EXHIBIT 4.57
▇▇▇▇▇▇▇▇ CONFORMED COPY
CHANCE
PUNDER
MARCONI COMMUNICATIONS GMBH
AS TRANSFEROR
AND
THE LAW DEBENTURE TRUST CORPORATION p.l.c.
AS
SECURITY TRUSTEE
--------------------------------------------
SECURITY TRANSFER AGREEMENT
(Sicherungsubereignung)
---------------------------------------------
CONTENTS
CLAUSE PAGE
1. Definitions and Languages..................................................................... 2
2. Secured Obligations........................................................................... 3
3. Transfer...................................................................................... 3
4. Disposal of Transferred Assets................................................................ 4
5. Retention of Title Arrangements............................................................... 5
6. Use of Labelling of and Transfer of the Transferred Assets.................................... 5
7. Right of Inspection........................................................................... 6
8. Bookkeeping and Data-Processing............................................................... 6
9. Transfer of Possession of Transferred Assets to the Security Trustee.......................... 7
10. Right to Realisation upon Enforcement Event................................................... 7
11. Limitation of Security........................................................................ 8
12. Release of Transferred Assets................................................................. 9
13. Undertakings.................................................................................. 10
14. Expenses, Costs and Taxes..................................................................... 11
15. Partial Invalidity, Waiver.................................................................... 12
16. Amendment, Waiver............................................................................. 12
17. Notices and their Language.................................................................... 12
18. Applicable Law; Jurisdiction.................................................................. 14
20. Effectiveness................................................................................. 14
21. Counterparts.................................................................................. 15
Schedule 1 Marked Site Maps of Premises................................................................ 16
THIS SECURITY TRANSFER AGREEMENT is made the 16th day of May 2003
BETWEEN:
1. Marconi Communications GmbH, a limited liability company organised
under the laws of the Federal Republic of Germany, having its business
address at ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇, D-71522 Backnang, which is registered
in the commercial register (Handelsregister) of the local court
(Amtsgericht) of Backnang under HRB 1563 (the "TRANSFEROR"); and
2. The Law Debenture Trust Corporation p.l.c., having its business address
at ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇ in its
capacity as security trustee under the Relevant Documents (the
"SECURITY TRUSTEE").
WHEREAS:
(A) Marconi Corporation p.l.c. (the "ISSUER") has agreed to issue the
following notes:
(i) USD equivalent of GBP 450,000,000 senior secured notes due
2008;
(ii) USD 300,000,000 plus USD equivalent of GBP 117,270,000 of
junior secured notes due 2008;
the notes under (i) being documented in a senior note
indenture dated on or about 19 May 2003 between, inter alios,
the Issuer and Law Debenture Trust Company of New York as
Senior Note Trustee and the notes under (ii) being documented
in a junior note indenture dated on or about 19 May 2003
between, inter alios, the Issuer and JPMorgan Chase Bank as
Junior Note Trustee (together the "INDENTURES").
(B) The security created by or pursuant to this Agreement is to be granted
to and administered by the Security Trustee for itself and as trustee
of the Secured Creditors pursuant to the relevant provisions of a
security trust and intercreditor deed dated on or about 19 May 2003
between, inter alios, the Issuer, Law Debenture Trust Company of New
York as Senior Note Trustee, JPMorgan Chase Bank as Junior Note
Trustee, the Security Trustee and the Obligors (as defined therein
including the Transferor) as amended from time to time (the "SECURITY
TRUST AND INTERCREDITOR DEED").
(C) The Transferor has agreed to transfer the Collateral (as defined below)
as security for the payment and discharge of the Secured Obligations
(as defined below) subject to the terms and conditions set out herein.
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NOW, IT IS AGREED as follows:
1. DEFINITIONS AND LANGUAGES
1.1 In this Agreement:
"COLLATERAL" means the collateral referred to in Clause 3.1.
"CONTINUING" in relation to an Enforcement Event, shall be construed as
a reference to an acceleration of any Secured Obligation (other than
Secured Obligations arising under the New Bonding Facility Agreement)
where such acceleration has not been rescinded in writing or a
declaration that the Secured Obligations (other than Secured
Obligations arising under the New Bonding Facility Agreement) are
prematurely due and payable (other than solely as a result of it
becoming unlawful for a Secured Creditor to perform its obligations
under the Relevant Documents) where such declaration has not been
revoked in writing or any failure by an Obligor to pay any principal
amount in respect of any Secured Obligations (other than Secured
Obligations arising under the New Bonding Facility Agreement) whether
on maturity or otherwise which has not been waived in writing. For the
purposes of this definition of "continuing" the expression "Secured
Obligations" shall have the same meaning as in the Security Trust and
Intercreditor Deed.
"SECURED OBLIGATIONS" has the meaning given to it under clause 2.
"SECURITY TRUST AND INTERCREDITOR DEED" has the meaning given to it in
Clause (B) of the recitals.
1.2 Unless otherwise defined herein or unless the context requires,
capitalised terms shall have the same meaning as ascribed thereto in
the Security Trust and Intercreditor Deed.
1.3 This Agreement is made in the English language. For the avoidance of
doubt, the English language version of this Agreement shall prevail
over any translation of this Agreement. However, where a German
translation of a word or phrase appears in the text of this Agreement,
the German translation of such word or phrase shall prevail.
1.4 The parties hereto each acknowledge that the Security Trustee, when
acting hereunder, shall, to the extent permitted under the laws of
Germany, be acting in accordance with and subject to the terms of the
Security Trust and Intercreditor Deed.
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2. SECURED OBLIGATIONS
The transfer of title hereunder (the "TRANSFER OF TITLE") is
constituted in order to secure together with other security granted by
the Transferor the prompt and complete satisfaction of any and all
obligations (present and future, actual and contingent) which are (or
are expressed to be) or become owing by the Transferor to the Secured
Creditors or any of them (including any future assignee or transferee
of any of the Secured Creditors by way of transfer or assignment
(including by way of assumption of debt (Vertragsubernahme)) under the
Relevant Documents (including, but not limited to the parallel
obligations of the Transferor pursuant to clause 3 of the Security
Trust and Intercreditor Deed to pay to the Security Trustee sums equal
to the sums owed by the Transferor to the Secured Creditors or any of
them) (the "SECURED OBLIGATIONS") up to an aggregate amount of EUR 170
million.
3. TRANSFER
3.1 The Transferor hereby transfers by way of security to the Security
Trustee in its capacity as Security Trustee for the benefit of the
Secured Creditors title to all current assets (Umlaufvermogen)
(including, but not limited to the entire stock (Warenbestand)) and all
fixed assets (Anlagevermogen) (including, without limitation,
machinery, computers and inventory) other than those assets which are
marked as a third party's property, which are located at the premises
marked in green colour on the enclosed site maps of Schedule 1 which
form an integral part of this Agreement (the "PREMISES") (the "PRESENT
COLLATERAL") or which will be located at the Premises from time to time
in the future (the "FUTURE COLLATERAL", and together with the Present
Collateral the "COLLATERAL").
3.2 Title to the Present Collateral shall pass over to the Security Trustee
upon execution of this Agreement. Title to the Future Collateral shall
pass over to the Security Trustee when it is deposited on the Premises.
3.3 To the extent that the Transferor has only part ownership (Miteigentum)
of the Collateral or the Transferor has any inchoate rights
(Anwartschaftsrechte) in respect of the Collateral, the Transferor
hereby transfers to the Security Trustee such part ownership or
inchoate rights in respect of the Collateral and it is agreed that the
transfer of part ownership or inchoate rights in respect of the
Collateral takes place on the date hereof or on the date the Transferor
acquires part ownership or inchoate rights in respect of such
Collateral (together with the Collateral referred to as the
"TRANSFERRED ASSETS").
3.4 The Transferor and the Security Trustee agree that the Transfer of
Title to the Security Trustee shall not be affected by the Transferor
relocating any of the Transferred Assets to premises other than the
Premises. The Transferor undertakes to the Security Trustee that it
shall upon such relocation at any time
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after the occurrence of an Insolvency Event of Default or upon request
by the Security Trustee if the Security Trustee has been so instructed
pursuant to the Security Trust and Intercreditor Deed upon or at any
time after the occurrence of an Event of Default which is continuing,
immediately deliver to the Security Trustee (i) a list setting out the
respective Transferred Assets, other than those removed for the purpose
of disposals as permitted by the Indentures, and the respective
addresses of the locations to where these Transferred Assets have been
relocated, or (ii) in case of a transfer of the whole or a part of the
business to a new location, a marked site map of the new location. Upon
delivery of a marked site map the relevant locations indicated on that
marked site map shall be considered as Premises.
3.5 Delivery of possession of the Transferred Assets to the Security
Trustee is hereby replaced by the agreement that the Transferor holds
the Transferred Assets in gratuitous custody (kostenlose Verwahrung)
for the Security Trustee. The Transferor hereby further assigns all
present and future claims against third parties obtaining actual
possession of the Transferred Assets to the Security Trustee, who
accepts such assignment.
3.6 The Security Trustee hereby accepts the transfer constituted hereby.
4. DISPOSAL OF TRANSFERRED ASSETS
4.1 So long as the Security Trustee has not revoked the ability of the
Transferor to dispose of the Transferred Assets pursuant to Clause 9,
the Transferor may dispose of or otherwise deal with the Transferred
Assets except as expressly prohibited under the terms of the
Indentures.
4.2 Except during the continuance of an Enforcement Event, the Transferor
may use the Transferred Assets in its production process, provided that
the Security Trustee shall be regarded as producer (Hersteller) within
the meaning of Section 950 of the German Civil Code and shall during
such production process remain or become owner, part-owner or have an
inchoate right (Anwartschaftsrecht) in respect of goods which are the
result of such production process (such goods being hereinafter
referred to as "NEW PRODUCTS").
4.3 If as a result of any production process carried on by the Transferor
(whether or not by incorporation of the Transferred Assets into a New
Product (Vermischung, Vermengung)) the Transferor is no longer owner,
part-owner or holder of an inchoate right (Anwartschaftsrecht) of the
New Product, then as soon as the Transferor regains such rights, such
rights shall automatically be transferred to the Security Trustee. If
as a result of any production process carried on by the Transferor the
Transferor co-mingles goods or materials owned by it with goods or
materials owned by third parties and the Transferor thereby
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becomes part-owner or holder of any inchoate right of the resulting New
Product (Anwartschaftsrecht), then, as soon as the Transferor gains
such rights such rights shall automatically be transferred to the
Security Trustee.
4.4 To the extent that the Transferor has the right to demand transfer of
ownership, part-ownership or inchoate rights (Anwartschaftsrecht), the
Transferor assigns such rights hereby to the Security Trustee who
accepts such assignment.
4.5 In as far as ownership, part-ownership or any inchoate rights
(Anwartschaftsrecht) in the New Products passes to the Security
Trustee, the transfer of possession in such New Products will be
substituted by the Transferor holding them in gratuitous custody
(kostenlose Verwahrung) for the Security Trustee.
4.6 If any third party is in, or acquires, possession of any New Product,
the Transferor hereby assigns to the Security Trustee its present and
future claims to demand restitution from such third party and the
Security Trustee accepts such assignment.
4.7 The Transferor hereby also assigns to the Security Trustee all present
or future claims it may have against a third party in respect of the
production process of the Transferred Assets or the New Product
resulting therefrom and the Security Trustee accepts such assignment.
5. RETENTION OF TITLE ARRANGEMENTS
The Transferor shall where appropriate in the ordinary course of
business terminate any person's retention of title arrangements
(Eigentumsvorbehalt) in respect of any Transferred Assets by paying the
purchase price thereof. Upon the occurrence of an Enforcement Event,
the Security Trustee shall be entitled to terminate such retention of
title arrangements by paying the purchase price thereof or part thereof
on behalf of the Transferor.
6. USE OF LABELLING OF AND TRANSFER OF THE TRANSFERRED ASSETS
6.1 At any time after the occurrence of an Enforcement Event the Transferor
shall at its cost keep the Transferred Assets in good order at its
Premises and the Security Trustee shall be entitled to, or request the
Transferor to, label the goods and ▇▇▇▇ them in the books and records
of the Transferor to show that the goods have been transferred for
security purposes to the Security Trustee.
6.2 Subject to Clause 4 and Clause 3.4, the Transferor shall not, without
the prior written consent of the Security Trustee, transfer the
Transferred Assets except for inventory to any premises other than the
Premises.
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7. RIGHT OF INSPECTION
7.1 The Transferor undertakes to provide the Security Trustee, promptly at
its request with all information and documents which are necessary for
perfecting and/or enforcing the security hereby created.
7.2 The Transferor authorises the Security Trustee during the term of this
Agreement and upon notice to inspect the Transferred Assets during
normal business hours, or to have them inspected by any one or more
representatives, agents and advisers of the Security Trustee. Following
the occurrence of an Event of Default, the Security Trustee may inspect
the Transferred Assets at any time with or without prior notice.
7.3 To the extent the Transferred Assets are in the possession of a third
party, the Transferor shall, following an Insolvency Event of Default
or upon request by the Security Trustee if the Security Trustee has
been so instructed pursuant to the Security Trust and Intercreditor
Deed upon or at any time after the occurrence of an Event of Default
which is continuing instruct such third party to allow inspection by
the Security Trustee of the Transferred Assets at such third party's
premises.
8. BOOKKEEPING AND DATA-PROCESSING
8.1 If proof or documents which are necessary to identify the Collateral
have been handed over by the Transferor to a third party (in particular
a bookkeeping firm, or a tax consultant) the Transferor hereby
transfers (on condition of (aufschiebende Bedingung) (i) the occurrence
of an Insolvency Event of Default or (ii) notice by the Security
Trustee if the Security Trustee has been so instructed pursuant to the
Security Trust and Intercreditor Deed upon or at any time after the
occurrence of an Event of Default which is continuing) to the Security
Trustee, who accepts this transfer, its right to demand from such third
party the return of the proof and documents. The Transferor hereby
undertakes to instruct the third party upon such transfer to provide
the Security Trustee upon its demand with such information and
documents which are necessary to perfect and/or enforce the security
created hereby.
8.2 If details concerning the Collateral or any part thereof have been
stored in an electronic data-processing system, then, upon the
occurrence of an Insolvency Event of Default or upon request by the
Security Trustee if the Security Trustee has been so instructed
pursuant to the Security Trust and Intercreditor Deed upon or at any
time after the occurrence of an Event of Default which is continuing,
the Transferor shall allow the Security Trustee access to the computer,
including the peripheral equipment and all data concerning the
Collateral or such part thereof. Moreover, software operators shall be
made available insofar as so required, and any assistance required
shall be provided to
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the Security Trustee. If a third party handles the electronic
processing of data, the Transferor hereby transfers (on condition of
(aufschiebende Bedingung) (i) the occurrence of an Insolvency Event of
Default or (ii) notice by the Security Trustee if the Security Trustee
has been so instructed pursuant to the Security Trust and Intercreditor
Deed upon or at any time after the occurrence of an Event of Default
which is continuing) to the Security Trustee, who accepts this
transfer, all rights against such third party relating to these
services. The Transferor hereby undertakes to instruct the third party
upon such transfer to handle the processing of data for the Security
Trustee upon its demand as it did for the Transferor.
8.3 After transfer of the rights to the Security Trustee as contemplated in
Clauses 8.1 and 8.2, the Security Trustee shall promptly upon request
of the Transferor or after the Security Trustee receiving instructions
pursuant to the Security Trust and Intercreditor Deed instruct the
third party to provide the Transferor with such services and
information as necessary for the Transferor in connection with the
preparation and delivery of the Auditors' Determination.
9. TRANSFER OF POSSESSION OF TRANSFERRED ASSETS TO THE SECURITY TRUSTEE
The Security Trustee may, upon the occurrence of an Insolvency Event of
Default and shall, if so instructed pursuant to the Security Trust and
Intercreditor Deed upon or at any time after the occurrence of any
Event of Default which is continuing, revoke the right of the
Transferor to dispose of the Transferred Assets permitted pursuant to
Clause 4 of this Agreement and the Security Trustee may, and shall, if
so instructed pursuant to the Security Trust and Intercreditor Deed,
request a transfer of possession of the Transferred Assets to it.
10. RIGHT TO REALISATION UPON ENFORCEMENT EVENT
10.1 At any time after the occurrence of an Enforcement Event which is
continuing and the Security Trustee (acting or instructions received
pursuant to the Security Trustee and Intercreditor Deed) giving notice
to the Issuer thereof and if any of the Secured Obligations became due
and payable, the Security Trustee shall, in its discretion, be entitled
to enforce this Agreement and realise the Transferred Assets for and on
behalf of the Secured Creditors in accordance with the provisions of
this Clause 10.
10.2 The Security Trustee may sell all or part of the Transferred Assets by
way of private sale to the extent necessary to satisfy any outstanding
Secured Obligations, it being understood that the Security Trustee
shall apply the
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proceeds of such realisation towards the Secured Obligations in
accordance with and subject to the terms of the Security Trust and
Intercreditor Deed.
10.3 The Security Trustee may request the Transferor to sell the Transferred
Assets for and on its behalf and the Transferor shall promptly comply
with such request.
10.4 In the case of a sale by the Security Trustee, the Transferor shall
promptly upon the request of the Security Trustee provide the Security
Trustee with all documents of title and other documents relating to the
Transferred Assets.
10.5 If the Security Trustee sells the Transferred Assets pursuant to this
Clause 10 it may take all measures and enter into all agreements which
it considers to be expedient in connection therewith.
10.6 With respect to the realisation of the Transferred Assets, the Security
Trustee will take into consideration the legitimate interest of the
Transferor.
10.7 The Security Trustee will notify the Transferor in writing at least
five (5) Business Days prior to the sale of the Transferred Assets. No
such notification shall be required if (i) the Transferor has generally
ceased to make payments, (ii) an application for the institution of
insolvency proceedings is filed by or against the Transferor or (iii)
there is reason to believe that observance of the notice period will
affect the security interest of the Security Trustee in material
adverse way.
11. LIMITATION OF SECURITY
11.1 The right to enforce the security interests created hereunder shall, to
the extent that the Secured Obligations represent those of an
affiliated company (verbundenes Unternehmen) within the meaning of
Section 15 et seq. of the German Stock Corporation Act (Aktiengesetz)
of the Transferor (other than any of the Transferor's subsidiaries), at
all times be limited to an amount equal to the Transferor'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 Transferor's liabilities
(the calculation of which shall take into account the captions
reflected in Section 266 subsection (3) B, C and D of the German
Commercial Code), and (B) the stated share capital (Stammkapital) of
the Transferor (the "NET ASSETS").
11.2 The Transferor shall realise, to the extent legally permitted and, in
respect of the Transferor, commercially justifiable, in a situation
where the Transferor 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
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is significantly lower than the market value of the assets if the asset
is not necessary for the Transferor's business (betriebsnotwendig).
11.3 The Security Trustee shall enforce any security interest created
hereunder against the Transferor in accordance with the following
procedure:
(i) The Transferor shall, following a notification by the
Security Trustee to the Transferor that an
Enforcement Event has occurred and that the Security
Trustee intends to enforce the security interests
created hereunder, deliver to the Security Trustee
within sixty days of such notification an auditors'
determination from a firm of auditors of
international standard and reputation (the "AUDITORS'
DETERMINATION") stating the value of the Net Assets,
i.e., the amounts which may be claimed against the
Transferor under the security interests created
hereunder having regard to Sections 30 and 31 of the
German Limited Liability Companies Act.
(ii) The Auditors' Determination, i.e., the amount which
may be claimed against the Transferor under the
security interests created hereunder, having regard
to Section 30 and 31 of the German Limited Liability
Companies Act, shall take into account the generally
accepted accounting principles applicable from time
to time in Germany (GAAP) and be based on the same
principles that were applied when establishing the
previous year's balance sheet.
(iii) The amount specified in the relevant Auditors'
Determination pertaining to the Transferor 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
Transferor that it intends to enforce the security
interests created hereunder.
(iv) If the Transferor fails to deliver the Auditors'
Determination to the Security Trustee within the
sixty day period stated in (i) above, the Security
Trustee shall be entitled to enforce the security
interests created hereunder against the Transferor
without limitation.
12. RELEASE OF TRANSFERRED ASSETS
12.1 To the extent the parties to this Agreement become aware that the
Transferor has transferred to the Security Trustee title to assets
owned by a third party prior to such transfer, the Security Trustee
shall retransfer title to these assets to such
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third party. Any records of the Transferor about third parties'
property shall constitute a prima facie evidence of such third party's
title to such assets. The Security Trustee hereby authorises the
Transferor to retransfer title to such assets to the relevant third
party.
12.2 Upon complete and irrevocable satisfaction of the Secured Obligations,
the Security Trustee shall (in accordance with the terms and subject to
the conditions and circumstances set out in the Security Trust and
Intercreditor Deed and without recourse to, or any representation or
warranty by, the Security Trustee or any of its nominees) at the cost
and expense of the Transferor retransfer the Transferred Assets and all
other rights and claims assigned or transferred to it pursuant to this
Agreement to the Transferor and surrender the excess proceeds, if any,
resulting from any sale of the Transferred Assets. The Security Trustee
will, however, transfer any of the Transferred Assets to a third person
if so required by law.
12.3 At any time when the total value of the aggregate security granted by
the Transferor to secure the Secured Obligations (the "SECURITY") which
can be expected to be realised in the event of an enforcement of the
Security (realisierbarer ▇▇▇▇) exceeds 110% of the Secured Obligations
(the "LIMIT") not only temporarily, the Security Trustee shall (in
accordance with the terms and subject to the conditions and
circumstances set out in the Security Trust and Intercreditor Deed and
without recourse to, or any representation or warranty by, the Security
Trustee or any of its nominees) on demand of the Transferor release
such part of the Security (Sicherheitenfreigabe) as the Security
Trustee may in its discretion determine so as to reduce the realisable
value of the Security to the Limit.
13. UNDERTAKINGS
13.1 As far as necessary for the creation, perfection or maintenance of the
Security over the Transferred Assets the Transferor undertakes to
inform the Security Trustee promptly of any attachments (Pfandung) of
which it becomes aware in respect of any and all of the Transferred
Assets. In the event of an attachment, the Transferor undertakes to
forward to the Security Trustee upon request a copy of the attachment
order (Pfandungsbeschlu(beta)), the garnishee order
(Uberweisungsbeschlu(beta)) and all other documents necessary for a
defence against the attachment. The Transferor shall inform the
attaching creditor immediately about the Security Trustee's security
interests.
13.2 Insofar as additional documents, declarations or actions (including
making all filings and registrations) are necessary for the creation,
perfection, protection or maintenance of the security interests created
(or purported to be created) hereunder (or any of them) in favour of
the Security Trustee or for the exercise
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of all rights, powers and remedies of the Security Trustee provided by
or pursuant to this Agreement or by law or to facilitate the
realisation of the security interests created (or purported to be
created) hereunder (or any of them), the Transferor shall at the
Security Trustee's request enter into or provide such documents, make
such declarations and/or undertake such actions at the Transferor's
cost and expense.
14. EXPENSES, COSTS AND TAXES
14.1 EXPENSES
The Transferor shall, from time to time and promptly on demand by the
Security Trustee reimburse to the Security Trustee all costs and
expenses (including legal fees) on a full indemnity basis together with
any applicable VAT incurred by the Security Trustee and any Delegate
(provided that in relation to sub-clause (i) of this Clause 14, such
costs and expenses must be properly incurred) in connection with:
(i) the execution, release and discharge of this
Agreement and the security created or intended to be
created in respect of the Transferred Assets and the
perfection of the security contemplated in this
Agreement or in any such documents or forming part of
the security created or intended to be created in
respect of the Transferred Assets;
(ii) the actual or contemplated exercise, preservation
and/or enforcement of any of the rights, powers and
remedies of, or the performance of the duties and
obligations of, the Security Trustee or any Delegate,
or any amendment or waiver in respect of this
Agreement;
(iii) the foreclosure of any Transferred Assets; and
(iv) the preservation and/or enforcement of the security
created or intended to be created in respect of the
Transferred Assets,
which shall carry interest (before and after any judgment and
to the extent interest at a default rate is not otherwise
being paid on such sum) from the date of such demand until so
reimbursed calculated on a daily basis at the rate determined
in accordance with the provisions of clause 18.4 (Interest on
Demands) of the Security Trust and Intercreditor Deed.
14.2 TAXES
The Transferor shall pay, promptly on demand of the Security Trustee
all stamp, registration, notarial and other similar Taxes or fees paid
or payable by the
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Security Trustee in connection with any action taken or contemplated by
or on behalf of the Security Trustee for perfecting, enforcing,
releasing, cancelling, reassigning or resolving any doubt concerning,
or for any other purpose in relation to this Agreement, any amendment
thereto, any transfer and/or assignment of the rights and/or
obligations under the same or the security created or intended to be
created in respect of the Transferred Assets 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 Transferor or any delay by the Transferor in paying any such
Taxes or fees.
15. PARTIAL INVALIDITY, WAIVER
15.1 If at any time, any one or more of the provisions hereof is or becomes
invalid, illegal or unenforceable in any respect under the law of any
jurisdiction, that provision shall as to that jurisdiction, be
ineffective to the extent necessary without affecting or impairing the
validity, legality and enforceability of the remaining provisions of
this Agreement or of such provisions in any other jurisdiction. The
invalid or unenforceable provision shall be deemed replaced by a valid,
legal and enforceable provision which comes as close as possible to the
orginal intent of the parties as to the invalid, illegal or
unenforceable provision. This shall apply analogously in the case of
gaps.
15.2 No failure to exercise, nor any delay in exercising, on the part of the
Security Trustee, any right or remedy hereunder shall operate as a
waiver thereof, nor shall any single or partial exercise of any right
or remedy prevent any further or other exercise thereof or the exercise
of any other right or remedy. The rights and remedies provided
hereunder are cumulative and not exclusive of any rights or remedies
provided by law.
16. AMENDMENT, WAIVER
This Agreement may be amended, modified or waived only in writing in an
agreement signed by the Security Trustee. This also applies to this
Clause 16.
17. NOTICES AND THEIR LANGUAGE
17.1 Each communication under or in connection with this Agreement shall be
made in writing and, unless otherwise stated, may be made by fax or
letter.
17.2 Any communication or document to be made or delivered under or in
connection with this Agreement shall be made or delivered to the
following addresses or fax numbers (and for the attention of the
department or officer noted):
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For the Transferor: Marconi Communications GmbH
Address: ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇
D-71522 Backnang
Fax: ▇▇▇▇▇ ▇▇ ▇▇▇▇
Attention: ▇▇▇▇-▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Legal Advisor
For the Security Trustee: The Law Debenture Trust Corporation p.l.c.
Address: ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
England
Fax: ▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇
Attention: Manager Trust Adminstration
or to such other address as the recipient may notify or may have
notified to the other party in writing.
17.3 DELIVERY
17.3.1 Any communication or document made or delivered by one person to
another under or in connection with this Agreement will only be
effective:
(a) if by way of fax, when received in legible form; or
(b) if by way of letter, when it has been left at the address
specified in Clause 17.2 above or five Business Days after
being deposited in the post postage prepaid in an envelope
addressed to the addressee at that address,
and, if a particular department or officer is specified as part of that
address, if addressed to that department or officer.
17.3.2 Notwithstanding the provisions of sub-clause 17.3.1 (b) above, any
communication or document to be made or delivered to the Security
Trustee will be effective only when actually received by the Security
Trustee and then only if it is expressly marked for the attention of
the department or officer identified in Clause 17.2 (or any substitute
department or officer as such person shall specify for this purpose).
17.4 Any notice given under or in connection with this Agreement shall be in
the English language. All other documents provided under or in
connection with this Agreement (other than those copies to be delivered
pursuant to Clause 13) shall be in the English language or, if in any
other language, accompanied by a
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translation into English which if reasonably requested by the Security
Trustee shall be a certified translation. In the event of any conflict
between the English text and the text in any other language, the
English text shall prevail, unless the document is a constitutional,
statutory or other official document.
18. APPLICABLE LAW; JURISDICTION
18.1 APPLICABLE LAW
This Agreement shall be governed by and construed in accordance with
the laws of the Federal Republic of Germany.
18.2 GERMAN COURTS
The courts of Frankfurt am Main have exclusive jurisdiction to settle
any dispute (a "DISPUTE") arising out of or in connection with this
Agreement (including a dispute regarding the existence, validity or
termination of this Agreement or the consequences of its nullity).
18.3 CONVENIENT FORUM
The parties agree that the courts of Frankfurt am Main are the most
appropriate and convenient courts to settle Disputes between them and,
accordingly, that they will not argue to the contrary.
18.4 NON-EXCLUSIVE JURISDICTION
This Clause 18 is for the benefit of the Secured Creditors only. As a
result it does not prevent any Secured Creditor from taking proceedings
relating to a Dispute ("PROCEEDINGS") in any other courts with
jurisdiction. To the extent allowed by law, the Secured Creditors may
take concurrent Proceedings in any number of jurisdictions.
19. ASSIGNMENT
The Security Trustee may assign and transfer all or any of its rights
and obligations under this Agreement in accordance with the Security
Trust and Intercreditor Deed. To the extent legally permissible the
Security Trustee shall be entitled to disclose such information
concerning the Transferor and this Agreement as the Security Trustee
considers appropriate to any actual or proposed direct or indirect
successor or to any person to whom information may be required to be
disclosed by any applicable law.
20. EFFECTIVENESS
This Agreement shall become effective only subject to the condition
precedent and at the time of the first original issuance of the Senior
Notes.
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21. COUNTERPARTS
This Agreement may be executed in any number of counterparts and by
different parties hereto on separate counterparts each of which, when
executed and delivered, shall constitute an original, but all the
counterparts shall together constitute but one and the same instrument.
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SCHEDULE 1
MARKED SITE MAPS OF PREMISES
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SIGNATURE PAGE
THIS SECURITY TRANSFER AGREEMENT HAS BEEN ENTERED INTO ON THE DATE STATED AT THE
BEGINNING BY:
MARCONI COMMUNICATIONS GmbH
By: ▇▇▇▇ ▇▇▇▇▇▇
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title: Attorney
THE LAW DEBENTURE TRUST CORPORATION p.l.c.
By: ▇. ▇. ▇▇▇▇▇
Name: ▇. ▇. ▇▇▇▇▇
Title: Director
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