY TRUSTEE
16.1 DELEGATION
16.1.1 The Security Trustee may, at any time, to the extent permitted
by any applicable laws of any jurisdiction, delegate by power
of attorney or otherwise to any person or persons for any
period, all or any of the rights, powers and discretions
vested in it by any of the Relevant Documents.
16.1.2 A delegation referred to in sub-clause 16.1.1 of this Clause
16.1 may, subject to sub-clause 16.2.2 of Clause 16.2
(Additional Security Trustees), be made upon any terms and
conditions (including the power to sub-delegate) and subject
to any restrictions as the Security Trustee may think fit in
the interests of the Secured Creditors and the Security
Trustee shall not be bound to supervise, or in any way be
responsible for any loss incurred by reason of any misconduct
or default on the part of, any Delegate or sub-Delegate or any
person it appoints as an additional Security Trustee pursuant
to sub-clause 16.2.1 of Clause 16.2 (Additional Security
Trustees) PROVIDED THAT the Security Trustee has exercised all
reasonable care in appointing such Delegate or sub-Delegate or
any person it appoints as an additional Security Trustee.
16.2 ADDITIONAL SECURITY TRUSTEES
16.2.1 The Security Trustee may at any time appoint any person to act
as an additional security trustee or as a co-trustee jointly
with it if it considers;
(a) that appointment to be in the interests of the
Secured Creditors; or
(b) such appointment necessary for the purposes of
conforming to any legal requirements, restrictions or
conditions which the Security Trustee reasonably
deems to be relevant; or
(c) such appointment necessary or desirable with regard
to any Transaction Security located in a particular
jurisdiction; or
(d) such appointment necessary or desirable for obtaining
or enforcing any judgment in any jurisdiction,
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and the Security Trustee shall give prior written notice to
each Debt Representative and the Issuer of any such
appointment.
16.2.2 Any person appointed to act as an additional security trustee
or as a co-trustee pursuant to sub-clause 16.2.1 of this
Clause 16.2 shall (subject to the terms of this Deed) have the
rights, powers and discretions (not exceeding those conferred
on the Security Trustee by this Deed) and the duties and
obligations as are conferred or imposed by the instrument of
appointment and this Deed and may be appointed for a fixed or
indefinite period or on terms that its appointment may be
terminated by notice.
16.2.3 The appointment of a person to act as an additional security
trustee or as co-trustee pursuant to the provisions of
sub-clause 16.2.1 of this Clause 16.2 (but not where such
appointment is for a specific purpose or a limited period)
shall take effect upon the accession of such person to this
Deed by the execution and delivery of an Agent/Trustee/New
Bonding Facility Bank Accession Letter.
16.3 REMUNERATION OF SEPARATE SECURITY TRUSTEE AND DELEGATES
The remuneration the Security Trustee may pay to any person to whom it
delegates any or all of its rights, powers and discretions pursuant to
Clause 16.1 (Delegation) and to any person it appoints as an additional
security trustee or a co-trustee pursuant to Clause 16.2 (Additional
Security Trustees), together with any reasonable costs and expenses
incurred by that person in performing its functions pursuant to its
appointment as a Delegate, additional security trustee or, as the case
may be, co-trustee shall, for the purposes of this Deed, be treated as
costs and expenses incurred by the Security Trustee.
17. POWER OF ATTORNEY
17.1 APPOINTMENT
Each Debt Representative irrevocably appoints:
17.1.1 the Security Trustee; and
17.1.2 each and every person to whom the Security Trustee has from
time to time delegated the exercise of the power of attorney
conferred by this Clause 17 (for the purposes of this Clause
17 together with the Security Trustee, the "ATTORNEYS"),
to be its attorney or attorneys for the purposes set out in this Clause
17.
17.2 POWER
Each Attorney may in the name and on behalf of each Debt Representative
sign, seal, execute, deliver, perfect and do all deeds, instruments,
acts and things which may be required (or which a Debt Representative
considers expedient or desirable) for carrying out any action
specifically designated in this Deed as an action to be carried out by
the Security Trustee in the name and on the instructions of the Debt
Representatives (including entry into a US intercreditor agreement
between the Security Trustee and Liberty Funding, L.L.C. on or about
the date of this Deed).
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17.3 POWER TO DELEGATE
Each Attorney has full power to delegate the power conferred on it by
this Clause 17 but no such delegation will preclude the subsequent
exercise of such power by the Attorney itself or preclude the Attorney
from making a subsequent delegation thereof to some other person and
any such delegation may be revoked by the Attorney at any time.
17.4 RATIFICATION
Each Debt Representative will ratify and confirm all transactions
properly entered into by an Attorney or any delegate of the Attorney in
the exercise or purported exercise of the Attorney's or, as the case
may be, delegate of the Attorney's powers.
17.5 FURTHER POWERS OF ATTORNEY
Each Debt Representative will at the reasonable request from time to
time of an Attorney enter into and duly execute such further power or
powers of attorney in a form and substance reasonably acceptable to the
Attorney.
18. FEES, EXPENSES AND STAMP TAXES
18.1 SECURITY TRUSTEE FEE
18.1.1 The Issuer shall pay or procure the payment of, to the
Security Trustee, for its own account, remuneration (together
with any applicable VAT or similar tax chargeable in respect
of such remuneration other than any tax on its income)
specified in the letter agreement dated on or about the date
of this Deed (the "FEE LETTER") between the Security Trustee
and the Issuer, at the times and in the amounts specified in
the Fee Letter and otherwise due under the terms of this Deed.
18.1.2 Without prejudice to the remuneration to be paid by the Issuer
pursuant to sub-clause 18.1.1 of this Clause 18.1, if:
(a) an Event of Default or Default occurs;
(b) the Security Trustee is instructed to take
Enforcement Action; or
(c) the Security Trustee considers it expedient or
necessary or is requested by any Debt Representatives
to undertake duties which the Security Trustee
considers to be of an exceptional nature or otherwise
outside the scope of the normal duties of the
Security Trustee under this Deed or any other
Relevant Document to which it is a party,
the Issuer shall pay to the Security Trustee an additional
remuneration (the "ADDITIONAL REMUNERATION") on an hourly
basis (or on such other basis as the Security Trustee may in
its discretion deem appropriate) at the rates charged by and
in accordance with the usual practice for the time being of
the Security Trustee. Such Additional Remuneration shall be
payable by the Issuer at the times from time to time specified
by the Security Trustee in a letter agreement between the
Security Trustee and the Issuer (the "ADDITIONAL REMUNERATION
FEE LETTER") together with any applicable VAT or similar tax
chargeable in respect of such Additional Remuneration other
than any tax on its income.
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18.2 TRANSACTION AND ENFORCEMENT EXPENSES
Subject to Clause 18.6 (Taxes and Expenses in connection with Italian
Mortgages), the Issuer shall, from time to time and promptly on demand
by the Security Trustee, reimburse or procure the reimbursement of the
Security Trustee for all costs and expenses (including legal fees and
travelling expenses) 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 18.2.1 of this Clause 18.2,
such costs and expenses must be properly incurred) in connection with:
18.2.1 the negotiation, preparation, execution, release and discharge
of this Deed, the Security Documents, any other Relevant
Document to which the Security Trustee is a party and the
Transaction Security and the completion of the transactions
and perfection of the Security contemplated in this Deed or in
any such documents or forming part of the Transaction
Security;
18.2.2 the 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 Deed
or any other Relevant Document to which the Security Trustee
is a party;
18.2.3 the preservation and/or enforcement of the Transaction
Security; and
18.2.4 any proceedings instituted by or against the Security Trustee
and/or any Delegate as a consequence of the Security Trustee
taking or holding all or any of the Transaction Security or
exercising or enforcing its rights, powers and remedies under
any Relevant Document unless it is finally determined in such
proceedings that the Security Trustee's actions or any failure
to act was negligent or the result of wilful misconduct.
18.3 STAMP TAXES
Subject to Clause 18.6 (Taxes and Expenses in connection with Italian
Mortgages), the Issuer shall pay or procure the payment of, 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 enforcing, amending, releasing, cancelling,
reassigning or resolving any doubt concerning, or for any other purpose
in relation to, the Security Documents or the Transaction Security or
any other Relevant Documents 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 Issuer or
any Obligors or any delay by the Issuer or any Obligors in paying any
such Taxes or fees.
18.4 INTEREST ON DEMANDS
18.4.1 Except as otherwise specified in this Clause 18 and Clause 19
(Indemnities) all amounts due and payable pursuant to this
Clause 18 and Clause 19 (Indemnities) shall be payable by the
Issuer on the date specified in any demand made by the
Security Trustee. The rate of interest applicable to such
payments shall be 2 per cent. per annum above the base rate
from time to time of HSBC Bank plc.
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18.4.2 All amounts payable to the Security Trustee under this Clause
18 and Clause 19 (Indemnities) shall carry interest at the
rate specified in sub-clause 18.4.1 of this Clause 18.4 from
the due date thereof.
18.5 DISCHARGE
Unless otherwise specifically stated in any discharge of this Deed, the
provisions of Clause 14 (Security Trustee's Actions), this Clause 18
and Clause 19 (Indemnities) shall continue in full force and effect
notwithstanding such discharge.
18.6 TAXES AND EXPENSES IN CONNECTION WITH ITALIAN MORTGAGES
Notwithstanding anything to the contrary in any of the Relevant
Documents neither the Issuer nor any Subsidiary of the Issuer shall
have any obligation to pay or procure the payment of (i) any stamp,
registration, mortgage, notarial and other direct or indirect taxes in
connection with the registration of or annotation of any assignment,
transfer or succession of the Security under the Italian Mortgages or
of the Italian Mortgages under applicable law and (ii) any cost or
expenses or claim or loss incurred, paid or payable by the Security
Trustee or any of the Secured Creditors in connection with the
registration of or annotation of any assignment, transfer or succession
of the Security under the Italian Mortgages or of the Italian Mortgages
under applicable law, other than the payment by the Issuer of the
imposta ipotecaria, imposta di bollo and imposta di registro and
notarial expenses due in relation to the registration of or annotation
of any assignment or transfer of the Italian Mortgages under Article
2843 of the Italian Civil Code in favour of the successor of Bank of
New York as Depositary and of the successor of HSBC plc as Bonding
Facility Agent following their respective removal by the Issuer
pursuant to the Deposit Agreement or the New Bonding Facility
Agreement, as the case may be.
19. INDEMNITIES
19.1 INDEMNITY
Subject to Clause 18.6 (Taxes and Expenses in connection with Italian
Mortgages), the Issuer shall from time to time, as a separate and
independent obligation and notwithstanding any release or discharge of
all or any part of the Transaction Security or this Deed, promptly on
demand of the Security Trustee indemnify the Security Trustee and every
Delegate or any person appointed by any Delegate under this Deed or any
other Relevant Document (and their respective officers and employees)
against all and any costs, claims, losses, expenses (including Taxes
but not including Tax on its actual profits) and legal fees properly
incurred) and liabilities (together with any applicable VAT), whether
or not reasonably foreseeable (hereinafter referred to as the
"INDEMNIFIED COSTS") incurred or suffered by any of them as a result of
entering into this Deed and the other Relevant Documents unless and to
the extent that, and without prejudice to sub-clause 14.2.6 of Clause
14.2 (Security Trustee's Discretions) and Clause 14.9 (Custodians and
Nominees), such costs, claims, losses, expenses or liabilities arise as
a result of the negligence or wilful misconduct of the Security
Trustee, such Delegate or the person appointed by a Delegate. Without
prejudice to the generality of the foregoing and to Clause 18.6 (Taxes
and Expenses in relation to the Italian Mortgages), the indemnity
contained in this Clause 19.1 shall extend to cover any Indemnified
Costs suffered in relation to or arising out of:
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19.1.1 any failure by any Obligor to comply with its obligations
under Clause 18 (Fees, Expenses and Stamp Taxes);
19.1.2 the taking, holding, protection, release, cancellation,
re-assignment or enforcement of the Transaction Security;
19.1.3 any default by any Obligor in the performance of any of the
obligations expressed to be assumed by it in this Deed and/or
any other Relevant Document;
19.1.4 any deduction for, or withholding on account of, Tax which the
Security Trustee or any Delegate or any person appointed by
the Security Trustee or any Delegate may make or any other Tax
liability which the Security Trustee or any Delegate or any
person appointed by the Security Trustee or any Delegate may
suffer, in relation to any action undertaken pursuant to this
Deed and/or the other Relevant Documents or in relation to the
Transaction Security; or
19.1.5 the performance of the terms of this Deed or the exercise of
any of the rights, powers, discretions and remedies conferred
on such parties by any of the Relevant Documents or by law.
19.2 SECURITY TRUSTEE'S LIEN
19.2.1 Without prejudice to Clause 8.4 (Permitted Deductions) the
Security Trustee:
(a) may, in priority to any payment to any other Secured
Creditors, reimburse itself from, have recourse to or
make payments out of the assets subject to the
Transaction Security and any payment or proceeds
received from any Obligor or as a result of an
Enforcement Action so as to meet, discharge or
otherwise provide for all fees, costs (including its
time charges at its usual hourly rate), claims,
losses, expenses (including Taxes (but not including
Tax on its actual profits)) and all other expenses or
liabilities (including legal fees properly incurred)
incurred or suffered by the Security Trustee in or as
a consequence of the proper exercise of its rights or
performance of its duties and obligations in relation
to this Deed and any other Relevant Document to which
it is a party; and
(b) shall have a lien on the Transaction Security and the
proceeds of the enforcement of the Transaction
Security for all moneys payable to it under Clause 18
(Fees, Expenses and Stamp Taxes) and this Clause 19.
19.2.2 To the extent that the Security Trustee is so indemnified
itself out of the assets subject to the Transaction Security,
the Issuer shall be liable for such amount to the Debt
Representatives and, for the avoidance of doubt, such
liability to the Debt Representatives shall constitute part of
the Secured Obligations.
19.2.3 The Security Trustee agrees that it will not take any
Enforcement Action in relation to the Transaction Security in
connection with the Secured Obligations owed to the Security
Trustee or any additional Security Trustee, co-trustee,
Receiver, Delegate, Debt Representative, the New Bonding
Facility Agent, the Depositary, the Paying Agent, the Escrow
Bank or the Registrar, in each case
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for their own respective accounts, unless (i) the Security
Trustee has been instructed to take Enforcement Action in
respect of all other Secured Obligations; or (ii) all other
Secured Obligations have been irrevocably paid in full or
(iii) the Enforcement Action (excluding paragraphs (a) and (c)
of the definition of Enforcement Action) consists of demands
made by the Security Trustee for its own claims pursuant to
the Composite Guarantee (as defined in the Indentures). Each
of the Debt Representatives, the New Bonding Facility Agent,
the Depositary, the Paying Agent, the Escrow Bank and the
Registrar agrees that it will not request or instruct the
Security Trustee to take any Enforcement Action in relation to
the Transaction Security in connection with the Secured
Obligations owed to such Debt Representative, the New Bonding
Facility Agent, the Depositary, the Paying Agent or the
Registrar, in each case for their own respective accounts,
unless the Security Trustee has been instructed to take
Enforcement Action in respect of all other Secured Obligations
or all other Secured Obligations have been irrevocably paid in
full.
20. NOTICES
20.1 COMMUNICATIONS IN WRITING
Unless otherwise expressly provided in any other Relevant Document, any
communication to be made under or in connection with any Relevant
Document shall be made in writing and, unless otherwise stated, may be
made by fax or letter.
20.2 ADDRESSES
Unless otherwise expressly provided in any other Relevant Document, the
address and fax number (and the department or officer, if any, for
whose attention any communication is to be made) of each Party for any
communication or document to be made or delivered under or in
connection with the Relevant Documents is:
20.2.1 identified with its name below; or
20.2.2 if not originally a Party on the date hereof, specified in the
Agent/Trustee/New Bonding Facility Bank Accession Letter,
Intra-Group Accession Letter or Guarantor Accession Letter to
which it is a party,
or any substitute details which a Party may notify to the Security
Trustee (or the Security Trustee may notify to the other Parties, if a
change is made by the Security Trustee) by not less than five Business
Days' notice and promptly upon receipt of any notification of any new
or changed details, the Security Trustee shall notify the other
Parties.
20.3 DELIVERY
20.3.1 Unless otherwise expressly provided in any other Relevant
Document, any communication or document made or delivered by
one person to another under or in connection with the Relevant
Documents 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 (Addresses) above or
five Business Days after being deposited in the
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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 or any Debt Representative will be effective
only when actually received by the Security Trustee or such
Debt Representative, as the case may be, and then only if it
is expressly marked for the attention of the department or
officer identified with such person's signature below (or any
substitute department or officer as such person shall specify
for this purpose).
20.3.3 All notices under or in connection with this Deed from or to
an Obligor shall be contemporaneously copied to the Security
Trustee.
20.3.4 Unless expressly contemplated otherwise in the Relevant
Documents, any communication or document made or delivered to
the Issuer in accordance with this Clause 20.3 will be deemed
to have been made or delivered to each of the Obligors.
20.4 ELECTRONIC COMMUNICATION
20.4.1 Unless otherwise expressly provided in any other Relevant
Document, any communication to be made between the Security
Trustee and another Secured Creditor (other than the Escrow
Bank) under or in connection with the Relevant Documents may
be made by electronic mail or other electronic means unless
and until notified to the contrary, if the Security Trustee
and any other relevant Secured Creditor:
(a) notify each other in writing of their electronic mail
address and/or any other information required to
enable the sending and receipt of information by that
means; and
(b) notify each other of any change to their address or
any other such information supplied by them.
20.4.2 Unless otherwise expressly provided in any other Relevant
Document, any electronic communication made between the
Security Trustee and another Secured Creditor will be
effective only when actually received in readable form and in
the case of any electronic communication made by another
Secured Creditor to the Security Trustee only if it is
addressed in such a manner as the Security Trustee shall
specify for this purpose.
20.5 ENGLISH LANGUAGE
20.5.1 Unless otherwise expressly provided in any other Relevant
Document, any notice given under or in connection with any
Relevant Document must be in English.
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20.5.2 Unless otherwise expressly provided in any other Relevant
Document, all other documents provided under or in connection
with any Relevant Document to which the Security Trustee is a
party to must be:
(a) in English; or
(b) if not in English, accompanied by an English
translation, which, if reasonably requested by the
Security Trustee, shall be a certified translation
and any such English translation will prevail unless
the document is a constitutional, statutory or other
official document.
21. BENEFIT OF DEED
21.1 SUCCESSORS
This Deed shall be binding on and enure to the benefit of each Party
and its successors in title.
21.2 ASSIGNMENT AND TRANSFER
No Party may assign all or any of its rights or transfer all or any of
its rights and obligations under this Deed save as expressly provided
by this Deed or as may be required by law.
21.3 OBLIGORS AND INTRA-GROUP PARTIES
No Obligor and no Intra-Group Party may assign any of its rights or
transfer any of its rights and obligations under this Deed other than
pursuant to mergers, reorganisations, amalgamations or corporate
reconstructions which are expressly permitted by the provisions of
Section 5.01 (Merger, Consolidation or Sale of Assets) of the
Indentures.
21.4 OTHER PARTIES
21.4.1 Each of the Note Trustees, the New Bonding Facility Agent, the
Depositary, the Paying Agent and the Registrar may with the
prior written consent of the Debt Representatives (such
consent not to be unreasonably withheld or delayed) cause a
duly appointed successor to such role to become a party to
this Deed in its place by causing the new Note Trustee, New
Bonding Facility Agent, Paying Agent, Depositary or, as the
case may be, Registrar, to accede to this Deed by executing
and delivering to the Security Trustee an Agent/Trustee/New
Bonding Facility Bank Accession Letter.
21.4.2 The New Bonding Facility Agent shall require any person that
is to become a New Bank (as defined in and in accordance with
the New Bonding Facility Agreement), to become a party to this
Deed by executing and delivering to the Security Trustee an
Agent/Trustee/New Bonding Facility Bank Accession Letter.
21.4.3 With effect from the date of receipt by the Security Trustee
of an Agent/Trustee/New Bonding Facility Bank Accession Letter
or, if later, the date specified in an Agent/Trustee/New
Bonding Facility Bank Accession Letter, the acceding Note
Trustee, New Bonding Facility Agent, New Bonding Facility
Bank, Paying Agent, Depositary or, as the case may be,
Registrar shall assume
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the same obligations and become entitled to the same rights it
would have had if such person had been an original Party in
such capacity.
22. PRESERVATION
22.1 PARTIAL INVALIDITY
If, at any time, any provision of this Deed is or becomes illegal,
invalid or unenforceable in any respect under any law of any
jurisdiction, neither the legality, validity or enforceability of the
remaining provisions nor the legality, validity or enforceability of
that provision under the law of any other jurisdiction will in any way
be affected or impaired.
22.2 REMEDIES AND WAIVERS
No failure to exercise, nor any delay in exercising, on the part of any
Party, any right or remedy under this Deed shall operate as a waiver,
nor shall any single or partial exercise of any right or remedy prevent
any further or other exercise or the exercise of any other right or
remedy. The rights and remedies provided in this Deed are cumulative
and not exclusive of any rights or remedies provided by law.
22.3 WAIVER OF DEFENCES
The provisions of this Deed will not be affected by any act, omission,
matter or thing which, but for this Clause 22.3, would reduce, release
or prejudice the subordination and/or priorities established by this
Deed including:
22.3.1 any time, waiver or consent granted to, or composition with
any person (being the purpose of which is to alter such
subordination and/or priority arrangements);
22.3.2 the taking, variation, compromise, exchange, renewal or
release of, or refusal or neglect to perfect, take up or
enforce, any rights against, or Security over assets of, any
Obligor or any Intra-Group Party or any non-presentation or
non-observance of any formality or other requirement in
respect of any instrument or any failure to realise the full
value of any Transaction Security;
22.3.3 any incapacity or lack of power, authority or legal
personality of or dissolution or change in the members or
status of any person;
22.3.4 any amendment (however fundamental) or replacement of a
Relevant Document or any other document or any Security;
22.3.5 any unenforceability, illegality or invalidity of any
obligation of any person under any Relevant Document or any
other document or of any Security; and
22.3.6 any intermediate payment or discharge of any of the Secured
Obligations in whole or in part.
23. PRIORITIES NOT AFFECTED
Except as otherwise provided in this Deed, the ranking and priorities
referred to in Clause 8 (Ranking of Secured Obligations and Priorities)
will:
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23.1 not be affected by any reduction or increase in the principal amount
secured by the Transaction Security or by any amendment or variation to
any of the Relevant Documents or by any variation or satisfaction of
any of the Secured Obligations or any other circumstances whatsoever;
apply regardless of the order in which or dates upon which the Relevant
Documents are executed or registered or notice of them is given to any
person; and
23.2 apply regardless of the date upon which any of the Secured Obligations
arise or of any fluctuations in the amount of any of the Secured
Obligations outstanding.
24. MISCELLANEOUS
24.1 CONTROL PROVISIONS
24.1.1 To the extent that any provision of any other Relevant
Document contradicts or conflicts with this Deed, the
provisions of this Deed shall prevail.
24.1.2 Pursuant to certain agreements governed by Italian law for the
creation of pledges over bank accounts (dated on or about the
date of this Deed and made between the Security Trustee and
the relevant pledgors incorporated under the laws of Italy)
which form part of the Transaction Security, the Secured
Creditors acting through the Security Trustee have consented
that the relevant pledgors are permitted to deal with the
accounts subject to such Transaction Security. The Secured
Creditors hereby confirm that they will not revoke such
consent unless the Security Trustee has notified such pledgors
(in writing) that (a) an Insolvency Event of Default has
occurred and is continuing, (b) it has been so instructed
pursuant to this Deed upon or at anytime after an Event of
Default has occurred and is continuing or (c) an Enforcement
Event has occurred.
24.2 DISCLOSURE
Save:
24.2.1 where required by the Relevant Documents; and
24.2.2 in the case of the Security Trustee, where permitted or
required by the Relevant Documents to which it is a party,
prior to the occurrence of an Event of Default no Secured Creditor (the
"DISCLOSING SECURED CREDITOR") shall disclose to another Secured
Creditor who is a Secured Creditor in a different capacity to the
Disclosing Secured Creditor, any non-public information concerning the
Obligors and/or the Issuer which it receives pursuant to the Relevant
Documents. Each of the Issuer and the Obligors hereby consents, so long
as any of the Transaction Security constituted by the Security
Documents shall remain subsisting and an Event of Default has occurred
and is continuing, to the disclosure by any of the Secured Creditors to
each other of information concerning the Obligors and/or the Issuer to
such extent as any Secured Creditor shall see fit.
24.3 OBLIGATIONS BINDING
The obligations of the Parties who have executed this Deed shall not be
affected by the fact that not all of the Parties have validly executed
this Deed and such obligations shall be binding inter se.
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24.4 NOTIFICATION
As soon as practicable after the Security Trustee has been notified in
writing by any Secured Creditor that the Secured Obligations owed to it
or to any person which it represents have been irrevocably paid in
full, the Security Trustee shall confirm this fact in writing to the
other Secured Creditors.
24.5 GUARANTEE LIMITATIONS
24.5.1 The Parties acknowledge that the obligations of the German
Guarantors, the Dutch Guarantors, the Hong Kong Guarantors,
the Australian Guarantors, the Italian Guarantors, the English
Guarantors, the Brazilian Guarantor, the American Guarantors,
the Irish Guarantor and the Swiss Guarantors under the
Guarantees, the Indentures, the Agency Agreement, Clause 3
(Parallel Debt Obligation), Clause 6.3 (Covenant to Pay) and
Clause 8.4 (Permitted Deductions) of this Deed and in relation
to the German Guarantors only, under Clause 8.2 (Claims under
a Letter of Credit) and Clause 8.3 (Indemnities) of the New
Bonding Facility Agreement shall be limited by the relevant
Guarantee Limitations.
24.5.2 Notwithstanding the provision of sub-clause 24.5.1 of this
Clause 24.5 (Guarantee Limitations), the Parties acknowledge
that the obligations of the Guarantors (other than those
companies that are Guarantors as of the Issue Date) shall be
limited under the relevant laws and regulations applicable to
such Guarantor and the granting of any Guarantee (including
laws and regulations relating to corporate benefit, capital
preservation, financial assistance, fraudulent conveyances and
transfers or transactions at an under value, which include,
but are not limited to, those provisions set out in Schedule 9
(Guarantee Limitations) of this Deed), or otherwise to the
maximum amount payable such that no Guarantee will constitute
a fraudulent conveyance, fraudulent transfer or a transaction
at an under value, or otherwise cause the Guarantor to be
insolvent under relevant law or such Guarantee to be void or
unenforceable.
25. WINDING UP OF TRUST
If each Secured Creditor (other than the Security Trustee) has
confirmed in writing to the Security Trustee that the Secured
Obligations owed to it and to all persons which it represents have been
irrevocably discharged in full and that neither it nor any person which
it represents is under any further actual or contingent obligation to
make advances or provide other financial accommodation to the Issuer or
any Obligor under any of the Relevant Documents, the trusts herein
created shall be wound up. Each Secured Creditor (other than the
Security Trustee) shall provide such written confirmation as soon as
reasonably practicable after the Secured Obligations owed to it and to
all persons which it represents have been irrevocably discharged in
full and neither it nor any person which it represents is under any
such further actual or contingent obligation.
26. PERPETUITY PERIOD
The perpetuity period under the rule against perpetuities, if
applicable to this Deed, shall be the period of eighty years from the
date of this Deed.
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27. COUNTERPARTS
This Deed may be executed in any number of counterparts and the result
shall be the same as it would be if the signatures on the counterparts
were on a single copy of this Deed.
28. GOVERNING LAW AND JURISDICTION
28.1 GOVERNING LAW
This Deed is governed by English law.
28.2 JURISDICTION
28.2.1 The courts of England shall have exclusive jurisdiction to
settle any dispute arising out of or in connection with this
Deed (including a dispute regarding the existence, validity or
termination of this Deed) (a "DISPUTE").
28.2.2 The Obligors and the Intra-Group Parties agree that the courts
of England are the most appropriate and convenient courts to
settle Disputes and accordingly no Obligor or Intra-Group
Party will argue to the contrary.
28.2.3 This Clause 28.2 is for the benefit of the Secured Creditors
only. As a result, the Secured Creditors shall not be
prevented from taking proceedings relating to a Dispute in any
other courts with jurisdiction. To the extent allowed by law,
the Secured Creditors may take concurrent proceedings in any
number of jurisdictions.
28.3 SERVICE OF PROCESS
Without prejudice to any other mode of service allowed under any
relevant law, each Obligor and each Intra-Group Party (other than an
Obligor and an Intra-Group Party incorporated in England and Wales):
28.3.1 irrevocably appoints the Issuer as its agent for service of
process in relation to any proceedings before the English
courts in connection with any Relevant Document; and
28.3.2 agrees that failure by a process agent to notify the relevant
Obligor or, as the case may be, Intra-Group Party of the
process will not invalidate the proceedings concerned.
IN WITNESS whereof this Deed has been executed and delivered as a deed by the
Parties the day and year first above written.
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SCHEDULE 1
GUARANTORS
Metapath Software International Limited
Mobile Systems International Holdings Limited
GPT Special Project Management Limited
Marconi Communications Limited
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
Marconi (Xxxxxx Street) Limited
Marconi (DGP1) Limited
Marconi (DGP2) Limited
Marconi Bonding Limited
Marconi Optical Components Limited
Associated Electrical Industries Limited
Marconi (Elliot Automation) Limited
Elliot Automation Holdings Limited
English Electric Company Limited
Marconi Aerospace Unlimited
Marconi UK Intellectual Property Limited
Marconi (NCP) Limited
Highrose Limited
Xxxxxx Street Overseas Investments 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.
Marconi Communications Holdings GmbH
Marconi Communications GmbH
Marconi Communications Real Estate GmbH
Marconi Holdings SpA
Marconi Communications SpA
Marconi Sud SpA
Marconi Communications Telemulti Ltda
Marconi Australia Holdings Pty Limited
Marconi Australia Pty Limited
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Marconi Communications Asia Limited
G.E.C. (Hong Kong) Limited
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 (Ireland)
Marconi Communications Optical Networks Limited
Marconi Communications, S.A. de X.X.
Xxxxxxx Communications de Mexico, S.A. de X.X.
Xxxxxxx Communications Exportel, S.A. de C.V.
Administrativa Marconi Communications, S.A. de X.X.
Xxxxxxx Communications B.V.
Marconi Communications GmbH (Switzerland)
Regents Place, Inc.
- 68 -
SCHEDULE 2
INTRA-GROUP PARTIES
PART A
INTRA-GROUP CREDITORS
Marconi Corporation plc
Metapath Software International Limited
Mobile Systems International Holdings Limited
GPT Special Project Management Limited
Marconi Communications Limited
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
Marconi (Xxxxxx Street) Limited
Marconi (DGP1) Limited
Marconi (DGP2) Limited
Marconi Bonding Limited
Marconi Optical Components Limited
Associated Electrical Industries Limited
Marconi (Elliot Automation) Limited
Elliot Automation Holdings Limited
English Electric Company Limited
Marconi Aerospace Unlimited
Marconi UK Intellectual Property Limited
Marconi (NCP) Limited Highrose Limited
Xxxxxx Street Overseas Investments 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.
Marconi Communications Holdings GmbH
Marconi Communications GmbH
Marconi Communications Real Estate GmbH
Marconi Holdings SpA
Marconi Communications SpA
Marconi Sud SpA
- 69 -
Marconi Communications Telemulti Ltda
Marconi Australia Holdings Pty Limited
Marconi Australia Pty Limited
Marconi Communications Asia Limited
G.E.C. (Hong Kong) Limited
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 (Ireland)
Marconi Communications Optical Networks Limited
Marconi Communications, S.A. de X.X.
Xxxxxxx Communications de Mexico, S.A. de X.X.
Xxxxxxx Communications Exportel, S.A. de C.V.
Administrativa Marconi Communications, S.A. de X.X.
Xxxxxxx Communications B.V.
Marconi Communications GmbH (Switzerland)
Marconi Software Solutions Limited
Regents Place, Inc.
Marconi Communications Limited (Bermuda)
PART B
INTRA-GROUP BORROWERS
Marconi Corporation plc
Metapath Software International Limited
Mobile Systems International Holdings Limited
GPT Special Project Management Limited
Marconi Communications Limited
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
Marconi (Xxxxxx Street) Limited
Marconi (DGP1) Limited
Marconi (DGP2) Limited
Marconi Bonding Limited
Marconi Optical Components Limited
Associated Electrical Industries Limited
Marconi (Elliot Automation) Limited
Elliot Automation Holdings Limited
English Electric Company Limited
- 70 -
Marconi Aerospace Unlimited
Marconi UK Intellectual Property Limited
Marconi (NCP) Limited
Highrose Limited
Xxxxxx Street Overseas Investments 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.
Marconi Communications Holdings GmbH
Marconi Communications GmbH
Marconi Communications Real Estate GmbH
Marconi Holdings SpA
Marconi Communications SpA
Marconi Sud SpA
Marconi Communications Telemulti Ltda
Marconi Australia Holdings Pty Limited
Marconi Australia Pty Limited
Marconi Communications Asia Limited
G.E.C. (Hong Kong) Limited
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 (Ireland)
Marconi Communications Optical Networks Limited
Marconi Communications, S.A. de X.X.
Xxxxxxx Communications de Mexico, S.A. de X.X.
Xxxxxxx Communications Exportel, S.A. de C.V.
Administrativa Marconi Communications, S.A. de X.X.
Xxxxxxx Communications B.V.
Marconi Communications GmbH (Switzerland)
Regents Place, Inc.
- 71 -
SCHEDULE 3
NEW BONDING FACILITY BANKS
HSBC Bank PLC
XX Xxxxxx Xxxxx Bank
Barclays Bank PLC
- 72 -
SCHEDULE 4
PRE-ACCELERATION PAYMENT PRIORITIES
1. All monies credited to the Existing Performance Bond Escrow Account
will be applied in accordance with the terms and conditions of the
Escrow Agreement and this Deed.
2. All monies credited to the Mandatory Redemption Escrow Account in
accordance with the Junior Note Indenture, the Senior Note Indenture,
this Deed and the Escrow Agreement, will be applied on any Payment Date
strictly in accordance with the following order of priority:
(a) FIRST, in or towards satisfaction of all liabilities (secured
or unsecured) owing to the Senior Note Trustee as Note Trustee
for holders of the Senior Notes, to the extent of any True Up
Amount paid to the Junior Note Trustee and not previously
applied pursuant to this paragraph (a);
(b) SECOND, in or towards satisfaction of all liabilities (secured
or unsecured) owing to the Junior Note Trustee as Note Trustee
for the holders of the Junior Notes;
(c) THIRD, in or towards satisfaction of all liabilities (secured
or unsecured) owing to the Senior Note Trustee as Note Trustee
for the holders of the Senior Notes;
(d) FOURTH, any other person (other than the Issuer) so entitled
to the proceeds (including any persons entitled to such
proceeds pursuant to mandatory rules of law of any
jurisdiction); and
(e) FIFTH, the Issuer.
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SCHEDULE 5
POST-ACCELERATION PAYMENT PRIORITIES
1. FIRST, pro rata according to the respective amounts thereof, in or
towards satisfaction of the liabilities (secured or unsecured) and any
unpaid fees, costs and expenses in each case owing to, and for the
account of, the Security Trustee, any Receiver or Delegate, the Senior
Note Trustee, the Junior Note Trustee, the New Bonding Facility Agent,
the Depositary, the Paying Agent, the Escrow Bank and the Registrar.
2. SECOND, to the New Bonding Facility Agent for application in or towards
satisfaction of all liabilities (secured or unsecured) owing to the New
Bonding Facility Banks under the New Bonding Facility Agreement.
3. THIRD, in or towards satisfaction of all liabilities (secured or
unsecured) owing to the Junior Note Trustee as Note Trustee for holders
of the Junior Notes, to the extent of any True Up Amount paid to the
Senior Note Trustee and not previously applied pursuant to this
paragraph 3.
4. FOURTH, in or towards satisfaction of all liabilities (secured or
unsecured) owing to the Senior Note Trustee as Note Trustee for the
holders of the Senior Notes.
5. FIFTH, in or towards satisfaction of all liabilities (secured or
unsecured) owing to the Junior Note Trustee as Note Trustee for the
holders of the Junior Notes.
6. SIXTH, any other person (other than the Issuer) so entitled to the
proceeds (including any persons entitled to such proceeds pursuant to
mandatory rules of law of any jurisdiction).
7. SEVENTH, the Issuer.
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SCHEDULE 6
SECURITY TRUSTEE RESERVED MATTERS
The "SECURITY TRUSTEE RESERVED MATTERS" means each and every right, power,
authority and discretion of, or exercisable by, the Security Trustee (whether
expressed as a right, power, authority or discretion of the Security Trustee or
an obligation of any other party):
1. pursuant to this Deed;
2. to receive any sums owing to it for its own account or the account of
an agent, expert or representative engaged by it in respect of fees,
costs, charges, liabilities, damages, proceedings, claims and demands
in performing its powers and exercising its discretions under this Deed
or any Relevant Document to which the Security Trustee is a party;
3. which is provided for the purpose of enabling the Security Trustee to
protect its own position and interests in its personal capacity
(including its own personal financial interest) or which the Security
Trustee determines to be necessary or appropriate to exercise for the
protection of its own position and interests in its personal capacity;
4. except as otherwise specifically provided herein, to apply any of the
sums as provided for in the payment priorities set out in Schedule 4
(Pre-Acceleration Payment Priorities) and Schedule 5 (Post-Acceleration
Payment Priorities) in accordance with such Schedules and Clauses 8.2
(Pre-Acceleration Payment Priorities) and 8.3 (Post-Acceleration
Payment Priorities);
5. to receive notices, certificates, communications or other documents or
information, to direct that such notices, certificates, communications
or other documents or information shall be provided (or shall not be
provided) to it or any other Party, or, where applicable, to determine
the form and content of any notice, certificate or communication;
6. which relieves or exempts the Security Trustee from liability or
responsibility or the need to take actions or exculpates or exonerates
it (including any right of the Security Trustee under any of the
Relevant Documents to make assumptions as to, or rely on any notice,
certificate or other communication confirming, the existence or
non-existence of any act, circumstance or event);
7. to agree to any amendment to this Schedule 6 or to Clause 7
(Amendments, Consents and Waivers) with the Parties; and
8. to determine amounts due in relation to and to claim under indemnities
in favour of the Security Trustee under the Relevant Documents.
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SCHEDULE 7
ACCESSION LETTERS
PART A
INTRA-GROUP ACCESSION LETTER
To: The Law Debenture Trust Corporation p.l.c. as Security Trustee and each
other Party to the Security Trust and Intercreditor Deed referred to
below.
From: [Name of: Intra-Group Creditor/Intra-Group Borrower]
Dated:
Dear Sirs
1. We refer you to a Security Trust and Intercreditor Deed dated [ ]
and entered into, inter alios, by the Security Trustee, the Obligors,
the Senior Note Trustee, the Junior Note Trustee, the New Bonding
Facility Agent, the New Bonding Facility Banks, the Intra-Group
Creditors, the Intra-Group Borrowers, the Paying Agent, the Registrar
and the Depositary (the "INTERCREDITOR DEED"). This is an Intra-Group
Accession Letter. Terms defined in the Intercreditor Deed have the same
meaning in this Intra-Group Accession Letter.
2. [INSERT NAME] agrees to accede to the Intercreditor Deed as an [Intra
Group Creditor/Intra-Group Borrower] and to be bound by the terms of
the Intercreditor Deed and undertakes to perform all the obligations
expressed in the Intercreditor Deed to be assumed by an [Intra-Group
Creditor/Intra-Group Borrower] and agrees to be bound by all the
provisions of the Intercreditor Deed, as if it were an original party
to the Intercreditor Deed and that all the obligations assumed by it
under the Intercreditor Deed are legal, valid and binding.
3. This Intra-Group Accession Letter is governed by English law.
4. This Intra-Group Accession Letter is entered into by deed.
5. We hereby:
5.1 irrevocably appoint the Issuer as our agent for service of process in
relation to any proceedings before the English courts in connection
with any Relevant Documents; and
5.2 agree that failure by a process agent to notify us of the process will
not invalidate the proceedings concerned.
EXECUTED as a DEED EXECUTED as a DEED
by [Intra-Group Creditor/Intra-Group by Marconi Corporation plc
Borrower]
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Address:
Fax:
Accepted by the Security Trustee
by THE LAW DEBENTURE TRUST CORPORATION p.l.c.
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PART B
GUARANTOR ACCESSION LETTER
To: The Law Debenture Trust Corporation p.l.c. as Security Trustee and each
other Party to the Intercreditor Deed referred to below.
From: [Name of Guarantor]
Dated:
Dear Sirs
1. We refer you to a Security Trust and Intercreditor Deed dated [ ] and
entered into, inter alios, by the Security Trustee, the Obligors, the
Senior Note Trustee, the Junior Note Trustee, the New Bonding Facility
Agent, the New Bonding Facility Banks, the Intra-Group Creditors, the
Intra-Group Borrowers, the Paying Agent, the Registrar and the
Depositary (the "INTERCREDITOR DEED"). This is a Guarantor Accession
Letter. Terms defined in the Intercreditor Deed have the same meaning
in this Guarantor Accession Letter.
2. [INSERT NAME] agrees to accede to the Intercreditor Deed as a Guarantor
and to be bound by the terms of the Intercreditor Deed and undertakes
to perform all the obligations expressed in the Intercreditor Deed to
be assumed by a Guarantor and agrees to be bound by all the provisions
of the Intercreditor Deed, as if it were an original party to the
Intercreditor Deed.
3. This Guarantor Accession Letter shall take effect and the relevant
member of the Group shall become a party to the Intercreditor Deed on
the date on which the Security Trustee confirms that all the conditions
set out in sub-clauses 2.3.1 to 2.3.4 of Clause 2.3 (Additional
Guarantors) of the Intercreditor Deed have been satisfied.
4. This Guarantor Accession Letter is governed by English law.
5. This Guarantor Accession Letter is entered into by deed.
6. We hereby:
6.1 irrevocably appoint the Issuer as our agent for service of process in
relation to any proceedings before the English courts in connection
with any Relevant Documents; and
6.2 agree that failure by a process agent to notify us of the process will
not invalidate the proceedings concerned.
EXECUTED as a DEED
by [Guarantor]
Address:
Fax:
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Accepted by the Security Trustee
by THE LAW DEBENTURE TRUST CORPORATION p.l.c.
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SCHEDULE 8
AGENT/TRUSTEE/NEW BONDING FACILITY BANK ACCESSION LETTER
To: The Law Debenture Trust Corporation p.l.c. as Security Trustee and each
other Party to the Intercreditor Deed referred to below.
From: [Name of new Security Trustee/Senior Note Trustee/Junior Note Trustee/
Depositary/Paying Agent/Registrar/New Bonding Facility Agent/New
Bonding Facility Bank]
Dated:
Dear Sirs
1. We refer you to a Security Trust and Intercreditor Deed dated [ ]
and entered into, inter alios, by the Security Trustee, the Obligors,
the Senior Note Trustee, the Junior Note Trustee, the New Bonding
Facility Agent, the New Bonding Facility Banks, the Intra-Group
Creditors, the Intra-Group Borrowers, the Paying Agent, the Registrar
and the Depositary (the "INTERCREDITOR DEED"). This is an
Agent/Trustee/New Bonding Facility Bank Accession Letter. Terms
defined in the Intercreditor Deed have the same meaning in this
Agent/Trustee/ New Bonding Facility Bank Accession Letter.
2. [INSERT NAME] agrees to accede to the Intercreditor Deed as a [Security
Trustee/Senior Note Trustee/Junior Note Trustee/New Bonding Facility
Agent/New Bonding Facility Bank/the Depositary] and to be bound by the
terms of the Intercreditor Deed and undertakes to perform all the
obligations expressed in the Intercreditor Deed to be assumed by a
[Security Trustee/Senior Note Trustee/Junior Note Trustee/ New Bonding
Facility Agent/New Bonding Facility Bank/the Depositary/the Paying
Agent/the Registrar] and agrees to be bound by all the provisions of
the Intercreditor Deed, as if it were an original party to the
Intercreditor Deed - in such capacity.
3. This Agent/Trustee/New Bonding Facility Bank Accession Letter is
governed by English law.
4. This Agent/Trustee/New Bonding Facility Bank Accession Letter is
entered into by deed.
EXECUTED as a DEED
by [Security Trustee/Senior Note Trustee/Junior Note Trustee/New Bonding
Facility Agent/New Bonding Facility Bank/the Depositary/the Paying Agent/the
Registrar]
Address:
Fax:
Accepted by the Security Trustee
by THE LAW DEBENTURE TRUST CORPORATION p.l.c.
- 80 -
SCHEDULE 9
GUARANTEE LIMITATIONS
1. U.S. LIMITATION ON GUARANTEED OBLIGATIONS
1.1 Notwithstanding any provision herein contained to the contrary, each
American Guarantor's liability under the Guarantees shall be limited to
an amount not to exceed as of any date of determination the greater of:
1.2 the net amount of all the Notes, advances and other extensions of
credit advanced under the Relevant Documents and directly or indirectly
issued or otherwise transferred to, or incurred for the benefit of,
such American Guarantor, plus interest thereon at the applicable rate
specified in the Relevant Document; or
1.3 the amount that could be claimed by the Security Trustee from such
American Guarantor under the Guarantees without rendering such claim
voidable or avoidable under Section 548 of Title 11 of the United
States Code or under any applicable state Uniform Fraudulent Transfer
Act, Uniform Fraudulent Conveyance Act or similar statute or common law
after taking into account, among other things, such American
Guarantor's right of contribution and indemnification from each other
Guarantor under paragraph 2 below.
2. U.S. CONTRIBUTION WITH RESPECT TO GUARANTEED OBLIGATIONS
2.1 To the extent that any American Guarantor shall make a payment under
any Guarantee of all or any of the Guaranteed Obligations (a "GUARANTOR
PAYMENT") that, taking into account all other Guarantor Payments then
previously or concurrently made by the other Guarantors, exceeds the
amount that such American Guarantor would otherwise have paid if each
Guarantor had paid the aggregate Guaranteed Obligations satisfied by
such Guarantor Payment in the same proportion that such American
Guarantor's Allocable Amount (as defined below) (in effect immediately
prior to such Guarantor Payment) bore to the aggregate Allocable
Amounts of all of the Guarantors in effect immediately prior to the
making of such Guarantor Payment, then, following indefeasible payment
in full in cash of the Guaranteed Obligations, such American Guarantor
shall be entitled to receive contribution and indemnification payments
from, and be reimbursed by, each of the other Guarantors for the amount
of such excess, pro rata based upon their respective Allocable Amounts
in effect immediately prior to such Guarantor Payment.
2.2 As of any date of determination, the "ALLOCABLE AMOUNT" of any American
Guarantor shall be equal to the maximum amount of the claim that could
then be recovered from such American Guarantor under the Guarantees
without rendering such claim voidable or avoidable under Section 548 of
Title 11 of the United States Code or under any applicable state
Uniform Fraudulent Transfer Act, Uniform Fraudulent Conveyance Act or
similar statute or common law.
2.3 This paragraph 2 is intended only to define the relative rights of
American Guarantors and nothing set forth in this paragraph 2 is
intended to or shall impair the obligations of American Guarantors,
jointly and severally, to pay any amounts as and when the same shall
become due and payable in accordance with the terms of the Guarantees.
- 81 -
2.4 The rights of the parties under this paragraph 2 shall be exercisable
upon the full and indefeasible payment of the Guaranteed Obligations
and the termination of the Relevant Documents.
2.5 The Parties acknowledge that the rights of contribution and
indemnification under the Guarantees shall constitute assets of any
American Guarantor to which such contribution and indemnification is
owed.
3. SWISS LIMITATION LANGUAGE
With respect to the Guarantees of each Swiss Guarantor (other than the
Guaranteed Obligations of one of its Subsidiaries) the amount of such
Guarantees shall be limited to the extent and maximum amount of such
Swiss Guarantor's profits available for distribution as dividends at
any given time (being the balance sheet profits and any reserves made
for this purpose, in each case in accordance with article 805 in
conjunction with articles 675 and 671, paragraphs 1-3 of the Swiss Code
of Obligations).
4. ITALIAN LIMITATION LANGUAGE
The Guaranteed Obligations of each Italian Guarantor shall at no time
require such Italian Guarantor to pay any amount which exceeds the
higher of:
4.1 an amount corresponding to the Net Worth (as defined below) of such
Italian Guarantor, as resulting from its last approved financial
statements at the time such Italian Guarantor executes or accedes to
the Guarantees; and
4.2 an amount corresponding to the Net Worth (as defined below) of such
Italian Guarantor, as resulting from its most recent approved financial
statements at that time the Guarantees are enforced;
4.3 "NET WORTH" means, for the purposes of this Clause, the total value of
the "Patrimonio Netto" of the Italian Guarantor pursuant to the
definition of Article 2424 of the Italian Civil Code.
5. DUTCH GUARANTEE LIMITATION
The Guaranteed Obligations and any other obligations and/or liabilities
under the Relevant Documents of each Dutch Guarantor shall be limited
so that no obligation or liability in respect of any Relevant Document
or any other obligation or liability, shall be secured and/or
guaranteed by such Dutch Guarantor to the extent that the granting of
security and/or a guarantee for such obligations or liabilities would
constitute (i) an "ultra xxxxx" transaction under Dutch law and/or (ii)
the providing of unlawful financial assistance within the meaning of
Section 2:98c and Section 2:207c of the Dutch Civil Code and the
provisions of the Relevant Documents shall be construed accordingly.
6. GERMAN GUARANTEE LIMITATION
The right to enforce the Guarantees against any German Guarantor shall,
to the extent that the Guaranteed 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 a German Guarantor (other than any of such German Guarantor's
- 82 -
subsidiaries), at all times be limited to an amount equal to such
German Guarantor'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 German Guarantor's liabilities (the calculation of which shall
take into account the captions reflected in Section 266 sub-section (3)
B, C and D of the German Commercial Code), and (B) the stated share
capital (Stammkapital) of such German Guarantor (the "NET ASSETS").
Each German Guarantor shall realise, to the extent legally permitted
and, in respect of such German Guarantor, commercially justifiable, in
a situation where such German Guarantor 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 such German Guarantor's business
(betriebsnotwendig).
The Security Trustee shall enforce the Guarantees against a German
Guarantor in accordance with the following further procedure:
(i) The German Guarantor shall, following a notification by the
Security Trustee to such German Guarantor that the Security
Trustee intends to enforce the Guarantees, 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 such German Guarantor
under the Guarantees having regard to Sections 30 and 31 of
the German Limited Liability Companies Act.
(ii) The Auditors' Determination, i.e., the amounts which may be
claimed against such German Guarantor under the Guarantees,
having regard to Sections 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 such German Guarantor 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
German Guarantor that it intends to enforce the Guarantees.
(iv) If the German Guarantor fails to deliver the Auditors'
Determination to the Security Trustee within the sixty day
period stated in (ii) above, the Security Trustee shall be
entitled to enforce the Guarantees against such German
Guarantor without limitation.
7. AUSTRALIAN LIMITATION LANGUAGE
7.1 The Guaranteed Obligations of Marconi Australia Holdings Pty Limited
under the Guarantees shall at no time require Marconi Australia
Holdings Pty Limited to pay an
- 83 -
amount which exceeds the value of the assets of Marconi Australia
Holdings Pty Limited.
7.2 The Guaranteed Obligations of Marconi Australia Pty Limited under the
Guarantees shall at no time require Marconi Australia Pty Limited to
pay an amount which exceeds the value of the assets of Marconi
Australia Pty Limited.
8. HONG KONG LIMITATION LANGUAGE
Any Guarantee to which any Hong Kong Guarantor is a party shall not
extend to secure or guarantee any liability or sum which would, but for
this proviso, cause such Guarantee to be unlawful or prohibited by, or
otherwise contravene, any applicable law (including, without
limitation, Section 47A of the Companies Ordinance (Cap .32)).
9. ENGLISH LIMITATION LANGUAGE
The Guaranteed Obligations of each English Guarantor shall not include
any obligations which, if they were included, would result in the
Guarantee to which such English Guarantor is a party being unlawful or
prohibited by any applicable law (including, for the avoidable of doubt
Section 151 of the Companies Act 1985).
10. IRISH LIMITATION LANGUAGE
The Security Documents executed by the Irish Guarantors shall not
extend to secure or guarantee any liabilities or obligations where, if
they did so extend, would cause an infringement of Section 60 of the
Irish Companies Xxx 0000 (as amended).
11. BRAZILIAN LIMITATION LANGUAGE
11.1 Marconi Communications Telemulti Ltda. (a Brazilian company) shall
neither provide a Guarantee nor provide any Security (but the quotas
(equity interest) in which shall be pledged as Security by its parent
company) without prior express authorisation of the Central Bank of
Brazil and which shall be deemed to be a Guarantor for purposes of the
covenants in the Indentures and this Deed.
11.2 Any guarantees that represent a potential remittance of funds out of
Brazil are currently regulated by Brazilian Central Bank's Circular No.
1504 dated 30 June 1989. As determined by such Circular, prior to
giving a security and/or undertaking any obligation which could
eventually result in the remittance of foreign currency out of Brazil,
favourable manifestation from the Central Bank of Brazil should be
obtained, and thereafter, if payment ever be demanded by a creditor due
to a default, another authorisation of the Central Bank to purchase and
remit funds would be necessary. As an alternative, the parties agree to
negotiate a pledge on the quotas of Marconi Communications Telemulti
Ltda., the Brazilian subsidiary of Marconi International Holdings
Limited, given the fact that the quotaholder, i.e., Marconi
International Holdings Limited, is already offshore company thus no
previous authorisations from the Brazilian Central Bank were then
necessary.
- 84 -
11.3 To the extent that it does not violate and it is permitted under
Brazilian law, the Guaranteed Obligations under the Brazilian Security
Package shall at no time require Marconi International Holdings Limited
to pay an amount which exceeds the greater of:
(a) the capital stock so subscribed by Marconi International
Holdings Limited in the Marconi Communications Telemulti
Ltda's equity, plus any dividends related thereto; and
(b) the amount which the Security Trustee may at any time notify
Marconi International Holdings Limited by written notice,
which amount shall not exceed the value of the quotas of
Marconi Communications Telemulti Ltda.
- 85 -
SIGNATURES
THE ISSUER
EXECUTED as a DEED )
by Xxxx Xxxxxx ) MSkelly
acting as attorney-in-fact )
for and on behalf of )
MARCONI CORPORATION PLC )
in the presence of: )
Signature of witness: X X Xxxxxx
Name of witness: X X Xxxxxx
Address: Xxxxx & Xxxxx
Xxx Xxx Xxxxxx, Xxxxxx XX0X 0XX
Occupation: Trainee Solicitor
THE COMPANIES EXECUTING THIS DEED AS GUARANTORS, INTRA-GROUP CREDITORS AND
INTRA-GROUP BORROWERS (SAVE FOR MARCONI CORPORATION PLC EXECUTING THIS DEED AS
AN INTRA-GROUP CREDITOR AND INTRA GROUP BORROWER)
EXECUTED as a DEED )
by Xxxx Xxxxxx ) MSkelly
acting as attorney-in-fact )
for and on behalf of )
MARCONI CORPORATION PLC )
in the presence of: )
Signature of witness: X X Xxxxxx
Name of witness: X X Xxxxxx
Address: Xxxxx & Xxxxx
Xxx Xxx Xxxxxx, Xxxxxx XX0X 0XX
Occupation: Trainee Solicitor
EXECUTED as a DEED )
by Xxxxxx Xxxxxxx Xxxxx Xxxxxxxx ) T. C. R. SHEPHERD
acting as attorney-in-fact )
for and on behalf of )
METAPATH SOFTWARE )
INTERNATIONAL LIMITED )
in the presence of: )
Signature of witness: X X Xxxxxx
Name of witness: X X Xxxxxx
Address: Xxxxx & Xxxxx
Xxx Xxx Xxxxxx, Xxxxxx XX0X 0XX
Occupation: Trainee Solicitor
EXECUTED as a DEED )
by Xxxxxx Xxxxxxx Xxxxx Xxxxxxxx ) T. C. R. SHEPHERD
acting as attorney-in-fact )
for and on behalf of )
MOBILE SYSTEMS )
INTERNATIONAL HOLDINGS )
LIMITED )
in the presence of: )
Signature of witness: X X Xxxxxx
Name of witness: X X Xxxxxx
Address: Xxxxx & Xxxxx
Xxx Xxx Xxxxxx, Xxxxxx XX0X 0XX
Occupation: Trainee Solicitor
EXECUTED as a DEED )
by Xxxxxx Xxxxxxx Xxxxx Xxxxxxxx ) T. C. R. SHEPHERD
acting as attorney-in-fact )
for and on behalf of )
GPT SPECIAL PROJECT )
MANAGEMENT LIMITED )
in the presence of: )
Signature of witness: X X Xxxxxx
Name of witness: X X Xxxxxx
Address: Xxxxx & Xxxxx
Xxx Xxx Xxxxxx, Xxxxxx XX0X 0XX
Occupation: Trainee Solicitor
EXECUTED as a DEED )
by Xxxxxx Xxxxxxx Xxxxx Xxxxxxxx ) T. C. R. SHEPHERD
acting as attorney-in-fact )
for and on behalf of )
MARCONI COMMUNICATIONS )
LIMITED )
in the presence of: )
Signature of witness: X X Xxxxxx
Name of witness: X X Xxxxxx
Address: Xxxxx & Xxxxx
Xxx Xxx Xxxxxx, Xxxxxx XX0X 0XX
Occupation: Trainee Solicitor
EXECUTED as a DEED )
by Xxxxxx Xxxxxxx Xxxxx Xxxxxxxx ) T. C. R. SHEPHERD
acting as attorney-in-fact )
for and on behalf of )
MARCONI COMMUNICATIONS )
INTERNATIONAL LIMITED )
in the presence of: )
Signature of witness: X X Xxxxxx
Name of witness: X X Xxxxxx
Address: Xxxxx & Xxxxx
Xxx Xxx Xxxxxx, Xxxxxx XX0X 0XX
Occupation: Trainee Solicitor
EXECUTED as a DEED )
by Xxxxxx Xxxxxxx Xxxxx Xxxxxxxx ) T. C. R. SHEPHERD
acting as attorney-in-fact )
for and on behalf of )
MARCONI COMMUNICATIONS )
CHINA LIMITED )
in the presence of: )
Signature of witness: X X Xxxxxx
Name of witness: X X Xxxxxx
Address: Xxxxx & Xxxxx
Xxx Xxx Xxxxxx, Xxxxxx XX0X 0XX
Occupation: Trainee Solicitor
EXECUTED as a DEED )
by Xxxxxx Xxxxxxx Xxxxx Xxxxxxxx ) T. C. R. SHEPHERD
acting as attorney-in-fact )
for and on behalf of )
MARCONI COMMUNICATIONS )
INTERNATIONAL )
INVESTMENTS LIMITED )
in the presence of: )
Signature of witness: X X Xxxxxx
Name of witness: X X Xxxxxx
Address: Xxxxx & Xxxxx
Xxx Xxx Xxxxxx, Xxxxxx XX0X 0XX
Occupation: Trainee Solicitor
EXECUTED as a DEED )
by Xxxxxx Xxxxxxx Xxxxx Xxxxxxxx ) T. C. R. SHEPHERD
acting as attorney-in-fact )
for and on behalf of )
MARCONI COMMUNICATIONS )
INTERNATIONAL HOLDINGS )
LIMITED )
in the presence of: )
Signature of witness: X X Xxxxxx
Name of witness: X X Xxxxxx
Address: Xxxxx & Xxxxx
Xxx Xxx Xxxxxx, Xxxxxx XX0X 0XX
Occupation: Trainee Solicitor
EXECUTED as a DEED )
by Xxxxxx Xxxxxxx Xxxxx Xxxxxxxx ) T. C. R. SHEPHERD
acting as attorney-in-fact )
for and on behalf of )
MARCONI COMMUNICATIONS )
INVESTMENTS LIMITED )
in the presence of: )
Signature of witness: X X Xxxxxx
Name of witness: X X Xxxxxx
Address: Xxxxx & Xxxxx
Xxx Xxx Xxxxxx, Xxxxxx XX0X 0XX
Occupation: Trainee Solicitor
EXECUTED as a DEED )
by Xxxxxx Xxxxxxx Xxxxx Xxxxxxxx ) T. C. R. SHEPHERD
acting as attorney-in-fact )
for and on behalf of )
MARCONI COMMUNICATIONS )
HOLDINGS LIMITED )
in the presence of: )
Signature of witness: X X Xxxxxx
Name of witness: X X Xxxxxx
Address: Xxxxx & Xxxxx
Xxx Xxx Xxxxxx, Xxxxxx XX0X 0XX
Occupation: Trainee Solicitor
EXECUTED as a DEED )
by Xxxxxx Xxxxxxx Xxxxx Xxxxxxxx ) T. C. R. SHEPHERD
acting as attorney-in-fact )
for and on behalf of )
MARCONI (XXXXXX STREET) )
LIMITED )
in the presence of: )
Signature of witness: X X Xxxxxx
Name of witness: X X Xxxxxx
Address: Xxxxx & Overy
Xxx Xxx Xxxxxx, Xxxxxx XX0X 0XX
Occupation: Trainee Solicitor
EXECUTED as a DEED )
by Xxxxxx Xxxxxxx Xxxxx Xxxxxxxx ) T. C. R. SHEPHERD
acting as attorney-in-fact )
for and on behalf of )
MARCONI (DGP1) LIMITED )
in the presence of: )
Signature of witness: X X Xxxxxx
Name of witness: X X Xxxxxx
Address: Xxxxx & Xxxxx
Xxx Xxx Xxxxxx, Xxxxxx XX0X 0XX
Occupation: Trainee Solicitor
EXECUTED as a DEED )
by Xxxxxx Xxxxxxx Xxxxx Xxxxxxxx ) T. C. R. SHEPHERD
acting as attorney-in-fact )
for and on behalf of )
MARCONI (DGP2) LIMITED )
in the presence of: )
Signature of witness: X X Xxxxxx
Name of witness: X X Xxxxxx
Address: Xxxxx & Xxxxx
Xxx Xxx Xxxxxx, Xxxxxx XX0X 0XX
Occupation: Trainee Solicitor
EXECUTED as a DEED )
by Xxxxxx Xxxxxxx Xxxxx Xxxxxxxx ) T. C. R. SHEPHERD
acting as attorney-in-fact )
for and on behalf of )
MARCONI BONDING LIMITED )
in the presence of: )
Signature of witness: X X Xxxxxx
Name of witness: X X Xxxxxx
Address: Xxxxx & Xxxxx
Xxx Xxx Xxxxxx, Xxxxxx XX0X 0XX
Occupation: Trainee Solicitor
EXECUTED as a DEED )
by Xxxxxx Xxxxxxx Xxxxx Xxxxxxxx ) T. C. R. SHEPHERD
acting as attorney-in-fact )
for and on behalf of )
MARCONI OPTICAL )
COMPONENTS LIMITED )
in the presence of: )
Signature of witness: X X Xxxxxx
Name of witness: X X Xxxxxx
Address: Xxxxx & Xxxxx
Xxx Xxx Xxxxxx, Xxxxxx XX0X 0XX
Occupation: Trainee Solicitor
EXECUTED as a DEED )
by Xxxxxx Xxxxxxx Xxxxx Xxxxxxxx ) T. C. R. SHEPHERD
acting as attorney-in-fact )
for and on behalf of )
ASSOCIATED ELECTRICAL )
INDUSTRIES LIMITED )
in the presence of: )
Signature of witness: X X Xxxxxx
Name of witness: X X Xxxxxx
Address: Xxxxx & Xxxxx
Xxx Xxx Xxxxxx, Xxxxxx XX0X 0XX
Occupation: Trainee Solicitor
EXECUTED as a DEED )
by Xxxxxx Xxxxxxx Xxxxx Xxxxxxxx ) T. C. R. SHEPHERD
acting as attorney-in-fact )
for and on behalf of )
MARCONI (ELLIOT )
AUTOMATION) LIMITED )
in the presence of: )
Signature of witness: X X Xxxxxx
Name of witness: X X Xxxxxx
Address: Xxxxx & Xxxxx
Xxx Xxx Xxxxxx, Xxxxxx XX0X 0XX
Occupation: Trainee Solicitor
EXECUTED as a DEED )
by Xxxxxx Xxxxxxx Xxxxx Xxxxxxxx ) T. C. R. SHEPHERD
acting as attorney-in-fact )
for and on behalf of )
ELLIOT-AUTOMATION )
HOLDINGS LIMITED )
in the presence of: )
Signature of witness: X X Xxxxxx
Name of witness: X X Xxxxxx
Address: Xxxxx & Xxxxx
Xxx Xxx Xxxxxx, Xxxxxx XX0X 0XX
Occupation: Trainee Solicitor
EXECUTED as a DEED )
by T. C. R. Shepherd ) T. C. R. SHEPHERD
acting as attorney-in-fact )
for and on behalf of )
THE ENGLISH ELECTRIC )
COMPANY, LIMITED )
in the presence of: )
Signature of witness: X X Xxxxxx
Name of witness: X X Xxxxxx
Address: Xxxxx & Xxxxx
Xxx Xxx Xxxxxx, Xxxxxx XX0X 0XX
Occupation: Trainee Solicitor
EXECUTED as a DEED )
by Xxxxxx Xxxxxxx Xxxxx Xxxxxxxx ) T. C. R. SHEPHERD
acting as attorney-in-fact )
for and on behalf of )
MARCONI AEROSPACE )
UNLIMITED )
in the presence of: )
Signature of witness: X X Xxxxxx
Name of witness: X X Xxxxxx
Address: Xxxxx & Xxxxx
Xxx Xxx Xxxxxx, Xxxxxx XX0X 0XX
Occupation: Trainee Solicitor
EXECUTED as a DEED )
by Xxxxxx Xxxxxxx Xxxxx Xxxxxxxx ) T. C. R. SHEPHERD
acting as attorney-in-fact )
for and on behalf of )
MARCONI UK INTELLECTUAL )
PROPERTY LIMITED )
in the presence of: )
Signature of witness: X X Xxxxxx
Name of witness: X X Xxxxxx
Address: Xxxxx & Xxxxx
Xxx Xxx Xxxxxx, Xxxxxx XX0X 0XX
Occupation: Trainee Solicitor
EXECUTED as a DEED )
by Xxxxxx Xxxxxxx Xxxxx Xxxxxxxx ) T. C. R. SHEPHERD
acting as attorney-in-fact )
for and on behalf of )
MARCONI (NCP) LIMITED )
in the presence of: )
Signature of witness: X X Xxxxxx
Name of witness: X X Xxxxxx
Address: Xxxxx & Xxxxx
Xxx Xxx Xxxxxx, Xxxxxx XX0X 0XX
Occupation: Trainee Solicitor
EXECUTED as a DEED )
by Xxxxxx Xxxxxxx Xxxxx Xxxxxxxx ) T. C. R. SHEPHERD
acting as attorney-in-fact )
for and on behalf of )
HIGHROSE LIMITED )
in the presence of: )
Signature of witness: X X Xxxxxx
Name of witness: X X Xxxxxx
Address: Xxxxx & Xxxxx
Xxx Xxx Xxxxxx, Xxxxxx XX0X 0XX
Occupation: Trainee Solicitor
EXECUTED as a DEED )
by Xxxxxx Xxxxxxx Xxxxx Xxxxxxxx ) T. C. R. SHEPHERD
acting as attorney-in-fact )
for and on behalf of )
XXXXXX STREET OVERSEAS )
INVESTMENTS LIMITED )
in the presence of: )
Signature of witness: X X Xxxxxx
Name of witness: X X Xxxxxx
Address: Xxxxx & Overy
Xxx Xxx Xxxxxx, Xxxxxx XX0X 0XX
Occupation: Trainee Solicitor
EXECUTED as a DEED )
by Xxxxxx Xxxxxxx Xxxxx Xxxxxxxx ) T. C. R. SHEPHERD
acting as attorney-in-fact )
for and on behalf of )
MARCONI INC. )
in the presence of: )
Signature of witness: X X Xxxxxx
Name of witness: X X Xxxxxx
Address: Xxxxx & Xxxxx
Xxx Xxx Xxxxxx, Xxxxxx XX0X 0XX
Occupation: Trainee Solicitor
EXECUTED as a DEED )
by Xxxxxx Xxxxxxx Xxxxx Xxxxxxxx ) T. C. R. SHEPHERD
acting as attorney-in-fact )
for and on behalf of )
MARCONI HOLDINGS, LLC )
in the presence of: )
Signature of witness: X X Xxxxxx
Name of witness: X X Xxxxxx
Address: Xxxxx & Xxxxx
Xxx Xxx Xxxxxx, Xxxxxx XX0X 0XX
Occupation: Trainee Solicitor
EXECUTED as a DEED )
by Xxxxxx Xxxxxxx Xxxxx Xxxxxxxx ) T. C. R. SHEPHERD
acting as attorney-in-fact )
for and on behalf of )
MARCONI COMMUNICATIONS )
NORTH AMERICA INC. )
in the presence of: )
Signature of witness: X X Xxxxxx
Name of witness: X X Xxxxxx
Address: Xxxxx & Xxxxx
Xxx Xxx Xxxxxx, Xxxxxx XX0X 0XX
Occupation: Trainee Solicitor
EXECUTED as a DEED )
by Xxxxxx Xxxxxxx Xxxxx Xxxxxxxx ) T. C. R. SHEPHERD
acting as attorney-in-fact )
for and on behalf of )
FS HOLDINGS CORP. )
in the presence of: )
Signature of witness: X X Xxxxxx
Name of witness: X X Xxxxxx
Address: Xxxxx & Xxxxx
Xxx Xxx Xxxxxx, Xxxxxx XX0X 0XX
Occupation: Trainee Solicitor
EXECUTED as a DEED )
by Xxxxxx Xxxxxxx Xxxxx Xxxxxxxx ) T. C. R. SHEPHERD
acting as attorney-in-fact )
for and on behalf of )
FS FINANCE CORP. )
in the presence of: )
Signature of witness: X X Xxxxxx
Name of witness: X X Xxxxxx
Address: Xxxxx & Xxxxx
Xxx Xxx Xxxxxx, Xxxxxx XX0X 0XX
Occupation: Trainee Solicitor
EXECUTED as a DEED )
by Xxxxxx Xxxxxxx Xxxxx Xxxxxxxx ) T. C. R. SHEPHERD
acting as attorney-in-fact )
for and on behalf of )
MARCONI SOFTWARE )
INTERNATIONAL, INC. )
in the presence of: )
Signature of witness: X X Xxxxxx
Name of witness: X X Xxxxxx
Address: Xxxxx & Xxxxx
Xxx Xxx Xxxxxx, Xxxxxx XX0X 0XX
Occupation: Trainee Solicitor
EXECUTED as a DEED )
by Xxxxxx Xxxxxxx Xxxxx Xxxxxxxx ) T. C. R. SHEPHERD
acting as attorney-in-fact )
for and on behalf of )
METAPATH SOFTWARE )
INTERNATIONAL (US), INC. )
in the presence of: )
Signature of witness: X X Xxxxxx
Name of witness: X X Xxxxxx
Address: Xxxxx & Xxxxx
Xxx Xxx Xxxxxx, Xxxxxx XX0X 0XX
Occupation: Trainee Solicitor
EXECUTED as a DEED )
by Xxxxxx Xxxxxxx Xxxxx Xxxxxxxx ) T. C. R. SHEPHERD
acting as attorney-in-fact )
for and on behalf of )
METAPATH SOFTWARE )
INTERNATIONAL INC. )
in the presence of: )
Signature of witness: X X Xxxxxx
Name of witness: X X Xxxxxx
Address: Xxxxx & Xxxxx
Xxx Xxx Xxxxxx, Xxxxxx XX0X 0XX
Occupation: Trainee Solicitor
EXECUTED as a DEED )
by Xxxxxx Xxxxxxx Xxxxx Xxxxxxxx ) T. C. R. SHEPHERD
acting as attorney-in-fact )
for and on behalf of )
MARCONI INTELLECTUAL )
PROPERTY (US) INC. )
in the presence of: )
Signature of witness: X X Xxxxxx
Name of witness: X X Xxxxxx
Address: Xxxxx & Xxxxx
Xxx Xxx Xxxxxx, Xxxxxx XX0X 0XX
Occupation: Trainee Solicitor
EXECUTED as a DEED )
by Xxxxxx Xxxxxxx Xxxxx Xxxxxxxx ) T. C. R. SHEPHERD
acting as attorney-in-fact )
for and on behalf of )
MARCONI COMMUNICATIONS )
HOLDINGS GMBH )
in the presence of: )
Signature of witness: X X Xxxxxx
Name of witness: X X Xxxxxx
Address: Xxxxx & Xxxxx
Xxx Xxx Xxxxxx, Xxxxxx XX0X 0XX
Occupation: Trainee Solicitor
EXECUTED as a DEED )
by Xxxxxx Xxxxxxx Xxxxx Xxxxxxxx ) T. C. R. SHEPHERD
acting as attorney-in-fact )
for and on behalf of )
MARCONI COMMUNICATIONS )
GMBH )
in the presence of: )
Signature of witness: X X Xxxxxx
Name of witness: X X Xxxxxx
Address: Xxxxx & Xxxxx
Xxx Xxx Xxxxxx, Xxxxxx XX0X 0XX
Occupation: Trainee Solicitor
EXECUTED as a DEED )
by Xxxxxx Xxxxxxx Xxxxx Xxxxxxxx ) T. C. R. SHEPHERD
acting as attorney-in-fact )
for and on behalf of )
MARCONI COMMUNICATIONS )
REAL ESTATE GMBH )
in the presence of: )
Signature of witness: X X Xxxxxx
Name of witness: X X Xxxxxx
Address: Xxxxx & Xxxxx
Xxx Xxx Xxxxxx, Xxxxxx XX0X 0XX
Occupation: Trainee Solicitor
EXECUTED as a DEED )
by Xxxxxx Xxxxxxx Xxxxx Xxxxxxxx ) T. C. R. SHEPHERD
acting as attorney-in-fact )
for and on behalf of )
MARCONI HOLDINGS SPA )
in the presence of: )
Signature of witness: X X Xxxxxx
Name of witness: X X Xxxxxx
Address: Xxxxx & Xxxxx
Xxx Xxx Xxxxxx, Xxxxxx XX0X 0XX
Occupation: Trainee Solicitor
EXECUTED as a DEED )
by Xxxxxx Xxxxxxx Xxxxx Xxxxxxxx ) T. C. R. SHEPHERD
acting as attorney-in-fact )
for and on behalf of )
MARCONI COMMUNICATIONS )
SPA )
in the presence of: )
Signature of witness: X X Xxxxxx
Name of witness: X X Xxxxxx
Address: Xxxxx & Xxxxx
Xxx Xxx Xxxxxx, Xxxxxx XX0X 0XX
Occupation: Trainee Solicitor
EXECUTED as a DEED )
by Xxxxxx Xxxxxxx Xxxxx Xxxxxxxx ) T. C. R. SHEPHERD
acting as attorney-in-fact )
for and on behalf of )
MARCONI SUD SPA )
in the presence of: )
Signature of witness: X X Xxxxxx
Name of witness: X X Xxxxxx
Address: Xxxxx & Xxxxx
Xxx Xxx Xxxxxx, Xxxxxx XX0X 0XX
Occupation: Trainee Solicitor
EXECUTED as a DEED )
by Xxxxxx Xxxxxxx Xxxxx Xxxxxxxx ) T. C. R. SHEPHERD
acting as attorney-in-fact )
for and on behalf of )
MARCONI COMMUNICATIONS )
TELEMULTI LTDA )
in the presence of: )
Signature of witness: X X Xxxxxx
Name of witness: X X Xxxxxx
Address: Xxxxx & Xxxxx
Xxx Xxx Xxxxxx, Xxxxxx XX0X 0XX
Occupation: Trainee Solicitor
EXECUTED by MARCONI )
AUSTRALIA HOLDINGS PTY )
LIMITED in accordance with section )
127(1) of the Corporations Xxx 0000 )
(Cwlth) by authority of its directors: ) XXXX-XXXX XXXXX
) Signature of director/
)
X X Xxxxxxx ) *delete whichever is not applicable
Signature of director )
) XXXX-XXXX XXXXX
XXXX XXXXXXX XXXXXXX ) Name of director/
Name of director (block letters) ) (block letters)
*delete whichever is not applicable
Attention: The Directors
Fax: x00 00000 0000
Address: Xxxxx 0
00 Xxxxxx Xxxxxx
Xxxxx Xxxxxx, XXX 0000
Xxxxxxxxx
EXECUTED by MARCONI )
AUSTRALIA PTY LIMITED in )
accordance with section 127(1) of the )
Corporations Xxx 0000 (Cwlth) by ) XXXX-XXXX XXXXX
Authority of its directors: ) Signature of director/
)
X X Xxxxxxx ) *delete whichever is not applicable
Signature of director )
) XXXX-XXXX XXXXX
XXXX XXXXXXX XXXXXXX ) Name of director/
Name of director (block letters) ) (block letters)
*delete whichever is not applicable
Attention: The Directors
Fax: x00 00000 0000
Address: Xxxxx 0
00 Xxxxxx Xxxxxx
Xxxxx Xxxxxx, XXX 0000
Xxxxxxxxx
THE COMMON SEAL of
MARCONI COMMUNICATIONS ASIA LIMITED
was hereunto affixed
in the presence of:
Xxxx Xxxx Director
X X Xxxx Director/
Attention: Xxxx Xxxx Xxxx Xxxx
Xxxxxxx: 00/X, 0000 Xxxx'x Xxxx, Xxxxxx Xxx, Xxxx Xxxx
Fax: (000) 00 00 00 00 X X Xxxx
SIGNED SEALED AND DELIVERED by )
Xxxxxx Xxxxxxx Xxxxx Xxxxxxxx ) T. C. R. SHEPHERD
As lawful attorney for and in the name of )
G.E.C. (HONG KONG) LIMITED )
in the presence of: )
Signature of witness: X X Xxxxxx
Name of witness: X X Xxxxxx
Address: Xxxxx & Xxxxx
Xxx Xxx Xxxxxx, Xxxxxx XX0X 0XX
Occupation: Trainee Solicitor
EXECUTED as a DEED )
by Xxxxxx Xxxxxxx Xxxxx Xxxxxxxx ) T. C. R. SHEPHERD
acting as attorney-in-fact )
for and on behalf of )
MARCONI COMMUNICATIONS, )
INC. )
in the presence of: )
Signature of witness: X X Xxxxxx
Name of witness: X X Xxxxxx
Address: Xxxxx & Xxxxx
Xxx Xxx Xxxxxx, Xxxxxx XX0X 0XX
Occupation: Trainee Solicitor
EXECUTED as a DEED )
by Xxxxxx Xxxxxxx Xxxxx Xxxxxxxx ) T. C. R. SHEPHERD
acting as attorney-in-fact )
for and on behalf of )
MARCONI NETWORKS )
WORLDWIDE, INC. )
in the presence of: )
Signature of witness: X X Xxxxxx
Name of witness: X X Xxxxxx
Address: Xxxxx & Xxxxx
Xxx Xxx Xxxxxx, Xxxxxx XX0X 0XX
Occupation: Trainee Solicitor
EXECUTED as a DEED )
by Xxxxxx Xxxxxxx Xxxxx Xxxxxxxx )
acting as attorney-in-fact )
for and on behalf of )
MARCONI COMMUNICATIONS ) T. C. R. SHEPHERD
TECHNOLOGY, INC. )
in the presence of: )
Signature of witness: X X Xxxxxx
Name of witness: X X Xxxxxx
Address: Xxxxx & Xxxxx
Xxx Xxx Xxxxxx, Xxxxxx XX0X 0XX
Occupation: Trainee Solicitor
EXECUTED as a DEED )
by Xxxxxx Xxxxxxx Xxxxx Xxxxxxxx ) T. C. R. SHEPHERD
acting as attorney-in-fact )
for and on behalf of )
MARCONI COMMUNICATIONS )
FEDERAL, INC. )
in the presence of: )
Signature of witness: X X Xxxxxx
Name of witness: X X Xxxxxx
Address: Xxxxx & Xxxxx
Xxx Xxx Xxxxxx, Xxxxxx XX0X 0XX
Occupation: Trainee Solicitor
EXECUTED as a DEED )
by Xxxxxx Xxxxxxx Xxxxx Xxxxxxxx ) T. C. R. SHEPHERD
acting as attorney-in-fact )
for and on behalf of )
MARCONI ACQUISITION CORP. )
in the presence of: )
Signature of witness: X X Xxxxxx
Name of witness: X X Xxxxxx
Address: Xxxxx & Xxxxx
Xxx Xxx Xxxxxx, Xxxxxx XX0X 0XX
Occupation: Trainee Solicitor
EXECUTED as a DEED )
by Xxxxxx Xxxxxxx Xxxxx Xxxxxxxx ) T. C. R. SHEPHERD
acting as attorney-in-fact )
for and on behalf of )
MARCONI INTELLECTUAL )
PROPERTY (RINGFENCE) INC. )
in the presence of: )
Signature of witness: X X Xxxxxx
Name of witness: X X Xxxxxx
Address: Xxxxx & Xxxxx
Xxx Xxx Xxxxxx, Xxxxxx XX0X 0XX
Occupation: Trainee Solicitor
SIGNED, SEALED AND DELIVERED
by Xxxxxx Xxxxxxx Xxxxx Xxxxxxxx T. C. R. SHEPHERD
the duly authorised attorney of
MARCONI COMMUNICATIONS LIMITED
in the presence of:
Signature of witness: X X Xxxxxx
Name of witness: X X Xxxxxx
Address: Xxxxx & Xxxxx
Xxx Xxx Xxxxxx, Xxxxxx XX0X 0XX
Occupation: Trainee Solicitor
SIGNED, SEALED AND DELIVERED
by Xxxxxx Xxxxxxx Xxxxx Xxxxxxxx T. C. R. SHEPHERD
the duly authorised attorney of
MARCONI COMMUNICATIONS OPTICAL NETWORKS LIMITED
in the presence of:
Signature of witness: X X Xxxxxx
Name of witness: X X Xxxxxx
Address: Xxxxx & Xxxxx
Xxx Xxx Xxxxxx, Xxxxxx XX0X 0XX
Occupation: Trainee Solicitor
EXECUTED as a DEED )
by Xxxxxx Xxxxxxx Xxxxx Xxxxxxxx ) T. C. R. SHEPHERD
acting as attorney-in-fact )
for and on behalf of )
MARCONI COMMUNICATIONS, )
S.A. DE C.V. )
in the presence of: )
Signature of witness: X X Xxxxxx
Name of witness: X X Xxxxxx
Address: Xxxxx & Xxxxx
Xxx Xxx Xxxxxx, Xxxxxx XX0X 0XX
Occupation: Trainee Solicitor
EXECUTED as a DEED )
by Xxxxxx Xxxxxxx Xxxxx Xxxxxxxx ) T. C. R. SHEPHERD
acting as attorney-in-fact )
for and on behalf of )
MARCONI COMMUNICATIONS )
DE MEXICO, S.A. DE C.V. )
in the presence of: )
Signature of witness: X X Xxxxxx
Name of witness: X X Xxxxxx
Address: Xxxxx & Xxxxx
Xxx Xxx Xxxxxx, Xxxxxx XX0X 0XX
Occupation: Trainee Solicitor
EXECUTED as a DEED )
by Xxxxxx Xxxxxxx Xxxxx Xxxxxxxx ) T. C. R. SHEPHERD
acting as attorney-in-fact )
for and on behalf of )
MARCONI COMMUNICATIONS. )
EXPORTEL, S.A. DE C.V. )
in the presence of: )
Signature of witness: X X Xxxxxx
Name of witness: X X Xxxxxx
Address: Xxxxx & Xxxxx
Xxx Xxx Xxxxxx, Xxxxxx XX0X 0XX
Occupation: Trainee Solicitor
EXECUTED as a DEED )
by Xxxxxx Xxxxxxx Xxxxx Xxxxxxxx ) T. C. R. SHEPHERD
acting as attorney-in-fact )
for and on behalf of )
ADMINISTRATIVA MARCONI )
COMMUNICATIONS, S.A. DE C.V. )
in the presence of: )
Signature of witness: X X Xxxxxx
Name of witness: X X Xxxxxx
Address: Xxxxx & Xxxxx
Xxx Xxx Xxxxxx, Xxxxxx XX0X 0XX
Occupation: Trainee Solicitor
EXECUTED as a DEED )
by Xxxxxx Xxxxxxx Xxxxx Xxxxxxxx ) T. C. R. SHEPHERD
acting as attorney-in-fact )
for and on behalf of )
MARCONI COMMUNICATIONS. )
B.V. )
in the presence of: )
Signature of witness: X X Xxxxxx
Name of witness: X X Xxxxxx
Address: Xxxxx & Xxxxx
Xxx Xxx Xxxxxx, Xxxxxx XX0X 0XX
Occupation: Trainee Solicitor
EXECUTED as a DEED )
by Xxxxxx Xxxxxxx Xxxxx Xxxxxxxx ) T. C. R. SHEPHERD
acting as attorney-in-fact )
for and on behalf of )
MARCONI COMMUNICATIONS )
GMBH )
in the presence of: )
Signature of witness: X X Xxxxxx
Name of witness: X X Xxxxxx
Address: Xxxxx & Xxxxx
Xxx Xxx Xxxxxx, Xxxxxx XX0X 0XX
Occupation: Trainee Solicitor
EXECUTED as a DEED )
by Xxxxxx Xxxxxxx Xxxxx Xxxxxxxx ) T. C. R. SHEPHERD
acting as attorney-in-fact )
for and on behalf of )
REGENTS PLACE, INC. )
in the presence of: )
Signature of witness: X X Xxxxxx
Name of witness: X X Xxxxxx
Address: Xxxxx & Xxxxx
Xxx Xxx Xxxxxx, Xxxxxx XX0X 0XX
Occupation: Trainee Solicitor
THE COMPANIES EXECUTING THIS DEED ONLY AS INTRA-GROUP CREDITORS
EXECUTED as a DEED )
by Xxxxxx Xxxxxxx Xxxxx Xxxxxxxx ) T. C. R. SHEPHERD
acting as attorney-in-fact )
for and on behalf of )
MARCONI SOFTWARE )
SOLUTIONS LTD )
in the presence of: )
Signature of witness: X X Xxxxxx
Name of witness: X X Xxxxxx
Address: Xxxxx & Xxxxx
Xxx Xxx Xxxxxx, Xxxxxx XX0X 0XX
Occupation: Trainee Solicitor
EXECUTED as a DEED )
by Xxxxxx Xxxxxxx Xxxxx Xxxxxxxx ) T. C. R. SHEPHERD
acting as attorney-in-fact )
for and on behalf of )
MARCONI INTERNATIONAL )
LIMITED )
in the presence of: )
Signature of witness: X X Xxxxxx
Name of witness: X X Xxxxxx
Address: Xxxxx & Xxxxx
Xxx Xxx Xxxxxx, Xxxxxx XX0X 0XX
Occupation: Trainee Solicitor
EXECUTED as a DEED )
by Xxxxxx Xxxxxxx Xxxxx Xxxxxxxx ) T. C. R. SHEPHERD
acting as attorney-in-fact )
for and on behalf of )
MARCONI COMMUNICATIONS )
LIMITED )
in the presence of: )
Signature of witness: X X Xxxxxx
Name of witness: X X Xxxxxx
Address: Xxxxx & Xxxxx
Xxx Xxx Xxxxxx, Xxxxxx XX0X 0XX
Occupation: Trainee Solicitor
THE SECURITY TRUSTEE
EXECUTED as a DEED
by THE LAW DEBENTURE TRUST CORPORATION p.l.c.
Xxxxxx Xxxxx-Jebbs Director
Representing Law Debenture Corporate Services Limited
X. X. Xxxxx Secretary
Attention: Trust Management Department
Address: The Law Debenture Trust Corporation p.l.c.
Xxxxx Xxxxx
000 Xxxx Xxxxxx
Xxxxxx XX0X 0XX
Fax:
THE SENIOR NOTE TRUSTEE
EXECUTED as a DEED
by LAW DEBENTURE TRUST COMPANY OF NEW YORK
acting by two authorised signatories: Xxxxxx X. Xxxxxx Xxxxx Xx Xxxxxxxxx
XXXXXX X. XXXXXX XXXXX XX XXXXXXXXX
Attention: Xxxxxx X. Xxxxxx
Address: 000 Xxxxx Xxxxxx - 31st Floor
New York
Xxx Xxxx 00000
Xxxxxx Xxxxxx xx Xxxxxxx
Fax: 000 000 000 0000
THE JUNIOR NOTE TRUSTEE
EXECUTED as a DEED )
by Xxx XxXxxxxx ) Xxx XxXxxxxx
acting as attorney-in-fact )
for and on behalf of )
JPMORGAN CHASE BANK )
in the presence of: )
Signature of witness: C Xxxxxxx
Name of witness: Xxxxxxx Xxxxxxx
Address: Xxxxxxxx Chance
000 Xxxxxxxxxx Xxxxxx, Xxxxxx XX0X 0XX
Occupation: Trainee Solicitor
THE NEW BONDING FACILITY AGENT
EXECUTED as a DEED )
by Xxx XxXxxxxx ) Xxx XxXxxxxx
acting as attorney-in-fact )
for and on behalf of )
HSBC BANK PLC )
in the presence of: )
Signature of witness: C Xxxxxxx
Name of witness: Xxxxxxx Xxxxxxx
Address: Xxxxxxxx Chance
000 Xxxxxxxxxx Xxxxxx, Xxxxxx XX0X 0XX
Occupation: Trainee Solicitor
THE NOTICE DETAILS REFERRED TO IN
CLAUSE 20 (NOTICES) OF THIS DEED FOR
THE NEW BONDING FACILITY AGENT ARE:
Attention: Xxxxx Xxxxxxx
Address: 0 Xxxxxx Xxxxxx
Xxxxxx X00 0XX
Fax: 000 0000 0000
THE ESCROW BANK
EXECUTED as a DEED )
by Xxxx Xxxxx ) M Xxxxx
acting as attorney-in-fact )
for and on behalf of )
HSBC BANK PLC )
in the presence of: )
Signature of witness: Xxxxxx Xxxxxxxx
Name of witness: Xxxxxx Xxxxxxxx
Address: HSBC Bank PLC
Poultry
Occupation: Bank Official
THE NOTICE DETAILS REFERRED TO IN
CLAUSE 20 (NOTICES) OF THIS DEED FOR
THE ESCROW BANK ARE:
Attention: Xxxxx Xxxxxxx
Address: 8 Canada X00 0XX
Fax: 000 0000 0000
THE REGISTRAR
EXECUTED as a DEED
by THE BANK OF NEW YORK
acting by two authorised signatories: Xxxxxx Xxxxxx
Xxxxxx Xxxxxx, Vice President
Xxxxxx Xxxxx
Xxxxxx Xxxxx, AVP
Attention: Corporate Trust Administration
Address: 000 Xxxxxxx Xxxxxx
Floor 00 X
Xxx Xxxx XX 00000
Xxxxxx Xxxxxx xx Xxxxxxx
Fax: 000 000 000 0000
THE PAYING AGENT
EXECUTED as a DEED
by THE BANK OF NEW YORK
acting by two authorised signatories: Xxxxxx Xxxxxx
XXXXXX XXXXXX, VICE PRESIDENT
Xxxxxx Xxxxx
XXXXXX XXXXX, AVP
Attention: Corporate Trust Administration
Address: 000 Xxxxxxx Xxxxxx
Floor 00 X
Xxx Xxxx XX 00000
Xxxxxx Xxxxxx xx Xxxxxxx
Fax: 000 000 000 0000
THE DEPOSITARY
EXECUTED as a DEED
by THE BANK OF NEW YORK
acting by two authorised signatories: Xxxxxx Xxxxxx
Xxxxxx Xxxxxx, Vice President
Xxxxxx Xxxxx
Xxxxxx Xxxxx, AVP
Attention: Corporate Trust Administration
Address: 000 Xxxxxxx Xxxxxx
Floor 00 X
Xxx Xxxx XX 00000
Xxxxxx Xxxxxx xx Xxxxxxx
Fax: 000 000 000 0000
THE NEW BONDING FACILITY BANK
EXECUTED as a DEED )
by Xxxx Xxxxxxx ) M Wharrad
acting as attorney-in-fact )
for and on behalf of )
JPMORGAN CHASE BANK )
in the presence of: )
Signature of witness: Y Wharrad
Name of witness: Xxxxxx Xxxxxxx
Address: Rivendell, Bockhanger Lane, Kennington, Xxxxxxx, Xxxx
Occupation: Housewife
THE NOTICE DETAILS REFERRED
TO IN CLAUSE 20 (NOTICES) OF THIS
DEED FOR JPMORGAN CHASE BANK
IN ITS CAPACITY AS A
NEW BONDING FACILITY BANK ARE:
Attention: Xxxx Xxxxxxx
Address: 000 Xxxxxx Xxxx
Xxxxxx XX0X 0XX
Fax: x00 00 0000 0000
THE NEW BONDING FACILITY BANK
EXECUTED as a DEED )
by Xxx XxXxxxxx ) Xxx XxXxxxxx
acting as attorney-in-fact )
for and on behalf of )
HSBC BANK PLC )
In the presence of: )
Signature of witness: C Xxxxxxx
Name of witness: Xxxxxxx Xxxxxxx
Address: Xxxxxxxx Chance
000 Xxxxxxxxxx Xxxxxx, Xxxxxx XX0X 0XX
Occupation: Trainee Solicitor
THE NOTICE DETAILS REFERRED TO IN
CLAUSE 20 (NOTICES) OF THIS DEED FOR
HSBC BANK PLC IN ITS CAPACITY AS A
NEW BONDING FACILITY BANK ARE:
Attention: Xxxx Xxx
Address: 0 Xxxxxx Xxxxxx
Xxxxxx X00 0XX
Fax: 000 0000 0000
EXECUTED as a DEED )
by Xxxxx Xxxxxxx Xxxx ) Xxxxx Xxxx
acting as attorney-in-fact )
for and on behalf of )
BARCLAYS BANK PLC )
in the presence of: )
Signature of witness: C Xxxxxxx
Name of witness: Xxxxxxx Xxxxxxx
Address: Xxxxxxxx Chance
000 Xxxxxxxxxx Xxxxxx, Xxxxxx XX0X 0XX
Occupation: Trainee Solicitor
THE NOTICE DETAILS REFERRED
TO IN CLAUSE 20 (NOTICES) OF THIS
DEED FOR BARCLAYS BANK PLC
IN ITS CAPACITY AS A
NEW BONDING FACILITY BANK ARE:
Attention: Xxxxx Xxxx
Address: 5 Xxx Xxxxx Xxxxxxxxx
Xxxxxx Xxxxx
Xxxxxx X00 0XX
Fax: 000 0000 0000
THE JUNIOR NOTE TRUSTEE
EXECUTED as a DEED )
by Xxxx Xxxxxxx ) M Wharrad
acting as attorney-in-fact )
for and on behalf of )
JPMORGAN CHASE BANK )
in the presence of: )
Signature of witness: X. X. Xxxxxxxxx
Name of witness: Xxxxx Xxxxxxxxx
Address: 00 Xxxxxxxx Xxxxxxxx
Xxxxxx X00X
Occupation: Taxi Driver
