EXHIBIT 4.51
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CONFORMED COPY
MARCONI COMMUNICATIONS HOLDINGS GMBH
AS PLEDGOR
AND
THE LAW DEBENTURE TRUST CORPORATION p.l.c.
AS PLEDGEE AND SECURITY TRUSTEE
AND
OTHERS
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SHARE PLEDGE AGREEMENT
relating to the shares in Marconi Communications ONDATA
GmbH
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NOTARIAL DEED
ROLL OF DEED NO. 48/2003
Recorded
at Basel this 15th day of May 2003
Before me, the undersigned
▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇
notary public
with official offices in Basel (Switzerland) appeared today the following
persons:
1. ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇, born on March 31, 1978 having her business address at
▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇, ▇▇▇▇ ▇▇▇▇▇ (▇▇▇▇▇▇▇▇▇▇▇) personally known to the
notary.
2. ▇▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, born on February 8, 1978, having her business
address at ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇, ▇▇▇▇ ▇▇▇▇▇ (▇▇▇▇▇▇▇▇▇▇▇) personally known
to the notary.
The person appearing to 1. declared to make the following declarations not in
her own name but, excluding any personal liability, for and on behalf of
MARCONI COMMUNICATIONS HOLDINGS GmbH, a limited liability company
organised under the laws of the Federal republic of Germany, having its
business address at Gerberstra(beta)e 33, D-71522 Backnang, which is
registered in the commercial register (Handelsregister) of the local
court (Amtsgericht) of Backnang under HRB 1563 (the "PLEDGOR"),
Presenting a fax copy of the power of attorney dated May 13, 2003,
promising to furnish the original as soon as possible.
The person appearing to 2. declared to make the following declarations not in
her own name but, excluding any personal liability, for and on behalf of
THE LAW DEBENTURE TRUST CORPORATION p.l.c., having its business address
at ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇ in its
capacity as security trustee under the Relevant Documents (as defined
below) (the "SECURITY TRUSTEE" or the "PLEDGEE"),
presenting a fax copy of the power of attorney dated May 14, 2003,
promising to furnish the original as soon as possible.
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Neither the Notary nor the proxies assume any liability as to the validity
and/or the scope of the powers of attorney presented.
The aforementioned original powers of attorney will be attached to this deed in
copies which are herewith certified.
The Notary convinced himself that the persons appearing are in adequate command
of the English language and declared that he is in command of the English
language as well.
The persons appearing stated that the parties represented by them requested that
this instrument be recorded in the English language.
On being asked whether there had been any prior involvement by the notary in
terms of paragraph 3 sub-paragraph 1 No. 7 of the German Notarisation Act
(Beurkundungsgesetz) the provisions of which had been explained by the Notary,
the persons appearing said that there had been no such prior involvement.
I. Requesting its notarisation, the persons appearing then declared the
following:
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SHARE PLEDGE AGREEMENT
BETWEEN:
1. Marconi Communications Holdings GmbH, a limited liability company
organised under the laws of the Federal Republic of Germany, having its
business address at Gerberstra(beta)e 33, D-71522 Backnang, which is
registered in the commercial register (Handelsregister) of the local
court (Amtsgericht) of Backnang under HRB 1562 (the "PLEDGOR"); 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 (as defined
below) (the "SECURITY TRUSTEE" or the "PLEDGEE").
WHEREAS:
(A) Marconi Corporation p.l.c. (the "ISSUER") has agreed to issue the
following notes:
(i) USD equivalent of GBP 450,000,000 senior secured notes due
2008 (the "SENIOR NOTES");
(ii) USD 300,000,000 plus USD equivalent of GBP 117,270,000 of
junior secured notes due 2008 (the "JUNIOR NOTES");
(together the "NOTES"); 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 ( including the Pledgor)
as amended from time to time (the "SECURITY TRUST AND INTERCREDITOR
DEED").
(C) The Pledgor has agreed to grant a first ranking pledge over its shares
in the Company (as defined below) as security for the payment and
discharge of the
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Secured Obligations (as defined below) subject to the terms and
conditions set out herein.
NOW, IT IS AGREED as follows:
1. DEFINITIONS AND LANGUAGE
1.1 In this Agreement:
"COMPANY" means Marconi Communications ONDATA GmbH, a limited liability
company (Gesellschaft mit beschrankter Haftung) organised under the
laws of the Federal Republic of Germany having its business address at
▇▇▇▇▇▇▇▇▇▇(▇▇▇▇)▇ ▇▇, ▇-▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, which is registered in
the commercial register (Handelsregister) of the local court
(Amtsgericht) of Backnang under HRB 1662.
"CONTINUING" in relation to an Enforcement Event, shall be construed as
a reference to an acceleration of any Obligation (other than
Obligations arising under the New Bonding Facility Agreement) where
such acceleration has not been rescinded in writing or a declaration
that the Obligations (other than 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 Obligations
(other than Obligations arising under the New Bonding Facility
Agreement) whether on maturity or otherwise which has not been waived
in writing.
"DEFAULT" means any event or circumstance specified as Default in any
of the Relevant Documents (as defined below).
"ENFORCEMENT EVENT" means the acceleration of any Obligations (as
defined below) (other than Obligations arising under the New Bonding
Facility Agreement (as defined below)) or any declaration that any
Obligations (other than 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 Obligations
(other than Obligations arising under the New Bonding Facility
Agreement) whether on maturity or otherwise.
"ESCROW AGREEMENT" means the escrow agreement dated on or about the
date of the Security Trust and Intercreditor Deed and made between,
inter alia, the Security Trustee and the Issuer establishing and
setting out the terms and conditions of each of the escrow accounts.
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"EVENT OF DEFAULT" means any event or circumstance specified as an
Event of Default in any of the Relevant Documents (as defined below).
"GUARANTEE" means any guarantee of any of the Obligations.
"INITIAL SECURITY DOCUMENTS" means the Guarantees guaranteeing the
Obligations and the security documents, each to be dated on or before
the dates on which the Senior Notes and the Junior Notes are first
originally issued.
"NEW BONDING FACILITY AGREEMENT" means the GBP 50,000,000 (or the
equivalent in other currencies) committed multicurrency revolving
bonding facility agreement dated 27 March 2003 and entered into by,
inter alios, the Issuer, Marconi Bonding Limited and HSBC Bank plc for
the issuance of bonds, guarantees, letters of credit, indemnities and
similar instruments.
"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).
"OBLIGORS" means the Issuer, any entity being a party to the Security
Trust and Intercreditor Deed as guarantor, including the Pledgor, and
any entity which accedeS to the Security Trust and Intercreditor Deed
as guarantor and an "OBLIGOR" means any of them.
"RELEVANT DOCUMENTS" means the Security Trust and Intercreditor Deed,
any agent/trustee accession letter relating to the Security Trust and
Intercreditor Deed any bank accession letter relating to the New
Bonding Facility Agreement, any guarantor accession letter relating to
any Guarantee, the Indentures, the Escrow Agreement, the Notes, the New
Bonding Facility Agreement, the
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Security Documents, any fee letter and any additional remuneration fee
letter pursuant to the Security Trust and Intercreditor Deed and any
notices issued and any other documents or agreements entered into in
connection with or relating to such documents.
"SECURITY DOCUMENTS" means (i) the Initial Security Documents securing
the Obligations, (ii) 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 Obligations and (iii) any other agreements, instruments and
documents executed and delivered pursuant to any of the foregoing, in
the case of each of clauses (i) through (iii), as amended, modified,
restated or supplemented from time to time.
"SECURED OBLIGATIONS" has the meaning given to it under Clause 3.
"SECURITY TRUST AND INTERCREDITOR DEED" has the meaning given to it in
Clause (B) of the recitals.
1.2 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.
2. PLEDGED SHARES
2.1 The Company has a nominal share capital (Stammkapital) of EUR 1,000,000
(in words: Euro one million) which is divided into one share, which
share has a nominal amount of EUR 1,000,000 (in words: Euro one
million) (the "EXISTING SHARES"). There are no other shares in the
Company.
2.2 The Pledgor is the sole owner of the Existing Shares free from any
encumbrances.
2.3 The Existing Shares are fully paid up. There is no obligation for the
Pledgor to make additional contributions.
3. SECURED OBLIGATIONS
The pledges hereunder are constituted in order to secure together with
other security granted by the Pledgor the prompt and complete
satisfaction of any and all obligations (present and future, actual and
contingent) which are (or are
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expressed to be) or become owing by the Pledgor to the Pledgee under
the Relevant Documents (including, but not limited to the parallel
obligations of the Pledgor pursuant to clause 3 of the Security Trust
and Intercreditor Deed to pay to the Security Trustee sums equal to the
sums owed by the Pledgor to the secured creditors or any of them) (the
"SECURED OBLIGATIONS") up to an aggregate amount of EUR 200 million.
4. PLEDGE
4.1 The Pledgor hereby pledges to the Pledgee the Existing Shares and all
additional shares in the capital of the Company (irrespective of their
nominal value) which the Pledgor may acquire in the future (the "FUTURE
SHARES" and, together with the Existing Shares the "SHARES") together
with all ancillary rights and claims associated with the Shares as more
particularly specified in Clause 5 hereof (each a "PLEDGE" and together
the "PLEDGES").
The Pledgee hereby accepts the Pledges.
4.2 The validity and effect of each of the Pledges shall be independent
from the validity and the effect of the other Pledges created
hereunder.
4.3 Each of the Pledges is in addition, and without prejudice, to any other
security the Pledgee may now or hereafter hold in respect of the
Secured Obligations.
4.4 The Pledges shall rank ahead of any other security interest or third
party right now in existence or created in the future in or over any of
the Shares.
4.5 For the avoidance of doubt, the parties agree that nothing in this
Agreement shall exclude a transfer of all or part of the Pledges
created hereunder by operation of law upon the transfer or assignment
(including by way of assumption (Vertragsubernahme)) of all or part of
the Secured Obligations by the Pledgee to a future pledgee.
5. SCOPE OF THE PLEDGES
5.1 The Pledges constituted by this Agreement include:
(a) the present and future rights to receive:
(i) dividends payable in relation to the Shares, if any;
and
(ii) liquidation proceeds, redemption proceeds
(Einziehungsentgelt), repaid capital in case of a
capital decrease, any compensation in case of
termination (Kundigung) and/or withdrawal (Austritt)
of a shareholder of the Company, the surplus in case
of surrender
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(Preisgabe) and all other pecuniary claims associated
with the Shares;
(b) the right to subscribe for newly issued shares; and
(c) all other rights and benefits attributable to the Shares.
5.2 Notwithstanding that the dividends are pledged hereunder, the Pledgor
shall be entitled to receive and retain, all dividend payments whether
in cash, by the issue of any loan note or debt instrument or in specie
in respect of the Shares until the occurrence of an Enforcement Event
and at any time when no Enforcement Event is continuing.
6. EXERCISE OF MEMBERSHIP RIGHTS
The membership rights, including the voting rights, attached to the
Shares remain with the Pledgor. The Pledgor, however, shall at all
times until the full satisfaction of all Secured Obligations or the
release of the Pledges exercise its membership rights, including its
voting rights, to the extent that such exercise would not constitute a
Default or an Event of Default.
7. ENFORCEMENT OF THE PLEDGES
7.1 At any time after the occurrence of an Enforcement Event which is
continuing and if the requirements set forth in Section 1204 et seq. of
the German Civil Code (Burgerliches Gesetzbuch) with regard to the
enforcement of any of the Pledges are met (Pfandreife), in particular,
if any of the Secured Obligations has become due and payable, then in
order to enforce the Pledges, the Pledgee may, in its discretion, at
any time hereafter avail itself of all rights and remedies that a
pledgee has upon occurrence of the requirements with regard to the
enforcement of the Pledges under the laws of the Federal Republic of
Germany (Pfandreife).
7.2 Notwithstanding Section 1277 of the German Civil Code, the Pledgee is
entitled to exercise its rights without obtaining a final judgment or
other instrument (vollstreckbarer Titel) against the Pledgor in any
relevant court or tribunal by way of public auction.
7.3 The Pledgor hereby expressly agrees that five (5) Business Days' prior
written notice to the Pledgor of the place and time of any such public
auction shall be sufficient. The public auction may take place at any
place in the Federal Republic of Germany designated by the Security
Trustee.
7.4 If the Pledgee should seek to enforce the Pledges under this Clause
7hereof, the Pledgor shall, at its own expense, render forthwith all
necessary assistance in
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order to facilitate the prompt sale of the Shares or any part thereof
and/or the exercise by the Pledgee of any other right it may have as
Pledgee.
7.5 If the Pledges are enforced, no rights of the Pledgee shall pass to the
Pledgor by subrogation or otherwise unless and until all of the Secured
Obligations have been satisfied and discharged in full. In the case of
enforcement, Section 1225 of the German Civil Code shall not apply.
Until full discharge of the Secured Obligations, the Pledgee shall be
entitled to treat all enforcement proceeds as additional collateral for
the Secured Obligations, or to seek satisfaction from such proceeds at
any time.
7.6 Following satisfaction of the requirements for enforcement under Clause
7.1 hereof, all subsequent dividend payments and all payments based on
similar ancillary rights attributed to the Shares may be applied by the
Pledgee in satisfaction in whole or in part of the Secured Obligations
or treated as additional collateral.
7.7 Even if the requirements for enforcement referred to under Clause 7.1
above are met, the Pledgee shall not, whether as proxy or otherwise, be
entitled to exercise the voting rights attached to the Shares.
7.8 The Pledgee may, in its sole discretion, determine which of several
security interests, if applicable, shall be used to satisfy the Secured
Obligations.
7.9 The Pledgor hereby expressly waives all defences of revocation (Einrede
der Anfechtbarkeit) and set-off (Einrede der Aufrechenbarkeit) pursuant
to Sections 770, 1211 of the German Civil Code.
7.10 With respect to the enforcement of the Pledges, the Pledgee will take
into consideration the legitimate interest of the Pledgor.
8. LIMITATION OF PLEDGE
8.1 The right to enforce the Pledges created hereunder shall, to the extent
that the Secured Obligations represent those of an affiliated company
(verbundenes Unternehmen) within the meaning of Section 15 et seq. of
the German Stock Corporation Act (Aktiengesetz) of the Pledgor (other
than any of the Pledgor's subsidiaries), at all times be limited to an
amount equal to the Pledgor's assets (the calculation of which shall
take into account the captions reflected in Section 266 sub-section (2)
A, B and C of the German Commercial Code (Handelsgesetzbuch)) less the
sum of (A) the Pledgor's liabilities (the calculation of which shall
take into account the captions reflected in Section 266 subsection (3)
B, C and D of the German Commercial Code), and (B) the stated share
capital (Stammkapital) of the Pledgor (the "NET ASSETS").
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8.2 The Pledgor shall realise, to the extent legally permitted and, in
respect of the Pledgor, commercially justifiable, in a situation where
the Pledgor does not have sufficient Net Assets to maintain its
registered share capital, any and all of its assets that are shown in
the balance sheet with a book value (Buchwert) that is significantly
lower than the market value of the assets if the asset is not necessary
for the Pledgor's business (betriebsnotwendig).
8.3 The Security Trustee shall enforce any Pledge created hereunder against
the Pledgor in accordance with the following procedure:
(i) The Pledgor shall, following a notification by the
Security Trustee to the Pledgor that an Enforcement
Event has occurred and that the Security Trustee
intends to enforce the Pledges, deliver to the
Security Trustee within sixty days of such
notification an auditors' determination from a firm
of auditors of international standard and reputation
(the "AUDITORS' DETERMINATION") stating the value of
the Net Assets, i.e., the amounts which may be
claimed against the Pledgor under the Pledges having
regard to Sections 30 and 31 of the German Limited
Liability Companies Act.
(ii) The Auditors' Determination, i.e., the amount which
may be claimed against the Pledgor under the Pledges,
having regard to Section 30 and 31 of the German
Limited Liability Companies Act, shall take into
account the generally accepted accounting principles
applicable from time to time in Germany (GAAP) and be
based on the same principles that were applied when
establishing the previous year's balance sheet.
(iii) The amount specified in the relevant Auditors'
Determination pertaining to the Pledgor shall be
up-to-date and in any event such Auditors'
Determination shall have been prepared as of a date
no earlier than 15 business days prior to the date of
notification by the Security Trustee to the Pledgor
that it intends to enforce the Pledges.
(iv) If the Pledgor fails to deliver the Auditors'
Determination to the Security Trustee within the
sixty day period stated in (i) above, the Security
Trustee shall be entitled to enforce the Pledges
against the Pledgor without limitation.
9. UNDERTAKINGS OF THE PLEDGOR
During the term of this Agreement, the Pledgor undertakes to the
Pledgee:
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9.1 not to take, or participate in, any action which results or might
result in the Pledgor's loss of ownership of all or part of the Shares,
and any other transaction which would have the same result as a sale,
transfer, encumbrance or other disposal of the Shares or which would
for any other reason be inconsistent with the security interest of the
Pledgee or the security purpose (as described in Clause 3 hereof)
except, in each case, to the extent that such action is not expressly
prohibited for the Issuer and its subsidiaries under the Indentures;
and
9.2 insofar as additional documents, declarations or actions (including
making all filings and registrations) are necessary for the creation,
perfection, protection or maintenance of the Pledges created (or
purported to be created) hereunder (or any of them) in favour of the
Pledgee or for the exercise of all rights, powers and remedies of the
Security Trustee provided by or pursuant to this Agreement or by law or
to facilitate the realisation of the Pledges created (or purported to
be created) hereunder (or any of them), the Pledgor shall at the
Security Trustee's request, made in accordance with the Security Trust
and Intercreditor Deed, enter into or provide such documents, make such
declarations and undertake/or such actions at the Pledgor's cost and
expense.
10. EXPENSES, COSTS AND TAXES
10.1 EXPENSES
The Pledgor shall, from time to time and promptly on demand by the
Security Trustee reimburse to the Security Trustee all costs and
expenses (including legal fees) on a full indemnity basis together with
any applicable value added tax or any other tax of similar nature
incurred by the Security Trustee and any representative, agent or
advisor (hereinafter a "DELEGATE") (provided that in relation to
sub-clause (i) of this Clause 10, such costs and expenses must be
properly incurred) in connection with:
(i) the execution, release and discharge of this
Agreement and the security created or intended to be
created in respect of the Pledges and the perfection
of the security contemplated in this Agreement or in
any such documents or forming part of the security
created or intended to be created in respect of the
Pledges;
(ii) the actual or contemplated exercise, preservation
and/or enforcement of any of the rights, powers and
remedies of, or the performance of the duties and
obligations of, the Security Trustee or any Delegate,
or any amendment or waiver in respect of this
Agreement;
(iii) the foreclosure of any Pledges; and
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(iv) the preservation and/or enforcement of the security
created or intended to be created in respect of the
Pledges,
which shall carry interest (before and after any judgment and
to the extent interest at a default rate is not otherwise
being paid on such sum) from the date of such demand until so
reimbursed calculated on a daily basis at the rate determined
in accordance with the provisions of clause 18.4 (Interest on
Demands) of the Security Trust and Intercreditor Deed.
10.2 TAXES
The Pledgor shall pay, promptly on demand of the Security Trustee all
stamp, registration, notarial and other similar tax, duty, levy,
impost, assessment or other governmental charge of whatever nature
(including penalties, interest and other liabilities related thereto)
(hereinafter "TAXES") or fees paid or payable by the Security Trustee
in connection with any action taken or contemplated by or on behalf of
the Security Trustee for perfecting, enforcing, releasing, cancelling,
reassigning or resolving any doubt concerning, or for any other purpose
in relation to this Agreement, any amendment thereto, any transfer
and/or assignment of the rights and/or obligations under the same or
the security created or intended to be created in respect of the
Pledges and shall, from time to time, indemnify the Security Trustee
promptly on demand against any liabilities, costs, claims and expenses
resulting from any failure to pay by the Pledgor or any delay by the
Pledgor in paying any such Taxes or fees.
11. DURATION AND INDEPENDENCE
11.1 This Agreement shall remain in full force and effect until complete
satisfaction of the Secured Obligations. The Pledges shall not cease to
exist, if the Pledgor has only temporarily discharged the Secured
Obligations.
11.2 This Agreement shall create a continuing security and no change,
amendment, or supplement whatsoever in the Relevant Documents or in any
document or agreement related to any of the Relevant Documents shall
affect the validity or the scope of this Agreement nor the obligations
which are imposed on the Pledgor pursuant to it.
11.3 This Agreement is independent from any other security or guarantee
which may have been or will be given to the Pledgee. None of such other
security shall prejudice, or shall be prejudiced by, or shall be merged
in any way with this Agreement.
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12. RELEASE (PFANDFREIGABE)
12.1 Upon complete and irrevocable satisfaction of the Secured Obligations,
the Pledgee shall (in accordance with the terms and subject to the
conditions and circumstances set out in the Security Trust and
Intercreditor Deed without recourse to, or any representation or
warranty by, the Security Trustee or any of its nominess) at the cost
and expense of the Pledgor confirm the release of the Pledges
(Pfandfreigabe) to the Pledgor as a matter of record. For the avoidance
of doubt, the parties are aware that upon full and complete
satisfaction of the Secured Obligations the Pledges, due to their
accessory nature (Akzessorietat) cease to exist by operation of German
law.
12.2 At any time when the total value of the aggregate security granted by
the Pledgor to secure the Secured Obligations (the "SECURITY") which
can be expected to be realised in the event of an enforcement of the
Security (realisierbarer ▇▇▇▇) exceeds 110% of the Secured Obligations
(the "LIMIT") not only temporarily, the Pledgee on demand of the
Pledgor shall (in accordance with the terms and subject to the
conditions and circumstances set out in the Security Trust and
Intercreditor Deed without recourse to, or any representation or
warranty by, the Security Trustee or any of its nominees) release such
part of the Security (Sicherheitenfreigabe) as the Pledgee may in its
reasonable discretion determine so as to reduce the realisable value of
the Security to the Limit.
13. PARTIAL INVALIDITY; WAIVER
13.1 If at any time, any one or more of the provisions hereof is or becomes
invalid, illegal or unenforceable in any respect under the law of any
jurisdiction, that provision shall as to that jurisdiction be
ineffective to the extent necessary without affecting or impairing the
validity, legality and enforceability of the remaining provisions of
this Agreement or of such provisions in any other jurisdiction. The
invalid or unenforceable provision shall be deemed replaced by a valid,
legal and enforceable provision which comes as close as possible to the
original intent of the parties as to the invalid, illegal or
unenforceable provision. This shall apply analogously in the case of
gaps.
13.2 No failure to exercise, nor any delay in exercising, on the part of the
Pledgee, any right or remedy hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of any right or
remedy prevent any further or other exercise thereof or the exercise of
any other right or remedy. The rights and remedies provided hereunder
are cumulative and not exclusive of any rights or remedies provided by
law.
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14. AMENDMENTS; WAIVER
This Agreement may be amended, modified or waived only in writing
unless notarial form by operation of law is required. This also applies
to this Clause 14.
15. NOTICES AND THEIR LANGUAGE
15.1 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.
15.2 Any communication or document to be made or delivered under or in
connection with this Agreement shall be made or delivered to the
following addresses or fax numbers (and for the attention of the
department or officer noted):
For the Pledgor: Marconi Communications Holdings GmbH
Address: ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇
D-71522 Backnang
Fax: ▇▇▇▇▇ ▇▇ ▇▇▇▇
Attention: ▇▇▇▇-▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Legal Advisor
For the Pledgee: The Law Debenture Trust Corporation p.l.c.
Address: ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
England
Fax: ▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇
Attention: Manager Trust Administration
or to such other address as the recipient may notify or may have
notified to the other party in writing.
15.3 DELIVERY
15.3.1 Any communication or document made or delivered by one person to
another under or in connection with this Agreement will only be
effective:
(i) if by way of fax, when received in legible form; or
(ii) if by way of letter, when it has been left at the
address specified in Clause 15.2 above or five
Business Days after being deposited in the post
postage prepaid in an envelope addressed to the
addressee at that address,
- 15 -
and, if a particular department or officer is specified as part of that
address, if addressed to that department or officer.
15.3.2 Notwithstanding the provisions of sub-clause 15.3.1 (ii) 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 15.2 (or any substitute
department or officer as such person shall specify for this purpose).
15.4 Save for the notice pursuant to Section 16 of the German Limited
Liability Companies Act (Gesetz betreffend die Gesellschaften mit
beschrankter Haftung) and Section 1280 of the German Civil Code
(Burgerliches Gesetzbuch) 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 shall be in the
English language or, if in any other language, accompanied by a
translation into English which if reasonably requested by the Security
Trustee shall be a certified translation. In the event of any conflict
between the English text and the text in any other language, the
English text shall prevail unless the document is a constitutional,
statutory or other official document.
16. APPLICABLE LAW; JURISDICTION
16.1 APPLICABLE LAW
This Agreement shall be governed by and construed in accordance with
the laws of the Federal Republic of Germany.
16.2 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).
16.3 CONVENIENT FORUM
The parties agree that the courts of Frankfurt am Main are the most
appropriate and convenient court to settle Disputes between them and,
accordingly, that they will not argue to the contrary.
16.4 NON-EXCLUSIVE JURISDICTION
This Clause 16 is for the benefit of the Pledgee only. As a result it
does not prevent the Pledgee from taking proceedings relating to a
Dispute ("PROCEEDINGS") in any other courts with jurisdiction. To the
extent allowed by law, the Pledgee may take concurrent Proceedings in
any number of jurisdictions.
- 16 -
17. ASSIGNMENT
The Security Trustee may assign and transfer all or any of its rights
and obligations under this Agreement in accordance with the Security
Trust and Intercreditor Deed. To the extent legally permissible the
Security Trustee shall be entitled to disclose such information
concerning the Pledgor and this Agreement as the Security Trustee
considers appropriate to any actual or proposed direct or indirect
successor or to any person to whom information may be required to be
disclosed by any applicable law.
18. 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.
- 17 -
The Notary advised the persons appearing
- that a pledge is a security instrument of strictly accessory
nature (which means that it comes into legal existence only
if, to the extent that, and as long as, the underlying secured
claims do in fact exist, and that the owners of the secured
claims and the pledgee must be identical);
- that there is no bona fide creation, acquisition nor ranking
of a pledge of shares (which means that the pledgee is not
protected if the shares purported to be pledged do not exist,
have been previously transferred to a third party, or have
been previously encumbered for the benefit of a third party);
and
- that the English original version of this Agreement will not
be acceptable for enforcement but will have to be translated,
by a certified translator, into German for such purposes.
The Notary is hereby instructed to give notice of this Agreement and the Pledges
of the rights pursuant to Clause 4 (Pledge) and Clause 5 (Scope of the Pledges)
to the Company by means of forwarding to the Company a certified copy of this
Agreement.
The above Agreement including the Schedule was read aloud by the Notary to the
persons appearing, approved by them and signed in their own hand as follows:
Basel, this 15th (fifteenth) day of May, 2003 (two thousand and three)
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ (Signed and Sealed)
Allg. Prot. Nr. 48/2003
- 18 -
SCHEDULE
COPY OF SHAREHOLDERS' RESOLUTION
- 19 -
GESELLSCHAFTERBESCHLUSS SHAREHOLDER'S RESOLUTION
Die unterzeichnete The undersigned
Marconi Communications Holdings GmbH
eingetragen im Handelsregister des Amtsgerichts Backnang unter registered in the commercial register (Handelsregister) of the
Nr. HRB 1562 Local Court (Amtsgericht) of Backnang under registration no. HRB
1562
ist die alleinige Gesellschafterin der is the sole shareholder of
MARCONI COMMUNICATIONS ONDATA GmbH
eingetragen im Handelsregister des Amtsgerichts Backnang unter registered in the commercial register (Handelsregister) of the
Nr. HRB 1662 Local Court (Amtsgericht) of Backnang under registration no. HRB
1662
(die "GESELLSCHAFT" / the "COMPANY").
Die Marconi Corporation plc beabsichtigt, schuldrechtlich Marconi Corporation plc intends to issue USD equivalent of GBP
erstrangige, garantierte und besicherte 450,000,000.00 guaranteed and secured senior notes due ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇▇▇▇▇ fallig 2008 in Hohe eines US (referred to as "SENIOR NOTES") and USD 300,000,000.00 plus USD
Dollar Betrag, der aquivalent zu GBP 450.000.000,00 ist, (im equivalent of GBP 117,270,000.00 guaranteed and secured Junior
folgenden "ERSTRANGIGE SCHULDVERSCHREIBUN-GEN" genannt) und USD notes due 2008 (referred to as "JUNIOR NOTES").
300.000.000,00 plus dem aquivalenten US Dollar Betrag von GBP
117.270.000,00 schuldrechtlich zweitrangige, garantierte und
besicherte Inhaberschuldver-schreibungen fallig ▇▇▇▇ (▇▇
▇▇▇▇▇▇▇▇▇ "▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇" ge-nannt) zu
begeben.
Des weiteren schlossen Marconi Corporation plc, Marconi Bonding In addition, on 27th March, 2003, Marconi Corporation plc,
Limited und andere Mitglieder der Gruppe am 27. Marz 2003 einen Marconi Bonding Limited and other members of the Marconi group
Vertrag zur Aufnahme eines neuen Avalkredit in Hohe von GBP entered into a GBP 50,000,000.00 new bonding facility for the
50.000.000,00, der in Form von Obligation, Burgschaften, issuance of bonds, guarantees, letter of credits, indemnities
Akkreditiven, Garantien und ahnlichen Instrumenten ausgereicht and similar instruments (referred to as "NEW BONDING FACILITY").
werden soll, ab (im
folgenden "AVALKREDIT" genannt).
Unter anderem zur Besicherung (i) der Anspruche der Law In order to secure, among others, (i) the claims of Law
Debenture Trust Company of New York als Treuhander und der Debenture Trust Company of New York as note trustee and the
Inhaber der erstrangigen Schuldverschreibungen unter den noteholders under the Senior Notes, (ii) the claims of JPMorgan
erstrangigen Schuldverschreibungen, (ii) der Anspruche von Chase Bank as note trustee and the noteholders under the Junior
JPMorgan Chase Bank als Treuhander und der Inhaber der Notes; and (iii) the claims of HSBC Bank plc as security trustee
zweitrangigen Schuldverschreibungen unter den zweitrangigen and agent, the issuing banks and others under New Bonding
Schuldverschreibungen und (iii) der Anspruche der HSBC Bank plc Facility, Marconi Communications Holdings GmbH intends to pledge
als Sicherheitentreuhander und Agent, der ausstellenden Banken its present and future shares in the Company in favour of The
und anderer unter dem Avalkredit beabsichtigt Marconi Law Debenture Trust Corporation p.l.c. as security trustee.
Communications Holdings GmbH, ihre gegen-wartigen und kunftigen
Gesellschaftsanteile an der Gesellschaft zugunsten von The Law
Debenture Trust Corporation p.l.c. als Sicherheitentreuhander zu
verpfanden.
Dies zur Kenntnis nehmend halt die unterzeichnete Marconi Acknowledging the above the undersigned Marconi Communications
Communications Holdings GmbH als alleinige Gesellschafterin der Holdings GmbH as sole shareholder of the Company hereby holds,
Gesellschaft hiermit unter Verzicht auf alle gesetzlichen und waiving all and any requirements of form or notice imposed by
satzungsmassigen ▇▇▇▇▇- und Formvorschriften eine applicable law or the articles of the Company, a shareholders'
Gesellschaftsversammlung der Gesellschaft ab und fasst den meeting of the Company and passes the following shareholders'
folgenden Gesellschafter-beschluss: resolution:
1) Die Marconi Communications Holdings GmbH stimmt hiermit als 1) Marconi Communications Holdings GmbH as sole shareholder of
alleinige Gesellschafterin der Gesellschaft der Verpfandung the Company hereby consents to a pledge over all present
der gegenwartigen und kunftigen Geschaftanteile an der and future shares in the Company in favour of The Law
Gesellschaft zugunsten von The Law Debenture Trust Debenture Trust Corporation p.l.c. as security trustee.
Corporation p.l.c. als Sicherheitentreuhander zu.
2) Die Gesellschaft des weiteren ist zum Abschlussdes globalen 2) The Company is, furthermore, entitled to enter into the
Lizenzvertrages global licence agreement
mit anderen Mitglieder der Marconi Gruppe berechtigt. with other member of the Marconi group.
Weitere Beschlusse wurden nicht gefasst. No further resolutions were taken.
Backnang, den / this 14.05.2003
Marconi Communications Holdings GmbH
Durch/By:
S DICK E PROKSCHI
▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ Prokschi
Geschaftsfuhrer/Managing Director Geschaftsfuhrer/Managing Director
M GARTNER
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Geschaftsfuhrer/Managing Director