EXHIBIT 4.47
CONFORMED COPY
[▇▇▇▇▇▇▇▇ CHANCE LOGO] LIMITED LIABILITY PARTNERSHIP
DATED 19 MAY, 2003
METAPATH SOFTWARE INTERNATIONAL, INC
AS CHARGOR
AND
THE LAW DEBENTURE TRUST CORPORATION p.l.c.
AS SECURITY TRUSTEE
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SECURITY OVER SHARES AGREEMENT
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CONTENTS
CLAUSE PAGE
1. Definitions And Interpretation................................................................ 1
2. Payment Of Secured Obligations................................................................ 3
3. Fixed Charge.................................................................................. 4
4. Perfection Of Security........................................................................ 4
5. Further Assurance............................................................................. 4
6. Negative Pledge And Disposals................................................................. 5
7. Shares........................................................................................ 5
8. Enforcement Of Security....................................................................... 6
9. Extension And Variation Of The Law Of Property Act 1925....................................... 7
10. Appointment Of Receiver....................................................................... 7
11. Powers Of Receiver............................................................................ 8
12. Application Of Moneys......................................................................... 8
13. Protection Of Purchasers...................................................................... 8
14. Power Of Attorney............................................................................. 9
15. Effectiveness Of Security..................................................................... 9
16. Release Of Security........................................................................... 11
17. Set-Off....................................................................................... 11
18. Subsequent Security Interests................................................................. 11
19. Currency Indemnity............................................................................ 11
20. Assignment.................................................................................... 12
21. Notices....................................................................................... 12
22. Expenses, Costs And Taxes..................................................................... 12
23. Payments Free Of Deduction.................................................................... 13
24. Discretion And Delegation..................................................................... 13
25. Perpetuity Period............................................................................. 13
26. Governing Law................................................................................. 13
27. Jurisdiction.................................................................................. 13
28. Counterparts.................................................................................. 14
THIS SECURITY OVER SHARES AGREEMENT is made on 19TH MAY, 2003
BETWEEN
(1) METAPATH SOFTWARE INTERNATIONAL, INC. (the "CHARGOR"), a corporation
incorporated under the laws of California with registered address ▇▇▇▇
▇. ▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, and
(2) THE LAW DEBENTURE TRUST CORPORATION P.L.C. as security trustee for the
Secured Creditors on the terms and conditions set out in the Security
Trust and Intercreditor Deed (the "SECURITY TRUSTEE" which expression
shall include any person for the time being appointed as trustee or as
an additional trustee for the purpose of, and in accordance with, the
Security Trust and Intercreditor Deed).
IT IS AGREED as follows:
1. DEFINITIONS AND INTERPRETATION
1.1 DEFINITIONS
Terms defined in the Security Trust and Intercreditor Deed shall,
unless otherwise defined in this Deed, have the same meaning when used
in this Deed and in addition:
"CHARGED PROPERTY" means the Shares and the Related Rights.
"COLLATERAL RIGHTS" means all rights, powers and remedies of the
Security Trustee provided by or pursuant to this Deed or by law.
"COMPANY" means Mobile Systems International Holdings Limited
(registered in England and Wales with company number 03179118).
"ENFORCEMENT EVENT" has the meaning given to such term in the Security
Trust and Intercreditor Deed.
"MARCONI CORPORATION" means Marconi Corporation plc (registered in
England and Wales with company number 00067307).
"NEW BONDING FACILITY AGREEMENT" means the L50 million committed
revolving bonding facILity agreement dated 27 March 2003 among Marconi
Corporation, Marconi Bonding Limited, HSBC Bank plc as agent and
security trustee, the lenders described thereunder and certain other
Subsidiaries providing for the issuance of surety bonds, appeal bonds,
bid bonds, performance bonds, letters of credit, bank guarantees or
other obligations of a like nature on behalf of Marconi Corporation
and/or any Subsidiary, as such agreement may be amended, extended,
supplemented or otherwise modified from time to time (including,
without limitation, any successive amendments, extensions, supplements
or other modifications of the foregoing).
"RECEIVER" means a receiver or receiver and manager or administrative
receiver of the whole or any part of the Charged Property.
"RELATED RIGHTS" means, in relation to any asset,
(a) the proceeds of sale or assignment of all or any part of that
asset;
(b) all rights, benefits, claims, contracts, warranties, remedies,
security, indemnities or covenants for title in respect of
that asset; and
(c) any moneys and proceeds paid or payable in respect of that
asset including, but not limited to, awards of damages and
payments made pursuant to settlement agreements in respect of
that asset.
"SECURED OBLIGATIONS" means, in relation to the Chargor, 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 Chargor) at any time of the Chargor 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 the Chargor 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 TRUST AND INTERCREDITOR DEED" means the security trust and
intercreditor deed dated on or about the date hereof between, amongst
others, the Security Trustee, Marconi Corporation and other obligors,
Law Debenture Trust Company of New York as senior note trustee and
JPMorgan Chase Bank as junior note trustee.
"SHARES" means all of the shares in the Company held by, to the order
or on behalf of the Chargor at any time and all Related Rights.
"SUBSIDIARY" means a subsidiary within the meaning of Section 736 of
the Companies ▇▇▇ ▇▇▇▇, as amended by Section 144 of the Companies ▇▇▇
▇▇▇▇.
1.2 INTERPRETATION
In this Deed:
1.2.1 the rules of interpretation contained in clause 1.2
(Interpretation) of the Security Trust and Intercreditor Deed
shall apply to the construction of this Deed;
1.2.2 "continuing" in relation to an Enforcement Event, shall be
construed as a reference to an acceleration of any Secured
Obligation (other than Secured Obligations arising under the
New Bonding Facility Agreement) where such acceleration has
not been rescinded in writing or a declaration that the
Secured Obligations (other than Secured Obligations arising
under the New Bonding Facility Agreement) are prematurely due
and payable (other than solely as a
result of it becoming unlawful for a Secured Creditor to
perform its obligations under the Relevant Documents) where
such declaration has not been revoked in writing or any
failure by an Obligor to pay any principal amount in respect
of any Secured Obligations (other than Secured Obligations
arising under the New Bonding Facility Agreement) whether on
maturity or otherwise which has not been remedied or waived in
writing. For the purposes of this sub-clause 1.2.2, the
definition of "Secured Obligations" shall have the same
meaning as in the Security Trust and Intercreditor Deed;
1.2.3 any reference to the "SECURITY TRUSTEE", the "CHARGOR", or the
"SECURED CREDITORS" shall be construed so as to include its or
their (and any subsequent) successors in title and any
permitted assignees and transferees in accordance with their
respective interests; and
1.2.4 references in this Deed to any Clause or Schedule shall,
unless otherwise stated, be to a clause or schedule contained
in this Deed.
1.3 THIRD PARTY RIGHTS
A person who is not a party hereto shall have no right under the
Contracts (Rights of Third Parties) ▇▇▇ ▇▇▇▇ to enforce any term of
this Deed.
1.4 SECURITY TRUST AND INTERCREDITOR DEED
The parties hereto each acknowledge that the Security Trustee, when
acting hereunder, shall be acting in accordance with and subject to the
terms of the Security Trust and Intercreditor Deed.
1.5 CONFLICT
Notwithstanding any provision to the contrary contained herein, the
parties agree that this Deed is subject in all respects to the terms of
the Security Trust and Intercreditor Deed and for the avoidance of
doubt, in the event of any inconsistency, the provisions of the
Security Trust and Intercreditor Deed shall prevail.
2. PAYMENT OF SECURED OBLIGATIONS
2.1 COVENANT TO PAY
The Chargor hereby covenants with the Security Trustee as trustee for
the Secured Creditors that it shall on demand of the Security Trustee
discharge all the Secured Obligations and the Chargor shall pay to the
Security Trustee when due and payable every sum at any time owing, due
or incurred by the Chargor to the Security Trustee (whether for its own
account or as trustee for the Secured Creditors) or any of the other
Secured Creditors in respect of any such liabilities PROVIDED THAT
neither such covenant nor the security constituted by this Deed nor any
other provisions of this Deed shall extend to or include any liability
or sum which would, but for this proviso, cause such covenant,
security, or provision to be unlawful or prohibited by any applicable
law (including, for the avoidance of doubt, Section 151 of the
Companies Act 1985).
2.2 INTEREST ON DEMANDS
If the Chargor fails to pay any sum on the due date for payment of that
sum the Chargor shall pay interest on such sum (before and after any
judgment and to the extent interest at a default rate is not otherwise
being paid on such sum) from the date of demand until the
date of payment calculated on a daily basis at the rate determined in
accordance with the provisions of Clause 18.4 (Interest on Demands) of
the Security Trust and Intercreditor Deed.
3. FIXED CHARGE
The Chargor hereby charges with full title guarantee in favour of the
Security Trustee as trustee for the Secured Creditors with the payment
and discharge of the Secured Obligations, by way of first fixed charge
all of its right, title and interest from time to time in and to the
Shares, all dividends, interest and other monies payable in respect of
the Shares and all other Related Rights (whether derived by way of
redemption, bonus, preference, option, substitution, conversion or
otherwise).
4. PERFECTION OF SECURITY
4.1 DELIVERY OF SHARE CERTIFICATES
The Chargor shall:
4.1.1 within 10 Business Days of the date of this Deed, deposit (or
procure the deposit of) with or to the order of the Security
Trustee or with such Delegate as the Security Trustee may
appoint for this purpose all certificates or other documents
of title to the Shares and stock transfer forms in respect
thereof (executed in blank by or on behalf of the Chargor);
and
4.1.2 promptly upon the accrual, offer or issue of any stocks,
shares, warrants or other securities in respect of or derived
from the Shares notify the Security Trustee of that occurrence
and procure the delivery to the Security Trustee or to the
order of the Security Trustee of (a) all certificates or other
documents of title representing such items and (b) such stock
transfer forms or other instruments of transfer (executed in
blank by or on behalf of the Chargor) in respect thereof.
5. FURTHER ASSURANCE
5.1 FURTHER ASSURANCE: GENERAL
The Chargor shall promptly do all such acts or execute all such
documents (including transfers, charges, notices and instructions) as
the Security Trustee may specify (and in such form as the Security
Trustee may require in favour of the Security Trustee or its
nominee(s)):
5.1.1 to perfect the Security created or intended to be created in
respect of the Charged Property (which may include the
execution by the Chargor of a charge over all or any of the
assets constituting, or intended to constitute, Charged
Property) or for the exercise of the Collateral Rights; and/or
5.1.2 to facilitate the realisation of the Charged Property.
5.2 NECESSARY ACTION
If so requested by the Security Trustee the Chargor shall take all such
action as is available to it (including making all filings and
registrations) as may be necessary for the purpose of the creation,
perfection, protection or maintenance of any Security conferred or
intended to be conferred on the Security Trustee by or pursuant to this
Deed.
5.3 IMPLIED COVENANTS FOR TITLE
The obligations of the Chargor under this Deed shall be in addition to
the covenants for title deemed to be included in this Deed by virtue of
(insofar as applicable) Part 1 of the Law of Property (Miscellaneous
Provisions) ▇▇▇ ▇▇▇▇.
6. NEGATIVE PLEDGE AND DISPOSALS
6.1 NEGATIVE PLEDGE
The Chargor undertakes that it shall not, at any time during the
subsistence of this Deed, create or permit to subsist any Security over
all or any part of the Charged Property except as not expressly
prohibited under the terms of the Indentures.
6.2 NO DISPOSAL OF INTERESTS
The Chargor undertakes that it shall not (and shall not agree to) at
any time during the subsistence of this Deed, except as not expressly
prohibited under the terms of the Indentures:
6.2.1 execute any disposition, transfer, assignment or assignation
of all or any part of the Charged Property;
6.2.2 create any legal or equitable interest or other interest in,
or over, or otherwise relating to, all or any part of the
Charged Property; or
6.2.3 allow any person to become entitled to assert any proprietary
interest in, or right over, the Charged Property, which may
adversely affect the ability of the Security Trustee to
exercise any of the Collateral Rights.
7. SHARES
7.1 SHARES: REPRESENTATION
The Chargor represents and warrants to the Security Trustee that:
7.1.1 it is the sole legal and beneficial owner of the Shares free
from any Security (as such term is defined in the Security
Trust and Intercreditor Deed) except as created by this Deed;
and
7.1.2 the Shares are fully paid up.
7.2 SHARES: BEFORE ENFORCEMENT EVENT
Prior to the occurrence of an Enforcement Event and at any time when no
Enforcement Event is continuing, the Chargor shall:
7.2.1 be entitled to retain all dividends, interest and other monies
arising from the Shares; and
7.2.2 exercise all voting rights in relation to the Shares PROVIDED
THAT the Chargor shall not exercise such voting rights in any
manner which would constitute a Default or an Event of Default
under the Indentures (as such terms are defined in the
Indentures).
7.3 SHARES: AFTER ENFORCEMENT EVENT
The Security Trustee may, upon the occurrence of an Enforcement Event
and at any time thereafter while such Enforcement Event is continuing
(in the name of the Chargor or otherwise and without any further
consent or authority from the Chargor):
7.3.1 exercise (or refrain from exercising) any voting rights in
respect of any of the Shares;
7.3.2 apply all dividends, interest and other monies arising from
any of the Shares in accordance with Clause 12 (Application of
Moneys);
7.3.3 transfer any of the Shares into the name of such nominee(s) of
the Security Trustee as it shall require; and
7.3.4 exercise (or refrain from exercising) the powers and rights
conferred on or exercisable by the legal or beneficial owner
of any of the Shares, including the right, in relation to the
Company whose shares or other securities are included in the
Charged Property, to concur or participate in:
(a) the reconstruction, amalgamation, sale or other
disposal of the Company or any of its assets or
undertaking (including the exchange, conversion or
reissue of any shares or securities as a consequence
thereof),
(b) the release, modification or variation of any rights
or liabilities attaching to such shares or
securities, and
(c) the exercise, renunciation or assignment of any right
to subscribe for any shares or securities,
in each case in such manner and on such terms as the Security
Trustee may think fit, and the proceeds of any such action
shall form part of the Charged Property.
8. ENFORCEMENT OF SECURITY
8.1 ENFORCEMENT
At any time after the occurrence of an Enforcement Event and the
Security Trustee (acting on instructions received pursuant to the terms
of the Security Trust and Intercreditor Deed) giving notice to Marconi
Corporation thereof, the security created by or pursuant to this Deed
is immediately enforceable and the Security Trustee may, in its
absolute discretion:
8.1.1 enforce all or any part of the security created by this Deed
and exercise any of the rights conferred on it by this Deed or
by law (at the times, in the manner and on the terms it thinks
fit); and
8.1.2 sell or otherwise dispose of all or any part of the Charged
Property (at the times, in the manner and on the terms it
thinks fit).
9. EXTENSION AND VARIATION OF THE LAW OF PROPERTY ACT 1925
9.1 EXTENSION OF POWERS
Insofar as applicable the power of sale or other disposal conferred on
the Security Trustee and on any Receiver by this Deed shall operate as
a variation and extension of the statutory power of sale under Section
101 of the Law of Property ▇▇▇ ▇▇▇▇ and such power shall arise (and the
Secured Obligations shall be deemed due and payable for that purpose)
on execution of this Deed.
9.2 RESTRICTIONS
The restrictions contained in Sections 93 and 103 of the Law of
Property Act 1925 shall not apply to this Deed or to the exercise by
the Security Trustee of its right to consolidate all or any of the
security created by or pursuant to this Deed with any other security in
existence at any time or to its power of sale, which powers may be
exercised by the Security Trustee without notice to the Chargor on or
at any time after the occurrence of an Enforcement Event.
10. APPOINTMENT OF RECEIVER
10.1 APPOINTMENT AND REMOVAL
After the occurrence of an Enforcement Event or if a petition or
application is presented for the making of an administration order in
relation to the Chargor or if the Chargor or any other person gives
written notice of its intention to appoint an administrator to the
Chargor or if requested to do so by the Chargor, the Security Trustee
may by deed or otherwise (acting through an authorised officer of the
Security Trustee), without prior notice to the Chargor:
10.1.1 appoint one or more persons to be a Receiver of the whole or
any part of the Charged Property;
10.1.2 remove (so far as it is lawfully able) any Receiver so
appointed; and
10.1.3 appoint another person(s) as an additional or replacement
Receiver(s).
10.2 CAPACITY OF RECEIVERS
Each person appointed to be a Receiver pursuant to Clause 10.1
(Appointment and Removal) shall be:
10.2.1 entitled to act individually or together with any other person
appointed or substituted as Receiver;
10.2.2 for all purposes shall be deemed to be the agent of the
Chargor which shall be solely responsible for his acts,
defaults and liabilities and for the payment of his
remuneration and no Receiver shall at any time act as agent
for the Security Trustee; and
10.2.3 entitled to remuneration for his services at a rate to be
fixed by the Security Trustee from time to time (without being
limited to the maximum rate specified by the Law of Property
Act 1925).
10.3 STATUTORY POWERS OF APPOINTMENT
The powers of appointment of a Receiver shall be in addition to all
statutory and other powers of appointment of the Security Trustee under
the Law of Property ▇▇▇ ▇▇▇▇ (as extended by this Deed) or otherwise
and such powers shall remain exercisable from time to time by the
Security Trustee in respect of any part of the Charged Property.
11. POWERS OF RECEIVER
Every Receiver shall (subject to any restrictions in the instrument
appointing him but notwithstanding any winding-up or dissolution of the
Chargor) have and be entitled to exercise, in relation to the Charged
Property (and any assets of the Chargor which, when got in, would be
Charged Property) in respect of which he was appointed, and as varied
and extended by the provisions of this Deed (in the name of or on
behalf of the Chargor or in his own name and, in each case, at the cost
of the Chargor):
11.1.1 insofar as applicable all the powers conferred by the Law of
Property ▇▇▇ ▇▇▇▇ on receivers appointed under that Act;
11.1.2 all the powers of an administrative receiver set out in
Schedule 1 to the Insolvency ▇▇▇ ▇▇▇▇ (whether or not the
Receiver is an administrative receiver);
11.1.3 all the powers and rights of an absolute owner and power to do
or omit to do anything which the Chargor itself could do or
omit to do; and
11.1.4 the power to do all things (including bringing or defending
proceedings in the name or on behalf of the Chargor) which
seem to the Receiver to be incidental or conducive to (a) any
of the functions, powers, authorities or discretions conferred
on or vested in him or (b) the exercise of the Collateral
Rights (including realisation of all or any part of the
Charged Property) or (c) bringing to his hands any assets of
the Chargor forming part of, or which when got in would be,
Charged Property.
12. APPLICATION OF MONEYS
All moneys received or recovered by the Security Trustee or any
Receiver pursuant to this Deed or the powers conferred by it shall
(subject to the claims of any person having prior rights thereto and by
way of variation of the provisions of the Law of Property Act 1925) be
applied first in the payment of the costs, charges and expenses
incurred and payments made by the Receiver, the payment of his
remuneration and the discharge of any liabilities incurred by the
Receiver in, or incidental to, the exercise of any of his powers, and
thereafter shall be applied by the Security Trustee (notwithstanding
any purported appropriation by the Chargor) in accordance with the
Security Trust and Intercreditor Deed.
13. PROTECTION OF PURCHASERS
13.1 CONSIDERATION
The receipt of the Security Trustee or any Receiver shall be conclusive
discharge to a purchaser and, in making any sale or disposal of any of
the Charged Property or making
any acquisition, the Security Trustee or any Receiver may do so for
such consideration, in such manner and on such terms as it thinks fit.
13.2 PROTECTION OF PURCHASERS
No purchaser or other person dealing with the Security Trustee or any
Receiver shall be bound to inquire whether the right of the Security
Trustee or such Receiver to exercise any of its powers has arisen or
become exercisable or be concerned with any propriety or regularity on
the part of the Security Trustee or such Receiver in such dealings.
14. POWER OF ATTORNEY
14.1 APPOINTMENT AND POWERS
The Chargor by way of security irrevocably appoints the Security
Trustee, each Delegate and any Receiver severally to be its attorney
(the "ATTORNEY") and in its name, on its behalf and as its act and deed
to execute, deliver and perfect all documents and do all things which
the Attorney may consider to be required or desirable for:
14.1.1 carrying out any obligation imposed on the Chargor by this
Deed (including the execution and delivery of any notices,
deeds, charges, assignments or other security and any
transfers of the Charged Property); and
14.1.2 enabling the Security Trustee, each Delegate and any Receiver
to exercise, or delegate the exercise of, any of the rights,
powers and authorities conferred on them by or pursuant to
this Deed or by law (including, after the occurrence of an
Enforcement Event, the exercise of any right of a legal or
beneficial owner of the Charged Property).
14.2 RATIFICATION
The Chargor shall ratify and confirm all things done and all documents
executed by any Attorney in the exercise or purported exercise of all
or any of his powers.
14.3 INDEMNITY
The Chargor shall indemnify the Attorney and keep the Attorney
indemnified against any and all costs, claims and liabilities which the
Attorney may incur as a result of anything done by the Attorney in the
proper exercise of any of the powers conferred, or purported to be
conferred, on him or her by this Deed unless such cost, claim or
liability arises as a result of the negligence or wilful misconduct of
the Attorney.
15. EFFECTIVENESS OF SECURITY
15.1 CONTINUING SECURITY
The security created by or pursuant to this Deed shall remain in full
force and effect as a continuing security for the Secured Obligations
unless and until discharged by the Security Trustee.
15.2 CUMULATIVE RIGHTS
The security created by or pursuant to this Deed and the Collateral
Rights shall be cumulative, in addition to and independent of every
other security which the Security Trustee or any Secured Creditor may
at any time hold for the Secured Obligations or any other obligations
or any rights, powers and remedies provided by law. No prior security
held by the Security Trustee (whether in its capacity as trustee or
otherwise) or any of the
other Secured Creditors over the whole or any part of the Charged
Property shall merge into the security constituted by this Deed.
15.3 NO PREJUDICE
The security created by or pursuant to this Deed and the Collateral
Rights shall not be prejudiced by any unenforceability or invalidity of
any other agreement or document or by any time or indulgence granted to
the Chargor or any other person, or the Security Trustee (whether in
its capacity as trustee or otherwise) or any of the other Secured
Creditors or by any variation of the terms of the trust upon which the
Security Trustee holds the security or by any other thing which might
otherwise prejudice that security or any Collateral Right.
15.4 REMEDIES AND WAIVERS
No failure on the part of the Security Trustee to exercise, or any
delay on its part in exercising, any Collateral Right shall operate as
a waiver thereof, nor shall any single or partial exercise of any
Collateral Right preclude any further or other exercise of that or any
other Collateral Right.
15.5 NO LIABILITY
None of the Security Trustee, each Delegate, any Attorney or any
Receiver shall be liable by reason of (a) taking any action permitted
by this Deed or (b) any neglect or default in connection with the
Charged Property or (c) taking possession of or realising all or any
part of the Charged Property, except in the case of negligence or
wilful misconduct upon its part.
15.6 PARTIAL INVALIDITY
If, at any time, any provision of this Deed is or becomes illegal,
invalid or unenforceable in any respect under the law of any
jurisdiction, neither the legality, validity or enforceability of the
remaining provisions of this Deed nor of such provision under the laws
of any other jurisdiction shall in any way be affected or impaired
thereby and, if any part of the security intended to be created by or
pursuant to this Deed is invalid, unenforceable or ineffective for any
reason, that shall not affect or impair any other part of the security.
15.7 CHARGOR'S OBLIGATIONS
The obligations of the Chargor and the Collateral Rights shall not be
discharged, impaired or otherwise affected by:
15.7.1 any winding-up, dissolution, administration or re-organisation
of or other change in any Obligor or any other person;
15.7.2 any of the Secured Obligations being at any time illegal,
invalid, unenforceable or ineffective;
15.7.3 any time or other indulgence being granted to any Obligor or
any other person;
15.7.4 any amendment, variation, waiver or release of any of the
Secured Obligations;
15.7.5 any failure to take or failure to realise the value of any
other collateral in respect of the Secured Obligations or any
release, discharge, exchange or substitution of any such
collateral;
15.7.6 any other act, event or omission which but for this provision
would or might operate to impair, discharge or otherwise
affect the obligations of the Chargor hereunder.
16. RELEASE OF SECURITY
The Security Trustee shall, at the cost of the Chargor, release and
cancel the security constituted by this Deed in accordance with the
terms and subject to the conditions and circumstances set out in the
Security Trust and Intercreditor Deed and without recourse to, or any
representation or warranty by, the Security Trustee or any of its
nominees.
17. SET-OFF
The Chargor authorises the Security Trustee (but the Security Trustee
shall not be obliged to exercise such right), after the occurrence of
an Enforcement Event which is continuing, to set off against the
Secured Obligations any amount or other obligation (contingent or
otherwise) owing by the Security Trustee to the Chargor.
18. SUBSEQUENT SECURITY INTERESTS
If the Security Trustee (acting in its capacity as trustee or
otherwise) or any of the other Secured Creditors at any time receives
or is deemed to have received notice of any subsequent Security
affecting all or any part of the Charged Property or any assignment or
transfer of the Charged Property which is prohibited by the terms of
this Deed or the Indentures, all payments thereafter by or on behalf of
the Chargor to (or on behalf of) the Security Trustee (whether in its
capacity as trustee or otherwise) or any of the other Secured Creditors
shall be treated as having been credited to a new account of the
Chargor and not as having been applied in reduction of the Secured
Obligations as at the time when the Security Trustee received such
notice.
19. CURRENCY INDEMNITY
If any sum (a "SUM") owing by the Chargor under this Deed or any order
or judgment given or made in relation to this Deed has to be converted
from the currency (the "FIRST CURRENCY") in which such Sum is payable
into another currency (the "SECOND CURRENCY") for the purpose of:
19.1.1 making or filing a claim or proof against the Chargor;
19.1.2 obtaining an order or judgment in any court or other tribunal;
19.1.3 enforcing any order or judgment given or made in relation to
this Deed; or
19.1.4 applying the Sum in satisfaction of any of the Secured
Obligations,
the Chargor shall indemnify the Security Trustee from and against any
loss suffered or incurred as a result of any discrepancy between (a)
the rate of exchange used for such purpose to convert such Sum from the
First Currency into the Second Currency and (b)
the rate or rates of exchange available to the Security Trustee at the
time of such receipt of such Sum.
20. ASSIGNMENT
The Security Trustee may assign and transfer all or any of its rights
and obligations under this Deed in accordance with the Security Trust
and Intercreditor Deed. The Security Trustee shall be entitled to
disclose such information concerning the Chargor and this Deed as the
Security Trustee considers appropriate to any actual or proposed direct
or indirect successor or to any person to whom information may be
required to be disclosed by any applicable law.
21. NOTICES
Each communication to be made under this Deed shall be made and
delivered in accordance with the provisions of the Security Trust and
Intercreditor Deed.
22. EXPENSES, COSTS AND TAXES
22.1 EXPENSES
The Chargor shall, from time to time and promptly on demand by the
Security Trustee, reimburse to the Security Trustee all costs and
expenses (including legal fees) on a full indemnity basis together with
any applicable VAT incurred by the Security Trustee and any Delegate
(PROVIDED THAT in relation to sub-clause 22.1.1 of this Clause 22.1,
such costs and expenses must be properly incurred) in connection with:
22.1.1 the execution, release and discharge of this Deed and the
Security created or intended to be created in respect of the
Charged Property and perfection of the Security contemplated
in this Deed or in any such documents or forming part of the
Security created or intended to be created in respect of the
Charged Property;
22.1.2 the actual or contemplated exercise, preservation and/or
enforcement of any of the rights, powers and remedies of, or
the performance of the duties and obligations of, the Security
Trustee or any Delegate, or any amendment or waiver in respect
of this Deed;
22.1.3 the foreclosure of any Charged Property; and
22.1.4 the preservation and/or enforcement of the Security created or
intended to be created in respect of the Charged Property,
which shall carry interest from the date of such demand until so
reimbursed at the rate and on the basis as mentioned in Clause 2.2
(Interest on Demands).
22.2 TAXES
The Chargor shall pay, promptly on demand of the Security Trustee all
stamp, registration, notarial and other similar Taxes or fees paid or
payable by the Security Trustee in connection with any action taken or
contemplated by or on behalf of the Security Trustee for perfecting,
enforcing, releasing, cancelling, or resolving any doubt concerning, or
for any other purpose in relation to this Deed, any amendment thereto,
any transfer and/or assignment of the rights and/or obligations under
the same or the Security created or intended to be created in respect
of the Charged Property 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 Chargor or
any delay by the Chargor in paying any such Taxes or fees.
23. PAYMENTS FREE OF DEDUCTION
All payments to be made to the Security Trustee, any Delegate and/or
any Receiver under this Deed shall be made free and clear of and
without set-off or deduction for or on account of tax unless the
Chargor is required to make such payment subject to the deduction or
withholding of tax, in which case the sum payable by the Chargor in
respect of which such deduction or withholding is required to be made
shall be increased to the extent necessary to ensure that, after the
making of such deduction or withholding, the person on account of whose
liability to tax such deduction or withholding has been made receives
and retains (free from any liability in respect of any such deduction
or withholding) a net sum equal to the sum which it would have received
and so retained had no such deduction or withholding been made or
required to be made.
24. DISCRETION AND DELEGATION
24.1 DISCRETION
Any liberty or power which may be exercised or any determination which
may be made hereunder by the Security Trustee or any Receiver may,
subject to the terms and conditions of this Deed and the Security Trust
and Intercreditor Deed, be exercised or made in its absolute and
unfettered discretion without any obligation to give reasons.
24.2 DELEGATION
Each of the Security Trustee and any Receiver shall have full power to
delegate (either generally or specifically) the powers, authorities and
discretions conferred on it by this Deed (including the power of
attorney) on such terms and conditions as it shall see fit which
delegation shall not preclude either the subsequent exercise of such
power, authority or discretion by the Security Trustee or the Receiver
itself or any subsequent delegation or revocation thereof.
25. 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 the Security Trust and Intercreditor Deed.
26. GOVERNING LAW
This Deed and all matters arising from or connected with it are
governed by English law.
27. JURISDICTION
27.1 ENGLISH COURTS
The courts of England have exclusive jurisdiction to settle any
disputes (a "DISPUTE") arising out of, or connected with this Deed
(including a dispute regarding the existence, validity or termination
of this Deed or the consequences of its nullity).
27.2 CONVENIENT FORUM
The parties agree that the courts of England are the most appropriate
and convenient courts to settle Disputes between them and, accordingly,
that they will not argue to the contrary.
27.3 EXCLUSIVE JURISDICTION
This Clause 27 is for the benefit of the Security Trustee only. As a
result and notwithstanding Clause 27.1 (English Courts), it does not
prevent the Security Trustee from taking proceedings relating to a
Dispute in any other courts with jurisdiction. To the extent allowed by
law the Security Trustee may take concurrent proceedings in any number
of jurisdictions.
27.4 SERVICE OF PROCESS
Without prejudice to any other mode of service allowed under any
relevant law, the Chargor:
27.4.1 irrevocably appoints Marconi Corporation as its agent for
service of process in relation to any proceedings before the
English courts in connection with this Deed; and
27.4.2 agrees that failure by a process agent to notify the Chargor
of the process will not invalidate the proceedings concerned.
28. COUNTERPARTS
This Deed may be executed in any number of counterparts, each of which
shall be deemed an original and this has the same effect as if the
signatures on the counterparts were on a single copy of this Deed. Any
party may enter into this Deed by signing any such counterpart.
THIS DEED has been signed on behalf of the Security Trustee and executed as a
deed by the Chargor and is delivered by each of them on the date specified
above.
EXECUTION PAGE
THE CHARGOR
EXECUTED as a DEED )
by T.C.R. SHEPHERD ) 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: ▇. ▇. ▇▇▇▇
Name of witness: ▇▇▇▇▇ ▇▇▇▇
Address: ▇▇▇▇▇ & ▇▇▇▇▇, ▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇,
▇▇▇▇ ▇▇▇
Occupation: TRAINEE SOLICITOR
THE SECURITY TRUSTEE
THE LAW DEBENTURE TRUST CORPORATION P.L.C.
By: ▇.▇. ▇▇▇▇▇
Address: The Law Debenture Trust Corporation p.l.c.
▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Fax:
Attention: Manager, Trust Administrator
Witnessed by: ▇. ▇▇▇▇▇