EXHIBIT 2.7
▇▇▇▇▇▇▇▇ CHANGE LIMITED LIABILITY PARTNERSHIP
EXECUTION COPY
THE GUARANTORS NAMED HEREIN
AS GUARANTORS
IN FAVOUR OF
THE LAW DEBENTURE TRUST CORPORATION p.l.c.
JPMORGAN CHASE BANK and
EACH JUNIOR NOTEHOLDER
AS BENEFICIARIES
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GUARANTEE OF THE JUNIOR NOTES
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THIS GUARANTEE is made on 19 May 2003
BY:
(1) THE GUARANTORS listed in Schedule 1 (Initial Guarantors) hereto, and
their respective successors (the "INITIAL GUARANTORS") and such other
Persons as may from time to time become party to this Guarantee as
Guarantors, and their respective successors (each a "GUARANTOR" and
together, the "GUARANTORS"); in favour of
(2) THE LAW DEBENTURE TRUST CORPORATION p.l.c. as Security Trustee (as
defined in Schedule 4);
(3) JPMORGAN CHASE BANK as Junior Note Trustee (as defined below); and
(4) each Junior Noteholder (as defined below) (together with the Security
Trustee and the Junior Note Trustee, the "BENEFICIARIES", and each a
"BENEFICIARY").
WHEREAS
(A) Marconi Corporation plc, a public limited company incorporated under
the laws of England and Wales, as Issuer (as defined in Schedule 4) has
entered into an Indenture with the Junior Note Trustee and the Initial
Guarantors dated 19 May 2003 (as amended, restated, varied, novated or
supplemented from time to time, the "JUNIOR NOTE INDENTURE") to provide
for the issuance of its Guaranteed Junior Secured Notes due 2008 (the
"JUNIOR NOTES").
(B) The Junior Note Indenture is subject to the provisions of the Trust
Indenture Act (as defined in Schedule 4) that are required to be part
of and govern indentures qualified under the Trust Indenture Act.
(C) The Initial Guarantors desire to give the guarantee of the Junior Notes
provided for herein and in the Junior Note Indenture.
1. DEFINITIONS AND INTERPRETATION
1.1 In this Guarantee the following expressions have the following
meanings:
"DEFAULT" has the meaning set forth in Schedule 3.
"EVENT OF DEFAULT" has the meaning set forth in Schedule 3.
"GUARANTEED OBLIGATIONS" means any principal, premium, interest,
Additional Amounts, penalties, fees (including legal fees and
disbursements of counsel), commissions, charges, costs, expenses,
indemnifications, reimbursements, make-whole amounts, damages and other
liabilities (including, without limitation, contingent and prospective
liabilities) payable by the Issuer under the Relevant Documents in
respect of the Junior Notes and the Junior Note Indenture.
"JUNIOR NOTEHOLDER" means (i) for so long as any Junior Notes are
represented by one or more Global Junior Notes, the bearer thereof,
which shall be the Depositary and (ii) in the event that Definitive
Registered Junior Notes are issued, the Person in whose name a
Definitive Registered Junior Note is registered on the Registrar's
books.
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"JUNIOR NOTE TRUSTEE" means JPMorgan Chase Bank as trustee under the
Junior Note Indenture, and its successors and assigns thereunder.
"OUTSTANDING" has the meaning set forth in Schedule 3.
"PAYMENT STOP EVENT" means the occurrence of either of the following:
(a) the failure by the Issuer or any Guarantor (as defined in Schedule 3)
to pay on the due date any amount payable under the Senior Notes or the
Senior Note Indenture, or
(b) the acceleration of the maturity of the Senior Notes following the
occurrence of an Event of Default under the Senior Notes or the Senior
Note Indenture,
provided that a Payment Stop Event shall cease to be continuing if:
(i) the relevant Default under the Senior Notes or the Senior Note
Indenture has been remedied or waived and any such acceleration has
been rescinded in accordance with the Senior Note Indenture;
(ii) the Required Holders of at least a majority in aggregate principal
amount of the then Outstanding Senior Notes consent in writing to the
cessation of such Payment Stop Event; or
(iii) the Senior Note Obligations have been discharged in full and there are
no further Senior Note Obligations.
"REQUIRED HOLDERS" means at any time, the Senior Noteholder or Senior
Noteholders of at least the specified percentage of the aggregate
principal amount of the Senior Notes at the time Outstanding,
calculated in the manner provided in the Senior Note Indenture.
"SENIOR NOTEHOLDER" means (i) for so long as any Senior Notes are
represented by one or more Global Senior Notes (as defined in Schedule
3), the bearer thereof, which shall be the Depositary (as defined in
Schedule 3) and (ii) in the event that Definitive Registered Senior
Notes (as defined in Schedule 3) are issued, the Person in whose name a
Definitive Registered Senior Note is registered on the books of the
Registrar (as defined in Schedule 3).
"SENIOR NOTE OBLIGATIONS" means any principal, premium, interest,
Additional Amounts (as defined in Schedule 3), penalties, fees,
expenses, indemnifications, reimbursements, make-whole amounts, damages
and other liabilities (including, without limitation, contingent and
prospective liabilities) payable under the Senior Notes or the Senior
Note Indenture.
"SENIOR NOTE TRUSTEE" means Law Debenture Trust Company of New York as
trustee under the Senior Note Indenture, and its successors and assigns
thereunder.
"SENIOR NOTES" means the Guaranteed Senior Secured Notes due 2008
issued by the Issuer pursuant to the Senior Note Indenture.
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"STID" means the Security Trust and Intercreditor Deed dated the Issue
Date between, among others, the Issuer, the Security Trustee, the
Initial Guarantors and the Junior Note Trustee, as amended, modified,
restated or supplemented from time to time.
1.2 Unless otherwise indicated, capitalised terms used herein but not
defined herein have the meaning assigned to them in Schedule 4.
1.3 This Guarantee is the guarantee referred to in Section 11.01 of the
Junior Note Indenture and it is issued under, and has all the benefits
of, the Junior Note Indenture.
2. GUARANTEE
2.1 Each Guarantor hereby absolutely, fully, unconditionally and
irrevocably:
2.1.1 guarantees, jointly and severally with each other Guarantor to
the Beneficiaries the due and punctual payment, observance and
performance when due by the Issuer of all the Guaranteed
Obligations;
2.1.2 agrees to pay to the Beneficiaries from time to time on demand
of the Junior Note Trustee or on demand of the Security
Trustee acting on the instructions of the Junior Note Trustee
(or on demand of any Junior Noteholder in circumstances in
which such Junior Noteholder is entitled to make demand of the
Issuer under the Junior Note Indenture) all sums of money
constituting Guaranteed Obligations which the Issuer is at any
time liable to pay to any or all of the Beneficiaries and
which have become due and payable but have not been paid at
the time such demand is made; and
2.1.3 agrees as a primary obligation to indemnify the Beneficiaries
from time to time in full on demand from and against any loss
incurred by the Beneficiaries as a result of any failure by
the Issuer to pay or otherwise discharge any of the Guaranteed
Obligations when due or any of the Guaranteed Obligations
being or becoming void, voidable, unenforceable or ineffective
as against the Issuer for any reason whatsoever, whether or
not known to the Beneficiaries, the amount of such loss being
the amount which the Beneficiaries would otherwise have been
entitled to recover from the Issuer.
2.2 This Guarantee shall not become effective against Marconi Sud S.p.A. as
an Initial Guarantor until the date on which it executes and delivers a
supplemental indenture to the Junior Note Indenture in accordance with
Section 4.38 of the Junior Note Indenture.
2.3 Notwithstanding any other provision of this Guarantee, the obligations
of the Guarantors under this Guarantee (but excluding, to the fullest
extent consistent with applicable law, the obligations set forth in
Clause 8) shall be limited in the manner set out in Clause 24.5.2 and
Schedule 9 of the STID, and all the provisions hereof shall be
construed accordingly.
2.4 The rights of the Security Trustee and the Junior Note Trustee under
this Guarantee are subject to the provisions of the STID.
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3. PAYMENT BLOCKAGE PROVISION
3.1 No Guarantor may pay any principal of, premium (if any) or interest or
Additional Amounts (if any) on any Junior Notes, and no Guarantor may
otherwise purchase, repurchase, redeem or otherwise acquire or retire
for value any Junior Notes (collectively, "PAY THE JUNIOR NOTES") if a
Payment Stop Event has occurred and is continuing.
3.2 If at any time a Standstill Event has occurred, no Guarantor may Pay
the Junior Notes during the applicable Standstill Period.
3.3 Notwithstanding the provisions described in sub-clause 3.2 (but subject
to the provisions contained in sub-clause 3.1), unless the Senior
Noteholders or the Senior Note Trustee have accelerated the maturity of
the Senior Notes, any Guarantor may resume payments on the Junior Notes
after the end of such Standstill Period, including any missed payments.
Any payments that would otherwise have been due during the Standstill
Period (other than payments of interest and Additional Amounts, if any,
on the Junior Notes) will not become due until after the end of such
Standstill Period.
4. ADDITIONAL GUARANTORS
Any Person that is not an Initial Guarantor may become a Guarantor by
executing and delivering to the Security Trustee and the Junior Note
Trustee:
4.1.1 an accession letter substantially in the form attached hereto
as Schedule 2;
4.1.2 a supplemental indenture to the Junior Note Indenture pursuant
to which it becomes a Guarantor of the Junior Notes issued
thereunder, in form and substance satisfactory to the Junior
Note Trustee; and
4.1.3 an Officers' Certificate of such Person stating that the
execution of such supplemental indenture is authorised or
permitted by the Junior Note Indenture;
4.1.4 an Opinion of Counsel reasonably satisfactory to the Security
Trustee as to the existence of such Person and the validity
and binding effect of such accession letter, of such
supplemental indenture and of this Guarantee on such Person;
and
4.1.5 any further documents required under the STID or under the
Junior Note Indenture.
5. RELEASE OF GUARANTORS
A Guarantor shall only be released from its obligations under this
Guarantee in accordance with the provisions of the STID and the Junior
Note Indenture.
6. COMPLIANCE OBLIGATIONS
6.1 Each Guarantor covenants in favour of the Junior Note Trustee and the
Junior Noteholders that it will duly perform and comply with the
obligations expressed to be undertaken by it in the Junior Note
Indenture.
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6.2 The Guarantors covenant in favour of the Security Trustee that together
they will provide the Security Trustee with one copy of each of the
Senior Note Indenture and the Junior Note Indenture, and any respective
supplements or amendments thereto. The Security Trustee shall be
entitled to rely on the documents provided to it under this Clause 6.2
in the absence of receipt of any further documents as provided
hereunder.
7. PRESERVATION OF RIGHTS
7.1 The obligations of each Guarantor contained in this Guarantee shall be
undertaken as principal obligor and not merely as surety and shall be
in addition to and independent of every other security which the
Beneficiaries may at any time hold in respect of any of the Guaranteed
Obligations.
7.2 The obligations of each Guarantor herein contained shall constitute and
be continuing obligations notwithstanding any settlement of account or
other matter or thing whatsoever and shall not be considered satisfied
by any intermediate payment or satisfaction of all or any of the
Guaranteed Obligations and shall continue in full force and effect
until all sums due from the Issuer constituting Guaranteed Obligations
have been irrevocably paid, and all other actual or contingent
obligations of the Issuer thereunder or in respect thereof have been
irrevocably satisfied, in full.
7.3 Neither the obligations of any Guarantor contained in this Guarantee
nor the rights, powers and remedies conferred in respect of each
Guarantor upon the Beneficiaries by this Guarantee or by law shall be
discharged, impaired or otherwise affected by:
7.3.1 the winding-up, dissolution, administration, reorganisation or
moratorium of the Issuer or any other Person or any change in
the status, function, control or ownership of the Issuer or
any other Person;
7.3.2 any of the Guaranteed Obligations or any other security
relating to the Guaranteed Obligations being or becoming
illegal, invalid, unenforceable or ineffective in any respect;
7.3.3 any time or other indulgence (including for the avoidance of
doubt, any composition) being granted or agreed to be granted
to the Issuer or any other Person in respect of any of the
Guaranteed Obligations or under any other security;
7.3.4 any amendment to, or any variation, waiver or release of, any
of the Guaranteed Obligations or under any other security or
other guarantee or indemnity in respect thereof, however
fundamental;
7.3.5 any failure to take, or fully to take, any security
contemplated by the Relevant Documents or otherwise agreed to
be taken in respect of the Guaranteed Obligations;
7.3.6 any failure to realise or fully to realise the value of, or
any release, discharge, exchange or substitution of, any
security taken in respect of the Guaranteed Obligations; or
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7.3.7 any other act, event or omission which, but for this Clause
7.3, might operate to discharge, impair or otherwise affect
any of the obligations of the Guarantors contained in this
Guarantee or any of the rights, powers or remedies conferred
upon the Beneficiaries by this Guarantee, the Relevant
Documents or by law.
7.4 Any settlement or discharge between any Guarantor and any Beneficiary
shall be conditional upon no payment to the Beneficiaries by the Issuer
or any other Person on the Issuer's behalf being avoided or reduced by
virtue of any laws relating to bankruptcy, insolvency, liquidation or
other laws for the time being in force and, in the event of any such
payment being so avoided or reduced, the Beneficiaries shall be
entitled to recover the amount by which such payment is so avoided or
reduced from such Guarantor subsequently as if such settlement or
discharge had not occurred.
7.5 The Beneficiaries shall not be obliged before exercising any of the
rights, powers or remedies conferred upon them in respect of each
Guarantor by this Guarantee or by law:
7.5.1 to make any demand of the Issuer;
7.5.2 to take any action or obtain judgment in any court against the
Issuer;
7.5.3 to make or file any claim or proof in a winding-up or
dissolution of the Issuer; or
7.5.4 to enforce or seek to enforce any security taken in respect of
any of the Guaranteed Obligations.
7.6 Each Guarantor agrees that, so long as the Issuer is under any actual
or contingent obligations under the Junior Note Indenture or the Junior
Notes, such Guarantor shall not exercise any rights which it may at any
time have by reason of performance by it of its obligations under this
Guarantee:
7.6.1 to be indemnified by the Issuer or to receive any collateral
from the Issuer; and/or
7.6.2 to claim any contribution from any other Guarantor; and/or
7.6.3 to take the benefit (in whole or in part and whether by way of
subrogation or otherwise) of any rights of all or any of the
Beneficiaries under the Junior Note Indenture or the Junior
Notes or of any other security taken pursuant to, or in
connection with, the Junior Note Indenture or the Junior Notes
by all or any of the Beneficiaries; and/or
7.6.4 to be subrogated to the rights of all or any of the
Beneficiaries against the Issuer in respect of amounts paid by
any Guarantor under this Guarantee,
and (save as aforesaid) each Guarantor hereby expressly waives
presentment, demand, protest and notice of dishonour in respect of the
Junior Note Indenture and each Junior Note.
7.7 Each Guarantor undertakes that its obligations hereunder will at all
times rank at least pari passu with all its other present and future
unsecured obligations save for such
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obligations as may be preferred by provisions of law that are both
mandatory and of general application.
8. STAMP DUTIES
The Guarantors hereby agree to pay all stamp, registration and other
taxes and duties (including any interest and penalties thereon or in
connection therewith) which are payable upon or in connection with the
execution and delivery of this Guarantee, and to indemnify the
Beneficiaries against any claim, demand, action, liability, damages,
cost, loss or expense (including, without limitation, legal fees and
any applicable value added tax) which any of them incur as a result or
arising out of or in relation to any failure to pay or delay in paying
any of the same.
9. BENEFIT OF GUARANTEE
9.1 DEED POLL
This Guarantee shall take effect as a deed poll for the benefit of the
Beneficiaries from time to time.
9.2 BENEFIT
This Guarantee shall enure to the benefit of each Beneficiary and its
(and any subsequent) successors and assigns, each of which shall be
entitled severally to enforce this Guarantee against the Guarantors.
10. FOREIGN LAW PROVISIONS
10.1 Each Guarantor whose assets are located in Mexico or is organized under
the laws of Mexico herein expressly and irrevocably waives (i) any
right to which it might be entitled to have its obligations under this
Guarantee divided among itself and one or more other Persons, if such
Guarantor's obligations would be less than the full amount claimed
hereunder, (ii) any benefit of order, excussio and division, or (iii)
to the extent applicable, any benefit it may have under any of Articles
2813 through 2823, or Articles 2840, 2842, 2844, 2845, 2846, 2847, 2848
and 2849 of Mexico's Federal Civil Code and the correlative articles of
the Civil Codes of each political subdivision of Mexico.
10.2 In relation to any payment under this Guarantee made by any Guarantor
which is organized under the laws of Switzerland, such Guarantor shall,
if and to the extent required by applicable law in force at the
relevant time, subject to any applicable double taxation treaty, deduct
Swiss withholding tax at the then applicable rate and pay it to the
Swiss Federal Tax Administration and, with respect to such deduction
made, not be obliged to gross-up or indemnify in accordance with the
Junior Note Indenture.
11. CURRENCY INDEMNITY
All sums payable by the Guarantors under this Guarantee shall be
payable in the Relevant Currency. Any amount received or recovered in a
currency other than the Relevant Currency with respect to the
Guaranteed Obligations (whether as a result of, or of the enforcement
of, a judgment or order of a court of any jurisdiction, in the winding
up or dissolution of the Issuer, any Guarantor, any Subsidiary of the
Issuer or otherwise) by any Beneficiary in respect of any sum expressed
to be due to it from any Guarantor
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shall constitute a discharge of such Guarantor only to the extent of
the Relevant Currency amount which the recipient is able to purchase
with the amount so received or recovered in other currency on the date
of receipt of that recovery (or, if it is not possible to make that
purchase on that date, on the first date on which it is possible to do
so). If that Relevant Currency amount is less than the Relevant
Currency amount expressed to be due to the recipient pursuant to any
Guaranteed Obligation, each Guarantor shall indemnify the recipient
against the cost of making any such purchase. For the purposes of this
indemnity, it will be sufficient for the relevant Beneficiary to
certify (indicating the sources of information used) that it would have
suffered a loss had the actual purchase of the Relevant Currency been
made with the amount so received in that other currency on the date of
receipt or recovery (or, if a purchase of the Relevant Currency on such
date had not been possible, on the first date on which it would have
been possible). These indemnities, to the extent permitted by law: (1)
constitute a separate and independent obligation from the other
obligations of each Guarantor; (2) shall give rise to a separate and
independent cause of action; (3) shall apply irrespective of any waiver
granted by any Beneficiary; and (4) shall continue in full force and
effect despite any other judgment, order, claim or proof for a
liquidated amount in respect of any Guaranteed Obligation, or any other
judgment or order.
12. SUSPENSE ACCOUNT
Any monies received, recovered or realised by any Beneficiary under or
pursuant to this Guarantee (including the proceeds of any conversion of
currency) may in its discretion be credited to and held in any suspense
or impersonal account pending their application from time to time in or
towards the discharge of this Guarantee. The Guarantors shall have no
right to require that any monies received by any Beneficiary pursuant
to this Guarantee be applied at any particular time or times.
13. NOTICES
13.1 All notices, demands and other communications to any Guarantor
hereunder shall be made in writing (by letter or fax) and shall be sent
to such Guarantor in care of the Issuer at:
Regents Place
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Fax: ▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇
Attention: Company Secretary
or to such other address or fax number or for the attention of such
other Person or department as the Issuer has notified to the
Beneficiaries in writing pursuant to Clause 13.2 hereof. Any such
notice, demand or other communication shall be deemed to have been made
on each Guarantor.
13.2 All notices, demands and other communications to the Beneficiaries
hereunder shall be made in writing (by letter or fax) and shall be sent
to the Beneficiaries in care of the
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Junior Note Trustee at:
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Fax: ▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇
Attention: Manager, Trust Administration
with a mandatory copy to the Security Trustee at:
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Fax: ▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇
Attention: Trust Management Department
or to such other address or fax number or for the attention of such
other Person or department as the Junior Note Trustee or the Security
Trustee (as the case may be) has notified to the Issuer in writing
pursuant to Clause 13.1 hereof.
13.3 EFFECTIVENESS
Every notice, demand or other communication sent in accordance with
Clause 13.1 or Clause 13.2 shall be effective upon receipt by the
Issuer or the Junior Note Trustee (as the case may be).
14. JOINT GUARANTORS
14.1 The liability of each Guarantor under this Guarantee shall be joint and
several with each other Guarantor and every indemnity, agreement and
undertaking contained in this Guarantee shall be construed accordingly.
14.2 The liability of each Guarantor under this Guarantee to the
Beneficiaries shall not be discharged or affected in any way (a) by
reason of the invalidity, voidability or unenforceability of this
Guarantee as regards any other Guarantor or any other security or (b)
by any Beneficiary releasing, discharging, compounding with or varying
the liability under this Guarantee of, or making any other arrangement
with, any other Guarantor.
15. PARTIAL INVALIDITY
If at any time, any provision of this Guarantee is or becomes illegal,
invalid or unenforceable in any respect under the law of any
jurisdiction, neither the legality, validity nor enforceability of the
remaining provisions of this Guarantee or of such provisions under the
law of any other jurisdiction shall in any way be affected or impaired
thereby.
16. LAW AND JURISDICTION
16.1 This Guarantee and all matters arising from or connected with it shall
be governed by and construed in accordance with English law, except to
the extent provisions of the
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Trust Indenture Act are included or deemed to be included herein, as to
which the Trust Indenture Act shall govern.
16.2 Each party hereto agrees that the courts of (a) England and (b) the
State of New York located in the City and County of New York or in the
United States District Court for the Southern District of New York have
jurisdiction to settle any dispute (a "DISPUTE"), arising from or
connected with this Guarantee (including a dispute regarding the
existence, validity or termination of this Guarantee) or the
consequences of its nullity.
16.3 Each party hereto agrees that the courts referred to in Clause 16.2 are
the most appropriate and convenient courts to settle any Dispute.
16.4 Clause 16.2 and 16.3 are for the benefit of the Beneficiaries only. As
a result, nothing in this Guarantee prevents the Beneficiaries from
taking proceedings relating to a Dispute ("PROCEEDINGS") in any other
courts with jurisdiction. To the extent allowed by law, the
Beneficiaries may take concurrent Proceedings in any number of
jurisdictions.
16.5 Each Guarantor agrees that the documents which start any Proceedings
and any other documents required to be served in relation to those
Proceedings may be served on it by being delivered (a) in connection
with any Proceedings in England, to the Issuer at ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇
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registered office for the time being or at any address of the Issuer or
any Guarantor in Great Britain at which process may be served on such
Guarantor in accordance with Part XXIII of the Companies ▇▇▇ ▇▇▇▇ and
(b) in connection with any Proceedings in the Borough of Manhattan, New
York, to Marconi Electronic Systems Holdings Inc., attn: ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, c/▇ ▇▇▇▇▇▇▇ Communications, Inc., ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇, or if different, the principal place of
business of Marconi Electronic Systems Holdings Inc. in the United
States of America for the time being. If any such Person is not or
ceases to be effectively appointed to accept service of process on
behalf of the Guarantors, the Guarantors (acting together) shall, on
the written demand of the Security Trustee addressed to the Guarantors
and delivered to the Guarantors in accordance with Clause 13 hereof,
appoint a further Person in England or (as the case may be) the County
of New York to accept service of process on their behalf and, failing
such appointment within 15 days, the Security Trustee shall be entitled
to appoint such a Person by written notice addressed to the Guarantors
and delivered to the Guarantors in accordance with Clause 13 hereof.
Nothing in this paragraph shall affect the right of the Beneficiaries
to serve process in any other manner permitted by law. This Clause 16.5
applies to Proceedings in England and in the County of New York.
16.6 Each Guarantor consents generally in respect of any Proceedings to the
giving of any relief or the issue of any process in connection with
such Proceedings including (without limitation) the making, enforcement
or execution against any property whatsoever (irrespective of its use
or intended use) of any order or judgment which is made or given in
such Proceedings.
16.7 To the extent permitted by law, each Guarantor hereby waives any
objections to the enforcement by any court referred to in Clause 16.2
of any judgment validly obtained in
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any court referred to in Clause 16.2 on the basis of any such legal
suit, action or proceeding.
16.8 To the extent that any Guarantor may in any jurisdiction claim for
itself or its assets or revenues immunity from suit, execution,
attachment (whether in aid of execution, before judgment or otherwise)
or other legal process and to the extent that such immunity (whether or
not claimed) may be attributed in any such jurisdiction to any
Guarantor or their respective assets or revenues, each Guarantor agrees
not to claim and irrevocably waives such immunity to the full extent
permitted by the laws of such jurisdiction and, in particular, to the
extent that in any Proceedings taken in the City of New York or
elsewhere in the United States the foregoing waiver of immunity shall
have the fullest scope permitted under the United States Foreign
Sovereign Immunities Act of 1976 and is intended to be irrevocable for
the purposes of such Act.
17. DEPOSIT OF DEED OF GUARANTEE
This Guarantee shall be deposited with and held by the Security Trustee
until the date which is two years after all the Guaranteed Obligations
have been discharged in full. The Guarantors hereby acknowledge the
right of each Beneficiary to the production of this Guarantee.
18. UNCONDITIONAL RIGHT TO RECEIVE PAYMENT
Notwithstanding any other provision of this Guarantee, the right of any
Junior Noteholder to receive payment of principal and interest on, and
any premium and Additional Amounts (if any) on the Junior Notes held by
such Junior Noteholder, on or after the respective due dates expressed
in such Junior Notes, or to institute suit for the enforcement of any
such payment on or after such respective dates, shall not be impaired
or affected without the consent of such Junior Noteholder, and,
therefore, each Junior Noteholder has a direct right to institute suit
to enforce such payment.
19. COUNTERPARTS
This Guarantee may be executed in any number of counterparts, each of
which is an original and all of which together evidence the same
agreement.
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IN WITNESS WHEREOF this Guarantee has been executed as a deed by each
Guarantor and is intended to be and is hereby delivered by each
Guarantor as a deed on the date specified above.
THE GUARANTORS
EXECUTED as a DEED by each Guarantor
SCHEDULE 1
INITIAL GUARANTORS
Marconi Communications, Inc.
Marconi Networks Worldwide, Inc.
Marconi Communications Technology, Inc.
Marconi Communications Federal, Inc.
Marconi Acquisition Corp.
Marconi Intellectual Property (Ringfence) Inc.
Marconi Communications Limited, a private limited company incorporated under the
laws of the Republic of Ireland
Marconi Communications Optical Networks Limited
Marconi Communications, S.A. de ▇.▇.
▇▇▇▇▇▇▇ Communications de Mexico, S.A. de ▇.▇.
▇▇▇▇▇▇▇ Communications Exportel, S.A. de C.V.
Administrativa Marconi Communications, S.A. de ▇.▇.
▇▇▇▇▇▇▇ Communications B.V.
Marconi Communications GmbH, a private company incorporated under the laws of
Switzerland
Metapath Software International Limited
Mobile Systems International Holdings Limited
GPT Special Project Management Limited
Marconi Communications Limited, a private limited company incorporated under the
laws of England and Wales
Marconi Communications International Limited
Marconi Communications China Limited
Marconi Communications International Investments Limited
Marconi Communications International Holdings Limited
Marconi Communications Investments Limited
Marconi Communications Holdings Limited
Marconi (▇▇▇▇▇▇ Street) Limited
- 1 -
Marconi (DGP1) Limited
Marconi (DGP2) Limited
Marconi Bonding Limited
Marconi Optical Components Limited
Associated Electrical Industries Limited
English Electric Company Ltd
Marconi (▇▇▇▇▇▇▇ Automation) Limited
▇▇▇▇▇▇▇ Automation Holdings Limited
Marconi Aerospace Unlimited
Marconi UK Intellectual Property Limited
Marconi (NCP) Limited
Highrose Limited
Marconi Inc.
Marconi Holdings, LLC.
Marconi Communications North America Inc.
FS Holdings Corp.
FS Finance Corp.
Marconi Software International, Inc.
Metapath Software International (US), Inc.
Metapath Software International, Inc.
Marconi Intellectual Property (US), Inc.
Marconi Communications Holdings GmbH
Marconi Communications GmbH, a private company incorporated under the laws of
the Federal Republic of Germany
Marconi Communications Real Estate GmbH
Marconi Holdings S.p.A.
Marconi Communications S.p.A.
Marconi Sud S.p.A.
Marconi Australia Holdings Pty Limited
- 2 -
Marconi Australia Pty Limited
Marconi Communications Asia Limited
G.E.C. (Hong Kong) Limited
▇▇▇▇▇▇ Street Overseas Investments Limited
Regents Place, Inc.
- 3 -
SCHEDULE 2
FORM OF ACCESSION LETTER
To: [ ] as SECURITY TRUSTEE
[ ] as JUNIOR NOTE TRUSTEE
From: [Member of the Group] Dated:
Dear Sirs
GUARANTEE DATED 19 MAY, 2003 (THE "GUARANTEE") OF THE GUARANTEED JUNIOR SECURED
NOTES DUE 2008 OF MARCONI CORPORATION plc
1. [Member of the Group] agrees to become an additional Guarantor and to
be bound by the terms of the Guarantee as a Guarantor pursuant to
Clause 4 of the Guarantee. [Member of the Group] is a [company duly
incorporated] under the laws of [name of relevant jurisdiction] and is
a [limited liability company] with registered number [ ].
2. [Member of the Group's] administrative details are as follows:
Address:
Fax No.:
Attention:
3. This deed is governed by English law.
4. Terms which are used in this Accession Letter which are not defined in
this Accession Letter but are defined in the Guarantee shall have the
meaning given to those terms in the Guarantee.
5. This Accession Letter is entered into by deed.
[MEMBER OF THE GROUP]
- 4 -
SCHEDULE 3
DEFINITIONS
"ACQUIRED DEBT" means, with respect to any specified Person:
(1) Indebtedness of any other Person existing at the time such
other Person is merged with or into or becomes a Subsidiary of
such specified Person, whether or not such Indebtedness is
incurred in connection with, or in contemplation of, such
other Person merging with or into, or becoming a Subsidiary
of, such specified Person; and
(2) Indebtedness secured by a Lien encumbering any asset acquired
by such specified Person.
"ACQUISITION" means any acquisition or purchase, directly or
indirectly, including without limitation by merger, consolidation or
reorganization, of any business or any assets constituting a business or line of
business.
"ADDITIONAL AMOUNTS" has the meaning set forth in Section 4.37
(Additional Amounts).
"ADDITIONAL GUARANTOR" means any Person that becomes a Guarantor of the
Senior Notes after the Issue Date.
"ADJUSTED TREASURY RATE" means, with respect to any Repayment Date for
the Senior Notes, the rate per annum equal to the sum of 0.5% and the quarterly
equivalent yield to maturity of the Comparable Treasury Issue for the Senior
Notes, assuming a price for the Comparable Treasury Issue for the Senior Notes
(expressed as a percentage of its principal amount) equal to the Comparable
Treasury Price for the Senior Notes for the Repayment Date.
"AFFECTED PENSION PARTICIPANTS" means (1) employees associated with the
assets that are the subject of an Asset Sale at the time of any such Asset Sale,
(2) employees formerly associated with the assets that are the subject of an
Asset Sale, and (3) beneficiaries, survivor payees and alternate payees of an
employee or former employee described in (1) or (2) of this definition.
"AFFILIATE" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person, and, in the case of a natural Person, any
immediate family member of such Person. For purposes of this definition,
"control", as used with respect to any Person, shall mean the possession,
directly or indirectly, of the power to direct or cause the direction of the
management or policies of such Person, whether through the ownership of voting
securities, by agreement or otherwise; provided that beneficial ownership of 20%
or more of the Voting Stock of a Person will be deemed to be control. For
purposes of this definition, the terms "controlling", "controlled by" and "under
common control with" have correlative meanings.
"AGENCY AGREEMENT" means the agreement, in substantially the form set
out in Schedule 8 (Form of Agency Agreement), appointing the initial Paying
Agent and the Registrar in relation to the Senior Notes for the purposes
specified therein and any other agreement for the time being in force appointing
successor Paying Agents and/or Registrars in relation to the
Schedule 3 - 1
Senior Notes, or in connection with their duties, the terms of which have
previously been approved in writing by the Trustee.
"ASSET SALE" means:
(1) the sale, lease, transfer, conveyance or other disposition,
directly or indirectly, of any assets, properties or rights
(including, for the avoidance of doubt, Equity Interests of a
Subsidiary of the Issuer), including by way of merger,
consolidation or reorganization, provided that the sale,
lease, transfer, conveyance or other disposition, in one or a
series of related transactions, of all or substantially all of
the properties or assets of the Issuer and its Subsidiaries,
taken as a whole, including for the avoidance of doubt the
Equity Interests in any holding company for such property or
assets, to any "person" (as that term is defined in Section
13(d)(3) of the US Exchange Act including, for the avoidance
of doubt, any person or persons acting in concert with such
person), or any merger, consolidation or reorganization of the
Issuer with any Person, will be governed by the provisions of
this Indenture set forth in Section 5.01 (Merger,
Consolidation or Sale of Assets) and not by the provisions of
this Indenture set forth in Section 4.03 (Asset Sales); and
(2) the issuance of Equity Interests by any of the Issuer's
Subsidiaries.
Notwithstanding the preceding, the following items will not be deemed
to be Asset Sales:
(1) any single transaction or series of related transactions that
involves assets, property or rights having a Fair Market Value
of less than L500,000;
(2) the sale, lease, transfer, conveyance or other disposition
(other than pursuant to a Sale and Leaseback Transaction) of
inventory (including equipment that constitutes inventory) or
accounts receivable, in each case in the ordinary course of
business and on arm's-length terms;
(3) the sale or other disposition of cash or Cash Equivalents;
(4) any transaction constituting a Restricted Payment or an
Investment that is permitted by Section 4.04 (Restricted
Payments);
(5) a Permitted Intra-Group Transfer;
(6) the waiver, compromise, settlement, release or surrender of
any right or claim in the ordinary course of business;
(7) a disposition constituting, or resulting from, the enforcement
of a Permitted Lien, or the liquidation, dissolution,
administration or winding up of a Subsidiary of the Issuer;
(8) the sale or other disposition of any assets (other than cash
or Cash Equivalents) in exchange for equity securities that
are listed on an internationally recognized securities
exchange, provided that the aggregate Fair Market Value
(determined as of the respective dates on which the Issuer and
its Subsidiaries enter into
Schedule 3 - 2
binding commitments to sell such assets for such equity
securities) of all such equity securities received by the
Issuer and its Subsidiaries from and after the Issue Date does
not exceed L50 million (or the Sterling Equivalent), provided
further that all such equity securities are disposed of for
Cash Equivalents in an Asset Sale within 90 days of the later
of (a) receipt of such equity securities and (b) the
expiration of any period not longer than 180 days in which the
Issuer or any Subsidiary of the Issuer agrees pursuant to the
documentation relating to such sale or disposition not to
dispose of any part of such equity securities without the
consent of a third party;
(9) Italian Invoice Discounting;
(10) leases, subleases and licences of assets, properties or
rights, other than Intellectual Property;
(11) licences, sub-licences and non-exclusive escrow and access
agreements of or with respect to Intellectual Property of the
Issuer and any of its Subsidiaries entered into in the
ordinary course of business, provided that (a) any such
transaction is expressly permitted under or approved in
accordance with the terms of the applicable Intellectual
Property Licence Agreements or (b) if such transaction is not
the subject of the Intellectual Property Licence Agreements
and the Intellectual Property is a Patent, the Issuer provides
express prior written consent to such transaction;
(12) the sale, lease, sublease, transfer, conveyance or license of
Intellectual Property from UK IPR Co, US IPR Co or Ringfenced
IPR Co to a Subsidiary of the Issuer in connection with any
disposition of such Subsidiary or of assets, properties or
rights by such Subsidiary which is otherwise permitted by this
Indenture;
(13) the sale or other disposition of assets received in compromise
or settlement of claims of the Issuer or any of its
Subsidiaries against a customer or other trade debtor; and
(14) the sale or other disposition of promissory notes, loan notes
or evidences of indebtedness of customers received by the
Issuer or any of its Subsidiaries pursuant to vendor finance
arrangements in the ordinary course of business and on
arm's-length terms.
"ATTRIBUTABLE DEBT" in respect of a Sale and Leaseback Transaction, the
lease portion of which is a finance or capital lease that would be required to
be capitalized on a balance sheet in accordance with generally accepted
accounting principles applicable in the United Kingdom as in effect at the time
such lease was entered into, means, at the time of determination, the present
value of the obligation of the lessee for net rental payments during the
remaining term of the lease included in such Sale and Leaseback Transaction,
including any period for which such lease has been extended or may, at the
option of the lessor, be extended. Such present value shall be calculated using
a discount rate equal to the rate of interest implicit in such transaction,
determined in accordance with generally accepted accounting principles
applicable in the United Kingdom as in effect at the time such lease was entered
into.
Schedule 3 - 3
"BANKRUPTCY LAW" means Title 11 of the United States Code (11 U.S.C.
101 et. seq.), or any similar United States federal or state law or any relevant
law in any other jurisdiction of organization or location of any assets of any
Obligor or Significant Subsidiary or any similar law (including, without
limitation, (1) the laws of the United Kingdom relating to moratorium,
administration, bankruptcy, insolvency, receivership, winding up, liquidation,
reorganization or relief of debtors, and (2) the laws of any other jurisdiction
relating to bankruptcy, moratorium, insolvency, receivership, reorganization or
other relief of debtors and composition with creditors, or any amendment to,
succession to or change in such law).
"BBRS BUSINESS" means the broadband routing and switching business of
the US Subsidiaries.
"BENEFICIAL OWNER" has the meaning assigned to such term in Rule 13d-3
and Rule 13d-5 under the US Exchange Act, except that in calculating the
beneficial ownership of any particular "person" (as that term is defined in
Section 13(d)(3) of the US Exchange Act including, for the avoidance of doubt,
any person or persons acting in concert with such person) such "person" will be
deemed to have beneficial ownership of all securities that such "person" has the
right to acquire by conversion or exercise of other securities, whether such
right is currently exercisable or is exercisable only upon the occurrence of a
subsequent condition. The terms "Beneficially Owns" and "Beneficially Owned"
have a corresponding meaning.
"BOARD OF DIRECTORS" means:
(1) with respect to a corporation, the board of directors or other
equivalent body of the corporation (or any duly authorized
committee thereof) and, in the case of any corporation having
both a supervisory board and an executive or management board,
the supervisory board (or any duly authorized committee
thereof);
(2) with respect to a limited partnership, the board of directors
or other equivalent body (or any duly authorized committee
thereof) of the general partner of the partnership; and
(3) with respect to any other Person, the board or committee of
such Person serving a similar function.
"BOARD RESOLUTION" means, with respect to the Issuer or any Guarantor,
a copy of a resolution certified by the company secretary or an assistant
company secretary of the Issuer or such Guarantor, as the case may be, to have
been duly adopted by the Board of Directors of the Issuer or such Guarantor, as
the case may be, and to be in full force and effect on the date of such
certification and delivered to the Trustee.
"BRITISH POUNDS STERLING", "STERLING" and "L" or any similar reference
means the coin or currency of the United Kingdom that at the time of payment is
legal tender for the payment of public and private debts.
"BUSINESS DAY" means a day (other than a Saturday or Sunday) on which
commercial banks in the locations specified (or if no locations are specified,
in London and New York) are open for general business.
Schedule 3 - 4
"CAPITAL EXPENDITURE" means any capital expenditure accounted for as a
purchase of property, plant or equipment in accordance with Floating UK GAAP.
"CAPITAL LEASE OBLIGATION" means, at the time any determination is to
be made, the amount of the liability in respect of a finance or capital lease
that would at that time be required to be capitalized on a balance sheet in
accordance with generally accepted accounting principles applicable in the
United Kingdom as in effect at the time such lease was entered into.
"CAPITAL STOCK" means:
(1) in the case of a corporation, any and all shares, interests,
participations, or other equivalent (however designated and
whether or not voting) of share capital;
(2) in the case of an association or business entity, any and all
shares, interests, participations, rights or other equivalent
(however designated and whether or not voting) of share
capital;
(3) in the case of a partnership or limited liability company,
partnership or membership interests (whether general or
limited); and
(4) any other interest or participation that confers on a Person
the right to receive a share of the profits and losses of, or
distributions of assets of, the issuing Person.
"CAPTIVE INSURANCE COMPANY" means Marconi Insurance Limited, a limited
liability company incorporated under the laws of Guernsey.
"CASH COLLATERAL RELEASES" means all releases to, or upon the order or
instructions of, the Issuer or any of its Subsidiaries of (1) collateral or
security constituting cash or Cash Equivalents from any Person (other than the
Issuer and its Subsidiaries), which collateral or security was provided by the
Issuer or any of its Subsidiaries (a) prior to the Issue Date, (b) in the form
of deposits into the Existing Performance Bond Escrow Account, (c) to the New
Bonding Facility Security Trustee under the New Bonding Facility Agreement, (d)
to any agent, security trustee or lender under, or otherwise in respect of, any
Replacement New Bonding Facility Agreement, (e) in respect of any Existing
Performance Bond, or (f) in respect of the Interim Bonding Facilities; provided
that (i) releases of collateral or security constituting cash or Cash
Equivalents in connection with any surety bond, appeal bond, bid bond,
performance bond, letter of credit, bank guarantee or other obligation of a like
nature issued by or on behalf of the Captive Insurance Company shall not
constitute a Cash Collateral Release to the extent that the Captive Insurance
Company retains such cash and Cash Equivalents, (ii) releases of collateral or
security constituting cash or Cash Equivalents by the New Bonding Facility
Security Trustee to a lender under the New Bonding Facility Agreement shall not
constitute a Cash Collateral Release to the extent that such lender retains such
cash and Cash Equivalents to secure the obligations owed to it under the New
Bonding Facility Agreement, (iii) releases of collateral or security
constituting cash or Cash Equivalents in connection with any Italian Easy Loan
shall not constitute a Cash Collateral Release and (iv) releases of collateral
or security constituting cash or Cash Equivalents in connection with the renewal
or extension of any surety bond, appeal bond, bid bond, performance bond, letter
of credit, bank guarantee or other obligation of a like nature issued under the
Interim Bonding Facilities shall not constitute a Cash
Schedule 3 - 5
Collateral Release to the extent that the issuer of the renewed or extended
surety bond, appeal bond, bid bond, performance bond, letter of credit, bank
guarantee or like obligation retains such cash or Cash Equivalents under the
terms of an Interim Bonding Facility; or (2) cash or Cash Equivalents held in
escrow with respect to sales, transfers or other dispositions of assets or
property by the Issuer or any of its Subsidiaries prior to the Issue Date. For
the avoidance of doubt, any release of cash or Cash Equivalents that has been
held in escrow pursuant to any of the ESOP Escrow Agreement, the Mobile ESOP
Escrow Agreement, the Israeli ESOP Escrow Agreement or the Singapore ESOP Escrow
Agreement shall not constitute a Cash Collateral Release.
"CASH EQUIVALENTS" means:
(1) United States dollars, British pounds sterling, Euro, any
other currency that is freely convertible into any of the
foregoing or a claim on the European Central Bank;
(2) securities (i) issued or directly and fully guaranteed or
insured by the US government or any agency or instrumentality
of the US government (provided that the full faith and credit
of the United States is pledged in support of those
securities), or (ii) which are denominated in Euro or British
pounds sterling and are issued by, or directly and fully
guaranteed or insured by a member of the European Union, or
any agency or instrumentality thereof, and which mature, in
each case, within six months after the date of acquisition;
(3) certificates of deposit and Eurodollar time deposits issued by
a Highly Rated Financial Counterparty and which mature within
six months after the date of acquisition;
(4) repurchase obligations with a term of not more than seven days
for underlying securities of the types described in clauses
(2) and (3) above entered into with a Highly Rated Financial
Counterparty;
(5) commercial paper having the highest rating obtainable from
▇▇▇▇▇'▇ Investors Service, Inc. or Standard & Poor's Rating
Services (or any successor to the ratings business of either
of the foregoing) and which matures within six months after
the date of acquisition;
(6) marketable direct obligations of any member of the European
Union, in each case rated at least "AAA" or the equivalent
thereof by both ▇▇▇▇▇'▇ Investors Service Inc. and Standard &
Poor's Rating Services (or any successor to the ratings
business of either of the foregoing), or obligations fully and
unconditionally guaranteed by one of those sovereign nations
(or any agency thereof), of the type and maturity described in
clauses (2) through (5) above, which have ratings described in
such clauses or equivalent ratings from comparable foreign
rating agencies; and
(7) money market funds with at least 95% of the fund's assets
constituting Cash Equivalents of the kinds described in
clauses (1) through (6) of this definition.
Schedule 3 - 6
"CDI" means:
(1) in the case of DTC, a certificateless depositary interest
representing an interest in Global Senior Notes; or
(2) in the case of Euroclear or Clearstream, Luxembourg, a
certificated depositary interest representing an interest in
Global Senior Notes.
"CHANGE OF CONTROL" means the occurrence of any of the following:
(1) the adoption of a plan relating to the solvent liquidation or
dissolution of the Issuer;
(2) the consummation of any transaction the result of which is
that any "person" (as defined in the definition of Beneficial
Owner above) becomes the Beneficial Owner, directly or
indirectly, of more than 30% of the Voting Stock of the
Issuer, measured by voting power rather than number of shares,
provided that it shall not constitute a Change of Control if
such person acquired Beneficial Ownership of Voting Stock of
the Issuer inadvertently (including, without limitation,
because (a) such person was unaware that it Beneficially Owned
more than 30% of the Voting Stock of the Issuer or (b) such
person was aware of the extent of such Beneficial Ownership
but such person acquired Beneficial Ownership of such Voting
Stock without any plan or intention to change or influence the
control of the Issuer), and such person promptly (and in any
event within fifteen (15) London Business Days after becoming
aware of the extent of such Beneficial Ownership) divests
sufficient Voting Stock of the Issuer so that such person
ceases to be the Beneficial Owner, directly or indirectly, of
more than 30% of the Voting Stock of the Issuer, measured by
voting power rather than number of shares; or
(3) the first day on which a majority of the members of the Board
of Directors of the Issuer are not Continuing Directors.
"CLEARSTREAM, LUXEMBOURG" means Clearstream, Banking societe anonyme.
"COMPARABLE TREASURY ISSUE" means, with respect to any Repayment Date,
the United States Treasury security selected by an independent investment
banking firm in London (selected by the Issuer) as having a maturity comparable
to the remaining term of the Senior Notes that would be utilized, at the time of
selection and in accordance with customary financial practice, in pricing new
issues of corporate debt securities denominated in United States dollars of
comparable maturity to the remaining term of the Senior Notes.
"COMPARABLE TREASURY PRICE" means, with respect to any Repayment Date,
(1) the average of the bid and asked prices for the Comparable Treasury Issue
for the Senior Notes (expressed in each case as a percentage of its principal
amount) on the third New York Business Day preceding such Repayment Date, as set
forth in the daily statistical release (or any successor release) published by
the Federal Reserve Bank of New York and designated "Composite 3:30 p.m.
Quotations for US Government Securities" or (2) if such release (or any
successor release) is not published or does not contain such prices on such New
York Business Day, (a) the average of the Reference Treasury Dealer Quotations
for such Repayment Date
Schedule 3 - 7
after excluding the highest and lowest of such Reference Treasury Dealer
Quotations or (b) if the Trustee obtains fewer than three such Reference
Treasury Dealer Quotations, the average of all such quotations.
"COMPOSITE GUARANTEE" means the Guarantee made on 19 May 2003 by the
Issuer and the Guarantors in favor of the Security Trustee of the obligations of
the Obligors under the Security Trust and Intercreditor Deed, any
Agent/Trustee/New Bonding Facility Bank Accession Letter, any Guarantor
Accession Letter, the Escrow Agreement, the New Bonding Facility Agreement, the
Security Documents (other than the Guarantee of the Senior Notes, the Guarantee
of the Junior Notes and the Composite Guarantee), the Fee Letter and any
Additional Remuneration Fee Letter (as such terms are defined therein).
"CONSOLIDATED EBITDA" means, with respect to any specified Person and
such of its Subsidiaries as are specified (or in the event no Subsidiaries of
such Person are specified, such Person) for any period, the Consolidated Profit
Before Taxes of such Person and such of its Subsidiaries as are specified (or in
the event no Subsidiaries of such Person are specified, of such Person) for such
period:
(1) plus an amount equal to any extraordinary or exceptional
(whether operating or non-operating) costs or losses realized
by such Person and such of its Subsidiaries as are specified
(or in the event no Subsidiaries of such Person are specified,
such Person) for such period, to the extent such costs or
losses were deducted in computing such Consolidated Profit
Before Taxes;
(2) minus an amount equal to any extraordinary or exceptional
(whether operating or non-operating) income or gains realized
by such Person and such of its Subsidiaries as are specified
(or in the event no Subsidiaries of such Person are specified,
such Person) for such period, to the extent such income or
gains were included in computing such Consolidated Profit
Before Taxes;
(3) plus an amount equal to any costs or losses realized by such
Person and such of its Subsidiaries as are specified (or in
the event no Subsidiaries of such Person are specified, such
Person) in respect of discontinued operations for such period,
to the extent such costs or losses were deducted in computing
such Consolidated Profit Before Taxes;
(4) minus an amount equal to any income or gains realized by such
Person and such of its Subsidiaries as are specified (or in
the event no Subsidiaries of such Person are specified, such
Person) in respect of discontinued operations for such period,
to the extent such income or gains were included in computing
such Consolidated Profit Before Taxes;
(5) plus an amount equal to the Consolidated Gross Finance Charges
for such Person and such of its Subsidiaries as are specified
(or in the event no Subsidiaries of such Person are specified,
for such Person) for such period, to the extent that such
Consolidated Gross Finance Charges were deducted in computing
such Consolidated Profit Before Taxes;
Schedule 3 - 8
(6) plus an amount equal to interest paid or accrued on the Junior
Notes for such period to the extent such amount was deducted
in computing such Consolidated Profit Before Taxes;
(7) minus an amount equal to the Consolidated Gross Finance Income
for such Person and such of its Subsidiaries as are specified
(or in the event no Subsidiaries of such Person are specified,
for such Person) for such period, to the extent that such
Consolidated Gross Finance Income was included in computing
such Consolidated Profit Before Taxes;
(8) plus an amount equal to the equity in net losses of joint
ventures and associates of such Person and such of its
Subsidiaries as are specified (or in the event no Subsidiaries
of such Person are specified, of such Person) for such period,
to the extent that such amounts were deducted in computing
such Consolidated Profit Before Taxes;
(9) minus an amount equal to the equity in net income of joint
ventures and associates of such Person and such of its
Subsidiaries as are specified (or in the event no Subsidiaries
of such Person are specified, of such Person) for such period,
to the extent that such amounts were included in computing
such Consolidated Profit Before Taxes;
(10) plus an amount equal to depreciation and amortization
(including amortization or impairment of goodwill and other
intangibles but excluding amortization of prepaid cash
expenses that were paid in a prior period) of such Person and
such of its Subsidiaries as are specified (or in the event no
Subsidiaries of such Person are specified, of such Person) for
such period, to the extent that such depreciation and
amortization were deducted in computing such Consolidated
Profit Before Taxes;
(11) minus an amount equal to any foreign exchange gains recorded
in the profit and loss account in respect of the retranslation
of the balances outstanding under the Junior Notes and the
Senior Notes for such period, to the extent such foreign
exchange gains were included in computing such Consolidated
Profit Before Taxes;
(12) plus an amount equal to any foreign exchange losses recorded
in the profit and loss account in respect of the retranslation
of the balances outstanding under the Junior Notes and the
Senior Notes for such period, to the extent such foreign
exchange losses were deducted in computing such Consolidated
Profit Before Taxes;
(13) minus an amount equal to any finance income related to the
expected return on pension and other retirement benefit
schemes' assets for such period, to the extent such finance
income was included in computing such Consolidated Profit
Before Taxes;
(14) plus an amount equal to any financing costs related to the
interest on pension and other retirement benefit schemes'
liabilities for such period, to the extent
Schedule 3 - 9
such financing costs were deducted in computing such
Consolidated Profit Before Taxes;
(15) plus an amount equal to any non-cash expense recorded in the
profit and loss account in respect of share options for such
period, to the extent such non-cash expense was deducted in
computing such Consolidated Profit Before Taxes;
(16) minus an amount equal to any credit or provision release
recorded in the profit and loss account in respect of share
options for such period, to the extent such credit or
provision release was included in computing such Consolidated
Profit Before Taxes;
in each case, on a consolidated basis and determined in accordance with
Fixed UK GAAP, consistently applied.
"CONSOLIDATED GROSS FINANCE CHARGES" means, with respect to any
specified Person and such of its Subsidiaries as are specified (or in the event
no Subsidiaries of such Person are specified, such Person) for any period,
without duplication, the aggregate amount of interest or amounts in the nature
of interest, whether paid or accrued and whether or not capitalized (including,
without limitation, amortization of debt issuance costs and original issue
discount, non-cash interest payments, the interest component of any deferred
payment obligations, the interest component of all payments associated with
Capital Lease Obligations, imputed interest with respect to Attributable Debt,
commissions, discounts and other fees and charges incurred in respect of letter
of credit or bankers' acceptance financings), commissions, fees, discounts and
other finance payments payable by such Person and such of its Subsidiaries as
are specified, in each case in respect of Indebtedness and paid or accrued in
such period (including any commissions, fees, discounts and other finance
payments payable by such Person and such of its Subsidiaries as are specified
under any Permitted Hedging Transaction), on a consolidated basis, determined in
accordance with Fixed UK GAAP, consistently applied, minus any interest paid or
accrued on the Junior Notes.
"CONSOLIDATED GROSS FINANCE INCOME" means, with respect to any
specified Person and such of its Subsidiaries as are specified (or in the event
no Subsidiaries of such Person are specified, such Person) for any period,
without duplication, the aggregate amount of interest or amounts in the nature
of interest (including, without limitation, non-cash interest income),
commissions, fees, discounts and other finance payments received by such Person
and such of its Subsidiaries as are specified (or in the event no Subsidiaries
of such Person are specified, such Person), including any commissions, fees,
discounts and other finance payments received by such Person and such of its
Subsidiaries as are specified under any Permitted Hedging Transaction, on a
consolidated basis, determined in accordance with Fixed UK GAAP, consistently
applied.
"CONSOLIDATED INDEBTEDNESS" means, with respect to any Person at any
time, the consolidated Indebtedness of such Person and such of its Subsidiaries
as are specified at such time that is required to appear on a balance sheet of
such Person and such of its Subsidiaries as are specified in accordance with
Fixed UK GAAP, consistently applied.
"CONSOLIDATED PROFIT AFTER TAXES" means, with respect to any specified
Person for any period, the aggregate of the Profit After Taxes of such Person
and such of its Subsidiaries as are
Schedule 3 - 10
specified for such period, on a consolidated basis, determined in accordance
with Floating UK GAAP, consistently applied; provided that:
(1) the Profit After Taxes (but not loss) of any Person that is
not a Subsidiary of such Person or that is accounted for by
the equity method of accounting will be included only to the
extent of the amount of dividends or distributions paid in
cash to the specified Person or such of its Subsidiaries as
are Wholly-Owned Subsidiaries of such Person;
(2) the Profit After Taxes of any specified Subsidiary of such
Person will be excluded to the extent that the declaration or
payment of dividends or similar distributions by that
Subsidiary of that Profit After Taxes is not at the date of
determination permitted without any prior governmental
approval (that has not been obtained) or, directly or
indirectly, by operation of the terms of its organizational
documents or any agreement, instrument, judgment, decree,
order, statute, rule or governmental regulation applicable to
that Subsidiary or its stockholders;
(3) the Profit After Taxes of any Person acquired in a pooling of
interests transaction for any period prior to the date of such
acquisition will be excluded;
(4) any discharge of indebtedness income and any income or gain
arising as a result of consummation of the Restructuring will
be excluded; and
(5) the cumulative effect of a change in accounting principles
will be excluded.
"CONSOLIDATED PROFIT BEFORE TAXES" means, with respect to any specified
Person and such of its Subsidiaries as are specified (or in the event no
Subsidiaries of such Person are specified, such Person) for any period, the
profit (loss) before taxes of such Person and such of its Subsidiaries as are
specified (or in the event no Subsidiaries of such Person are specified, of such
Person) for such period, on a consolidated basis, determined in accordance with
Fixed UK GAAP, consistently applied; provided that:
(1) the profit (loss) before taxes of any Person acquired in a
pooling of interests transaction for any period prior to the
date of such acquisition will be excluded; and
(2) any discharge of indebtedness income and any income or gain
arising as a result of consummation of the Restructuring will
be excluded.
"CONTINUING DIRECTORS" means, as of any date of determination, any
member of the Board of Directors of the Issuer who:
(1) was a member of such Board of Directors on the Issue Date; or
(2) was nominated for election or elected to such Board of
Directors with the approval of a majority of those members of
such Board of Directors at the time of such nomination or
election who were either (a) a member of such Board of
Directors on the Issue Date or (b) nominated for election or
elected in accordance with this clause (2).
Schedule 3 - 11
"CORPORATE TRUST OFFICE" means the office of the Trustee in which its
corporate trust business is principally administered, which as of the date
hereof is located at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇.
"DEFAULT" means any event that is, or with the passage of time or the
giving of notice or the making of any determination or any combination thereof
would be, an Event of Default.
"DEFAULT RATE" means 10% per annum.
"DEFINITIVE REGISTERED SENIOR NOTES" means Senior Notes in definitive
registered form.
"DEPOSIT AGREEMENT" means the deposit agreement dated as of the Issue
Date between the Issuer and The Bank of New York, as Depositary.
"DEPOSITARY" means the Person appointed as agent by the Issuer under
the Deposit Agreement for the purposes of maintaining records in which it shall
record the ownership, transfer and increases or decreases in the principal
amount of CDIs in a Global Senior Note, which initially shall be The Bank of New
York.
"DERIVATIVE TRANSACTION" means any transaction (including an agreement
with respect thereto) which is a rate swap transaction, basis swap, forward rate
transaction, commodity swap, commodity option, equity or equity index swap,
equity or equity index option, equity derivative transaction, bond option,
interest rate option, credit default swap, credit derivative transaction,
foreign exchange transaction (other than a spot foreign exchange transaction),
cap transaction, floor transaction, collar transaction, currency swap
transaction, cross-currency rate swap transaction, currency option, futures
contract, futures transaction, any other derivative contract or any other
similar transaction (including any option or future with respect to any of these
transactions), and any combination of these transactions.
"DISINTERESTED DIRECTOR" means, with respect to any transaction or
series of related transactions, a member of the Board of Directors of the Issuer
who does not have any material direct or indirect financial interest in or with
respect to such transaction or series of related transactions. Ownership of the
Issuer's Equity Interests and/or employment arrangements with the Issuer or any
of its Subsidiaries shall not constitute a material direct or indirect financial
interest in or with respect to a transaction or series of related transactions
not directly related to such ownership or such employment arrangement.
"DISINTERESTED OFFICER" means, with respect to any transaction or
series of related transactions, an Officer of the Issuer who does not have any
material direct or indirect financial interest in or with respect to such
transaction or series of related transactions. Ownership of the Issuer's Equity
Interests and/or employment arrangements with the Issuer or any of its
Subsidiaries shall not constitute a material direct or indirect financial
interest in or with respect to a transaction or series of related transactions
not directly related to such ownership or such employment arrangement.
"DISQUALIFIED STOCK" means any Capital Stock that, by its terms (or by
the terms of any security into which it is convertible, or for which it is
exercisable or exchangeable, in each case at the option of the holder of the
Capital Stock), or upon the happening of any event, matures or is mandatorily
redeemable, pursuant to a sinking fund obligation or otherwise, or is redeemable
at the option of the holder of the Capital Stock, in whole or in part, on or
prior to the date that is
Schedule 3 - 12
one year after the date on which the Senior Notes mature. Notwithstanding the
preceding sentence, any Capital Stock that would constitute Disqualified Stock
solely because the holders of the Capital Stock have the right to require the
Issuer to repurchase such Capital Stock upon the occurrence of a change of
control or an asset sale will not constitute Disqualified Stock if the terms of
such Capital Stock provide that the Issuer may not repurchase or redeem any such
Capital Stock pursuant to such provisions unless such repurchase or redemption
complies with Section 4.04 (Restricted Payments).
"DISTRIBUTION AGENT" means The Bank of New York as distribution agent
pursuant to the Escrow and Distribution Agreement and any successor from time to
time.
"DOLLAR EQUIVALENT" means, with respect to any monetary amount in a
currency other than United States dollars, at any time of determination thereof,
the amount of United States dollars obtained by translating the amount of such
foreign currency into United States dollars at the spot rate for the purchase of
United States dollars with the applicable foreign currency as published in the
Wall Street Journal on the date that is two (2) New York Business Days prior to
such determination.
Except as set forth in Section 4.07 (Limitation on Indebtedness and
Preferred Stock), whenever it is necessary to determine compliance with any
covenant that contains an amount expressed in United States dollars in this
Indenture and an amount is expressed in a currency other than United States
dollars, such amount will be treated as the Dollar Equivalent determined as of
the date such amount is initially determined in such other currency.
"DTC" means The Depository Trust Company or its nominee.
"ENFORCEMENT EVENT" means the acceleration of any Secured Obligations
(other than Secured Obligations arising under the New Bonding Facility
Agreement) or any declaration that any Secured Obligations (other than Secured
Obligations arising under the New Bonding Facility Agreement) are prematurely
due and payable (other than solely as a result of it becoming unlawful for a
Secured Creditor to perform its obligations under the Relevant Documents) or any
failure by any Obligor to pay any principal amount in respect of any Secured
Obligations (other than Secured Obligations arising under the New Bonding
Facility Agreement) whether on maturity or otherwise.
"EQUITY INTERESTS" means Capital Stock and all warrants, options or
other rights to acquire Capital Stock (but excluding any debt security that is
convertible into, or exercisable or exchangeable for, Capital Stock).
"ESCROW ACCOUNTS" means the Mandatory Redemption Escrow Accounts and
the Existing Performance Bond Escrow Accounts established pursuant to the Escrow
Agreement.
"ESCROW AGREEMENT" means the escrow agreement dated on or about the
date of the Security Trust and Intercreditor Deed and made between HSBC Bank plc
as New Bonding Facility Agent and New Bonding Facility Security Trustee, the
Security Trustee, the Escrow Bank and the Issuer establishing and setting out
the terms and conditions of each of the Escrow Accounts.
"ESCROW AND DISTRIBUTION AGREEMENT" means the escrow and distribution
agreement dated March 27, 2003 between the Issuer, Marconi plc, the security
trustee named therein, The
Schedule 3 - 13
Bank of New York as distribution agent, The Law Debenture Trust Corporation
p.l.c., Ancrane, Bondholder Communications Group and the Supervisors (as defined
therein) with respect to the Restructuring.
"ESCROW BANK" means the Person acting as Escrow Bank under the Escrow
Agreement, which initially shall be HSBC Bank plc.
"ESOP ESCROW AGREEMENT" means the ESOP escrow agreement dated December
13, 2002 between Marconi plc, the Issuer, HSBC Bank plc and Barclays Bank PLC.
"EURO" or "E" means the currency introduced at the start of the third
stage of the European economic and monetary union pursuant to the Treaty
establishing the European Community, as amended by the Treaty on European Union.
"EUROCLEAR" means Euroclear Bank S.A./N.V.
"EUROPEAN UNION" means the European Union, including the countries of
Austria, Belgium, Denmark, France, Finland, Germany, Greece, Ireland, Italy,
Luxembourg, the Netherlands, Portugal, Spain, Sweden and the United Kingdom, but
not including any country which becomes a member of the European Union after the
Issue Date.
"EVENT OF DEFAULT", when used with respect to the Senior Notes, has the
meaning set forth in Section 6.01 (Events of Default).
"EXCLUDED ASSET SALE AND LIQUIDATION PROCEEDS" means (1) the first
L82 million (or the Sterling Equivalent) of Net Proceeds and/or Liquidation
Proceeds received by the Issuer and its Subsidiaries with respect to Excluded
Assets, minus (2) the aggregate Net Proceeds and/or Liquidation Proceeds
received by the Issuer and its Subsidiaries with respect to Excluded Assets
prior to the Issue Date.
"EXCLUDED ASSETS" means assets, rights and properties that have been
identified as such in writing by the Issuer to the Trustee, the Junior Note
Trustee and the Security Trustee and that have been confirmed in writing by
PricewaterhouseCoopers.
"EXISTING INDEBTEDNESS" means Indebtedness of the Issuer and its
Subsidiaries (other than Indebtedness owed to the Issuer or any Subsidiary of
the Issuer) in existence (i) on the Scheme Launch Date or (ii) incurred after
the Scheme Launch Date and in existence on the Issue Date and as set forth in
Schedule 3 (Existing Indebtedness incurred after the Scheme Launch Date) hereto,
in each case until such amounts are repaid.
"EXISTING INTERCOMPANY INDEBTEDNESS" means Indebtedness owed by the
Issuer or any of its Subsidiaries to the Issuer or any other Subsidiary of the
Issuer (for purposes of this definition, the "CREDITOR") on the Issue Date, in
each case until such amounts are repaid, provided that (1) in the event a
particular Subsidiary of the Issuer is the creditor in respect of Indebtedness
of the Issuer and all its Subsidiaries that in the aggregate exceeds L20 million
(or the Sterling Equivalent), such creditor Subsidiary is a party to the
Security Trust and Intercreditor Deed and (2) such Indebtedness is unsecured.
For purposes of this definition, any Subsidiary of the Issuer that owns or holds
any shares of Preferred Stock or Disqualified Stock issued by the Issuer or any
of its other Subsidiaries shall constitute the creditor with respect to such
Preferred Stock or Disqualified Stock.
Schedule 3 - 14
"EXISTING PERFORMANCE BOND ESCROW ACCOUNT" means the Escrow Accounts
established pursuant to the Escrow Agreement to be used to satisfy certain
obligations of the Issuer and its Subsidiaries to provide cash collateral under
Existing Performance Bonds.
"EXISTING PERFORMANCE BONDS" means surety bonds, appeal bonds, bid
bonds, performance bonds, letters of credit, bank guarantees or other
obligations of a like nature issued by a bank, insurance company or other
financial institution on behalf of the Issuer or any of its Subsidiaries in
existence on the Issue Date and not issued pursuant to the Interim Bonding
Facilities, until such bonds, letters of credit, guarantees or other obligations
expire, terminate or are cancelled.
"EXTERNAL ASSETS" means, with respect to any specified Person on any
date, the total assets of such Person, after eliminating intercompany assets and
investments in Subsidiaries, on such date and in accordance with Floating UK
GAAP.
"EXTERNAL SALES" means, with respect to any specified Person for any
period, the total revenues of such Person, after eliminating intercompany sales,
for such period and in accordance with Floating UK GAAP.
"FAIR MARKET VALUE" means, with respect to any asset, right or
property, the sale value that would be obtained in an arm's-length free market
transaction between an informed and willing seller and an informed and willing
buyer.
"FIXED UK GAAP" means generally accepted accounting principles
applicable in the United Kingdom including Financial Reporting Standards and
Statements of Standard Accounting Practices issued by the Accounting Standards
Board Limited and as in effect on March 31, 2003.
"FLOATING UK GAAP" means generally accepted accounting principles
applicable in the United Kingdom including Financial Reporting Standards and
Statements of Standard Accounting Practices issued by the Accounting Standards
Board Limited and as in effect from time to time.
"GERMAN IP GUARANTOR" means Marconi Communications GmbH, a private
company incorporated under the laws of Germany.
"GLOBAL SENIOR NOTES" means each global security in bearer form,
representing all or a part of the Senior Notes, without coupons for payments
attached, authenticated and delivered to the Holder of such Senior Notes or such
portion of such Senior Notes in accordance with Section 2.05 (Execution,
Authentication, Delivery and Dating).
"GROUP" means all the Group Companies.
"GROUP COMPANY" means the Issuer or any Subsidiary of the Issuer.
"GROUP LICENCE AGREEMENT" means the intra-group licence agreement among
the Issuer and the operating companies within the Group dated on or before the
Issue Date providing for a licence authorizing the Issuer and each of its
Subsidiaries to use the Intellectual Property of each of them to the extent that
such use is ongoing on the Issue Date.
Schedule 3 - 15
"GUARANTEE" means a guarantee, direct or indirect, of the obligation of
another Person in any manner including, without limitation, by way of a pledge
of assets or through letters of credit or reimbursement agreements in respect
thereof, of all or any part of any Indebtedness of any Person. The term
"GUARANTEE" shall not include endorsements for collection or deposit in the
ordinary course of business. The term "GUARANTEE" used as a verb has a
corresponding meaning.
"GUARANTEE OF THE JUNIOR NOTES" means the Guarantee of the Junior Notes
by the Guarantors executed and delivered pursuant to Article 11 of the Junior
Note Indenture.
"GUARANTEE OF THE SENIOR NOTES" means the Guarantee of the Senior Notes
by the Guarantors executed and delivered pursuant to Article 11 of this
Indenture.
"GUARANTORS" means each Non-US Guarantor and each US Guarantor.
"HIGHLY RATED FINANCIAL COUNTERPARTY" means a bank or financial
institution whose financial obligations are rated P-1 by ▇▇▇▇▇'▇ Investors
Service, Inc. or A-1 by Standard and Poor's Rating Services (or any successor to
the ratings business of either of the foregoing) or the equivalent rating
category of another internationally recognized rating agency.
"HOLDER" means (i) for so long as any Senior Notes are represented by
one or more Global Senior Notes, the bearer thereof which shall be the
Depositary and (ii) in the event that Definitive Registered Senior Notes are
issued, the Person in whose name a Definitive Registered Senior Note is
registered on the Registrar's books.
"INDEBTEDNESS" means, with respect to any specified Person, without
duplication:
(1) all indebtedness of such Person for borrowed money;
(2) all obligations of such Person evidenced by bonds, notes,
debentures, loan stock or similar instruments;
(3) all obligations, contingent or otherwise, of such Person in
respect of surety bonds, appeal bonds, bid bonds, performance
bonds or other obligations of a like nature;
(4) all obligations, contingent or otherwise, of such Person in
respect of letters of credit, banker's acceptances, bank
guarantees, acceptance or other similar facilities, in each
case, including reimbursement obligations or agreements in
respect thereof;
(5) all Capital Lease Obligations of such Person;
(6) all obligations created or arising under any conditional sale
or other title retention agreement with respect to property
acquired by such Person (even if the rights and remedies of
the seller or lender under such agreement in the event of
default are limited to repossession or sale of such property),
and all obligations of such Person representing the balance
deferred and unpaid of the purchase price of any property or
services, but in each case excluding trade payables and other
accrued current liabilities arising in the ordinary course of
business;
Schedule 3 - 16
(7) all Attributable Debt with respect to any Sale and Leaseback
Transaction of such Person;
(8) receivables sold or discounted (including, for the avoidance
of doubt, transactions having the economic effect of a sale or
discounting of receivables) by such Person, provided that
receivables to the extent they are sold or discounted on a
non-recourse basis shall be disregarded, and for this purpose,
where recourse:
(a) is limited to the receivables sold; and/or
(b) arises as a result of breach of warranties (or the
equivalent), including warranties (or the equivalent)
regarding the validity and enforceability of the
receivables sold but excluding warranties (or the
equivalent) in respect of the creditworthiness of the
receivable debtor;
the sale or discounting of such receivable shall be deemed to
be on a non-recourse basis;
(9) any amount raised under any other transaction by such Person
(including any forward sale or purchase agreement) having the
commercial effect of a borrowing, excluding trade payables and
other accrued current liabilities arising in the ordinary
course of business;
(10) all obligations of such Person under any Derivative
Transaction (the amount of any such obligations to be equal at
any time to the termination value of such agreement or
arrangement giving rise to such obligation that would be
payable by such Person at such time);
(11) the greater of the voluntary or involuntary maximum fixed
repurchase price of all Disqualified Stock of such Person; and
(12) any Preferred Stock issued by such Person, other than the
Issuer.
In addition, the term "Indebtedness" includes all Indebtedness of other
Persons, the payment of which is secured by (or for which the holder of such
Indebtedness has an existing right, contingent or otherwise, to be secured by)
any Lien upon or with respect to any asset or property of the specified Person
(whether or not such Indebtedness is assumed by the specified Person) and, to
the extent not otherwise included, any Guarantee or indemnity of the specified
Person with respect to any Indebtedness of any other Person.
The amount of any Indebtedness outstanding as of any date will be:
(1) in the case of any Indebtedness issued with original issue
discount, the accreted value of the Indebtedness; and
(2) in the case of any other Indebtedness, the principal amount of
the Indebtedness, together with any interest on the
Indebtedness that is more than 30 days past due.
Schedule 3 - 17
"INDENTURE" means this instrument as originally executed or as it may
from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof.
"INDENTURES" means this Indenture and the Junior Note Indenture.
"INITIAL SECURITY DOCUMENTS" means the security documents to be dated
on or before the Issue Date that are set forth in Schedule 2 (Initial Security
Documents) hereto.
"INITIAL TRANSACTION SECURITY" means all assets, properties and rights
of the Issuer and its Subsidiaries that are subject to Liens pursuant to the
terms and provisions of the Initial Security Documents in order to secure the
Secured Obligations.
"INTELLECTUAL PROPERTY" means all industrial and intellectual property
rights whether registered or not including pending applications for registration
of such rights and the right to apply for registration of such rights including
but not limited to Patents, utility models, design patents, registered designs,
design rights, trade and service marks, copyrights (including copyright and
equivalent rights in computer software), rights in inventions, technical
information, rights in know-how, business names, database rights, processes,
models, formulae and experiments and all rights of equivalent or similar effect
to any of those which may subsist anywhere in the world.
"INTELLECTUAL PROPERTY LICENCE AGREEMENTS" means (1) the licences from
the IPR SPVs (and in the case of the German IP Guarantor, the Security Trustee)
to the relevant Subsidiaries of the Issuer, (2) the Research and Development
Cost Sharing Agreement and (3) the Group Licence Agreement.
"INTERIM BONDING FACILITIES" means (1) the interim bonding facility
dated May 10, 2002, as amended, among Barclays Bank PLC, HSBC Bank plc and
JPMorgan Chase Bank and Marconi Bonding Limited 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 and (2) the temporary
bonding facility dated February 8, 2002 among Barclays Bank PLC, HSBC Bank plc
and Marconi Bonding Limited 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.
"INTRA-GROUP LIABILITIES" means all present or future sums, liabilities
and obligations whatsoever (actual or contingent) payable, owing, due or
incurred by any Intra-Group Borrower (as defined in the Security Trust and
Intercreditor Deed) to any Intra-Group Creditor (as defined in the Security
Trust and Intercreditor Deed) (whether pursuant to an Intra-Group Document (as
defined in the Security Trust and Intercreditor Deed) or otherwise), other than
sums, liabilities and obligations arising in the ordinary course of business
which do not constitute Indebtedness.
"INVESTMENTS" means, with respect to any Person, all direct or indirect
investments by such Person in other Persons (including Subsidiaries and
Affiliates of such Person) in the form of loans (including Guarantees or similar
arrangements), advances (by means of any transfer of cash or other property to a
Person other than the Issuer or any of its Subsidiaries or any payment for
property or services for the account or use of a Person other than the Issuer or
any of its Subsidiaries), or capital contributions or purchases or other
acquisitions for consideration of
Schedule 3 - 18
Indebtedness, Equity Interests or other securities, together with all items that
are or would be classified as investments on a balance sheet prepared in
accordance with Floating UK GAAP. The acquisition by the Issuer or any
Subsidiary of the Issuer of a Person that becomes a Subsidiary of the Issuer or
any Subsidiary of the Issuer and that holds an Investment in a third Person will
be deemed to be an Investment by the Issuer or such Subsidiary in such third
Person in an amount equal to the Fair Market Value of the Investment held by the
acquired Person in such third Person in an amount determined as provided in
Section 4.04 (Restricted Payments).
"IPR SPV" means each of UK IPR Co, US IPR Co and Ringfenced IPR Co.
"ISRAELI ESOP ESCROW AGREEMENT" means the escrow agreement dated
October 21, 2002 between the Issuer, Marconi plc, HSBC Bank plc, Barclays Bank
PLC, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Trustees Limited and ▇▇▇▇▇ & Overy.
"ISSUE DATE" means the date on which the Senior Notes are first
originally issued.
"ISSUER" means Marconi Corporation plc and any successor thereto.
"ISSUER REQUEST" and "ISSUER ORDER" means, respectively, a written
request or order signed in the name of the Issuer by any Officer and delivered
to the Paying Agent or the Trustee (as the case may be).
"ITALIAN EASY LOANS" means the subsidized loans existing as of the
Issue Date granted by the Italian Ministry of Productive Activities (formerly,
Ministry of Industry), either directly or through its authorized agents, in
favor of Marconi Communications S.p.A. and Marconi Sud S.p.A. or any other
Subsidiary of the Issuer incorporated or organized under the laws of Italy
pursuant to the provisions of Law No. 46 dated February 17, 1982 and Legislative
Decree No. 297 dated July 27, 1999.
"ITALIAN INVOICE DISCOUNTING" means the discounting or factoring
(including, for the avoidance of doubt, transactions having the economic effect
of discounting or factoring) by Non-US Subsidiaries incorporated or organized
under the laws of Italy of trade receivables owed to such Non-US Subsidiaries in
the ordinary course of business on arm's-length terms, provided that (1) the
aggregate gross proceeds received from all such trade receivables discounted or
factored from and after the Issue Date does not exceed (euro)60 million (or the
equivalent in other currencies) and (2) such discounting or factoring is on a
non-recourse basis within the meaning specified in clause (8) of the definition
of Indebtedness.
"ITALIAN MORTGAGES" means mortgages over real property constituting
Transaction Security granted by Marconi Communications S.p.A. and Marconi Sud
S.p.A.
"JUNIOR NOTE INDENTURE" means the indenture dated as of May 19, 2003
between and among Marconi Corporation plc as issuer, the initial guarantors
named therein and JPMorgan Chase Bank as trustee, governing the Junior Notes, as
originally executed or as it may from time to time be supplemented or amended by
one or more indentures supplemental thereto entered into pursuant to the
applicable provisions thereof.
"JUNIOR NOTE INTEREST PAYMENT DATE" means each January 31, April 30,
July 31 and October 31, commencing July 31, 2003.
Schedule 3 - 19
"JUNIOR NOTE TRUSTEE" means JPMorgan Chase Bank or any successor
trustee appointed pursuant to the applicable provisions of the Junior Note
Indenture.
"JUNIOR NOTES" means the Guaranteed Junior Secured Notes due 2008
issued by the Issuer pursuant to the Junior Note Indenture.
"JUNIOR PIK NOTES" means any Junior Notes issued in payment of interest
or Additional Amounts (as defined in the Junior Note Indenture) on outstanding
Junior Notes pursuant to the Junior Note Indenture.
"LIEN" means, with respect to any asset or property, any mortgage or
deed of trust, lien (statutory or otherwise), pledge, charge, security interest,
assignment, deposit, easement, hypothecation, or other encumbrance of any kind
upon or in respect of such asset or property, whether or not filed, recorded or
otherwise perfected under applicable law, including any conditional sale,
capital lease or other title retention agreement, any lease in the nature
thereof, any agreement to give a charge, mortgage or other security interest in
and any filing of or agreement to give any financing statement under a statute
or regulation of any jurisdiction.
"LIQUIDATION PROCEEDS" means the aggregate cash and Cash Equivalents
received by the Issuer or any of its Subsidiaries (i) in respect of the
liquidation, dissolution or winding up of any Subsidiary of the Issuer in its
capacity as holder of any Equity Interest in such Subsidiary that occurs
following or otherwise in connection with the sale of all or substantially all
the assets of such Subsidiary to a Person other than the Issuer or any of its
Subsidiaries or (ii) in respect of the liquidation, dissolution or winding up of
any Investment in a Person other than the Issuer or any of its Subsidiaries that
is owned by the Issuer or a Subsidiary of the Issuer, net of, without
duplication:
(1) any cash investment in, or payment or repayment of any
Indebtedness or other liability of, any Subsidiary of the
Issuer being liquidated, dissolved, placed under
administration or wound-up that is made by the Issuer or any
other Subsidiary of the Issuer contemporaneously with such
liquidation, dissolution, administration or winding-up, but
only to the extent of the amount of such cash investment,
payment or repayment;
(2) the direct costs actually incurred by the Issuer or such
Subsidiary including, without limitation, legal, accounting
and investment banking fees, sales commissions, and taxes
required to be paid or accrued as a liability under Floating
UK GAAP as a consequence of such liquidation, dissolution,
administration or winding-up, in each case, after taking into
account any available tax credits or deductions and any tax
sharing arrangements; and
(3) all distributions and other payments required to be made to
minority interest holders in any Subsidiary of the Issuer as a
result of such liquidation, dissolution, administration or
winding-up.
"LONDON BUSINESS DAY" means a day (other than a Saturday or Sunday) on
which commercial banks in London are open for general business.
"MAKE-WHOLE AMOUNT" means, with respect to the Senior Notes and any
Repayment Date, an amount equal to the sum of the present values of the
remaining scheduled payments of
Schedule 3 - 20
principal and interest after such Repayment Date on the Senior Notes discounted
to the Repayment Date on a quarterly basis (assuming a 360-day year consisting
of twelve 30-day months) at the Adjusted Treasury Rate as determined by an
independent investment banking firm in London (selected by the Issuer).
"MANDATORY REDEMPTION ESCROW ACCOUNT" means the Escrow Account
established pursuant to the Escrow Agreement to receive deposits to be applied
to, inter alia, the mandatory redemption of the Junior Notes and/or the Senior
Notes.
"MCHI" means Marconi Holdings, LLC, a Delaware limited liability
company, previously known as Marconi Communications Holdings, Inc., a Delaware
Corporation.
"MCHI PLAN OF LIQUIDATION AND DISSOLUTION" means the Plan of Complete
Liquidation and Dissolution adopted and approved by the Board of Directors and
stockholders, respectively, of MCHI in March 2001 as in effect on the Issue
Date.
"MOBILE ESOP ESCROW AGREEMENT" means the escrow agreement dated August
2, 2002 between the Issuer, Marconi plc, Marconi ▇▇▇▇▇▇ Street Limited, HSBC
Bank plc, Barclays Bank PLC, Salomon Brothers International Limited, UBS AG,
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Trustees Limited and ▇▇▇▇▇▇▇▇▇ and May.
"NET PROCEEDS" means the aggregate cash and Cash Equivalents received
by the Issuer or any of its Subsidiaries in respect of any Asset Sale
(including, without limitation, payments in respect of deferred payment
arrangements (to the extent corresponding to the principal, but not interest,
component thereof) when received in the form of, and any non-cash consideration
received in any Asset Sale when disposed of for, cash or Cash Equivalents), net
of, without duplication (but in each case provided that the Issuer may, in its
discretion, elect not to deduct all or any portion of the following amounts from
the aggregate cash and Cash Equivalents received):
(1) all legal, title and recording tax expenses, commissions and
other fees and expenses incurred (including fees and expenses
of counsel, accountants and investment bankers) in connection
with such Asset Sale;
(2) all taxes required to be paid or accrued as a liability under
Floating UK GAAP, consistently applied, as a consequence of
such Asset Sale, in each case, after taking into account any
available tax credits or deductions and any tax sharing
arrangements;
(3) all distributions and other payments required to be made to
minority interest holders in any Subsidiary of the Issuer as a
result of such Asset Sale;
(4) amounts required to be applied to the repayment of
Indebtedness secured by a Lien on the assets, properties or
rights that were the subject of such Asset Sale, or
Indebtedness which pursuant to applicable law must be repaid
out of the proceeds of such Asset Sale;
(5) amounts required to be applied to the repayment of Existing
Indebtedness which by its terms, or in order to obtain a
necessary consent to such Asset Sale, must be repaid out of
the proceeds of such Asset Sale;
Schedule 3 - 21
(6) the provision of appropriate amounts by the Issuer or any of
its Subsidiaries as a reserve against any liabilities and/or
indemnification obligations retained and/or assumed by the
Issuer or any of its Subsidiaries pursuant to such Asset Sale,
as determined in accordance with, and only to the extent
required by, Floating UK GAAP, as reflected in an Officers'
Certificate of the Issuer delivered to the Trustee; and
(7) to the extent required pursuant to any binding agreement
between the Pension Benefit Guaranty Corporation and the
Issuer or its Subsidiaries (a "PBGC AGREEMENT"), any amount
contributed to the Marconi USA Employees' Retirement Plan or
the RELTEC Corporation Retirement Plan (or any successor plans
thereto) for any Affected Pension Participants representing
not more than the allocable portion of any underfunding under
such pension plan or plans attributable to Affected Pension
Participants, to the extent that, in connection with such
Asset Sale, the assets and liabilities under the applicable
pension plan or plans attributable to such Affected Pension
Participants are not transferred to a pension plan maintained
by or on behalf of the acquirer in such Asset Sale (for
purposes of this clause (7) the net underfunding shall be
computed based on the present value of the applicable plan's
assets and liabilities as of the date of the Asset Sale and
using the applicable actuarial assumptions then being used by
the Pension Benefit Guaranty Corporation of the United States
for purposes of calculating plan termination liability and
using such other actuarial assumptions and methods considered
reasonable by the Issuer to determine such liabilities on the
sale date based on employee data as of the previous plan
valuation date updated to reflect significant demographic
changes or, if less, in accordance with any PBGC Agreement),
it being understood that, to the extent required under a PBGC
Agreement upon the sale of the Outside Plant and Power
Business or, if later, the sale of the North American Access
Business, the RELTEC Corporation Retirement Plan shall be
fully funded or the sponsorship thereof transferred to a
third-party buyer of either such business unit;
provided, however, that if either (i) the instrument or agreement governing such
Asset Sale requires the transferor to maintain a portion of the purchase price
in escrow or otherwise segregate and set aside a portion of the purchase price,
whether as a reserve for adjustment of the purchase price or otherwise, for a
period not in excess of nine months or (ii) the Issuer, in its reasonable
judgment, determines that it is desirable to segregate and set aside funds as a
reserve for post-closing adjustments to the purchase price or post-closing
balance sheet adjustments for a period not in excess of nine months, the portion
of the cash or Cash Equivalents that is actually placed in escrow or segregated
and set aside by the transferor shall not be deemed to be Net Proceeds until the
escrow terminates or the transferor ceases to segregate and set aside such
funds, in whole or in part, and then only to the extent of the proceeds released
from escrow to the transferor or that are no longer segregated and set aside by
the transferor.
For the avoidance of doubt, the term "Net Proceeds" shall also include
those amounts described as such in subclause (b) of Section 4.05 (Purchase and
Cancellation of Notes).
"NEW BONDING FACILITY AGREEMENT" means the L50 million committed
revolving bonding facility agreement dated March 27, 2003 among the Issuer,
Marconi Bonding Limited, the New
Schedule 3 - 22
Bonding Facility Security Trustee, certain New Bonding Facility Banks and
certain Non-US 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 the Issuer and/or any Non-US
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); provided that (1) the aggregate principal amount of Indebtedness at
any one time outstanding thereunder shall not exceed L50 million (or the
Sterling Equivalent) and (2) the term of such facility shall not extend beyond
the date that is 30 months after the Issue Date (but, for the avoidance of
doubt, Indebtedness and other obligations incurred or arising under such
facility on or prior to the date that is 30 months after the Issue Date may
extend beyond such date in accordance with the provisions of such facility).
"NEW BONDING FACILITY BANKS" means those banks party to the Security
Trust and Intercreditor Deed as New Bonding Facility Banks.
"NEW BONDING FACILITY FUNDING AMOUNT" means at any time the lesser of
(i) L25,000,000 (or the Sterling Equivalent) and (ii) one half of the aggregate
facility limit under the New Bonding Facility Agreement.
"NEW BONDING FACILITY SECURITY TRUSTEE" means HSBC Bank plc or any
successor appointed as agent and security trustee pursuant to the New Bonding
Facility Agreement.
"NEW PATENT" means any Patent for which an application for a Patent is
filed by an IPR SPV, a UK IP Opco or a US IP Opco after the Effective Date.
"NEW YORK BUSINESS DAY" means a day (other than a Saturday or Sunday)
on which commercial banks in New York City and the Corporate Trust Office of the
Trustee are open for general business.
"NON-US GUARANTOR" means each of:
(1) Metapath Software International Limited
Mobile Systems International Holdings Limited
GPT Special Project Management Limited
Marconi Communications Limited, a private limited company
incorporated under the laws of England and Wales
Marconi Communications International Limited
Marconi Communications China Limited
Marconi Communications International Investments Limited
Marconi Communications International Holdings Limited
Marconi Communications Investments Limited
Marconi Communications Holdings Limited
Marconi (▇▇▇▇▇▇ Street) Limited
Marconi (DGP1) Limited
Marconi (DGP2) Limited
Marconi Bonding Limited
Marconi Optical Components Limited
Schedule 3 - 23
Associated Electrical Industries Limited
English Electric Company Limited
Marconi (▇▇▇▇▇▇▇ Automation) Limited
▇▇▇▇▇▇▇ Automation Holdings Limited
Marconi Aerospace Unlimited
Marconi UK Intellectual Property Limited
Marconi (NCP) Limited
Highrose Limited
Marconi Inc.
Marconi Holdings, LLC
Marconi Communications North America Inc.
FS Holdings Corp.
FS Finance Corp.
Marconi Software International, Inc.
Metapath Software International (US), Inc.
Metapath Software International, Inc.
Marconi Intellectual Property (US), Inc.
Marconi Communications Holdings GmbH
Marconi Communications GmbH, a private company incorporated
under the laws of the Federal Republic of Germany
Marconi Communications Real Estate GmbH
Marconi Holdings S.p.A.
Marconi Communications S.p.A.
Marconi Sud S.p.A. (to the extent provided in Section 11.01)
Marconi Communications Telemulti Ltda. (to the extent provided
in Section 11.01)
Marconi Australia Holdings Pty Limited
Marconi Australia Pty Limited
Marconi Communications Asia Limited
G.E.C. (Hong Kong) Limited
▇▇▇▇▇▇ Street Overseas Investments Limited; and
Regents Place, Inc.;
(2) any other Non-US Subsidiary that executes a Guarantee of the
Senior Notes pursuant to this Indenture; and
(3) each of their respective successors.
"NON-US SUBSIDIARY" means any Subsidiary of the Issuer other than a US
Subsidiary.
"NORTH AMERICAN ACCESS BUSINESS" means that portion of the network
equipment business of the US Subsidiaries comprising the North American access
systems business, which develops, manufactures, markets and sells last-mile
copper and fiber digital network equipment for the connection of business and
consumer end-users to communications networks in the United States and Canada
(including a service provider's switch or local exchange or an internet service
provider), but excluding the Outside Plant and Power Business and the BBRS
Business.
Schedule 3 - 24
"NOTE TRUSTEES" means the Trustee and the Junior Note Trustee
collectively, or either of them, if the context requires.
"OBLIGATIONS" means any principal, premium, make-whole amounts,
interest, penalties, fees, expenses, indemnifications, reimbursements, damages
and other liabilities (including, without limitation, contingent and prospective
liabilities) payable under the documentation governing any Indebtedness.
"OBLIGOR" means each of the Issuer and each Guarantor, including any
Additional Guarantor.
"OFFICER" means, with respect to the Issuer or any Guarantor, the chief
executive officer, the chief financial officer, the chief accounting officer,
the company secretary or any managing director, director or assistant company
secretary of the Issuer or such Guarantor.
"OFFICERS' CERTIFICATE" means, with respect to the Issuer or any
Guarantor, a certificate signed in the name of the Issuer or such Guarantor, as
the case may be, by any two Officers of the Issuer or such Guarantor, as the
case may be (or, to the extent such Officers' Certificate is delivered in
compliance with the Trust Indenture Act, such officers as shall be required
thereunder), complying with the requirements of Section 13.03 (Certificate and
Opinion as to Conditions Precedent) and Section 13.04 (Statements Required in
Certificate or Opinion), as applicable.
"OPINION OF COUNSEL" means a written opinion of counsel, who may be an
employee of or counsel for the Issuer or any Guarantor, and who shall be
reasonably acceptable to the Trustee.
"OPINION OF OUTSIDE COUNSEL" means a written opinion of counsel which
is issued by a Person who is a counsel of recognized standing in the relevant
jurisdiction and who is not an employee or consultant (other than non-employee
legal counsel) of the Issuer or any Guarantor.
"OPTIONAL REDEMPTION PRICE" means an amount per Senior Note equal to
the greater of (1) the applicable Make-Whole Amount for such Senior Note and (2)
110% of the principal amount of such Senior Note, plus in each case accrued and
unpaid interest and Additional Amounts, if any, to the relevant Repayment Date.
"OUTSIDE PLANT AND POWER BUSINESS" means that portion of the network
equipment access systems business of the US Subsidiaries that comprises outside
plant and power products that power, connect, protect or enclose parts of a
telecommunications network and services related to the installation,
engineering, maintenance and repair of and training for telecommunications
products.
"OUTSTANDING" means, as of any date of determination, in relation to
the Senior Notes all the Senior Notes issued other than:
(1) those Senior Notes which have been redeemed pursuant to this
Indenture;
(2) those Senior Notes in respect of which the date for redemption
in accordance with this Indenture has occurred and the
redemption moneys (including premium (if any) and all interest
and Additional Amounts, if any, payable
Schedule 3 - 25
thereon) have been duly paid to the Trustee or to the Paying
Agent in the manner provided in the Agency Agreement (and
where appropriate notice to that effect has been given to the
relevant Holders) and remain available for payment against
presentation of the relevant Senior Notes;
(3) those mutilated or defaced Senior Notes which have been
surrendered and cancelled and in respect of which replacements
have been issued;
(4) (for the purpose only of ascertaining the principal amount of
the Senior Notes outstanding and without prejudice to the
status for any other purpose of the relevant Senior Notes)
those Senior Notes which are alleged to have been lost, stolen
or destroyed and in respect of which replacements have been
issued; and
(5) any Global Senior Note to the extent that it shall have been
exchanged for another Global Senior Note or for Definitive
Registered Senior Notes pursuant to its provisions or the
provisions of this Indenture;
provided that for each of the following purposes, namely:
(i) the right to attend and vote at any meeting of the Holders or
any of them;
(ii) the determination of how many and which Senior Notes are for
the time being outstanding for the purposes of determining
whether the Required Holders have consented to the cessation
of a Payment Stop Event, the cancellation of a Standstill
Notice or for the purposes of Sections 6.01 (Events of
Default), 6.03 (Acceleration), 6.04 (Rescission and
Annulment), 6.10 (Limitations on Suits), 6.15 (Control by
Holders), 6.16 (Waiver of Past Default), 6.17 (Undertaking for
Costs), 7.10 (Resignation and Removal; Appointment of
Successors), 10.01 (Supplemental Indentures with the Consent
of Holders), 14.03 (Call and Notice of Meetings), 14.04
(Voting at Meetings) and 14.05 (Voting Rights, Conduct and
Adjournment);
(iii) any discretion, power or authority (whether contained in this
Indenture or vested by operation of law) which the Trustee is
required, expressly or impliedly, to exercise in or by
reference to the interests of the Holders or any of them; and
(iv) the determination by the Trustee whether any event,
circumstance, matter or thing is, in its opinion, materially
prejudicial to the interests of the Holders or any of them,
those Senior Notes (if any) (i) which are for the time being held by or
on behalf of the Issuer, a Guarantor, any of their respective
Subsidiaries or any Affiliate of any of the foregoing, in each case as
beneficial owner, and (ii) which are held in escrow pursuant to the
Escrow and Distribution Agreement for distribution to Scheme Creditors
shall (unless and until ceasing to be so held) be deemed not to remain
Outstanding.
"PARTICIPANTS" means participants of DTC, Euroclear and Clearstream,
Luxembourg.
"PATENTS" means all pending patent applications and registered patents.
Schedule 3 - 26
"PAYING AGENT" means initially The Bank of New York and thereafter, any
Person (other than the Issuer, any Guarantor or any Affiliate of the Issuer or
any Guarantor) authorized by the Issuer to authenticate the Senior Notes and to
pay the principal of, premium, if any, and interest and Additional Amounts, if
any, on any Senior Notes on behalf of the Issuer in accordance with the Agency
Agreement.
"PAYMENT STOP EVENT" means the occurrence of either of the following:
(1) the failure by an Obligor to pay on the due date any amount
payable under the Senior Notes or this Indenture, or
(2) the acceleration of the maturity of the Senior Notes following
the occurrence of an Event of Default under the Senior Notes
or this Indenture,
provided that a Payment Stop Event shall cease to be continuing if:
(a) the relevant Default under the Senior Notes or this Indenture
has been remedied or waived and any such acceleration has been
rescinded in accordance with this Indenture;
(b) the Required Holders of at least a majority in aggregate
principal amount of the then Outstanding Senior Notes consent
in writing to the cessation of such Payment Stop Event; or
(c) all Obligations under the Senior Notes and this Indenture have
been discharged in full and there are no further Obligations
under the Senior Notes or this Indenture.
"PERMITTED BUSINESS" means business of the general nature of the Issuer
and its Subsidiaries conducted on the Issue Date and businesses ancillary or
reasonably related or complementary thereto.
"PERMITTED CORE BUSINESS" means the telecommunications network
equipment and network services businesses conducted by the Issuer and its Non-US
Subsidiaries on the Issue Date, excluding the US Core Businesses.
"PERMITTED DEBT" means any of the following:
(1) Existing Indebtedness and Existing Intercompany Indebtedness;
(2) Permitted Refinancing Indebtedness;
(3) Indebtedness represented by the Senior Notes, the Junior
Notes, the Composite Guarantee, the Guarantee of the Senior
Notes and the Guarantee of the Junior Notes;
(4) Indebtedness of the Issuer or any Non-US Subsidiary incurred
in the ordinary course of business under the New Bonding
Facility Agreement or any Replacement New Bonding Facility
Agreement;
(5) Permitted Intra-Group Indebtedness;
Schedule 3 - 27
(6) Indebtedness of the Issuer and its Subsidiaries in respect of
surety bonds, appeal bonds, bid bonds, performance bonds,
letters of credit, bank guarantees or other obligations of a
like nature incurred in the ordinary course of business;
(7) Indebtedness of the Issuer and its Subsidiaries arising from
agreements for indemnification or purchase price adjustment or
similar obligations incurred or assumed in connection with the
disposition or purchase of any assets, provided, in the case
of a sale, that the maximum assumable liability in respect of
all such obligations shall at no time exceed the gross
proceeds actually received by the Issuer and its Subsidiaries
(including the Fair Market Value of any non-cash proceeds);
(8) Indebtedness of the Issuer and its Subsidiaries in respect of
workers' compensation and other claims or obligations arising
under or in connection with social security, welfare,
employment-related or similar regulation, or in connection
with self-insurance or similar requirements related thereto,
in each case arising in the ordinary course of business,
including for the avoidance of doubt, Guarantees of any
obligations of the foregoing nature;
(9) the accrual of interest on Indebtedness of the Issuer and its
Subsidiaries that has not been capitalized or added to the
principal amount of such Indebtedness or the accretion or
amortization of original issue discount with respect to
Indebtedness, which Indebtedness was in each case permitted by
another clause of this definition;
(10) Indebtedness of the Captive Insurance Company in an aggregate
principal amount at any one time outstanding not to
exceed L20 million (or the Sterling Equivalent);
(11) Indebtedness of the Issuer and its Subsidiaries consisting of
advance or extended payment terms in the ordinary course of
business provided that no Lien (other than a Permitted Lien)
is created in connection with such advance or extended payment
terms;
(12) Indebtedness of the Issuer and its Subsidiaries pursuant to
Permitted Hedging Transactions;
(13) the Guarantee by the Issuer or any Non-US Guarantor of
Indebtedness of the Issuer or any other Non-US Guarantor,
which Indebtedness is permitted by another clause of this
definition;
(14) the Guarantee by any US Guarantor that is not a US Core
Business Subsidiary of Indebtedness of any other US Guarantor
that is not a US Core Business Subsidiary, which Indebtedness
is permitted by another clause of this definition;
(15) the Guarantee by any US Core Business Subsidiary of
Indebtedness of another US Core Business Subsidiary engaged in
the same US Core Business, which Indebtedness is permitted by
another clause of this definition;
Schedule 3 - 28
(16) Indebtedness of any US Subsidiary under the US Working Capital
Facility in an aggregate principal amount at any one time
outstanding for all US Subsidiaries not to exceed US$22.5
million (or the Dollar Equivalent);
(17) Indebtedness of the Issuer or any of its Subsidiaries arising
from an indemnity or similar obligation to any export credit
agency or similar governmental or quasi-governmental entity of
any member state of the Organization for Economic Co-operation
and Development in each case in an amount not to exceed the
portion of the price to be paid to the Issuer or any of its
Subsidiaries under a contract for goods or services that is
guaranteed, insured or otherwise supported by such export
credit agency or similar governmental or quasi-governmental
entity and in an aggregate amount at any time outstanding not
to exceed L50 million (or the Sterling Equivalent);
(18) Indebtedness of the Issuer and the Non-US Subsidiaries in an
aggregate principal amount (or accreted value, as applicable)
at any time outstanding pursuant to this clause (18) which,
when aggregated with all other Indebtedness of the Issuer and
all Non-US Subsidiaries not permitted by any other clause of
this definition, does not exceed (a) in the event all
previously issued Junior Notes have been repaid in full and
there are no outstanding Obligations under the Junior Notes or
the Junior Note Indenture, L75 million (or the Sterling
Equivalent), or otherwise (b) L50 million (or the Sterling
Equivalent); and
(19) Indebtedness of the US Subsidiaries in an aggregate principal
amount (or accreted value, as applicable) at any time
outstanding pursuant to this clause (19) which, when
aggregated with all other Indebtedness of all US Subsidiaries
not permitted by any other clause of this definition, does not
exceed (a) in the event all previously issued Junior Notes
have been repaid in full and there are no outstanding
Obligations under the Junior Notes or the Junior Note
Indenture, US$15 million (or the Dollar Equivalent), or
otherwise (b) US$10 million (or the Dollar Equivalent).
"PERMITTED HEDGING TRANSACTION" means any Derivative Transaction that
is a currency option agreement or forward foreign exchange agreement entered
into by the Issuer or any of its Subsidiaries with any Person (other than the
Issuer or any of its Subsidiaries) (1) designed to protect against fluctuations
in currency values solely with respect to (a) trade receivables, (b) trade
payables, (c) the obligations of the Issuer to make payments of principal,
premium, if any, interest or Additional Amounts, if any, on the Senior Notes or
the Junior Notes or (d) consideration receivable in the form of cash or Cash
Equivalents pursuant to Asset Sales, and (2) other than in the case of clause
(1)(c), in the ordinary course of business and with a non-extendable term of not
more than 12 months.
"PERMITTED INTRA-GROUP HEDGING TRANSACTION" means any Derivative
Transaction that is a currency option agreement or forward foreign exchange
agreement between or among the Issuer and any of its Subsidiaries designed to
protect against fluctuations in currency values and entered into in the ordinary
course of business and on arm's-length pricing.
"PERMITTED INTRA-GROUP INDEBTEDNESS" means Indebtedness created,
incurred or acquired after the Issue Date and owed by the Issuer or any of its
Subsidiaries (for purposes of this
Schedule 3 - 29
definition, the "DEBTOR") to the Issuer or any of its Subsidiaries (for the
purposes of this definition, the "CREDITOR") that complies with the criteria set
out in one or more of the following clauses:
(1) the debtor is the Issuer or any Non-US Guarantor and the
creditor is the Issuer or any Non-US Guarantor; or
(2) the debtor is any US Guarantor and the creditor is any US
Guarantor; or
(3) the debtor is the Issuer or any Non-US Guarantor, the creditor
is any Non-US Subsidiary that is not a Non-US Guarantor and
the creditor is a direct or indirect Subsidiary of the debtor,
provided that, in the event such Indebtedness in respect of
which a particular Subsidiary of the Issuer is the creditor
exceeds an aggregate of L20 million (or the Sterling
Equivalent), such Subsidiary shall be a party to the Security
Trust and Intercreditor Deed; or
(4) the debtor is any US Guarantor, the creditor is any US
Subsidiary that is not a US Guarantor and the creditor is a
direct or indirect Subsidiary of the debtor, provided that, in
the event such Indebtedness in respect of which a particular
Subsidiary of the Issuer is the creditor exceeds an aggregate
of L20 million (or the Sterling Equivalent), such Subsidiary
shall be a party to the Security Trust and Intercreditor Deed;
or
(5) the debtor is a Non-US Subsidiary that is not a Non-US
Guarantor and the creditor is any other Non-US Subsidiary that
is not a Non-US Guarantor; or
(6) the debtor is a US Subsidiary that is not a US Guarantor and
the creditor is any other US Subsidiary that is not a US
Guarantor; or
(7) the debtor is a Non-US Subsidiary that is not a Non-US
Guarantor, the creditor is the Issuer or a Non-US Guarantor,
and the aggregate principal amount of all such Indebtedness
outstanding pursuant to this clause does not at any time
exceed L50 million (or the Sterling Equivalent); or
(8) the debtor is a US Subsidiary that is not a US Guarantor, the
creditor is a US Guarantor, and the aggregate principal amount
of all such Indebtedness outstanding pursuant to this clause
does not at any time exceed US$30 million (or the Dollar
Equivalent); or
(9) the debtor is the Issuer or a Non-US Guarantor that directly
or indirectly owns all of the Equity Interests of the US
Parent and the creditor is a US Subsidiary; or
(10) such Indebtedness is incurred under a Permitted Intra-Group
Hedging Transaction; or
(11) the debtor is a Non-US Subsidiary that is not a Non-US
Guarantor and such Indebtedness arises by virtue of a
counter-indemnity obligation owed to Marconi Bonding Limited
with respect to Marconi Bonding Limited's obligation under any
surety bond, appeal bond, bid bond, performance bond,
Schedule 3 - 30
letter of credit, bank guarantee or other obligation of a like
nature issued for the account or benefit of such Non-US
Subsidiary; or
(12) the debtor is a US Subsidiary that is not a US Guarantor and
such Indebtedness arises by virtue of a counter-indemnity
obligation owed to a US Guarantor with respect to such US
Guarantor's obligation under any surety bond, appeal bond, bid
bond, performance bond, letter of credit, bank guarantee or
other obligation of a like nature issued for the account or
benefit of such US Subsidiary, provided that if such US
Guarantor is a US Core Business Subsidiary, such US Subsidiary
is engaged in the same US Core Business as such US Guarantor;
or
(13) the debtor is a US Subsidiary and the creditor is the Issuer
or any other Subsidiary of the Issuer pursuant to a loan the
proceeds of which are used solely to pay the costs of the
liquidation, administration, dissolution, closure, suspension
of business or winding up of such US Subsidiary or a
termination of a business or operation of such US Subsidiary;
or
(14) the debtor is a Subsidiary of the Issuer and such Indebtedness
arises by virtue of a counter-indemnity obligation owed to
Marconi Inc. with respect to a letter of credit, bank
guarantee or other obligation of a like nature issued for the
account or benefit of Marconi Inc. in connection with any
insurance arrangements of Marconi Inc. undertaken or arranged
for the benefit of such Subsidiary; or
(15) the debtor is the Issuer or a Subsidiary of the Issuer and
such Indebtedness arises by virtue of a counter-indemnity
obligation owed to the Issuer or another Subsidiary of the
Issuer with respect to any Indebtedness of the Issuer or such
other Subsidiary of the type described in clause (8) of the
definition of Permitted Debt in connection with any claim or
other obligation that is attributable to the debtor;
provided, however, that (a) with respect to Indebtedness in clauses
(1), (2), (3), (4), (9) and (10) above, if the Issuer or any Guarantor
is the debtor in respect of such Indebtedness, such Indebtedness must
be unsecured, and (b) with respect to Indebtedness in clauses (1), (2)
and (9) above, both the creditor and the debtor in respect of such
Indebtedness must be parties to the Security Trust and Intercreditor
Deed.
For the purposes of this definition, (1) if the Issuer or any
Subsidiary of the Issuer has shares of Preferred Stock or Disqualified
Stock outstanding, the Issuer or such Subsidiary shall constitute the
"debtor" with respect to such Preferred Stock or Disqualified Stock and
(2) if the Issuer or any Subsidiary of the Issuer owns or holds any
shares of Preferred Stock or Disqualified Stock described in clause
(1), the Issuer or such Subsidiary shall constitute the "creditor" with
respect to such Preferred Stock or Disqualified Stock.
"PERMITTED INTRA-GROUP TRANSFER" means
(1) a sale, lease, transfer, conveyance or other disposition,
directly or indirectly, of inventory (including equipment that
constitutes inventory) between or among the Issuer and any
Non-US Subsidiaries in the ordinary course of business;
Schedule 3 - 31
(2) a sale, lease, transfer, conveyance or other disposition,
directly or indirectly, of inventory (including equipment that
constitutes inventory) between or among US Subsidiaries (other
than US Core Business Subsidiaries engaged in different US
Core Businesses) in the ordinary course of business;
(3) a sale, lease, transfer, conveyance or other disposition,
directly or indirectly, of any assets, properties or rights
between or among the Issuer and any Non-US Guarantors or
between or among any Non-US Guarantors, provided however, that
where the parties thereto are not in the Same Jurisdiction,
such transaction is made at Fair Market Value;
(4) a sale, lease, transfer, conveyance or other disposition,
directly or indirectly, of any assets, properties or rights
between or among any Non-US Subsidiaries that are not
Guarantors;
(5) a sale, lease, transfer, conveyance or other disposition,
directly or indirectly, of any assets, properties or rights
between or among Non-US Subsidiaries that are not Guarantors
and the Issuer or any Non-US Guarantors, provided however,
that such transaction is made at Fair Market Value;
(6) a sale, lease, transfer, conveyance or other disposition,
directly or indirectly, of any assets, properties or rights
from a US Guarantor that is not a US Core Business Subsidiary
to another US Guarantor that is not a US Core Business
Subsidiary, provided however, that where the parties thereto
are not in the Same Jurisdiction, such transaction is made at
Fair Market Value;
(7) a sale, lease, transfer, conveyance or other disposition,
directly or indirectly, of any assets, properties or rights
between or among any US Subsidiaries that are not Guarantors;
(8) a sale, lease, transfer, conveyance or other disposition,
directly or indirectly, of any assets, properties or rights
between or among US Subsidiaries that are not Guarantors and
any US Guarantors, provided however, that such transaction is
made at Fair Market Value;
(9) a sale, lease, transfer, conveyance or other disposition,
directly or indirectly, of any assets, properties or rights
between or among US Core Business Subsidiaries engaged in the
same US Core Business;
(10) a sale, lease, transfer, conveyance or other disposition,
directly or indirectly, of assets of a US Core Business by a
transferor to a US Guarantor that is incorporated either (a)
under the laws of the United States, any state thereof or the
District of Columbia or (b) in the Same Jurisdiction as the
transferor, in each case solely in compliance with and to the
extent necessary to comply with Section 4.02 (Covenants
Regarding US Core Businesses);
(11) tax loss surrenders between or among the Issuer and its
Subsidiaries;
(12) a licence, sublicence or transfer of Intellectual Property
between or among the Issuer and any of its Subsidiaries or
between or among its Subsidiaries,
Schedule 3 - 32
provided that (a) such licence, sublicence or transfer is
expressly permitted under or approved in accordance with the
terms of the applicable Intellectual Property Licence
Agreements or (b) if such Intellectual Property is not the
subject of the Intellectual Property Licence Agreements, the
Issuer provides express prior written consent to such
transaction;
(13) a transfer of assets that constitutes a Permitted Investment
or Restricted Payment that is permitted by Section 4.04
(Restricted Payments); and
(14) a transfer by FS Holdings Corp of Equity Interests in Marconi
Communications Inc. to the US Parent.
"PERMITTED INVESTMENTS" means:
(1) any Investment by the Issuer or a Non-US Subsidiary in the
Issuer or a Non-US Subsidiary (including, for these purposes,
a newly organized Person that will as a result of such
Investment become a Non-US Subsidiary);
(2) any Investment by a US Subsidiary in a US Subsidiary
(including, for these purposes, a newly organized Person that
will as a result of such Investment become a US Subsidiary);
(3) any Investment by FS Holdings Corp in Equity Interests in the
US Parent solely in exchange for Equity Interests in Marconi
Communications Inc;
(4) any Investment in cash or Cash Equivalents;
(5) any Investment made as a result of the receipt of non-cash or
deferred consideration from an Asset Sale that was made in
compliance with Section 4.03 (Asset Sales);
(6) Investments received upon the sale or disposition of assets
that were excluded from the definition of Asset Sale pursuant
to (a) clause (1) of the second paragraph of the definition
thereof (other than Investments in Equity Interests) or (b)
clause (8) of the second paragraph of the definition thereof;
(7) Investments solely in exchange for the issuance of Equity
Interests (other than Disqualified Stock) of the Issuer;
(8) Investments received by the Issuer or any Subsidiary of the
Issuer (a) as a result of the waiver, compromise, settlement,
release or surrender, in each case in the ordinary course of
business, of any right or claim of the Issuer or such
Subsidiary, including any debt owing to the Issuer or such
Subsidiary, or (b) in satisfaction of judgments or pursuant to
any plan of reorganization, compromise, scheme or similar
arrangement upon the bankruptcy or insolvency of a debtor;
(9) any refinancing, amendment, renewal, extension, modification
or replacement (including in connection with or as a result of
a bankruptcy, insolvency, workout, reorganization or
recapitalization) of any Investment existing on the Issue Date
or any Investment made subsequent to the Issue Date that was
Schedule 3 - 33
permitted to be made under this Indenture, in each case so
long as no additional Investment is made;
(10) receivables (including extended payment terms) created or
acquired in the ordinary course of business by the Issuer or
any Subsidiary of the Issuer and payable or dischargeable in
accordance with its customary trade terms;
(11) negotiable instruments held for deposit or collection in the
ordinary course of business;
(12) Investments resulting from the acquisition of a Person that at
the time of such acquisition held instruments constituting
Investments that were not acquired in contemplation of, or in
connection with, the acquisition of such Person, provided that
the acquisition of such Person is permitted pursuant to
another clause of this definition of Permitted Investments;
(13) loans or advances by the Issuer or any Subsidiary of the
Issuer to their respective officers, directors or employees
for travel, transportation, entertainment, moving, relocation
and other business expenses that are made in the ordinary
course of business in an aggregate amount at any time
outstanding not to exceed L3 million (or the Sterling
Equivalent);
(14) Investments consisting of loans or advances by the Issuer or
any Non-US Subsidiary to customers for the purposes of
financing all or a portion of the purchase of goods or
services from the Issuer or any Non-US Subsidiary, provided
that such Investments do not involve the provision of cash by
the Issuer or any Non-US Subsidiary to the recipient of such
financing, and provided further that the aggregate amount of
all such outstanding Investments made after the Issue Date
does not at any time exceed L20 million (or the Sterling
Equivalent) (provided that Investments lasting for no more
than five (5) London Business Days in connection with
arrangements to transfer such loans or advances to third
parties will not be included in the calculation of such amount
until the expiration of such five (5) London Business Days);
(15) Investments consisting of loans or advances by any US
Subsidiary to customers for the purposes of financing all or a
portion of the purchase of goods or services from any US
Subsidiary, provided that such Investments do not involve the
provision of cash by any US Subsidiary to the recipient of
such financing, and provided further that the aggregate amount
of all such outstanding Investments made after the Issue Date
does not at any time exceed US$10 million (or the Dollar
Equivalent) (provided that Investments lasting for no more
than five (5) London Business Days in connection with
arrangements to transfer such loans or advances to third
parties will not be included in the calculation of such amount
until the expiration of such five (5) London Business Days);
(16) Investments made with respect to or in connection with the
incurrence of workers' compensation, unemployment or casualty
insurance, social security or welfare obligations and other
related types of statutory obligations (including,
Schedule 3 - 34
for the avoidance of doubt, counter-indemnities from the
Issuer or a Subsidiary of the Issuer to the Issuer or another
Subsidiary of the Issuer in respect of any of the foregoing
and Guarantees provided by the Issuer or any Subsidiary with
respect to or in connection with any obligations of the
foregoing nature);
(17) Investments made pursuant to contractual commitments in effect
on the Scheme Launch Date;
(18) Investments made pursuant to contractual commitments in effect
on the Issue Date that are listed in Schedule 4 (Permitted
Investments - Contractual Commitments in effect on the Issue
Date) hereto;
(19) Permitted Hedging Transactions and Permitted Intra-Group
Hedging Transactions;
(20) Investments in the Issuer by any US Subsidiary resulting from
the repurchase of any outstanding Senior Notes or Junior Notes
by such US Subsidiary or the cancellation of such Senior Notes
or Junior Notes;
(21) Investments consisting of loans from a US Subsidiary to the
Issuer or a Non-US Guarantor that directly or indirectly owns
all of the Equity Interests of the US Parent that are
permitted by clause (9) of the definition of Permitted
Intra-Group Indebtedness;
(22) any Investment by the Issuer or a Non-US Subsidiary in a US
Subsidiary the proceeds of which are used solely to pay the
costs of the liquidation, administration, dissolution,
closure, suspension of business or winding-up of such US
Subsidiary or the termination of a business or operation of
such US Subsidiary;
(23) Investments consisting of Indebtedness that is permitted by
clause (14) of the definition of Permitted Intra-Group
Indebtedness;
(24) with respect to the Issuer and the Non-US Subsidiaries, other
Investments in any Person (including, for the avoidance of
doubt, any joint venture) having an aggregate Fair Market
Value (measured on the date each such Investment was made and
without giving effect to subsequent changes in value) that,
when taken together with all other Investments made pursuant
to this clause (24) that are at the time outstanding, do not
exceed (a) L30 million (or the Sterling Equivalent) or (b)
from and after the earlier of the second anniversary of the
Issue Date and the date on which all previously issued Junior
Notes have been repaid in full and there are no outstanding
Obligations under the Junior Notes or the Junior Note
Indenture, L75 million (or the Sterling Equivalent), provided
however, that solely with respect to clause (a), the aggregate
Fair Market Value of all Investments made in each twelve-month
period commencing on the Issue Date and the first anniversary
of the Issue Date shall not exceed L15 million (or the
Sterling Equivalent), provided further, that in the case of
each of clauses (a) and (b), such amounts shall be calculated
after giving effect to any reductions in the amount of any
Investments as a result of the repayment or other disposition
Schedule 3 - 35
of the Investments for cash or Cash Equivalents, the amount of
the reduction not to exceed the amount of the Investments
previously made pursuant to this clause (24); and
(25) with respect to the US Subsidiaries, other Investments in any
Person (including, for the avoidance of doubt, any joint
venture) having an aggregate Fair Market Value (measured on
the date each such Investment was made and without giving
effect to subsequent changes in value), when taken together
with all other Investments made pursuant to this clause (25)
that are at the time outstanding, do not exceed (a) US$10
million (or the Dollar Equivalent) or (b) from and after the
earlier of the second anniversary of the Issue Date and the
date on which all previously issued Junior Notes have been
repaid in full and there are no outstanding Obligations under
the Junior Notes or the Junior Note Indenture, US$25 million
(or the Dollar Equivalent), provided however, that in the case
of each of clauses (a) and (b), such amounts shall be
calculated after giving effect to any reduction in the amount
of any Investments as a result of the repayment or other
disposition of the Investments for cash or Cash Equivalents,
the amount of the reduction not to exceed the amount of the
Investments previously made pursuant to this clause (25).
"PERMITTED LIENS" means:
In relation to the Issuer and its Subsidiaries:
(1) Liens on assets or property existing at the time of
acquisition of the assets or property by the Issuer or any
Subsidiary of the Issuer, Liens on assets or property of a
Person existing at the time such Person becomes a Subsidiary
of the Issuer and Liens on Capital Stock of an acquired Person
that becomes a Subsidiary of the Issuer as a result of such
acquisition; provided that such Liens were not created,
incurred or assumed in connection with, or in contemplation
of, such acquisition or such Person becoming a Subsidiary of
the Issuer and do not extend to or cover any other assets or
property of the Issuer or any of its Subsidiaries;
(2) Liens to secure Purchase Money Obligations or Capital Lease
Obligations, in each case that are permitted under the
definition of Permitted Debt;
(3) Liens arising pursuant to, or as a result of, any leases of
property or licensing or escrow arrangements that are excluded
from the definition of Asset Sale;
(4) any Lien the principal purpose and effect of which is to allow
the setting-off or netting of obligations with those of a
financial institution in the ordinary course of the cash
management arrangements of the Issuer or any Subsidiary of the
Issuer;
(5) Liens created pursuant to the Security Documents, the
Indentures, the Composite Guarantee, the Guarantee of the
Senior Notes, the Guarantee of the Junior Notes, the Escrow
Agreement and the Security Trust and Intercreditor Deed;
Schedule 3 - 36
(6) Liens existing on the Scheme Launch Date;
(7) Liens existing on the Issue Date that are listed in Schedule 5
(Permitted Liens - Liens existing on the Issue Date) hereto;
(8) Liens (not securing Indebtedness) for Taxes, assessments or
governmental charges or claims that are not yet delinquent or
that are being contested in good faith by appropriate
proceedings promptly instituted and diligently concluded,
provided that any reserve or other appropriate provision as is
required in conformity with Floating UK GAAP has been made
therefor;
(9) Liens incurred or deposits made in connection with workers'
compensation, unemployment insurance, other types of social
security or welfare obligations and other types of related
statutory obligations;
(10) Liens arising in relation to Existing Performance Bonds as a
result of the provision of cash collateral for such Existing
Performance Bonds from the Existing Performance Bond Escrow
Account;
(11) Liens (not securing Indebtedness) in favor of customs or
revenue authorities to secure payment of customs duties in
connection with the importation of goods in the ordinary
course of business;
(12) easements, rights of way, zoning restrictions and other
similar charges or encumbrances in respect of real property
not interfering in any material respect with the ordinary
conduct of the business of the Issuer or any of its
Subsidiaries;
(13) carriers', warehousemen's, mechanics', landlords',
materialmen's, repairmen's or other like Liens arising in the
ordinary course of business in respect of obligations that are
not yet due or that are bonded or that are being contested in
good faith and by appropriate proceedings; provided that
adequate reserves with respect to such Lien are maintained on
the books of the Issuer or any Subsidiary of the Issuer for
whom the Lien relates, as the case may be, in accordance with
Floating UK GAAP;
(14) Liens arising by operation of law;
(15) rights of set-off under contracts entered into in the ordinary
course of business;
(16) any Lien the principal purpose and effect of which is to allow
the setting-off or netting of obligations with those of a
financial institution under or in connection with any
Permitted Hedging Transaction;
(17) any retention of title reserved by any seller of goods or any
Lien imposed, reserved or granted over goods supplied by such
seller in the ordinary course of business;
(18) Liens arising out of or in connection with pre-judgment legal
process or a judgment or a judicial award relating to security
for costs;
Schedule 3 - 37
(19) any right of first refusal, right of first offer, option,
contract, or other agreement to sell or otherwise dispose of
an asset of the Issuer or any Subsidiary of the Issuer;
(20) Liens arising from Uniform Commercial Code financing statement
filings regarding operating leases entered into by the Issuer
or any Subsidiary of the Issuer in the ordinary course of
business, provided that such Liens do not extend to any
property or assets which are not the subject of such operating
leases;
(21) Liens resulting from escrow arrangements entered into in
connection with a disposition of property or assets;
In relation to the Issuer and the Non-US Subsidiaries only:
(22) Liens arising from the provision of collateral by the Captive
Insurance Company that are required for the captive insurance
arrangements of the Issuer and its Subsidiaries, provided that
the Fair Market Value of such collateral does not exceed
L20 million (or the Sterling Equivalent) in the aggregate at
any time;
(23) Liens arising out of or in connection with Italian Invoice
Discounting;
(24) Liens on cash (including, for the avoidance of doubt, any
rights in respect of deposits with a bank or financial
institution) with respect to outstanding Indebtedness and
other obligations under the New Bonding Facility Agreement and
any Replacement New Bonding Facility Agreement (which Lien,
for the avoidance of doubt, may constitute a Lien ranking
prior to any Lien on cash collateral constituting Transaction
Security), provided that the aggregate at any time of all cash
collateral provided by the Issuer and its Subsidiaries to (a)
the New Bonding Facility Security Trustee (excluding all Cash
Collateral Releases transferred to the New Bonding Facility
Security Trustee and all amounts transferred from the Existing
Performance Bond Escrow Account to the New Bonding Facility
Security Trustee and other than as a result of the revaluation
of bonds issued under the New Bonding Facility Agreement
and/or any Replacement New Bonding Facility Agreement, as
applicable, in accordance with the terms of such agreement),
and (b) any agent, security trustee or lender under, or
otherwise in respect of, any Replacement New Bonding Facility
Agreement, does not exceed L25 million (or the Sterling
Equivalent);
(25) in the event all previously issued Junior Notes have been
repaid in full and there are no outstanding Obligations under
the Junior Notes or the Junior Note Indenture, Liens with
respect to surety bonds, appeal bonds, bid bonds, performance
bonds, letters of credit, bank guarantees or other obligations
of a like nature issued on behalf of the Issuer and/or any
Non-US Subsidiary (which Liens in relation to cash, for the
avoidance of doubt, may constitute a Lien ranking prior to any
Lien on cash collateral constituting Transaction Security),
provided that (a) the aggregate of all outstanding
Indebtedness and other obligations under all such instruments
or agreements secured by any Lien does not at any time
exceed L35 million (or the Sterling Equivalent), provided that
for purposes of determining compliance with such L35 million
(or the Sterling
Schedule 3 - 38
Equivalent) aggregate amount, any such Indebtedness or other
obligation that is secured by a Lien solely on cash
(including, for the avoidance of doubt, rights to any deposit
at a bank or other financial institution) shall be deemed to
be in an amount equal to the amount of such cash (and not the
amount of such Indebtedness or other obligation) and (b) each
such Lien shall be incurred by, and be solely in respect of
the property or assets of, the Issuer or such Non-US
Subsidiary on whose behalf such surety bond, appeal bond, bid
bond, performance bond, letter of credit, bank guarantee or
other obligation of a like nature is issued; and
(26) Liens with respect to outstanding Indebtedness or other
obligations of the Issuer or any Non-US Subsidiary (which
Liens in relation to cash, for the avoidance of doubt, may
constitute a Lien ranking prior to any Lien on cash collateral
constituting Transaction Security) that do not in the
aggregate for the Issuer and each Non-US Subsidiary at any
time exceed (a) in the event all previously issued Junior
Notes have been repaid in full and there are no outstanding
Obligations under the Junior Notes or the Junior Note
Indenture, L35 million (or the Sterling Equivalent), or
otherwise (b) L20 million (or the Sterling Equivalent),
provided that for purposes of determining compliance with such
L35 million (or the Sterling Equivalent) or L20 million (or
the Sterling Equivalent) aggregate amount, any such
Indebtedness or other obligation that is secured by a Lien
solely on cash (including, for the avoidance of doubt, rights
to any deposit at a bank or other financial institution) shall
be deemed to be in an amount equal to the amount of such cash
(and not the amount of such Indebtedness or other obligation);
In relation to the US Subsidiaries only:
(27) Liens with respect to surety bonds, appeal bonds, bid bonds,
performance bonds, letters of credit, bank guarantees or other
obligations of a like nature issued on behalf of any US
Subsidiary (which Liens in relation to cash, for the avoidance
of doubt, may constitute a Lien ranking prior to any Lien on
cash collateral constituting Transaction Security), provided
that the aggregate of all outstanding Indebtedness and other
obligations under all such instruments or agreements secured
by any Lien does not at any time exceed US$15 million (or the
Dollar Equivalent), provided further that for purposes of
determining compliance with such US$15 million (or the Dollar
Equivalent) aggregate amount, any such Indebtedness or other
obligation that is secured by a Lien solely on cash
(including, for the avoidance of doubt, rights to any deposit
at a bank or other financial institution) shall be deemed to
be in an amount equal to the amount of such cash (and not the
amount of such Indebtedness or other obligation);
(28) Liens on the Pittsburgh Facility and related assets and rights
securing Indebtedness under the US Working Capital Facility,
provided that the aggregate principal amount of all such
outstanding Indebtedness does not at any time exceed US$22.5
million (or the Dollar Equivalent); and
Schedule 3 - 39
(29) Liens with respect to outstanding Indebtedness or other
obligations of any US Subsidiary (which Liens in relation to
cash, for the avoidance of doubt, may constitute a Lien
ranking prior to any Lien on cash collateral constituting
Transaction Security) that do not in the aggregate for all US
Subsidiaries at any time exceed (a) in the event all
previously issued Junior Notes have been repaid in full and
there are no outstanding Obligations under the Junior Notes or
the Junior Note Indenture, US$15 million (or the Dollar
Equivalent), or otherwise (b) US$5 million (or the Dollar
Equivalent), provided that for purposes of determining
compliance with such US$15 million (or the Dollar Equivalent)
or US$5 million (or the Dollar Equivalent) aggregate amount,
any such Indebtedness or other obligation that is secured by a
Lien solely on cash (including, for the avoidance of doubt,
rights to any deposit at a bank or other financial
institution) shall be deemed to be in an amount equal to the
amount of such cash (and not the amount of such Indebtedness
or other obligation).
"PERMITTED REFINANCING INDEBTEDNESS" means any Indebtedness of the
Issuer or any Subsidiary of the Issuer issued in exchange for, or the net
proceeds of which are used to extend, refinance, renew, replace, defease or
refund any Indebtedness that constitutes Permitted Debt pursuant to clauses (1),
(2), (6), (7), (8), (9) or (11) of the definition of Permitted Debt, other than
Indebtedness between or among the Issuer and its Subsidiaries, provided that:
(1) the principal amount (or accreted value, if applicable) of
such Permitted Refinancing Indebtedness does not exceed the
principal amount (or accreted value, if applicable) of the
Indebtedness extended, refinanced, renewed, replaced, defeased
or refunded (plus all accrued interest on such Indebtedness
and the amount of all expenses and premiums incurred in
connection therewith);
(2) such Permitted Refinancing Indebtedness has a final maturity
date later than the final maturity date of, and has a Weighted
Average Life to Maturity equal to or greater than the Weighted
Average Life to Maturity of, the Indebtedness being extended,
refinanced, renewed, replaced, defeased or refunded;
(3) if the Indebtedness being extended, refinanced, renewed,
replaced, defeased or refunded is subordinated in right of
payment to the Senior Notes, such Permitted Refinancing
Indebtedness is subordinated in right of payment to the Senior
Notes and the Guarantee of the Senior Notes on terms at least
as favorable to the Holders of Senior Notes as those contained
in the documentation governing the Indebtedness being
extended, refinanced, renewed, replaced, defeased or refunded;
and
(4) such Permitted Refinancing Indebtedness is incurred either by
(a) if the obligor on the Indebtedness being extended,
refinanced, renewed, replaced, defeased or refunded is the
Issuer, the Issuer, (b) if the obligor on the Indebtedness
being extended, refinanced, renewed, replaced, defeased or
refunded is a Non-US Subsidiary, the Issuer or such Non-US
Subsidiary or (c) if the obligor on the Indebtedness being
extended, refinanced, renewed, replaced, defeased or refunded
is a US Subsidiary, such US Subsidiary.
Schedule 3 - 40
"PERSON" means any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization, limited
liability company or government or other entity.
"PITTSBURGH FACILITY" means the property located at 1000 Marconi Drive,
Warrendale, Pennsylvania, USA.
"PLACE OF PAYMENT" when used with respect to the Senior Notes, means
the place or places where the principal of (and premium, if any), interest, or
Additional Amounts, if any, on the Senior Notes are payable, as specified in
Section 2.01 (Title and Terms).
"PREDECESSOR SENIOR NOTE" of any particular Senior Note means every
previous Senior Note evidencing all or a portion of the same debt as that
evidenced by such particular Senior Note; and, for the purposes of this
definition, any Senior Note authenticated and delivered under Section 2.07
(Mutilated, Destroyed, Lost and Stolen Senior Notes) in exchange for or in lieu
of a mutilated, destroyed, lost or stolen Senior Note shall be deemed to
evidence the same debt as the mutilated, destroyed, lost or stolen Senior Note.
"PREFERRED STOCK" means, with respect to any Person, any Equity
Interest of any class or classes (however designated) which is preferred as to
the payment of dividends or distributions, or as to the distribution of assets
upon any voluntary or involuntary liquidation or dissolution of such Person,
over the Equity Interest of any other class in such Person.
"PROFIT AFTER TAXES" means, with respect to any specified Person for
any period, the profit (loss) after tax of such Person, determined in accordance
with Floating UK GAAP, consistently applied, and before any reduction in respect
of preferred stock dividends, excluding, however:
(1) any gain (but not loss), together with any related provision
for Taxes on such gain (but not loss), realized in connection
with (a) any Asset Sale or (b) the disposition of any
securities by such Person or any of its Subsidiaries or the
extinguishment of any Indebtedness of such Person or any of
its Subsidiaries; and
(2) any extraordinary or exceptional gain (but not loss), together
with any related provision for Taxes on such extraordinary or
exceptional gain (but not loss).
"PURCHASE MONEY OBLIGATION" means any Indebtedness secured by a Lien on
assets or property used or useful in the Permitted Core Business and any
additions and accessions thereto, which are purchased by the Issuer or any
Subsidiary of the Issuer at any time after the Issue Date; provided that:
(1) the security agreement or conditional sales or other title
retention contract pursuant to which the Lien on such assets
is created (collectively a "PURCHASE MONEY SECURITY
AGREEMENT") shall be entered into within 360 days after the
purchase or substantial completion of the construction of such
assets and such Liens shall at all times be confined solely to
the assets so purchased or acquired, any additions and
accessions thereto and any proceeds therefrom;
Schedule 3 - 41
(2) at no time shall the aggregate principal amount of the
outstanding Indebtedness secured thereby be increased, except
in connection with the purchase of additions and accessions to
the assets so purchased or acquired and except in respect of
fees and other obligations in respect of such Indebtedness;
and
(3) (a) the aggregate outstanding principal amount of Indebtedness
secured thereby (determined on a per asset basis in the case
of any additions and accessions) shall not at the time such
Purchase Money Security Agreement is entered into exceed 100%
of the purchase price to the Issuer or such Subsidiary of the
assets subject thereto or (b) the Indebtedness secured thereby
shall be with recourse solely to the assets so purchased or
acquired, any additions and accessions thereto and any
proceeds therefrom.
"REDEMPTION CERTIFICATE" means a certificate in substantially the form
set out in Schedule 4 to the Escrow Agreement.
"REFERENCE TREASURY DEALER" means a primary US Government securities
dealer in New York City selected by the Trustee.
"REFERENCE TREASURY DEALER QUOTATIONS" means, with respect to each
Reference Treasury Dealer and any Repayment Date, the average, as determined by
the Trustee, of the bid and asked prices for the Comparable Treasury Issue for
such Repayment Date (expressed in each case as a percentage of its principal
amount) quoted in writing to the Trustee by such Reference Treasury Dealer as at
5:00 p.m. (New York Time) on the third New York Business Day preceding such
Repayment Date.
"REGISTRAR" means any Person appointed by the Issuer to maintain an
office or agency where Definitive Registered Senior Notes may be presented for
transfer, exchange or payment under this Indenture, which initially shall be The
Bank of New York.
"REGULAR RECORD DATE" means, with respect to Definitive Registered
Senior Notes, the January 1, April 1, July 1 or October 1 immediately preceding
the relevant Senior Note Interest Payment Date.
"RELEVANT CURRENCY" means United States dollars, provided that in the
event the Issuer elects to pay a redemption amount in British pounds sterling as
set forth in Section 3.10 (Optional Payment of Redemption Amounts in British
Pounds Sterling), the Relevant Currency of such redemption amount shall be
British pounds sterling.
"RELEVANT DOCUMENTS" means the Security Trust and Intercreditor Deed,
any Agent/Trustee/New Bonding Facility Bank Accession Letter (as such term is
defined in the Security Trust and Intercreditor Deed), any Guarantor Accession
Letter (as such term is defined in the Security Trust and Intercreditor Deed),
the Indentures, the Escrow Agreement, the Senior Notes, the Junior Notes, the
New Bonding Facility Agreement, the Security Documents (including, for the
avoidance of doubt, the Guarantee of the Senior Notes, the Guarantee of the
Junior Notes and the Composite Guarantee), the Fee Letter and any Additional
Remuneration Fee Letter (as such terms are defined in 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.
Schedule 3 - 42
"RELEVANT PERIOD" means each of the following periods: (1) the six
months ending September 30, 2005; and (2) the twelve months ending on each of
March 31, 2006, September 30, 2006, March 31, 2007, September 30, 2007 and March
31, 2008.
"REPAYMENT DATE" means each date upon which the Issuer redeems all or
part of the Outstanding Senior Notes.
"REPLACEMENT NEW BONDING FACILITY AGREEMENTS" means any facility
agreement or agreements entered into on or after the Issue Date between or among
the Issuer and/or any Non-US Subsidiary with any bank, insurance company or
other financial institution 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 the Issuer and/or any Non-US
Subsidiary, as such agreement or agreements 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); provided that (1) the term of each such
facility shall not extend beyond the date that is 30 months after the Issue Date
(but, for the avoidance of doubt, Indebtedness and other obligations incurred or
arising under any such facility on or prior to the date that is 30 months after
the Issue Date may extend beyond such date in accordance with the provisions of
any such facility) and (2) no such facility agreement shall require the Issuer
and/or any Non-US Subsidiary to cash-collateralize any instrument issued
thereunder, or otherwise require the Issuer and/or any Non-US Subsidiary to
grant any Lien to secure any instrument issued thereunder on any property or
asset having a value, in excess of 50% of the aggregate face or principal amount
of any such instrument.
"REQUIRED HOLDERS" means at any time, the Holder or Holders of at least
the specified percentage of the aggregate principal amount of the Senior Notes
at the time Outstanding.
"RESEARCH AND DEVELOPMENT COST SHARING AGREEMENT" means the research
and development cost sharing agreement entered into on or prior to the Issue
Date by Marconi Communications GmbH, Marconi Communications Inc, Marconi
Communications Limited and Marconi Communications S.p.A.
"RESPONSIBLE OFFICER", when used with respect to the Trustee, means any
officer of the Trustee assigned to or working in the Corporate Trust Department
of the Trustee or, with respect to a particular corporate trust matter, any
other officer to whom such matter is referred because of his or her knowledge of
and familiarity with the particular subject and who shall have direct
responsibility for the administration of this Indenture.
"RESTRUCTURING" means the Scheme of Arrangement under Section 425 of
the Companies ▇▇▇ ▇▇▇▇ between Marconi Corporation plc and its Scheme Creditors
(as defined therein) in the High Court of Justice of England and Wales.
"RINGFENCED IPR CO" means Marconi Intellectual Property (Ringfence)
Inc., a Wholly-Owned Subsidiary of Marconi Communications Inc. that is
incorporated under the laws of the State of Delaware, United States of America,
to which all legal and beneficial ownership of Patents relating to the North
American Access Business, the BBRS Business and the Outside Plant and Power
Business owned by any US IP Opco are transferred on or prior to the Issue Date.
Schedule 3 - 43
"SALE AND LEASEBACK TRANSACTION" means an arrangement relating to
assets or property now owned or hereafter acquired whereby the Issuer or any
Subsidiary of the Issuer transfers such assets or property to a Person and the
Issuer or any Subsidiary of the Issuer leases such assets or property from such
Person, if the amount of the liability in respect of such lease would at that
time be required to be capitalized on a balance sheet in accordance with
Floating UK GAAP.
"SAME JURISDICTION" means (1) with respect to any Person organized and
existing under the laws of the United States of America, any state thereof or
the District of Columbia, any of such jurisdictions and (2) with respect to any
Person organized and existing under the laws of any other jurisdiction, such
other jurisdiction.
"SCHEME CREDITORS" means the creditors of the Issuer and Marconi plc in
respect of the Restructuring.
"SCHEME DOCUMENT" means the document entitled "Proposals in relation to
Schemes of Arrangement", dated 31 March 2003 and posted to Scheme Creditors
pursuant to the Restructuring.
"SCHEME LAUNCH DATE" means March 31, 2003.
"SEC" means the US Securities and Exchange Commission, as from time to
time constituted, created under the US Exchange Act, or, if at any time after
the execution of this instrument such SEC is not existing and performing the
duties now assigned to it under the Trust Indenture Act, then the body
performing such duties at such time.
"SECURED CREDITORS" means the Security Trustee, any Receiver or
Delegate (each as defined in the Security Trust and Intercreditor Deed), the
Depositary, the Paying Agent, the Registrar, the Trustee (for itself and as
trustee for the holders of the Senior Notes), the Junior Note Trustee (for
itself and as trustee for the holders of the Junior Notes), the New Bonding
Facility Security Trustee, the Escrow Bank and each of the New Bonding Facility
Banks and their respective successors and assigns.
"SECURED OBLIGATIONS" means all present and future indebtedness,
liabilities and obligations (for the avoidance of doubt, including any
liabilities and obligations which have been cash-collateralized 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:
(1) any refinancing, novation, deferral or extension;
(2) any obligation relating to any increase in the amount of such
obligations;
(3) any claim for damages or restitution; and
(4) any claim as a result of any recovery by an Obligor of a
payment or discharge, or non-allowability, on the grounds of
preference,
Schedule 3 - 44
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 DOCUMENTS" means (1) the Initial Security Documents securing
the Secured Obligations, (2) any other pledge agreements, security agreements,
mortgages, deeds of trust and other agreements, instruments and documents
entered into from time to time by the Issuer or any Subsidiary of the Issuer
creating or granting any Guarantee, indemnity or Lien in favor of any of the
Secured Creditors or the Security Trustee, as trustee for the Secured Creditors,
as security for any of the Secured Obligations and (3) any other agreements,
instruments and documents executed and delivered pursuant to any of the
foregoing, in the case of each of clauses (1) through (3), as amended, modified,
restated or supplemented from time to time.
"SECURITY TRUST AND INTERCREDITOR DEED" means the security trust and
intercreditor deed dated the Issue Date between the Issuer, the Security
Trustee, the Guarantors, the Trustee, the Junior Note Trustee, the New Bonding
Facility Security Trustee, the New Bonding Facility Banks, the Depositary, the
Paying Agent, the Registrar, the Intra-Group Creditors (as defined therein) and
the Intra-Group Borrowers (as defined therein) as amended, modified, restated or
supplemented from time to time.
"SECURITY TRUSTEE" means The Law Debenture Trust Corporation p.l.c., as
security trustee under the Security Trust and Intercreditor Deed, and its
successors and assigns thereunder.
"SENIOR NOTE INTEREST ACCRUAL PERIOD" means, in respect of each Senior
Note Interest Period, (1) if no Repayment Date has occurred during a Senior Note
Interest Period, such Senior Note Interest Period or (2) if one or more
Repayment Dates have occurred during such Senior Note Interest Period, each
successive period beginning on (and including) the first day of such Senior Note
Interest Period and ending on (but excluding) the next Repayment Date and
thereafter each period beginning on (and including) such Repayment Date and
ending on (but excluding) the next Repayment Date, or if none the next Senior
Note Interest Payment Date.
"SENIOR NOTE INTEREST PAYMENT DATE" means each January 15, April 15,
July 15 and October 15, commencing July 15, 2003.
"SENIOR NOTE INTEREST PERIOD" means each period beginning on (and
including) the Issue Date or any Senior Note Interest Payment Date and ending on
(but excluding) the next Senior Note Interest Payment Date.
"SIGNIFICANT SUBSIDIARY" means any Subsidiary of the Issuer if any of
the (a) unconsolidated Total Assets, (b) unconsolidated External Assets, (c)
unconsolidated External Sales, or (d) commencing on March 31, 2005,
unconsolidated EBITDA of such Subsidiary is greater than 5% of the (w) aggregate
of the unconsolidated Total Assets of the Issuer and each of its Subsidiaries,
or the (x) consolidated External Assets, (y) consolidated External Sales or (z)
Consolidated EBITDA, respectively, of the Issuer and its Subsidiaries, taken as
a whole (calculated in the manner specified in sub-clauses (2) through (6) of
clause (c) of Section 4.14 (Guarantor Coverage Requirements)). Solely for the
purposes of determining whether an Event of Default has occurred, or an
Insolvency Event has occurred under the Security Trust and Intercreditor Deed
(in each case other than with respect to the approval by stockholders of a
Subsidiary of the Issuer (other than a Guarantor or a Subsidiary of the Issuer
that is a Significant
Schedule 3 - 45
Subsidiary in its own right) of any plan or proposed plan for the solvent
liquidation or dissolution of such Subsidiary), "Significant Subsidiary" shall
include any Subsidiaries of the Issuer that would, in the aggregate,
collectively constitute a Significant Subsidiary.
"SINGAPORE ESOP ESCROW AGREEMENT" means the escrow agreement dated
November 12, 2002 between the Issuer, Marconi plc, Metapath Software
International Limited, HSBC Bank plc, Barclays Bank PLC, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Trustees
Limited and ▇▇▇▇▇ & Overy.
"STANDSTILL EVENT" means the occurrence of a Default under the Senior
Notes except as provided in clause (d) of Section 6.02 (Payment Blockage
Provisions).
"STANDSTILL NOTICE" means a notice delivered by the Trustee pursuant to
clause (b) of Section 6.02 (Payment Blockage Provisions) hereof, to the Security
Trustee (with a copy to the Issuer, the Junior Note Trustee and the New Bonding
Facility Security Trustee) notifying the Security Trustee of a Standstill Event.
"STANDSTILL PERIOD" means the period from the date of the issuance of a
Standstill Notice by the Trustee and ending on the earlier of:
(1) the expiration of a period of 179 days after the date of the
issuance of such Standstill Notice by the Trustee;
(2) the date on which the Trustee has confirmed in writing to the
Security Trustee (with a copy to the Issuer and the other
Secured Creditors) that the Default under the Senior Notes in
respect of which that Standstill Notice was issued is no
longer continuing;
(3) the date on which the Trustee has confirmed in writing to the
Security Trustee (with a copy to the Issuer and the other
Secured Creditors) that the Standstill Notice has been
cancelled by the Trustee acting on the instructions of the
Required Holders of at least a majority of the aggregate
principal amount of the then Outstanding Senior Notes; and
(4) the date on which the Trustee has confirmed in writing to the
Security Trustee (with a copy to the Issuer and the other
Secured Creditors) that the Secured Obligations under the
Senior Notes and this Indenture have been discharged in full
and there are no further liabilities under the Senior Notes or
this Indenture.
"STATED MATURITY" means, with respect to the Senior Notes, the date on
which the payment of principal is scheduled to be paid.
"STERLING EQUIVALENT" means, with respect to any monetary amount in a
currency other than British pounds sterling, at any time of determination
thereof, the amount of British pounds sterling obtained by translating the
amount of such foreign currency into British pounds sterling at the spot rate
for the purchase of British pounds sterling with the applicable foreign currency
as published in the Financial Times on the date that is two (2) London Business
Days prior to such determination.
Except as set forth in Section 4.07 (Limitation on Indebtedness and
Preferred Stock), whenever it is necessary to determine (1) compliance with any
covenant that contains an amount
Schedule 3 - 46
expressed in British pounds sterling in this Indenture or (2) whether a Default
has occurred, and in either case an amount is expressed in a currency other than
British pounds sterling, such amount will be treated as the Sterling Equivalent
determined as of the date such amount is initially determined in such currency.
"SUBORDINATED INDEBTEDNESS" means (1) with respect to the Issuer, any
Indebtedness that is expressly subordinated to the Senior Notes or the Junior
Notes and (2) with respect to any Guarantor, any Indebtedness of such Guarantor
that is expressly subordinated to such Guarantor's Guarantee of the Senior Notes
or Guarantee of the Junior Notes. For the avoidance of doubt, the Junior Notes
and any Guarantee of the Junior Notes shall not constitute Subordinated
Indebtedness.
"SUBSIDIARY" means, with respect to any specified Person:
(1) any corporation, association or other business entity of which
more than 50% of the total voting power of its Capital Stock
entitled (without regard to the occurrence of any contingency)
to vote in the election of directors, managers or trustees of
the corporation, association or other business entity is at
the time owned or controlled, directly or indirectly, by that
Person or one or more of the other Subsidiaries of that Person
(or a combination thereof); and
(2) any partnership (a) the sole general partner or the managing
general partner of which is such Person or a Subsidiary of
such Person, or (b) the only general partners of which are
that Person or one or more Subsidiaries of that Person (or any
combination thereof).
Unless otherwise specified herein, or the context otherwise requires, a
reference to a "Subsidiary" herein or in the Senior Notes is to a Subsidiary of
the Issuer.
"TAX" and "TAXES" means any tax, duty, levy, impost, assessment or
other governmental charge of whatever nature (including penalties, interest and
other liabilities related thereto).
"TAXING AUTHORITY" means any government or political sub-division or
territory or possession of any government or any authority or agency therein or
thereof having power to impose a Tax.
"TOTAL ASSETS" means, with respect to any specified Person at any date,
the total gross assets of such Person on such date in accordance with Floating
UK GAAP.
"TRANSACTION SECURITY" means all assets, properties and rights of the
Issuer and its Subsidiaries that are subject to Liens pursuant to the terms and
provisions of the Security Documents in order to secure the Secured Obligations.
"TRUST INDENTURE ACT" means the United States Trust Indenture Act of
1939, as amended and as in force at the date as of which this instrument was
executed; provided however, that in the event the US Trust Indenture Act of 1939
is amended after such date, "Trust Indenture Act" means, to the extent required
by any such amendment, the US Trust Indenture Act of 1939 as so amended.
Schedule 3 - 47
"TRUSTEE" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean the Person who is then the Trustee hereunder, and if at any
time there is more than one such Person, "Trustee" shall mean and include each
such Person.
"TRUSTEE ACTS" means the Trustee ▇▇▇ ▇▇▇▇ and the Trustee ▇▇▇ ▇▇▇▇ of
England and Wales.
"UK IP OPCOS" means all Non-US Subsidiaries organized or incorporated
in the United Kingdom having legal and beneficial ownership of Patents.
"UK IPR CO" means Marconi UK Intellectual Property Limited, a
Wholly-Owned Subsidiary of Marconi Communications Limited that is incorporated
under the laws of England and Wales, that is a Non-US Subsidiary and to which
all legal and beneficial ownership of Patents owned by UK IP Opcos are
transferred on or prior to the Issue Date.
"UNITED STATES DOLLAR", "US$" or "$" or any similar reference means the
coin or currency of the United States of America as at the time of payment is
legal tender for the payment of public and private debts.
"US CORE BUSINESS SALE" means any direct or indirect sale, assignment,
conveyance, lease or other disposition of all or substantially all of the Equity
Interests, properties or assets of one or more of the US Core Businesses or one
or more of the US Core Business Subsidiaries, or any consolidation, merger,
sale, assignment, transfer, lease or other disposition of or involving one or
more of the US Core Businesses or one or more of the US Core Business
Subsidiaries or any of their respective Equity Interests, properties or assets.
"US CORE BUSINESS SUBSIDIARY" means a US Subsidiary that is a direct or
indirect Wholly-Owned Subsidiary of the Issuer and designated as a holder of a
US Core Business by the Issuer by notice to the Trustee.
"US CORE BUSINESSES" means the assets and liabilities of each of:
(1) the Outside Plant and Power Business;
(2) the North American Access Business; and
(3) the BBRS Business.
"US EXCHANGE ACT" means the United States Securities Exchange Act of
1934, as amended, and the rules and regulations promulgated thereunder.
"US GAAP" means generally accepted accounting principles in the United
States, consistently applied, and as in effect from time to time.
"US GUARANTOR" means each of:
(1) Marconi Communications, Inc.
Marconi Networks Worldwide, Inc.
Marconi Communications Technology, Inc.
Schedule 3 - 48
Marconi Communications Federal, Inc.
Marconi Acquisition Corp.
Marconi Intellectual Property (Ringfence) Inc.
Marconi Communications Limited, a private limited company
incorporated under the laws of the Republic of Ireland
Marconi Communications Optical Networks Limited
Marconi Communications, S.A. de ▇.▇.
▇▇▇▇▇▇▇ Communications de Mexico, S.A. de ▇.▇.
▇▇▇▇▇▇▇ Communications Exportel, S.A. de C.V.
Administrativa Marconi Communications, S.A. de ▇.▇.
▇▇▇▇▇▇▇ Communications B.V.; and
Marconi Communications GmbH, a private company incorporated
under the laws of Switzerland;
(2) any other US Subsidiary that executes a Guarantee of the
Senior Notes pursuant to this Indenture; and
(3) each of their respective successors and assigns.
"US IP OPCOS" means all Subsidiaries of the Issuer organized or
incorporated under the laws of the United States, any state thereof or the
District of Columbia having legal and beneficial ownership of Patents.
"US IPR CO" means Marconi Intellectual Property (US) Inc., a
Wholly-Owned Subsidiary of Marconi Inc. that is incorporated under the laws of
the State of Delaware, United States of America, that is a Non-US Subsidiary and
to which all legal and beneficial ownership of Patents (other than any Patents
transferred to Ringfenced IPR Co) owned by any US IP Opco are transferred on or
prior to the Issue Date.
"US PARENT" means either (1) Marconi Communications Inc. or (2) a
Wholly-Owned Subsidiary of the Issuer which: (a) is incorporated after the Issue
Date; (b) becomes a US Guarantor; and (c) acquires the Equity Interests in
Marconi Communications Inc.
"US SUBSIDIARY" means each of the US Parent and each of its
Subsidiaries, provided that they constitute a Subsidiary of the Issuer.
"US WORKING CAPITAL FACILITY" means the US$22.5 million working capital
facility entered into on March 26, 2003, among Marconi Communications, Inc. and
Liberty Funding, LLC providing for revolving credit or working capital loans, as
such agreement, in whole or in part, may be amended, renewed, extended,
substituted, refinanced, restructured, replaced, supplemented or otherwise
modified from time to time (including, without limitation, any successive
amendments, renewals, extensions, substitutions, refinancings, restructurings,
replacements, supplements or other modifications of the foregoing in whole or in
part whether by the same or a different borrower or borrowers and/or lender or
group of lenders), which facility or facilities either is secured solely by a
Lien on the Pittsburgh Facility and related assets and rights or is unsecured.
"VOTING STOCK" of any Person as of any date means the Capital Stock of
such Person that is at the time entitled to vote in the election of the Board of
Directors of such Person.
Schedule 3 - 49
"WEIGHTED AVERAGE LIFE TO MATURITY" means, when applied to any
Indebtedness at any date, the number of years obtained by dividing:
(1) the sum of the products obtained by multiplying (a) the amount
of each then remaining installment, sinking fund, serial
maturity or other required payments of principal, including
payment at final maturity, in respect of the Indebtedness, by
(b) the number of years (calculated to the nearest
one-twelfth) that will elapse between such date and the making
of such payment; by
(2) the then outstanding principal amount of such Indebtedness.
"WHOLLY-OWNED SUBSIDIARY" of any specified Person means a Subsidiary of
such Person all of the outstanding Capital Stock or other ownership interests of
which (other than directors' qualifying shares) are at the time owned by such
Person or by one or more Wholly-Owned Subsidiaries of such Person.
Schedule 3 - 50
OTHER DEFINITIONS
Defined in the
Senior Note
Term Indenture in Section
"Affiliate Transaction"....................................................... 4.11
"Deferred Interest"........................................................... 2.09
"Dispute"..................................................................... 13.09
"Executive Officer"........................................................... 4.20
"Guarantor Certification Date"................................................ 4.14
"Guarantor Test Dates"........................................................ 4.14
"Initial Guarantors".......................................................... Recitals
"Interim Test Date"........................................................... 4.14
"LSE"......................................................................... 4.25
"MD&A"........................................................................ 4.20
"New Security"................................................................ 4.15
"Non-US Restricted Payments".................................................. 4.04
"Note Trustee Fee Letter"..................................................... 7.07
"Parallel Obligations"........................................................ 13.20
"Pay the Junior Notes"........................................................ 6.02
"Payment Default"............................................................. 6.01
"PBGC Agreement".............................................................. 1.01
"Principal Obligations"....................................................... 13.20
"Proceedings"................................................................. 13.11
"Register".................................................................... 2.06
"Relevant Taxing Jurisdiction"................................................ 4.37
"Restricted Payments"......................................................... 4.04
"retiring Trustee"............................................................ 7.10
"Semi-Annual Test Date"....................................................... 4.14
"Special Record Date"......................................................... 2.09
"Taxing Jurisdiction"......................................................... 3.09
"US Restricted Payments"...................................................... 4.04
Schedule 3 - 51
INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT
The following Trust Indenture Act terms have the following meanings:
(1) "Commission" means the SEC;
(2) "indenture securities" means the Senior Notes and the
Guarantee of the Senior Notes;
(3) "indenture security holder" means a Holder;
(4) "indenture to be qualified" means this Indenture;
(5) "indenture trustee" or "institutional Trustee" means the
Trustee; and
(6) "obligor" on the indenture securities means the Issuer, the
Guarantors and any other obligor on the indenture securities.
All other Trust Indenture Act terms used in this Indenture that are
defined by the Trust Indenture Act, defined in the Trust Indenture Act by
reference to another statute or defined by SEC rule under the Trust Indenture
Act have the meanings so assigned to them.
RULES OF CONSTRUCTION
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) all references in this Schedule 3 to Articles, Sections,
Exhibits or Schedules refer to Articles or Sections of, or
Exhibits or Schedules to, the Senior Note Indenture, and all
references in this Schedule 3 to "this Indenture" refer to the
Senior Note Indenture, unless otherwise indicated;
(3) an accounting term not otherwise defined has the meaning
assigned to it in accordance with Floating UK GAAP,
consistently applied;
(4) "or" is not exclusive;
(5) "including" means including without limitation;
(6) words in the singular include the plural and words in the
plural include the singular;
(7) unsecured Indebtedness shall not be deemed to be subordinate
or junior to secured Indebtedness merely by virtue of its
nature as unsecured Indebtedness; and
(8) the principal amount of any Preferred Stock shall be (a) the
maximum liquidation value of such Preferred Stock or (b) the
maximum mandatory redemption or mandatory repurchase price
with respect to such Preferred Stock, whichever is greater.
Schedule 3 - 52
SCHEDULE 4
DEFINITIONS
"ACQUIRED DEBT" means, with respect to any specified Person:
(1) Indebtedness of any other Person existing at the time such
other Person is merged with or into or becomes a Subsidiary of
such specified Person, whether or not such Indebtedness is
incurred in connection with, or in contemplation of, such
other Person merging with or into, or becoming a Subsidiary
of, such specified Person; and
(2) Indebtedness secured by a Lien encumbering any asset acquired
by such specified Person.
"ACQUISITION" means any acquisition or purchase, directly or
indirectly, including without limitation by merger, consolidation or
reorganization, of any business or any assets constituting a business or line of
business.
"ADDITIONAL AMOUNTS" has the meaning set forth in Section 4.36
(Additional Amounts).
"ADDITIONAL GUARANTOR" means any Person that becomes a Guarantor of the
Junior Notes after the Issue Date.
"ADJUSTED TREASURY RATE" means, with respect to any Repayment Date for
the Junior Notes, the rate per annum equal to the sum of 0.5% and the quarterly
equivalent yield to maturity of the Comparable Treasury Issue for the Junior
Notes, assuming a price for the Comparable Treasury Issue for the Junior Notes
(expressed as a percentage of its principal amount) equal to the Comparable
Treasury Price for the Junior Notes for the Repayment Date.
"AFFECTED PENSION PARTICIPANTS" means (1) employees associated with the
assets that are the subject of an Asset Sale at the time of any such Asset Sale,
(2) employees formerly associated with the assets that are the subject of an
Asset Sale, and (3) beneficiaries, survivor payees and alternate payees of an
employee or former employee described in (1) or (2) of this definition.
"AFFILIATE" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person, and, in the case of a natural Person, any
immediate family member of such Person. For purposes of this definition,
"control", as used with respect to any Person, shall mean the possession,
directly or indirectly, of the power to direct or cause the direction of the
management or policies of such Person, whether through the ownership of voting
securities, by agreement or otherwise; provided that beneficial ownership of 20%
or more of the Voting Stock of a Person will be deemed to be control. For
purposes of this definition, the terms "controlling", "controlled by" and "under
common control with" have correlative meanings.
"AGENCY AGREEMENT" means the agreement, in substantially the form set
out in Schedule 8 (Form of Agency Agreement), appointing the initial Paying
Agent and the Registrar in relation to the Junior Notes for the purposes
specified therein and any other agreement for the time being in force appointing
successor Paying Agents and/or Registrars in relation to the
Schedule 4 - 1
Junior Notes, or in connection with their duties, the terms of which have
previously been approved in writing by the Trustee.
"ASSET SALE" means:
(1) the sale, lease, transfer, conveyance or other disposition,
directly or indirectly, of any assets, properties or rights
(including, for the avoidance of doubt, Equity Interests of a
Subsidiary of the Issuer), including by way of merger,
consolidation or reorganization, provided that the sale,
lease, transfer, conveyance or other disposition, in one or a
series of related transactions, of all or substantially all of
the properties or assets of the Issuer and its Subsidiaries,
taken as a whole, including for the avoidance of doubt the
Equity Interests in any holding company for such property or
assets, to any "person" (as that term is defined in Section
13(d)(3) of the US Exchange Act including, for the avoidance
of doubt, any person or persons acting in concert with such
person), or any merger, consolidation or reorganization of the
Issuer with any Person, will be governed by the provisions of
this Indenture set forth in Section 5.01 (Merger,
Consolidation or Sale of Assets) and not by the provisions of
this Indenture set forth in Section 4.02 (Asset Sales); and
(2) the issuance of Equity Interests by any of the Issuer's
Subsidiaries.
Notwithstanding the preceding, the following items will not be deemed
to be Asset Sales:
(1) any single transaction or series of related transactions that
involves assets, property or rights having a Fair Market Value
of less than L500,000;
(2) the sale, lease, transfer, conveyance or other disposition
(other than pursuant to a Sale and Leaseback Transaction) of
inventory (including equipment that constitutes inventory) or
accounts receivable, in each case in the ordinary course of
business and on arm's-length terms;
(3) the sale or other disposition of cash or Cash Equivalents;
(4) any transaction constituting a Restricted Payment or an
Investment that is permitted by Section 4.03 (Restricted
Payments);
(5) a Permitted Intra-Group Transfer;
(6) the waiver, compromise, settlement, release or surrender of
any right or claim in the ordinary course of business;
(7) a disposition constituting, or resulting from, the enforcement
of a Permitted Lien, or the liquidation, dissolution,
administration or winding up of a Subsidiary of the Issuer;
(8) the sale or other disposition of any assets (other than cash
or Cash Equivalents) in exchange for equity securities that
are listed on an internationally recognized securities
exchange, provided that the aggregate Fair Market Value
(determined as of the respective dates on which the Issuer and
its Subsidiaries enter into
Schedule 4 - 2
binding commitments to sell such assets for such equity
securities) of all such equity securities received by the
Issuer and its Subsidiaries from and after the Issue Date does
not exceed L50 million (or the Sterling Equivalent),
provided further that all such equity securities are disposed
of for Cash Equivalents in an Asset Sale within 90 days of the
later of (a) receipt of such equity securities and (b) the
expiration of any period not longer than 180 days in which the
Issuer or any Subsidiary of the Issuer agrees pursuant to the
documentation relating to such sale or disposition not to
dispose of any part of such equity securities without the
consent of a third party;
(9) Italian Invoice Discounting;
(10) leases, subleases and licences of assets, properties or
rights, other than Intellectual Property;
(11) licences, sub-licences and non-exclusive escrow and access
agreements of or with respect to Intellectual Property of the
Issuer and any of its Subsidiaries entered into in the
ordinary course of business, provided that (a) any such
transaction is expressly permitted under or approved in
accordance with the terms of the applicable Intellectual
Property Licence Agreements or (b) if such transaction is not
the subject of the Intellectual Property Licence Agreements
and the Intellectual Property is a Patent, the Issuer provides
express prior written consent to such transaction;
(12) the sale, lease, sublease, transfer, conveyance or license of
Intellectual Property from UK IPR Co, US IPR Co or Ringfenced
IPR Co to a Subsidiary of the Issuer in connection with any
disposition of such Subsidiary or of assets, properties or
rights by such Subsidiary which is otherwise permitted by this
Indenture;
(13) the sale or other disposition of assets received in compromise
or settlement of claims of the Issuer or any of its
Subsidiaries against a customer or other trade debtor; and
(14) the sale or other disposition of promissory notes, loan notes
or evidences of indebtedness of customers received by the
Issuer or any of its Subsidiaries pursuant to vendor finance
arrangements in the ordinary course of business and on
arm's-length terms.
"ATTRIBUTABLE DEBT" in respect of a Sale and Leaseback Transaction, the
lease portion of which is a finance or capital lease that would be required to
be capitalized on a balance sheet in accordance with generally accepted
accounting principles applicable in the United Kingdom as in effect at the time
such lease was entered into, means, at the time of determination, the present
value of the obligation of the lessee for net rental payments during the
remaining term of the lease included in such Sale and Leaseback Transaction,
including any period for which such lease has been extended or may, at the
option of the lessor, be extended. Such present value shall be calculated using
a discount rate equal to the rate of interest implicit in such transaction,
determined in accordance with generally accepted accounting principles
applicable in the United Kingdom as in effect at the time such lease was entered
into.
Schedule 4 - 3
"BANKRUPTCY LAW" means Title 11 of the United States Code (11 U.S.C.
101 et. seq.), or any similar United States federal or state law or any relevant
law in any other jurisdiction of organization or location of any assets of any
Obligor or Significant Subsidiary or any similar law (including, without
limitation, (1) the laws of the United Kingdom relating to moratorium,
administration, bankruptcy, insolvency, receivership, winding up, liquidation,
reorganization or relief of debtors, and (2) the laws of any other jurisdiction
relating to bankruptcy, moratorium, insolvency, receivership, reorganization or
other relief of debtors and composition with creditors, or any amendment to,
succession to or change in such law).
"BBRS BUSINESS" means the broadband routing and switching business of
the US Subsidiaries.
"BENEFICIAL OWNER" has the meaning assigned to such term in Rule 13d-3
and Rule 13d-5 under the US Exchange Act, except that in calculating the
beneficial ownership of any particular "person" (as that term is defined in
Section 13(d)(3) of the US Exchange Act including, for the avoidance of doubt,
any person or persons acting in concert with such person) such "person" will be
deemed to have beneficial ownership of all securities that such "person" has the
right to acquire by conversion or exercise of other securities, whether such
right is currently exercisable or is exercisable only upon the occurrence of a
subsequent condition. The terms "Beneficially Owns" and "Beneficially Owned"
have a corresponding meaning.
"BOARD OF DIRECTORS" means:
(1) with respect to a corporation, the board of directors or other
equivalent body of the corporation (or any duly authorized
committee thereof) and, in the case of any corporation having
both a supervisory board and an executive or management board,
the supervisory board (or any duly authorized committee
thereof);
(2) with respect to a limited partnership, the board of directors
or other equivalent body (or any duly authorized committee
thereof) of the general partner of the partnership; and
(3) with respect to any other Person, the board or committee of
such Person serving a similar function.
"BOARD RESOLUTION" means, with respect to the Issuer or any Guarantor,
a copy of a resolution certified by the company secretary or an assistant
company secretary of the Issuer or such Guarantor, as the case may be, to have
been duly adopted by the Board of Directors of the Issuer or such Guarantor, as
the case may be, and to be in full force and effect on the date of such
certification and delivered to the Trustee.
"BRITISH POUNDS STERLING", "STERLING" and "(POUND)" or any similar
reference means the coin or currency of the United Kingdom that at the time of
payment is legal tender for the payment of public and private debts.
"BUSINESS DAY" means a day (other than a Saturday or Sunday) on which
commercial banks in the locations specified (or if no locations are specified,
in London and New York) are open for general business.
Schedule 4 - 4
"CAPITAL EXPENDITURE" means any capital expenditure accounted for as a
purchase of property, plant or equipment in accordance with Floating UK GAAP.
"CAPITAL LEASE OBLIGATION" means, at the time any determination is to
be made, the amount of the liability in respect of a finance or capital lease
that would at that time be required to be capitalized on a balance sheet in
accordance with generally accepted accounting principles applicable in the
United Kingdom as in effect at the time such lease was entered into.
"CAPITAL STOCK" means:
(1) in the case of a corporation, any and all shares, interests,
participations, or other equivalent (however designated and
whether or not voting) of share capital;
(2) in the case of an association or business entity, any and all
shares, interests, participations, rights or other equivalent
(however designated and whether or not voting) of share
capital;
(3) in the case of a partnership or limited liability company,
partnership or membership interests (whether general or
limited); and
(4) any other interest or participation that confers on a Person
the right to receive a share of the profits and losses of, or
distributions of assets of, the issuing Person.
"CAPTIVE INSURANCE COMPANY" means Marconi Insurance Limited, a limited
liability company incorporated under the laws of Guernsey.
"CASH COLLATERAL RELEASES" means all releases to, or upon the order or
instructions of, the Issuer or any of its Subsidiaries of (1) collateral or
security constituting cash or Cash Equivalents from any Person (other than the
Issuer and its Subsidiaries), which collateral or security was provided by the
Issuer or any of its Subsidiaries (a) prior to the Issue Date, (b) in the form
of deposits into the Existing Performance Bond Escrow Account, (c) to the New
Bonding Facility Security Trustee under the New Bonding Facility Agreement, (d)
to any agent, security trustee or lender under, or otherwise in respect of, any
Replacement New Bonding Facility Agreement, (e) in respect of any Existing
Performance Bond, or (f) in respect of the Interim Bonding Facilities; provided
that (i) releases of collateral or security constituting cash or Cash
Equivalents in connection with any surety bond, appeal bond, bid bond,
performance bond, letter of credit, bank guarantee or other obligation of a like
nature issued by or on behalf of the Captive Insurance Company shall not
constitute a Cash Collateral Release to the extent that the Captive Insurance
Company retains such cash and Cash Equivalents, (ii) releases of collateral or
security constituting cash or Cash Equivalents by the New Bonding Facility
Security Trustee to a lender under the New Bonding Facility Agreement shall not
constitute a Cash Collateral Release to the extent that such lender retains such
cash and Cash Equivalents to secure the obligations owed to it under the New
Bonding Facility Agreement, (iii) releases of collateral or security
constituting cash or Cash Equivalents in connection with any Italian Easy Loan
shall not constitute a Cash Collateral Release and (iv) releases of collateral
or security constituting cash or Cash Equivalents in connection with the renewal
or extension of any surety bond, appeal bond, bid bond, performance bond, letter
of credit, bank guarantee or other obligation of a like nature issued under the
Interim Bonding Facilities shall not constitute a Cash
Schedule 4 - 5
Collateral Release to the extent that the issuer of the renewed or extended
surety bond, appeal bond, bid bond, performance bond, letter of credit, bank
guarantee or like obligation retains such cash or Cash Equivalents under the
terms of an Interim Bonding Facility; or (2) cash or Cash Equivalents held in
escrow with respect to sales, transfers or other dispositions of assets or
property by the Issuer or any of its Subsidiaries prior to the Issue Date. For
the avoidance of doubt, any release of cash or Cash Equivalents that has been
held in escrow pursuant to any of the ESOP Escrow Agreement, the Mobile ESOP
Escrow Agreement, the Israeli ESOP Escrow Agreement or the Singapore ESOP Escrow
Agreement shall not constitute a Cash Collateral Release.
"CASH EQUIVALENTS" means:
(1) United States dollars, British pounds sterling, Euros, any
other currency that is freely convertible into any of the
foregoing or a claim on the European Central Bank;
(2) securities (i) issued or directly and fully guaranteed or
insured by the US government or any agency or instrumentality
of the US government (provided that the full faith and credit
of the United States is pledged in support of those
securities), or (ii) which are denominated in Euro or British
pounds sterling and are issued by, or directly and fully
guaranteed or insured by a member of the European Union, or
any agency or instrumentality thereof, and which mature, in
each case, within six months after the date of acquisition;
(3) certificates of deposit and Eurodollar time deposits issued by
a Highly Rated Financial Counterparty and which mature within
six months after the date of acquisition;
(4) repurchase obligations with a term of not more than seven days
for underlying securities of the types described in clauses
(2) and (3) above entered into with a Highly Rated Financial
Counterparty;
(5) commercial paper having the highest rating obtainable from
▇▇▇▇▇'▇ Investors Service, Inc. or Standard & Poor's Rating
Services (or any successor to the ratings business of either
of the foregoing) and which matures within six months after
the date of acquisition;
(6) marketable direct obligations of any member of the European
Union, in each case rated at least "AAA" or the equivalent
thereof by both ▇▇▇▇▇'▇ Investors Service Inc. and Standard &
Poor's Rating Services (or any successor to the ratings
business of either of the foregoing), or obligations fully and
unconditionally guaranteed by one of those sovereign nations
(or any agency thereof), of the type and maturity described in
clauses (2) through (5) above, which have ratings described in
such clauses or equivalent ratings from comparable foreign
rating agencies; and
(7) money market funds with at least 95% of the fund's assets
constituting Cash Equivalents of the kinds described in
clauses (1) through (6) of this definition.
Schedule 4 - 6
"CDI" means:
(1) in the case of DTC, a certificateless depositary interest
representing an interest in Global Junior Notes; or
(2) in the case of Euroclear or Clearstream, Luxembourg, a
certificated depositary interest representing an interest in
Global Junior Notes.
"CHANGE OF CONTROL" means the occurrence of any of the following:
(1) the adoption of a plan relating to the solvent liquidation or
dissolution of the Issuer;
(2) the consummation of any transaction the result of which is
that any "person" (as defined in the definition of Beneficial
Owner above) becomes the Beneficial Owner, directly or
indirectly, of more than 30% of the Voting Stock of the
Issuer, measured by voting power rather than number of shares,
provided that it shall not constitute a Change of Control if
such person acquired Beneficial Ownership of Voting Stock of
the Issuer inadvertently (including, without limitation,
because (a) such person was unaware that it Beneficially Owned
more than 30% of the Voting Stock of the Issuer or (b) such
person was aware of the extent of such Beneficial Ownership
but such person acquired Beneficial Ownership of such Voting
Stock without any plan or intention to change or influence the
control of the Issuer), and such person promptly (and in any
event within fifteen (15) London Business Days after becoming
aware of the extent of such Beneficial Ownership) divests
sufficient Voting Stock of the Issuer so that such person
ceases to be the Beneficial Owner, directly or indirectly, of
more than 30% of the Voting Stock of the Issuer, measured by
voting power rather than number of shares; or
(3) the first day on which a majority of the members of the Board
of Directors of the Issuer are not Continuing Directors.
"CLEARSTREAM, LUXEMBOURG" means Clearstream Banking societe anonyme.
"COMPARABLE TREASURY ISSUE" means, with respect to any Repayment Date,
the United States Treasury security selected by an independent investment
banking firm in London (selected by the Issuer) as having a maturity comparable
to the remaining term of the Junior Notes that would be utilized, at the time of
selection and in accordance with customary financial practice, in pricing new
issues of corporate debt securities denominated in United States dollars of
comparable maturity to the remaining term of the Junior Notes.
"COMPARABLE TREASURY PRICE" means, with respect to any Repayment Date,
(1) the average of the bid and asked prices for the Comparable Treasury Issue
for the Junior Notes (expressed in each case as a percentage of its principal
amount) on the third New York Business Day preceding such Repayment Date, as set
forth in the daily statistical release (or any successor release) published by
the Federal Reserve Bank of New York and designated "Composite 3:30 p.m.
Quotations for US Government Securities" or (2) if such release (or any
successor release) is not published or does not contain such prices on such New
York Business Day, (a) the average of the Reference Treasury Dealer Quotations
for such Repayment Date
Schedule 4 - 7
after excluding the highest and lowest of such Reference Treasury Dealer
Quotations or (b) if the Trustee obtains fewer than three such Reference
Treasury Dealer Quotations, the average of all such quotations.
"COMPOSITE GUARANTEE" means the Guarantee made on 19 May 2003 by the
Issuer and the Guarantors in favor of the Security Trustee of the obligations of
the Obligors under the Security Trust and Intercreditor Deed, any
Agent/Trustee/New Bonding Facility Bank Accession Letter, any Guarantor
Accession Letter, the Escrow Agreement, the New Bonding Facility Agreement, the
Security Documents (other than the Guarantee of the Senior Notes, the Guarantee
of the Junior Notes and the Composite Guarantee), the Fee Letter and any
Additional Remuneration Fee Letter (as such terms are defined therein).
"CONSOLIDATED EBITDA" means, with respect to any specified Person and
such of its Subsidiaries as are specified (or in the event no Subsidiaries of
such Person are specified, such Person) for any period, the Consolidated Profit
Before Taxes of such Person and such of its Subsidiaries as are specified (or in
the event no Subsidiaries of such Person are specified, of such Person) for such
period:
(1) plus an amount equal to any extraordinary or exceptional
(whether operating or non-operating) costs or losses realized
by such Person and such of its Subsidiaries as are specified
(or in the event no Subsidiaries of such Person are specified,
such Person) for such period, to the extent such costs or
losses were deducted in computing such Consolidated Profit
Before Taxes;
(2) minus an amount equal to any extraordinary or exceptional
(whether operating or non-operating) income or gains realized
by such Person and such of its Subsidiaries as are specified
(or in the event no Subsidiaries of such Person are specified,
such Person) for such period, to the extent such income or
gains were included in computing such Consolidated Profit
Before Taxes;
(3) plus an amount equal to any costs or losses realized by such
Person and such of its Subsidiaries as are specified (or in
the event no Subsidiaries of such Person are specified, such
Person) in respect of discontinued operations for such period,
to the extent such costs or losses were deducted in computing
such Consolidated Profit Before Taxes;
(4) minus an amount equal to any income or gains realized by such
Person and such of its Subsidiaries as are specified (or in
the event no Subsidiaries of such Person are specified, such
Person) in respect of discontinued operations for such period,
to the extent such income or gains were included in computing
such Consolidated Profit Before Taxes;
(5) plus an amount equal to the Consolidated Gross Finance Charges
for such Person and such of its Subsidiaries as are specified
(or in the event no Subsidiaries of such Person are specified,
for such Person) for such period, to the extent that such
Consolidated Gross Finance Charges were deducted in computing
such Consolidated Profit Before Taxes;
Schedule 4 - 8
(6) plus an amount equal to interest paid or accrued on the Junior
Notes for such period to the extent such amount was deducted
in computing such Consolidated Profit Before Taxes;
(7) minus an amount equal to the Consolidated Gross Finance Income
for such Person and such of its Subsidiaries as are specified
(or in the event no Subsidiaries of such Person are specified,
for such Person) for such period, to the extent that such
Consolidated Gross Finance Income was included in computing
such Consolidated Profit Before Taxes;
(8) plus an amount equal to the equity in net losses of joint
ventures and associates of such Person and such of its
Subsidiaries as are specified (or in the event no Subsidiaries
of such Person are specified, of such Person) for such period,
to the extent that such amounts were deducted in computing
such Consolidated Profit Before Taxes;
(9) minus an amount equal to the equity in net income of joint
ventures and associates of such Person and such of its
Subsidiaries as are specified (or in the event no Subsidiaries
of such Person are specified, of such Person) for such period,
to the extent that such amounts were included in computing
such Consolidated Profit Before Taxes;
(10) plus an amount equal to depreciation and amortization
(including amortization or impairment of goodwill and other
intangibles but excluding amortization of prepaid cash
expenses that were paid in a prior period) of such Person and
such of its Subsidiaries as are specified (or in the event no
Subsidiaries of such Person are specified, of such Person) for
such period, to the extent that such depreciation and
amortization were deducted in computing such Consolidated
Profit Before Taxes;
(11) minus an amount equal to any foreign exchange gains recorded
in the profit and loss account in respect of the retranslation
of the balances outstanding under the Junior Notes and the
Senior Notes for such period, to the extent such foreign
exchange gains were included in computing such Consolidated
Profit Before Taxes;
(12) plus an amount equal to any foreign exchange losses recorded
in the profit and loss account in respect of the retranslation
of the balances outstanding under the Junior Notes and the
Senior Notes for such period, to the extent such foreign
exchange losses were deducted in computing such Consolidated
Profit Before Taxes;
(13) minus an amount equal to any finance income related to the
expected return on pension and other retirement benefit
schemes' assets for such period, to the extent such finance
income was included in computing such Consolidated Profit
Before Taxes;
(14) plus an amount equal to any financing costs related to the
interest on pension and other retirement benefit schemes'
liabilities for such period, to the extent
Schedule 4 - 9
such financing costs were deducted in computing such
Consolidated Profit Before Taxes;
(15) plus an amount equal to any non-cash expense recorded in the
profit and loss account in respect of share options for such
period, to the extent such non-cash expense was deducted in
computing such Consolidated Profit Before Taxes;
(16) minus an amount equal to any credit or provision release
recorded in the profit and loss account in respect of share
options for such period, to the extent such credit or
provision release was included in computing such Consolidated
Profit Before Taxes;
in each case, on a consolidated basis and determined in accordance with
Fixed UK GAAP, consistently applied.
"CONSOLIDATED GROSS FINANCE CHARGES" means, with respect to any
specified Person and such of its Subsidiaries as are specified (or in the event
no Subsidiaries of such Person are specified, such Person) for any period,
without duplication, the aggregate amount of interest or amounts in the nature
of interest, whether paid or accrued and whether or not capitalized (including,
without limitation, amortization of debt issuance costs and original issue
discount, non-cash interest payments, the interest component of any deferred
payment obligations, the interest component of all payments associated with
Capital Lease Obligations, imputed interest with respect to Attributable Debt,
commissions, discounts and other fees and charges incurred in respect of letter
of credit or bankers' acceptance financings), commissions, fees, discounts and
other finance payments payable by such Person and such of its Subsidiaries as
are specified, in each case in respect of Indebtedness and paid or accrued in
such period (including any commissions, fees, discounts and other finance
payments payable by such Person and such of its Subsidiaries as are specified
under any Permitted Hedging Transaction), on a consolidated basis, determined in
accordance with Fixed UK GAAP, consistently applied, minus any interest paid or
accrued on the Junior Notes.
"CONSOLIDATED GROSS FINANCE INCOME" means, with respect to any
specified Person and such of its Subsidiaries as are specified (or in the event
no Subsidiaries of such Person are specified, such Person) for any period,
without duplication, the aggregate amount of interest or amounts in the nature
of interest (including, without limitation, non-cash interest income),
commissions, fees, discounts and other finance payments received by such Person
and such of its Subsidiaries as are specified (or in the event no Subsidiaries
of such Person are specified, such Person), including any commissions, fees,
discounts and other finance payments received by such Person and such of its
Subsidiaries as are specified under any Permitted Hedging Transaction, on a
consolidated basis, determined in accordance with Fixed UK GAAP, consistently
applied.
"CONSOLIDATED PROFIT AFTER TAXES" means, with respect to any specified
Person for any period, the aggregate of the Profit After Taxes of such Person
and such of its Subsidiaries as are specified for such period, on a consolidated
basis, determined in accordance with Floating UK GAAP, consistently applied;
provided that:
(1) the Profit After Taxes (but not loss) of any Person that is
not a Subsidiary of such Person or that is accounted for by
the equity method of accounting will be
Schedule 4 - 10
included only to the extent of the amount of dividends or
distributions paid in cash to the specified Person or such of
its Subsidiaries as are Wholly-Owned Subsidiaries of such
Person;
(2) the Profit After Taxes of any specified Subsidiary of such
Person will be excluded to the extent that the declaration or
payment of dividends or similar distributions by that
Subsidiary of that Profit After Taxes is not at the date of
determination permitted without any prior governmental
approval (that has not been obtained) or, directly or
indirectly, by operation of the terms of its organizational
documents or any agreement, instrument, judgment, decree,
order, statute, rule or governmental regulation applicable to
that Subsidiary or its stockholders;
(3) the Profit After Taxes of any Person acquired in a pooling of
interests transaction for any period prior to the date of such
acquisition will be excluded;
(4) any discharge of indebtedness income and any income or gain
arising as a result of consummation of the Restructuring will
be excluded; and
(5) the cumulative effect of a change in accounting principles
will be excluded.
"CONSOLIDATED PROFIT BEFORE TAXES" means, with respect to any specified
Person and such of its Subsidiaries as are specified (or in the event no
Subsidiaries of such Person are specified, such Person) for any period, the
profit (loss) before taxes of such Person and such of its Subsidiaries as are
specified (or in the event no Subsidiaries of such Person are specified, of such
Person) for such period, on a consolidated basis, determined in accordance with
Fixed UK GAAP, consistently applied; provided that:
(1) the profit (loss) before taxes of any Person acquired in a
pooling of interests transaction for any period prior to the
date of such acquisition will be excluded; and
(2) any discharge of indebtedness income and any income or gain
arising as a result of consummation of the Restructuring will
be excluded.
"CONTINUING DIRECTORS" means, as of any date of determination, any
member of the Board of Directors of the Issuer who:
(1) was a member of such Board of Directors on the Issue Date; or
(2) was nominated for election or elected to such Board of
Directors with the approval of a majority of those members of
such Board of Directors at the time of such nomination or
election who were either (a) a member of such Board of
Directors on the Issue Date or (b) nominated for election or
elected in accordance with this clause (2).
"CORPORATE TRUST OFFICE" means the office of the Trustee in which its
corporate trust business is principally administered, which as of the date
hereof is located at ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇.
Schedule 4 - 11
"DEFAULT" means any event that is, or with the passage of time or the
giving of notice or the making of any determination or any combination thereof
would be, an Event of Default.
"DEFAULT RATE" means 12% per annum.
"DEFINITIVE REGISTERED JUNIOR NOTES" means Junior Notes in definitive
registered form.
"DEPOSIT AGREEMENT" means the deposit agreement dated as of the Issue
Date between the Issuer and The Bank of New York, as Depositary.
"DEPOSITARY" means the Person appointed as agent by the Issuer under
the Deposit Agreement for the purposes of maintaining records in which it shall
record the ownership, transfer and increases or decreases in the principal
amount of CDIs in a Global Junior Note, which initially shall be The Bank of New
York.
"DERIVATIVE TRANSACTION" means any transaction (including an agreement
with respect thereto) which is a rate swap transaction, basis swap, forward rate
transaction, commodity swap, commodity option, equity or equity index swap,
equity or equity index option, equity derivative transaction, bond option,
interest rate option, credit default swap, credit derivative transaction,
foreign exchange transaction (other than a spot foreign exchange transaction),
cap transaction, floor transaction, collar transaction, currency swap
transaction, cross-currency rate swap transaction, currency option, futures
contract, futures transaction, any other derivative contract or any other
similar transaction (including any option or future with respect to any of these
transactions), and any combination of these transactions.
"DISINTERESTED DIRECTOR" means, with respect to any transaction or
series of related transactions, a member of the Board of Directors of the Issuer
who does not have any material direct or indirect financial interest in or with
respect to such transaction or series of related transactions. Ownership of the
Issuer's Equity Interests and/or employment arrangements with the Issuer or any
of its Subsidiaries shall not constitute a material direct or indirect financial
interest in or with respect to a transaction or series of related transactions
not directly related to such ownership or such employment arrangement.
"DISINTERESTED OFFICER" means, with respect to any transaction or
series of related transactions, an Officer of the Issuer who does not have any
material direct or indirect financial interest in or with respect to such
transaction or series of related transactions. Ownership of the Issuer's Equity
Interests and/or employment arrangements with the Issuer or any of its
Subsidiaries shall not constitute a material direct or indirect financial
interest in or with respect to a transaction or series of related transactions
not directly related to such ownership or such employment arrangement.
"DISQUALIFIED STOCK" means any Capital Stock that, by its terms (or by
the terms of any security into which it is convertible, or for which it is
exercisable or exchangeable, in each case at the option of the holder of the
Capital Stock), or upon the happening of any event, matures or is mandatorily
redeemable, pursuant to a sinking fund obligation or otherwise, or is redeemable
at the option of the holder of the Capital Stock, in whole or in part, on or
prior to the date that is one year after the date on which the Junior Notes
mature. Notwithstanding the preceding sentence, any Capital Stock that would
constitute Disqualified Stock solely because the holders of the Capital Stock
have the right to require the Issuer to repurchase such Capital Stock upon
Schedule 4 - 12
the occurrence of a change of control or an asset sale will not constitute
Disqualified Stock if the terms of such Capital Stock provide that the Issuer
may not repurchase or redeem any such Capital Stock pursuant to such provisions
unless such repurchase or redemption complies with Section 4.03 (Restricted
Payments).
"DISTRIBUTION AGENT" means The Bank of New York as distribution agent
pursuant to the Escrow and Distribution Agreement and any successor from time to
time.
"DOLLAR EQUIVALENT" means, with respect to any monetary amount in a
currency other than United States dollars, at any time of determination thereof,
the amount of United States dollars obtained by translating the amount of such
foreign currency into United States dollars at the spot rate for the purchase of
United States dollars with the applicable foreign currency as published in the
Wall Street Journal on the date that is two (2) New York Business Day prior to
such determination.
Except as set forth in Section 4.06 (Limitation on Indebtedness and
Preferred Stock), whenever it is necessary to determine compliance with any
covenant that contains an amount expressed in United States dollars in this
Indenture and an amount is expressed in a currency other than United States
dollars, such amount will be treated as the Dollar Equivalent determined as of
the date such amount is initially determined in such other currency.
"DTC" means The Depository Trust Company or its nominee.
"ENFORCEMENT EVENT" means the acceleration of any Secured Obligations
(other than Secured Obligations arising under the New Bonding Facility
Agreement) or any declaration that any Secured Obligations (other than Secured
Obligations arising under the New Bonding Facility Agreement) are prematurely
due and payable (other than solely as a result of it becoming unlawful for a
Secured Creditor to perform its obligations under the Relevant Documents) or any
failure by any Obligor to pay any principal amount in respect of any Secured
Obligations (other than Secured Obligations arising under the New Bonding
Facility Agreement) whether on maturity or otherwise.
"EQUITY INTERESTS" means Capital Stock and all warrants, options or
other rights to acquire Capital Stock (but excluding any debt security that is
convertible into, or exercisable or exchangeable for, Capital Stock).
"ESCROW ACCOUNTS" means the Mandatory Redemption Escrow Accounts and
the Existing Performance Bond Escrow Accounts established pursuant to the Escrow
Agreement.
"ESCROW AGREEMENT" means the escrow agreement dated on or about the
date of the Security Trust and Intercreditor Deed and made between HSBC Bank plc
as New Bonding Facility Agent and New Bonding Facility Security Trustee, the
Security Trustee, the Escrow Bank and the Issuer establishing and setting out
the terms and conditions of each of the Escrow Accounts.
"ESCROW AND DISTRIBUTION AGREEMENT" means the escrow and distribution
agreement dated March 27, 2003 between the Issuer, Marconi plc, the security
trustee named therein, The Bank of New York as distribution agent, The Law
Debenture Trust Corporation p.l.c., Ancrane, Bondholder Communications Group and
the Supervisors (as defined therein) with respect to the Restructuring.
Schedule 4 - 13
"ESCROW BANK" means the Person acting as Escrow Bank under the Escrow
Agreement, which initially shall be HSBC Bank plc.
"ESOP ESCROW AGREEMENT" means the ESOP escrow agreement dated December
13, 2002 between Marconi plc, the Issuer, HSBC Bank plc and Barclays Bank PLC.
"EURO" or "(EURO)" means the currency introduced at the start of the
third stage of the European economic and monetary union pursuant to the Treaty
establishing the European Community, as amended by the Treaty on European Union.
"EUROCLEAR" means Euroclear Bank S.A./N.V.
"EUROPEAN UNION" means the European Union, including the countries of
Austria, Belgium, Denmark, France, Finland, Germany, Greece, Ireland, Italy,
Luxembourg, the Netherlands, Portugal, Spain, Sweden and the United Kingdom, but
not including any country which becomes a member of the European Union after the
Issue Date.
"EVENT OF DEFAULT", when used with respect to the Junior Notes, has the
meaning set forth in Section 6.01 (Events of Default).
"EXCLUDED ASSET SALE AND LIQUIDATION PROCEEDS" means (1) the first
l82 million (or the Sterling Equivalent) of Net Proceeds and/or Liquidation
Proceeds received by the Issuer and its Subsidiaries with respect to Excluded
Assets, minus (2) the aggregate Net Proceeds and/or Liquidation Proceeds
received by the Issuer and its Subsidiaries with respect to Excluded Assets
prior to the Issue Date.
"EXCLUDED ASSETS" means assets, rights and properties that have been
identified as such in writing by the Issuer to the Trustee, the Senior Note
Trustee and the Security Trustee and that have been confirmed in writing by
PricewaterhouseCoopers.
"EXISTING INDEBTEDNESS" means Indebtedness of the Issuer and its
Subsidiaries (other than Indebtedness owed to the Issuer or any Subsidiary of
the Issuer) in existence (i) on the Scheme Launch Date or (ii) incurred after
the Scheme Launch Date and in existence on the Issue Date and as set forth in
Schedule 3 (Existing Indebtedness incurred after the Scheme Launch Date) hereto,
in each case until such amounts are repaid.
"EXISTING INTERCOMPANY INDEBTEDNESS" means Indebtedness owed by the
Issuer or any of its Subsidiaries to the Issuer or any other Subsidiary of the
Issuer (for purposes of this definition, the "creditor") on the Issue Date, in
each case until such amounts are repaid, provided that (1) in the event a
particular Subsidiary of the Issuer is the creditor in respect of Indebtedness
of the Issuer and all its Subsidiaries that in the aggregate exceeds L20 million
(or the Sterling Equivalent), such creditor Subsidiary is a party to the
Security Trust and Intercreditor Deed and (2) such Indebtedness is unsecured.
For purposes of this definition, any Subsidiary of the Issuer that owns or holds
any shares of Preferred Stock or Disqualified Stock issued by the Issuer or any
of its other Subsidiaries shall constitute the creditor with respect to such
Preferred Stock or Disqualified Stock.
"EXISTING PERFORMANCE BOND ESCROW ACCOUNT" means the Escrow Accounts
established pursuant to the Escrow Agreement to be used to satisfy certain
obligations of the Issuer and its Subsidiaries to provide cash collateral under
Existing Performance Bonds.
Schedule 4 - 14
"EXISTING PERFORMANCE BONDS" means surety bonds, appeal bonds, bid
bonds, performance bonds, letters of credit, bank guarantees or other
obligations of a like nature issued by a bank, insurance company or other
financial institution on behalf of the Issuer or any of its Subsidiaries in
existence on the Issue Date and not issued pursuant to the Interim Bonding
Facilities, until such bonds, letters of credit, guarantees or other obligations
expire, terminate or are cancelled.
"EXTERNAL ASSETS" means, with respect to any specified Person on any
date, the total assets of such Person, after eliminating intercompany assets and
investments in Subsidiaries, on such date and in accordance with Floating UK
GAAP.
"EXTERNAL SALES" means, with respect to any specified Person for any
period, the total revenues of such Person, after eliminating intercompany sales,
for such period and in accordance with Floating UK GAAP.
"FAIR MARKET VALUE" means, with respect to any asset, right or
property, the sale value that would be obtained in an arm's-length free market
transaction between an informed and willing seller and an informed and willing
buyer.
"FIXED UK GAAP" means generally accepted accounting principles
applicable in the United Kingdom including Financial Reporting Standards and
Statements of Standard Accounting Practices issued by the Accounting Standards
Board Limited and as in effect on March 31, 2003.
"FLOATING UK GAAP" means generally accepted accounting principles
applicable in the United Kingdom including Financial Reporting Standards and
Statements of Standard Accounting Practices issued by the Accounting Standards
Board Limited and as in effect from time to time.
"GERMAN IP GUARANTOR" means Marconi Communications GmbH, a private
company incorporated under the laws of Germany.
"GLOBAL JUNIOR NOTES" means each global security in bearer form,
representing all or a part of the Junior Notes, without coupons for payments
attached, authenticated and delivered to the Holder of such Junior Notes or such
portion of such Junior Notes in accordance with Section 2.05 (Execution,
Authentication, Delivery and Dating).
"GROUP" means all the Group Companies.
"GROUP COMPANY" means the Issuer or any Subsidiary of the Issuer.
"GROUP LICENCE AGREEMENT" means the intra-group licence agreement among
the Issuer and the operating companies within the Group dated on or before the
Issue Date providing for a licence authorizing the Issuer and each of its
Subsidiaries to use the Intellectual Property of each of them to the extent that
such use is ongoing on the Issue Date.
"GUARANTEE" means a guarantee, direct or indirect, of the obligation of
another Person in any manner including, without limitation, by way of a pledge
of assets or through letters of credit or reimbursement agreements in respect
thereof, of all or any part of any Indebtedness of any Person. The term
"GUARANTEE" shall not include endorsements for collection or deposit in
Schedule 4 - 15
the ordinary course of business. The term "GUARANTEE" used as a verb has a
corresponding meaning.
"GUARANTEE OF THE JUNIOR NOTES" means the Guarantee of the Junior Notes
by the Guarantors executed and delivered pursuant to Article 11 of this
Indenture.
"GUARANTEE OF THE SENIOR NOTES" means the Guarantee of the Senior Notes
by the Guarantors executed and delivered pursuant to Article 11 of the Senior
Note Indenture.
"GUARANTORS" means each Non-US Guarantor and each US Guarantor.
"HIGHLY RATED FINANCIAL COUNTERPARTY" means a bank or financial
institution whose financial obligations are rated P-1 by ▇▇▇▇▇'▇ Investors
Service, Inc. or A-1 by Standard and Poor's Rating Services (or any successor to
the ratings business of either of the foregoing) or the equivalent rating
category of another internationally recognized rating agency.
"HOLDER" means (i) for so long as any Junior Notes are represented by
one or more Global Junior Notes, the bearer thereof which shall be the
Depositary and (ii) in the event that Definitive Registered Junior Notes are
issued, the Person in whose name a Definitive Registered Junior Note is
registered on the Registrar's books.
"INDEBTEDNESS" means, with respect to any specified Person, without
duplication:
(1) all indebtedness of such Person for borrowed money;
(2) all obligations of such Person evidenced by bonds, notes,
debentures, loan stock or similar instruments;
(3) all obligations, contingent or otherwise, of such Person in
respect of surety bonds, appeal bonds, bid bonds, performance
bonds or other obligations of a like nature;
(4) all obligations, contingent or otherwise, of such Person in
respect of letters of credit, banker's acceptances, bank
guarantees, acceptance or other similar facilities, in each
case, including reimbursement obligations or agreements in
respect thereof;
(5) all Capital Lease Obligations of such Person;
(6) all obligations created or arising under any conditional sale
or other title retention agreement with respect to property
acquired by such Person (even if the rights and remedies of
the seller or lender under such agreement in the event of
default are limited to repossession or sale of such property),
and all obligations of such Person representing the balance
deferred and unpaid of the purchase price of any property or
services, but in each case excluding trade payables and other
accrued current liabilities arising in the ordinary course of
business;
(7) all Attributable Debt with respect to any Sale and Leaseback
Transaction of such Person;
Schedule 4 - 16
(8) receivables sold or discounted (including, for the avoidance
of doubt, transactions having the economic effect of a sale or
discounting of receivables) by such Person, provided that
receivables to the extent they are sold or discounted on a
non-recourse basis shall be disregarded, and for this purpose,
where recourse:
(a) is limited to the receivables sold; and/or
(b) arises as a result of breach of warranties (or the
equivalent), including warranties (or the equivalent)
regarding the validity and enforceability of the receivables
sold but excluding warranties (or the equivalent) in respect
of the creditworthiness of the receivable debtor;
the sale or discounting of such receivable shall be deemed to be on a
non- recourse basis;
(9) any amount raised under any other transaction by such Person
(including any forward sale or purchase agreement) having the
commercial effect of a borrowing, excluding trade payables and
other accrued current liabilities arising in the ordinary
course of business;
(10) all obligations of such Person under any Derivative
Transaction (the amount of any such obligations to be equal at
any time to the termination value of such agreement or
arrangement giving rise to such obligation that would be
payable by such Person at such time);
(11) the greater of the voluntary or involuntary maximum fixed
repurchase price of all Disqualified Stock of such Person; and
(12) any Preferred Stock issued by such Person, other than the
Issuer.
In addition, the term "Indebtedness" includes all Indebtedness of other
Persons, the payment of which is secured by (or for which the holder of such
Indebtedness has an existing right, contingent or otherwise, to be secured by)
any Lien upon or with respect to any asset or property of the specified Person
(whether or not such Indebtedness is assumed by the specified Person) and, to
the extent not otherwise included, any Guarantee or indemnity of the specified
Person with respect to any Indebtedness of any other Person.
The amount of any Indebtedness outstanding as of any date will be:
(1) in the case of any Indebtedness issued with original issue
discount, the accreted value of the Indebtedness; and
(2) in the case of any other Indebtedness, the principal amount of
the Indebtedness, together with any interest on the
Indebtedness that is more than 30 days past due.
"INDENTURE" means this instrument as originally executed or as it may
from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof.
Schedule 4 - 17
"INDENTURES" means this Indenture and the Senior Note Indenture.
"INITIAL SECURITY DOCUMENTS" means the security documents to be dated
on or before the Issue Date that are set forth in Schedule 2 (Initial Security
Documents) hereto.
"INITIAL TRANSACTION SECURITY" means all assets, properties and rights
of the Issuer and its Subsidiaries that are subject to Liens pursuant to the
terms and provisions of the Initial Security Documents in order to secure the
Secured Obligations.
"INTELLECTUAL PROPERTY" means all industrial and intellectual property
rights whether registered or not including pending applications for registration
of such rights and the right to apply for registration of such rights including
but not limited to Patents, utility models, design patents, registered designs,
design rights, trade and service marks, copyrights (including copyright and
equivalent rights in computer software), rights in inventions, technical
information, rights in know-how, business names, database rights, processes,
models, formulae and experiments and all rights of equivalent or similar effect
to any of those which may subsist anywhere in the world.
"INTELLECTUAL PROPERTY LICENCE AGREEMENTS" means (1) the licences from
the IPR SPVs (and in the case of the German IP Guarantor, the Security Trustee)
to the relevant Subsidiaries of the Issuer, (2) the Research and Development
Cost Sharing Agreement and (3) the Group Licence Agreement.
"INTERIM BONDING FACILITIES" means (1) the interim bonding facility
dated May 10, 2002, as amended, among Barclays Bank PLC, HSBC Bank plc and
JPMorgan Chase Bank and Marconi Bonding Limited 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 and (2) the temporary
bonding facility dated February 8, 2002 among Barclays Bank PLC, HSBC Bank plc
and Marconi Bonding Limited 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.
"INTRA-GROUP LIABILITIES" means all present or future sums, liabilities
and obligations whatsoever (actual or contingent) payable, owing, due or
incurred by any Intra-Group Borrower (as defined in the Security Trust and
Intercreditor Deed) to any Intra-Group Creditor (as defined in the Security
Trust and Intercreditor Deed) (whether pursuant to an Intra-Group Document (as
defined in the Security Trust and Intercreditor Deed) or otherwise), other than
sums, liabilities and obligations arising in the ordinary course of business
which do not constitute Indebtedness.
"INVESTMENTS" means, with respect to any Person, all direct or indirect
investments by such Person in other Persons (including Subsidiaries and
Affiliates of such Person) in the form of loans (including Guarantees or similar
arrangements), advances (by means of any transfer of cash or other property to a
Person other than the Issuer or any of its Subsidiaries or any payment for
property or services for the account or use of a Person other than the Issuer or
any of its Subsidiaries), or capital contributions or purchases or other
acquisitions for consideration of Indebtedness, Equity Interests or other
securities, together with all items that are or would be classified as
investments on a balance sheet prepared in accordance with Floating UK GAAP. The
acquisition by the Issuer or any Subsidiary of the Issuer of a Person that
becomes a Subsidiary of the Issuer or any Subsidiary of the Issuer and that
holds an Investment in a third
Schedule 4 - 18
Person will be deemed to be an Investment by the Issuer or such Subsidiary in
such third Person in an amount equal to the Fair Market Value of the Investment
held by the acquired Person in such third Person in an amount determined as
provided in Section 4.03 (Restricted Payments).
"IPR SPV" means each of UK IPR Co, US IPR Co and Ringfenced IPR Co.
"ISRAELI ESOP ESCROW AGREEMENT" means the escrow agreement dated
October 21, 2002 between the Issuer, Marconi plc, HSBC Bank plc, Barclays Bank
PLC, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Trustees Limited and ▇▇▇▇▇ & Overy.
"ISSUE DATE" means the date on which the Junior Notes are first
originally issued.
"ISSUER" means Marconi Corporation plc and any successor thereto.
"ISSUER REQUEST" and "ISSUER ORDER" means, respectively, a written
request or order signed in the name of the Issuer by any Officer and delivered
to the Paying Agent or the Trustee (as the case may be).
"ITALIAN EASY LOANS" means the subsidized loans existing as of the
Issue Date granted by the Italian Ministry of Productive Activities (formerly,
Ministry of Industry), either directly or through its authorized agents, in
favor of Marconi Communications S.p.A. and Marconi Sud S.p.A. or any other
Subsidiary of the Issuer incorporated or organized under the laws of Italy
pursuant to the provisions of Law No. 46 dated February 17, 1982 and Legislative
Decree No. 297 dated July 27, 1999.
"ITALIAN INVOICE DISCOUNTING" means the discounting or factoring
(including, for the avoidance of doubt, transactions having the economic effect
of discounting or factoring) by Non-US Subsidiaries incorporated or organized
under the laws of Italy of trade receivables owed to such Non-US Subsidiaries in
the ordinary course of business on arm's-length terms, provided that (1) the
aggregate gross proceeds received from all such trade receivables discounted or
factored from and after the Issue Date does not exceed E60 million (or the
equivalent in other currencies) and (2) such discounting or factoring is on a
non-recourse basis within the meaning specified in clause (8) of the definition
of Indebtedness.
"ITALIAN MORTGAGES" means mortgages over real property constituting
Transaction Security granted by Marconi Communications S.p.A. and Marconi Sud
S.p.A.
"JUNIOR NOTE INTEREST ACCRUAL PERIOD" means, in respect of each Junior
Note Interest Period, (1) if no Repayment Date has occurred during a Junior Note
Interest Period, such Junior Note Interest Period or (2) if one or more
Repayment Dates have occurred during such Junior Note Interest Period, each
successive period beginning on (and including) the first day of such Junior Note
Interest Period and ending on (but excluding) the next Repayment Date and
thereafter each period beginning on (and including) such Repayment Date and
ending on (but excluding) the next Repayment Date, or if none the next Junior
Note Interest Payment Date.
"JUNIOR NOTE INTEREST PAYMENT DATE" means each January 31, April 30,
July 31 and October 31, commencing July 31, 2003.
Schedule 4 - 19
"JUNIOR NOTE INTEREST PERIOD" means each period beginning on (and
including) the Issue Date or any Junior Note Interest Payment Date and ending on
(but excluding) the next Junior Note Interest Payment Date.
"JUNIOR NOTE INTEREST RATE" means, with respect to any Junior Note
Interest Period, (a) if the Issuer elects to pay and actually pays interest on
the Junior Notes on the relevant Junior Note Interest Payment Date in cash, 10%
per annum, otherwise (b) 12% per annum.
"JUNIOR PIK NOTES" means any Junior Notes issued in payment of interest
or Additional Amounts on outstanding Junior Notes pursuant to this Indenture.
"LIEN" means, with respect to any asset or property, any mortgage or
deed of trust, lien (statutory or otherwise), pledge, charge, security interest,
assignment, deposit, easement, hypothecation, or other encumbrance of any kind
upon or in respect of such asset or property, whether or not filed, recorded or
otherwise perfected under applicable law, including any conditional sale,
capital lease or other title retention agreement, any lease in the nature
thereof, any agreement to give a charge, mortgage or other security interest in
and any filing of or agreement to give any financing statement under a statute
or regulation of any jurisdiction.
"LIQUIDATION PROCEEDS" means the aggregate cash and Cash Equivalents
received by the Issuer or any of its Subsidiaries (i) in respect of the
liquidation, dissolution or winding up of any Subsidiary of the Issuer in its
capacity as holder of any Equity Interest in such Subsidiary that occurs
following or otherwise in connection with the sale of all or substantially all
the assets of such Subsidiary to a Person other than the Issuer or any of its
Subsidiaries or (ii) in respect of the liquidation, dissolution or winding up of
any Investment in a Person other than the Issuer or any of its Subsidiaries that
is owned by the Issuer or a Subsidiary of the Issuer, net of, without
duplication:
(1) any cash investment in, or payment or repayment of any
Indebtedness or other liability of, any Subsidiary of the
Issuer being liquidated, dissolved, placed under
administration or wound-up that is made by the Issuer or any
other Subsidiary of the Issuer contemporaneously with such
liquidation, dissolution, administration or winding-up, but
only to the extent of the amount of such cash investment,
payment or repayment;
(2) the direct costs actually incurred by the Issuer or such
Subsidiary including, without limitation, legal, accounting
and investment banking fees, sales commissions, and taxes
required to be paid or accrued as a liability under Floating
UK GAAP as a consequence of such liquidation, dissolution,
administration or winding-up, in each case, after taking into
account any available tax credits or deductions and any tax
sharing arrangements; and
(3) all distributions and other payments required to be made to
minority interest holders in any Subsidiary of the Issuer as a
result of such liquidation, dissolution, administration or
winding-up.
"LONDON BUSINESS DAY" means a day (other than a Saturday or Sunday) on
which commercial banks in London are open for general business.
Schedule 4 - 20
"MAKE-WHOLE AMOUNT" means, with respect to the Junior Notes and any
Repayment Date, an amount equal to the sum of the present values of the
remaining scheduled payments of principal and interest after such Repayment Date
(assuming the payment of interest in Junior PIK Notes, unless at any time after
the second scheduled Junior Note Interest Payment Date, the Issuer has paid
interest on the Junior Notes in full in cash on the two consecutive Junior Note
Interest Payment Dates immediately preceding such Repayment Date, in which case
the payment of interest in cash shall be assumed) on the Junior Notes discounted
to the Repayment Date on a quarterly basis (assuming a 360-day year consisting
of twelve 30-day months) at the Adjusted Treasury Rate as determined by an
independent investment banking firm in London (selected by the Issuer).
"MANDATORY REDEMPTION ESCROW ACCOUNT" means the Escrow Account
established pursuant to the Escrow Agreement to receive deposits to be applied
to, inter alia, the mandatory redemption of the Junior Notes and/or the Senior
Notes.
"MCHI" means Marconi Holdings, LLC, a Delaware limited liability
company previously known as Marconi Communications Holdings Inc., a Delaware
Corporation.
"MCHI PLAN OF LIQUIDATION AND DISSOLUTION" means the Plan of Complete
Liquidation and Dissolution adopted and approved by the Board of Directors and
stockholders, respectively, of MCHI in March 2001 as in effect on the Issue
Date.
"MOBILE ESOP ESCROW AGREEMENT" means the escrow agreement dated August
2, 2002 between the Issuer, Marconi plc, Marconi ▇▇▇▇▇▇ Street Limited, HSBC
Bank plc, Barclays Bank PLC, Salomon Brothers International Limited, UBS AG,
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Trustees Limited and ▇▇▇▇▇▇▇▇▇ and May.
"NET PROCEEDS" means the aggregate cash and Cash Equivalents received
by the Issuer or any of its Subsidiaries in respect of any Asset Sale
(including, without limitation, payments in respect of deferred payment
arrangements (to the extent corresponding to the principal, but not interest,
component thereof) when received in the form of, and any non-cash consideration
received in any Asset Sale when disposed of for, cash or Cash Equivalents), net
of, without duplication (but in each case provided that the Issuer may, in its
discretion, elect not to deduct all or any portion of the following amounts from
the aggregate cash and Cash Equivalents received):
(1) all legal, title and recording tax expenses, commissions and
other fees and expenses incurred (including fees and expenses
of counsel, accountants and investment bankers) in connection
with such Asset Sale;
(2) all taxes required to be paid or accrued as a liability under
Floating UK GAAP, consistently applied, as a consequence of
such Asset Sale, in each case, after taking into account any
available tax credits or deductions and any tax sharing
arrangements;
(3) all distributions and other payments required to be made to
minority interest holders in any Subsidiary of the Issuer as a
result of such Asset Sale;
(4) amounts required to be applied to the repayment of
Indebtedness secured by a Lien on the assets, properties or
rights that were the subject of such Asset Sale,
Schedule 4 - 21
or Indebtedness which pursuant to applicable law must be
repaid out of the proceeds of such Asset Sale;
(5) amounts required to be applied to the repayment of Existing
Indebtedness which by its terms, or in order to obtain a
necessary consent to such Asset Sale, must be repaid out of
the proceeds of such Asset Sale;
(6) the provision of appropriate amounts by the Issuer or any of
its Subsidiaries as a reserve against any liabilities and/or
indemnification obligations retained and/or assumed by the
Issuer or any of its Subsidiaries pursuant to such Asset Sale,
as determined in accordance with, and only to the extent
required by, Floating UK GAAP, as reflected in an Officers'
Certificate of the Issuer delivered to the Trustee; and
(7) to the extent required pursuant to any binding agreement
between the Pension Benefit Guaranty Corporation and the
Issuer or its Subsidiaries (a "PBGC AGREEMENT"), any amount
contributed to the Marconi USA Employees' Retirement Plan or
the RELTEC Corporation Retirement Plan (or any successor plans
thereto) for any Affected Pension Participants representing
not more than the allocable portion of any underfunding under
such pension plan or plans attributable to Affected Pension
Participants, to the extent that, in connection with such
Asset Sale, the assets and liabilities under the applicable
pension plan or plans attributable to such Affected Pension
Participants are not transferred to a pension plan maintained
by or on behalf of the acquirer in such Asset Sale (for
purposes of this clause (7) the net underfunding shall be
computed based on the present value of the applicable plan's
assets and liabilities as of the date of the Asset Sale and
using the applicable actuarial assumptions then being used by
the Pension Benefit Guaranty Corporation of the United States
for purposes of calculating plan termination liability and
using such other actuarial assumptions and methods considered
reasonable by the Issuer to determine such liabilities on the
sale date based on employee data as of the previous plan
valuation date updated to reflect significant demographic
changes or, if less, in accordance with any PBGC Agreement),
it being understood that, to the extent required under a PBGC
Agreement upon the sale of the Outside Plant and Power
Business or, if later, the sale of the North American Access
Business, the RELTEC Corporation Retirement Plan shall be
fully funded or the sponsorship thereof transferred to a
third-party buyer of either such business unit;
provided, however, that if either (i) the instrument or agreement governing such
Asset Sale requires the transferor to maintain a portion of the purchase price
in escrow or otherwise segregate and set aside a portion of the purchase price,
whether as a reserve for adjustment of the purchase price or otherwise, for a
period not in excess of nine months or (ii) the Issuer, in its reasonable
judgment, determines that it is desirable to segregate and set aside funds as a
reserve for post-closing adjustments to the purchase price or post-closing
balance sheet adjustments for a period not in excess of nine months, the portion
of the cash or Cash Equivalents that is actually placed in escrow or segregated
and set aside by the transferor shall not be deemed to be Net Proceeds until the
escrow terminates or the transferor ceases to segregate and set aside such
Schedule 4 - 22
funds, in whole or in part, and then only to the extent of the proceeds released
from escrow to the transferor or that are no longer segregated and set aside by
the transferor.
For the avoidance of doubt, the term "Net Proceeds" shall also include
those amounts described as such in subclause (b) of Section 4.04 (Purchase and
Cancellation of Notes).
"NEW BONDING FACILITY AGREEMENT" means the L50 million committed
revolving bonding facility agreement dated March 27, 2003 among the Issuer,
Marconi Bonding Limited, the New Bonding Facility Security Trustee, certain New
Bonding Facility Banks and certain Non-US 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 the
Issuer and/or any Non-US 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); provided that (1) the aggregate principal
amount of Indebtedness at any one time outstanding thereunder shall not exceed
L50 million (or the Sterling Equivalent) and (2) the term of such facility shall
not extend beyond the date that is 30 months after the Issue Date (but, for the
avoidance of doubt, Indebtedness and other obligations incurred or arising under
such facility on or prior to the date that is 30 months after the Issue Date may
extend beyond such date in accordance with the provisions of such facility).
"NEW BONDING FACILITY BANKS" means those banks party to the Security
Trust and Intercreditor Deed as New Bonding Facility Banks.
"NEW BONDING FACILITY FUNDING AMOUNT" means at any time the lesser of
(i) L25,000,000 (or the Sterling Equivalent) and (ii) one half of the aggregate
facility limit under the New Bonding Facility Agreement.
"NEW BONDING FACILITY SECURITY TRUSTEE" means HSBC Bank plc or any
successor appointed as agent and security trustee pursuant to the New Bonding
Facility Agreement.
"NEW PATENT" means any Patent for which an application for a Patent is
filed by an IPR SPV, a UK IP Opco or a US IP Opco after the Effective Date.
"NEW YORK BUSINESS DAY" means a day (other than a Saturday or Sunday)
on which commercial banks in New York City and the Corporate Trust Office of the
Trustee are open for general business.
"NON-US GUARANTOR" means each of:
(1) Metapath Software International Limited
Mobile Systems International Holdings Limited
GPT Special Project Management Limited
Marconi Communications Limited, a private limited company
incorporated under the laws of England and Wales
Marconi Communications International Limited
Marconi Communications China Limited
Marconi Communications International Investments Limited
Marconi Communications International Holdings Limited
Schedule 4 - 23
Marconi Communications Investments Limited
Marconi Communications Holdings Limited
Marconi (▇▇▇▇▇▇ Street) Limited
Marconi (DGP1) Limited
Marconi (DGP2) Limited
Marconi Bonding Limited
Marconi Optical Components Limited
Associated Electrical Industries Limited
English Electric Company Limited
Marconi (▇▇▇▇▇▇▇ Automation) Limited
▇▇▇▇▇▇▇ Automation Holdings Limited
Marconi Aerospace Unlimited
Marconi UK Intellectual Property Limited
Marconi (NCP) Limited
Highrose Limited
Marconi Inc.
Marconi Holdings, LLC
Marconi Communications North America Inc.
FS Holdings Corp.
FS Finance Corp.
Marconi Software International, Inc.
Metapath Software International (US), Inc.
Metapath Software International, Inc.
Marconi Intellectual Property (US), Inc.
Marconi Communications Holdings GmbH
Marconi Communications GmbH, a private company incorporated
under the laws of the Federal Republic of Germany
Marconi Communications Real Estate GmbH
Marconi Holdings S.p.A.
Marconi Communications S.p.A.
Marconi Sud S.p.A. (to the extent provided in Section 11.01)
Marconi Communications Telemulti Ltda (to the extent provided
in Section 11.01)
Marconi Australia Holdings Pty Limited
Marconi Australia Pty Limited
Marconi Communications Asia Limited
G.E.C. (Hong Kong) Limited
▇▇▇▇▇▇ Street Overseas Investments Limited; and
Regents Place, Inc.;
(2) any other Non-US Subsidiary that executes a Guarantee of the
Junior Notes pursuant to this Indenture; and
(3) each of their respective successors.
"NON-US SUBSIDIARY" means any Subsidiary of the Issuer other than a US
Subsidiary.
"NORTH AMERICAN ACCESS BUSINESS" means that portion of the network
equipment business of the US Subsidiaries comprising the North American access
systems business, which
Schedule 4 - 24
develops, manufactures, markets and sells last-mile copper and fiber digital
network equipment for the connection of business and consumer end-users to
communications networks in the United States and Canada (including a service
provider's switch or local exchange or an internet service provider), but
excluding the Outside Plant and Power Business and the BBRS Business.
"NOTE TRUSTEES" means the Trustee and the Senior Note Trustee
collectively, or either of them, if the context requires.
"OBLIGATIONS" means any principal, premium, make-whole amounts,
interest, penalties, fees, expenses, indemnifications, reimbursements, damages
and other liabilities (including, without limitation, contingent and prospective
liabilities) payable under the documentation governing any Indebtedness.
"OBLIGOR" means each of the Issuer and each Guarantor, including any
Additional Guarantor.
"OFFICER" means, with respect to the Issuer or any Guarantor, the chief
executive officer, the chief financial officer, the chief accounting officer,
the company secretary of any managing director, director or assistant company
secretary of the Issuer or such Guarantor.
"OFFICERS' CERTIFICATE" means, with respect to the Issuer or any
Guarantor, a certificate signed in the name of the Issuer or such Guarantor, as
the case may be, by any two Officers of the Issuer or such Guarantor, as the
case may be (or, to the extent such Officers Certificate is delivered in
compliance with the Trust Indenture Act, such officers as shall be required
thereunder), complying with the requirements of Section 13.03 (Certificate and
Opinion as to Conditions Precedent) and Section 13.04 (Statements Required in
Certificate or Opinion), as applicable.
"OPINION OF COUNSEL" means a written opinion of counsel, who may be an
employee of or counsel for the Issuer or any Guarantor, and who shall be
reasonably acceptable to the Trustee.
"OPINION OF OUTSIDE COUNSEL" means a written opinion of counsel which
is issued by a Person who is a counsel of recognized standing in the relevant
jurisdiction and who is not an employee or consultant (other than non-employee
legal counsel) of the Issuer or any Guarantor.
"OPTIONAL REDEMPTION PRICE" means an amount per Junior Note equal to
the greater of (1) the applicable Make-Whole Amount for such Junior Note and (2)
110% of the principal amount of such Junior Note, plus in each case accrued and
unpaid interest and Additional Amounts, if any, to the relevant Repayment Date.
"OUTSIDE PLANT AND POWER BUSINESS" means that portion of the network
equipment access systems business of the US Subsidiaries that comprises outside
plant and power products that power, connect, protect or enclose parts of a
telecommunications network and services related to the installation,
engineering, maintenance and repair of and training for telecommunications
products.
Schedule 4 - 25
"OUTSTANDING" means, as of any date of determination, in relation to
the Junior Notes all the Junior Notes issued other than:
(1) those Junior Notes which have been redeemed pursuant to this
Indenture;
(2) those Junior Notes in respect of which the date for redemption
in accordance with this Indenture has occurred and the
redemption moneys (including premium (if any) and all interest
and Additional Amounts, if any, payable thereon) have been
duly paid to the Trustee or to the Paying Agent in the manner
provided in the Agency Agreement (and where appropriate notice
to that effect has been given to the relevant Holders) and
remain available for payment against presentation of the
relevant Junior Notes;
(3) those mutilated or defaced Junior Notes which have been
surrendered and cancelled and in respect of which replacements
have been issued;
(4) (for the purpose only of ascertaining the principal amount of
the Junior Notes outstanding and without prejudice to the
status for any other purpose of the relevant Junior Notes)
those Junior Notes which are alleged to have been lost, stolen
or destroyed and in respect of which replacements have been
issued; and
(5) any Global Junior Note to the extent that it shall have been
exchanged for another Global Junior Note or for Definitive
Registered Junior Notes pursuant to its provisions or the
provisions of this Indenture;
provided that for each of the following purposes, namely:
(i) the right to attend and vote at any meeting of the Holders or
any of them;
(ii) the determination of how many and which Junior Notes are for
the time being outstanding for the purposes of Sections 6.01
(Events of Default), 6.03 (Acceleration), 6.04 (Rescission and
Annulment), 6.10 (Limitations on Suits), 6.15 (Control by
Holders), 6.16 (Waiver of Past Default), 6.17 (Undertaking for
Costs), 7.10 (Resignation and Removal; Appointment of
Successor), 10.01 (Supplemental Indentures with the Consent of
Holders), 14.03 (Call and Notice of Meetings), 14.04 (Voting
at Meetings) and 14.05 (Voting Rights, Conduct and
Adjournment);
(iii) any discretion, power or authority (whether contained in this
Indenture or vested by operation of law) which the Trustee is
required, expressly or impliedly, to exercise in or by
reference to the interests of the Holders or any of them; and
(iv) the determination by the Trustee whether any event,
circumstance, matter or thing is, in its opinion, materially
prejudicial to the interests of the Holders or any of them,
those Junior Notes (if any) (i) which are for the time being held by or
on behalf of the Issuer, a Guarantor, any of their respective
Subsidiaries or any Affiliate of any of the foregoing, in each case as
beneficial owner, and (ii) which are held in escrow pursuant to
Schedule 4 - 26
the Escrow and Distribution Agreement for distribution to Scheme
Creditors shall (unless and until ceasing to be so held) be deemed not
to remain Outstanding.
"PARTICIPANTS" means participants of DTC, Euroclear and Clearstream,
Luxembourg.
"PATENTS" means all pending patent applications and registered patents.
"PAYING AGENT" means initially The Bank of New York and thereafter, any
Person (other than the Issuer, any Guarantor or any Affiliate of the Issuer or
any Guarantor) authorized by the Issuer to authenticate the Junior Notes and to
pay the principal of, premium, if any, and interest and Additional Amounts, if
any, on any Junior Notes on behalf of the Issuer in accordance with the Agency
Agreement.
"PAYMENT STOP EVENT" means the occurrence of either of the following:
(1) the failure by an Obligor to pay on the due date any amount
payable under the Senior Notes or the Senior Note Indenture,
or
(2) the acceleration of the maturity of the Senior Notes following
the occurrence of an Event of Default (as such term is defined
in the Senior Note Indenture) under the Senior Notes or the
Senior Note Indenture,
provided that a Payment Stop Event shall cease to be continuing if:
(a) the relevant Default under the Senior Notes or the Senior Note
Indenture has been remedied or waived and any such
acceleration has been rescinded in accordance with the Senior
Note Indenture;
(b) the Required Holders of at least a majority in aggregate
principal amount of the then Outstanding Senior Notes (as such
terms are defined in the Senior Note Indenture) consent in
writing to the cessation of such Payment Stop Event; or
(c) all Obligations under the Senior Notes and the Senior Note
Indenture have been discharged in full and there are no
further Obligations under the Senior Notes or the Senior Note
Indenture.
"PERMITTED BUSINESS" means business of the general nature of the Issuer
and its Subsidiaries conducted on the Issue Date and businesses ancillary or
reasonably related or complementary thereto.
"PERMITTED CORE BUSINESS" means the telecommunications network
equipment and network services businesses conducted by the Issuer and its Non-US
Subsidiaries on the Issue Date, excluding the US Core Businesses.
"PERMITTED DEBT" means any of the following:
(1) Existing Indebtedness and Existing Intercompany Indebtedness;
(2) Permitted Refinancing Indebtedness;
Schedule 4 - 27
(3) Indebtedness represented by the Senior Notes, the Junior
Notes, the Composite Guarantee, the Guarantee of the Senior
Notes and the Guarantee of the Junior Notes;
(4) Indebtedness of the Issuer or any Non-US Subsidiary incurred
in the ordinary course of business under the New Bonding
Facility Agreement or any Replacement New Bonding Facility
Agreement;
(5) Permitted Intra-Group Indebtedness;
(6) Indebtedness of the Issuer and its Subsidiaries in respect of
surety bonds, appeal bonds, bid bonds, performance bonds,
letters of credit, bank guarantees or other obligations of a
like nature incurred in the ordinary course of business;
(7) Indebtedness of the Issuer and its Subsidiaries arising from
agreements for indemnification or purchase price adjustment or
similar obligations incurred or assumed in connection with the
disposition or purchase of any assets, provided, in the case
of a sale, that the maximum assumable liability in respect of
all such obligations shall at no time exceed the gross
proceeds actually received by the Issuer and its Subsidiaries
(including the Fair Market Value of any non-cash proceeds);
(8) Indebtedness of the Issuer and its Subsidiaries in respect of
workers' compensation and other claims or obligations arising
under or in connection with social security, welfare,
employment-related or similar regulation, or in connection
with self-insurance or similar requirements related thereto,
in each case arising in the ordinary course of business,
including for the avoidance of doubt, Guarantees of any
obligations of the foregoing nature;
(9) the accrual of interest on Indebtedness of the Issuer and its
Subsidiaries that has not been capitalized or added to the
principal amount of such Indebtedness or the accretion or
amortization of original issue discount with respect to
Indebtedness, which Indebtedness was in each case permitted by
another clause of this definition;
(10) Indebtedness of the Captive Insurance Company in an aggregate
principal amount at any one time outstanding not to exceed L20
million (or the Sterling Equivalent);
(11) Indebtedness of the Issuer and its Subsidiaries consisting of
advance or extended payment terms in the ordinary course of
business provided that no Lien (other than a Permitted Lien)
is created in connection with such advance or extended payment
terms;
(12) Indebtedness of the Issuer and its Subsidiaries pursuant to
Permitted Hedging Transactions;
(13) the Guarantee by the Issuer or any Non-US Guarantor of
Indebtedness of the Issuer or any other Non-US Guarantor,
which Indebtedness is permitted by another clause of this
definition;
Schedule 4 - 28
(14) the Guarantee by any US Guarantor that is not a US Core
Business Subsidiary of Indebtedness of any other US Guarantor
that is not a US Core Business Subsidiary, which Indebtedness
is permitted by another clause of this definition;
(15) the Guarantee by any US Core Business Subsidiary of
Indebtedness of another US Core Business Subsidiary engaged in
the same US Core Business, which Indebtedness is permitted by
another clause of this definition;
(16) Indebtedness of any US Subsidiary under the US Working Capital
Facility in an aggregate principal amount at any one time
outstanding for all US Subsidiaries not to exceed US$22.5
million (or the Dollar Equivalent);
(17) Indebtedness of the Issuer or any of its Subsidiaries arising
from an indemnity or similar obligation to any export credit
agency or similar governmental or quasi-governmental entity of
any member state of the Organization for Economic Co-operation
and Development in each case in an amount not to exceed the
portion of the price to be paid to the Issuer or any of its
Subsidiaries under a contract for goods or services that is
guaranteed, insured or otherwise supported by such export
credit agency or similar governmental or quasi-governmental
entity and in an aggregate amount at any time outstanding not
to exceed L50 million (or the Sterling Equivalent);
(18) Indebtedness of the Issuer and the Non-US Subsidiaries in an
aggregate principal amount (or accreted value, as applicable)
at any time outstanding pursuant to this clause (18) which,
when aggregated with all other Indebtedness of the Issuer and
all Non-US Subsidiaries not permitted by any other clause of
this definition, does not exceed L50 million (or the
Sterling Equivalent); and
(19) Indebtedness of the US Subsidiaries in an aggregate principal
amount (or accreted value, as applicable) at any time
outstanding pursuant to this clause (19) which, when
aggregated with all other Indebtedness of all US Subsidiaries
not permitted by any other clause of this definition, does not
exceed US$10 million (or the Dollar Equivalent).
"PERMITTED HEDGING TRANSACTION" means any Derivative Transaction that
is a currency option agreement or forward foreign exchange agreement entered
into by the Issuer or any of its Subsidiaries with any Person (other than the
Issuer or any of its Subsidiaries) (1) designed to protect against fluctuations
in currency values solely with respect to (a) trade receivables, (b) trade
payables, (c) the obligations of the Issuer to make payments of principal,
premium, if any, interest or Additional Amounts, if any, on the Senior Notes or
the Junior Notes or (d) consideration receivable in the form of cash or Cash
Equivalents pursuant to Asset Sales, and (2) other than in the case of clause
(1)(c), in the ordinary course of business and with a non-extendable term of not
more than 12 months.
"PERMITTED INTRA-GROUP HEDGING TRANSACTION" means any Derivative
Transaction that is a currency option agreement or forward foreign exchange
agreement between or among the Issuer and any of its Subsidiaries designed to
protect against fluctuations in currency values and entered into in the ordinary
course of business and on arm's-length pricing.
Schedule 4 - 29
"PERMITTED INTRA-GROUP INDEBTEDNESS" means Indebtedness created,
incurred or acquired after the Issue Date and owed by the Issuer or any of its
Subsidiaries (for purposes of this definition, the "DEBTOR") to the Issuer or
any of its Subsidiaries (for the purposes of this definition, the "CREDITOR")
that complies with the criteria set out in one or more of the following clauses:
(1) the debtor is the Issuer or any Non-US Guarantor and the
creditor is the Issuer or any Non-US Guarantor; or
(2) the debtor is any US Guarantor and the creditor is any US
Guarantor; or
(3) the debtor is the Issuer or any Non-US Guarantor, the creditor
is any Non-US Subsidiary that is not a Non-US Guarantor and
the creditor is a direct or indirect Subsidiary of the debtor,
provided that, in the event such Indebtedness in respect of
which a particular Subsidiary of the Issuer is the creditor
exceeds an aggregate of L20 million (or the Sterling
Equivalent), such Subsidiary shall be a party to the Security
Trust and Intercreditor Deed; or
(4) the debtor is any US Guarantor, the creditor is any US
Subsidiary that is not a US Guarantor and the creditor is a
direct or indirect Subsidiary of the debtor, provided that, in
the event such Indebtedness in respect of which a particular
Subsidiary of the Issuer is the creditor exceeds an aggregate
of L20 million (or the Sterling Equivalent), such Subsidiary
shall be a party to the Security Trust and Intercreditor Deed;
or
(5) the debtor is a Non-US Subsidiary that is not a Non-US
Guarantor and the creditor is any other Non-US Subsidiary that
is not a Non-US Guarantor; or
(6) the debtor is a US Subsidiary that is not a US Guarantor and
the creditor is any other US Subsidiary that is not a US
Guarantor; or
(7) the debtor is a Non-US Subsidiary that is not a Non-US
Guarantor, the creditor is the Issuer or a Non-US Guarantor,
and the aggregate principal amount of all such Indebtedness
outstanding pursuant to this clause does not at any time
exceed L50 million (or the Sterling Equivalent); or
(8) the debtor is a US Subsidiary that is not a US Guarantor, the
creditor is a US Guarantor, and the aggregate principal amount
of all such Indebtedness outstanding pursuant to this clause
does not at any time exceed US$30 million (or the Dollar
Equivalent); or
(9) the debtor is the Issuer or a Non-US Guarantor that directly
or indirectly owns all of the Equity Interests of the US
Parent and the creditor is a US Subsidiary; or
(10) such Indebtedness is incurred under a Permitted Intra-Group
Hedging Transaction; or
(11) the debtor is a Non-US Subsidiary that is not a Non-US
Guarantor and such Indebtedness arises by virtue of a
counter-indemnity obligation owed to
Schedule 4 - 30
Marconi Bonding Limited with respect to Marconi Bonding
Limited's obligation under any surety bond, appeal bond, bid
bond, performance bond, letter of credit, bank guarantee or
other obligation of a like nature issued for the account or
benefit of such Non-US Subsidiary; or
(12) the debtor is a US Subsidiary that is not a US Guarantor and
such Indebtedness arises by virtue of a counter-indemnity
obligation owed to a US Guarantor with respect to such US
Guarantor's obligation under any surety bond, appeal bond, bid
bond, performance bond, letter of credit, bank guarantee or
other obligation of a like nature issued for the account or
benefit of such US Subsidiary, provided that if such US
Guarantor is a US Core Business Subsidiary, such US Subsidiary
is engaged in the same US Core Business as such US Guarantor;
or
(13) the debtor is a US Subsidiary and the creditor is the Issuer
or any other Subsidiary of the Issuer pursuant to a loan the
proceeds of which are used solely to pay the costs of the
liquidation, administration, dissolution, closure, suspension
of business or winding up of such US Subsidiary or a
termination of a business or operation of such US Subsidiary;
or
(14) the debtor is a Subsidiary of the Issuer and such Indebtedness
arises by virtue of a counter-indemnity obligation owed to
Marconi Inc. with respect to a letter of credit, bank
guarantee or other obligation of a like nature issued for the
account or benefit of Marconi Inc. in connection with any
insurance arrangements of Marconi Inc. undertaken or arranged
for the benefit of such Subsidiary; or
(15) the debtor is the Issuer or a Subsidiary of the Issuer and
such Indebtedness arises by virtue of a counter-indemnity
obligation owed to the Issuer or another Subsidiary of the
Issuer with respect to any Indebtedness of the Issuer or such
other Subsidiary of the type described in clause (8) of the
definition of Permitted Debt in connection with any claim or
other obligation that is attributable to the debtor;
provided, however, that (a) with respect to Indebtedness in clauses
(1), (2), (3), (4), (9) and (10) above, if the Issuer or any Guarantor
is the debtor in respect of such Indebtedness, such Indebtedness must
be unsecured, and (b) with respect to Indebtedness in clauses (1), (2)
and (9) above, both the creditor and the debtor in respect of such
Indebtedness must be parties to the Security Trust and Intercreditor
Deed.
For the purposes of this definition, (1) if the Issuer or any
Subsidiary of the Issuer has shares of Preferred Stock or Disqualified
Stock outstanding, the Issuer or such Subsidiary shall constitute the
"debtor" with respect to such Preferred Stock or Disqualified Stock and
(2) if the Issuer or any Subsidiary of the Issuer owns or holds any
shares of Preferred Stock or Disqualified Stock described in clause
(1), the Issuer or such Subsidiary shall constitute the "creditor" with
respect to such Preferred Stock or Disqualified Stock.
Schedule 4 - 31
"PERMITTED INTRA-GROUP TRANSFER" means
(1) a sale, lease, transfer, conveyance or other disposition,
directly or indirectly, of inventory (including equipment that
constitutes inventory) between or among the Issuer and any
Non-US Subsidiaries in the ordinary course of business;
(2) a sale, lease, transfer, conveyance or other disposition,
directly or indirectly, of inventory (including equipment that
constitutes inventory) between or among US Subsidiaries (other
than US Core Business Subsidiaries engaged in different US
Core Businesses) in the ordinary course of business;
(3) a sale, lease, transfer, conveyance or other disposition,
directly or indirectly, of any assets, properties or rights
between or among the Issuer and any Non-US Guarantors or
between or among any Non-US Guarantors, provided however, that
where the parties thereto are not in the Same Jurisdiction,
such transaction is made at Fair Market Value;
(4) a sale, lease, transfer, conveyance or other disposition,
directly or indirectly, of any assets, properties or rights
between or among any Non-US Subsidiaries that are not
Guarantors;
(5) a sale, lease, transfer, conveyance or other disposition,
directly or indirectly, of any assets, properties or rights
between or among Non-US Subsidiaries that are not Guarantors
and the Issuer or any Non-US Guarantors, provided however,
that such transaction is made at Fair Market Value;
(6) a sale, lease, transfer, conveyance or other disposition,
directly or indirectly, of any assets, properties or rights
from a US Guarantor that is not a US Core Business Subsidiary
to another US Guarantor that is not a US Core Business
Subsidiary, provided however, that where the parties thereto
are not in the Same Jurisdiction, such transaction is made at
Fair Market Value;
(7) a sale, lease, transfer, conveyance or other disposition,
directly or indirectly, of any assets, properties or rights
between or among any US Subsidiaries that are not Guarantors;
(8) a sale, lease, transfer, conveyance or other disposition,
directly or indirectly, of any assets, properties or rights
between or among US Subsidiaries that are not Guarantors and
any US Guarantors, provided however, that such transaction is
made at Fair Market Value;
(9) a sale, lease, transfer, conveyance or other disposition,
directly or indirectly, of any assets, properties or rights
between or among US Core Business Subsidiaries engaged in the
same US Core Business;
(10) a sale, lease, transfer, conveyance or other disposition,
directly or indirectly, of assets of a US Core Business by a
transferor to a US Guarantor that is incorporated either (a)
under the laws of the United States, any state thereof or the
District of Columbia or (b) in the Same Jurisdiction as the
transferor, in each
Schedule 4 - 32
case solely in compliance with and to the extent necessary to
comply with Section 4.01 (Covenants Regarding US Core
Businesses);
(11) tax loss surrenders between or among the Issuer and its
Subsidiaries;
(12) a licence, sublicence or transfer of Intellectual Property
between or among the Issuer and any of its Subsidiaries or
between or among its Subsidiaries, provided that (a) such
licence, sublicence or transfer is expressly permitted under
or approved in accordance with the terms of the applicable
Intellectual Property Licence Agreements or (b) if such
Intellectual Property is not the subject of the Intellectual
Property Licence Agreements, the Issuer provides express prior
written consent to such transaction;
(13) a transfer of assets that constitutes a Permitted Investment
or Restricted Payment that is permitted by Section 4.03
(Restricted Payments); and
(14) a transfer by FS Holdings Corp of Equity Interests in Marconi
Communications Inc. to the US Parent.
"PERMITTED INVESTMENTS" means:
(1) any Investment by the Issuer or a Non-US Subsidiary in the
Issuer or a Non-US Subsidiary (including, for these purposes,
a newly organized Person that will as a result of such
Investment become a Non-US Subsidiary);
(2) any Investment by a US Subsidiary in a US Subsidiary
(including, for these purposes, a newly organized Person that
will as a result of such Investment become a US Subsidiary);
(3) any Investment by FS Holdings Corp in Equity Interests in the
US Parent solely in exchange for Equity Interests in Marconi
Communications Inc;
(4) any Investment in cash or Cash Equivalents;
(5) any Investment made as a result of the receipt of non-cash or
deferred consideration from an Asset Sale that was made in
compliance with Section 4.02 (Asset Sales);
(6) Investments received upon the sale or disposition of assets
that were excluded from the definition of Asset Sale pursuant
to (a) clause (1) of the second paragraph of the definition
thereof (other than Investments in Equity Interests) or (b)
clause (8) of the second paragraph of the definition thereof;
(7) Investments solely in exchange for the issuance of Equity
Interests (other than Disqualified Stock) of the Issuer;
(8) Investments received by the Issuer or any Subsidiary of the
Issuer (a) as a result of the waiver, compromise, settlement,
release or surrender, in each case in the ordinary course of
business, of any right or claim of the Issuer or such
Subsidiary, including any debt owing to the Issuer or such
Subsidiary, or (b) in satisfaction of judgments or pursuant to
any plan of reorganization,
Schedule 4 - 33
compromise, scheme or similar arrangement upon the bankruptcy
or insolvency of a debtor;
(9) any refinancing, amendment, renewal, extension, modification
or replacement (including in connection with or as a result of
a bankruptcy, insolvency, workout, reorganization or
recapitalization) of any Investment existing on the Issue Date
or any Investment made subsequent to the Issue Date that was
permitted to be made under this Indenture, in each case so
long as no additional Investment is made;
(10) receivables (including extended payment terms) created or
acquired in the ordinary course of business by the Issuer or
any Subsidiary of the Issuer and payable or dischargeable in
accordance with its customary trade terms;
(11) negotiable instruments held for deposit or collection in the
ordinary course of business;
(12) Investments resulting from the acquisition of a Person that at
the time of such acquisition held instruments constituting
Investments that were not acquired in contemplation of, or in
connection with, the acquisition of such Person, provided that
the acquisition of such Person is permitted pursuant to
another clause of this definition of Permitted Investments;
(13) loans or advances by the Issuer or any Subsidiary of the
Issuer to their respective officers, directors or employees
for travel, transportation, entertainment, moving, relocation
and other business expenses that are made in the ordinary
course of business in an aggregate amount at any time
outstanding not to exceed L3 million (or the Sterling
Equivalent);
(14) Investments consisting of loans or advances by the Issuer or
any Non-US Subsidiary to customers for the purposes of
financing all or a portion of the purchase of goods or
services from the Issuer or any Non-US Subsidiary, provided
that such Investments do not involve the provision of cash by
the Issuer or any Non-US Subsidiary to the recipient of such
financing, and provided further that the aggregate amount of
all such outstanding Investments made after the Issue Date
does not at any time exceed L20 million (or the Sterling
Equivalent) (provided that Investments lasting for no more
than five (5) London Business Days in connection with
arrangements to transfer such loans or advances to third
parties will not be included in the calculation of such amount
until the expiration of such five (5) London Business Days);
(15) Investments consisting of loans or advances by any US
Subsidiary to customers for the purposes of financing all or a
portion of the purchase of goods or services from any US
Subsidiary, provided that such Investments do not involve the
provision of cash by any US Subsidiary to the recipient of
such financing, and provided further that the aggregate amount
of all such outstanding Investments made after the Issue Date
does not at any time exceed US$10 million (or the Dollar
Equivalent) (provided that Investments lasting for no more
than five (5) London Business Days in connection with
arrangements to
Schedule 4 - 34
transfer such loans or advances to third parties will not be
included in the calculation of such amount until the
expiration of such five (5) London Business Days);
(16) Investments made with respect to or in connection with the
incurrence of workers' compensation, unemployment or casualty
insurance, social security or welfare obligations and other
related types of statutory obligations (including, for the
avoidance of doubt, counter-indemnities from the Issuer or a
Subsidiary of the Issuer to the Issuer or another Subsidiary
of the Issuer in respect of any of the foregoing and
Guarantees provided by the Issuer or any Subsidiary with
respect to or in connection with any obligations of the
foregoing nature);
(17) Investments made pursuant to contractual commitments in effect
on the Scheme Launch Date;
(18) Investments made pursuant to contractual commitments in effect
on the Issue Date that are listed in Schedule 4 (Permitted
Investments - Contractual Commitments in effect on the Issue
Date) hereto;
(19) Permitted Hedging Transactions and Permitted Intra-Group
Hedging Transactions;
(20) Investments in the Issuer by any US Subsidiary resulting from
the repurchase of any outstanding Senior Notes or Junior Notes
by such US Subsidiary or the cancellation of such Senior Notes
or Junior Notes;
(21) Investments consisting of loans from a US Subsidiary to the
Issuer or a Non-US Guarantor that directly or indirectly owns
all of the Equity Interests of the US Parent that are
permitted by clause (9) of the definition of Permitted
Intra-Group Indebtedness;
(22) any Investment by the Issuer or a Non-US Subsidiary in a US
Subsidiary the proceeds of which are used solely to pay the
costs of the liquidation, administration, dissolution,
closure, suspension of business or winding-up of such US
Subsidiary or the termination of a business or operation of
such US Subsidiary;
(23) Investments consisting of Indebtedness that is permitted by
clause (14) of the definition of Permitted Intra-Group
Indebtedness;
(24) with respect to the Issuer and the Non-US Subsidiaries, other
Investments in any Person (including, for the avoidance of
doubt, any joint venture) having an aggregate Fair Market
Value (measured on the date each such Investment was made and
without giving effect to subsequent changes in value) that,
when taken together with all other Investments made pursuant
to this clause (24) that are at the time outstanding, do not
exceed (a) L30 million (or the Sterling Equivalent) or
(b) from and after the second anniversary of the Issue
Date,(pound)75 million (or the Sterling Equivalent), provided
however, that solely with respect to clause (a), the aggregate
Fair Market Value of all Investments made in each twelve-month
period commencing on the Issue Date and the first anniversary
of
Schedule 4 - 35
the Issue Date shall not exceed L15 million (or the Sterling
Equivalent), provided further, that in the case of each of
clauses (a) and (b), such amounts shall be calculated after
giving effect to any reductions in the amount of any
Investments as a result of the repayment or other disposition
of the Investments for cash or Cash Equivalents, the amount of
the reduction not to exceed the amount of the Investments
previously made pursuant to this clause (24); and
(25) with respect to the US Subsidiaries, other Investments in any
Person (including, for the avoidance of doubt, any joint
venture) having an aggregate Fair Market Value (measured on
the date each such Investment was made and without giving
effect to subsequent changes in value), when taken together
with all other Investments made pursuant to this clause (25)
that are at the time outstanding, do not exceed (a) US$10
million (or the Dollar Equivalent) or (b) from and after the
second anniversary of the Issue Date, US$25 million (or the
Dollar Equivalent), provided however, that in the case of each
of clauses (a) and (b), such amounts shall be calculated after
giving effect to any reduction in the amount of any
Investments as a result of the repayment or other disposition
of the Investments for cash or Cash Equivalents, the amount of
the reduction not to exceed the amount of the Investments
previously made pursuant to this clause (25).
"PERMITTED LIENS" means:
In relation to the Issuer and its Subsidiaries:
(1) Liens on assets or property existing at the time of
acquisition of the assets or property by the Issuer or any
Subsidiary of the Issuer, Liens on assets or property of a
Person existing at the time such Person becomes a Subsidiary
of the Issuer and Liens on Capital Stock of an acquired Person
that becomes a Subsidiary of the Issuer as a result of such
acquisition; provided that such Liens were not created,
incurred or assumed in connection with, or in contemplation
of, such acquisition or such Person becoming a Subsidiary of
the Issuer and do not extend to or cover any other assets or
property of the Issuer or any of its Subsidiaries;
(2) Liens to secure Purchase Money Obligations or Capital Lease
Obligations, in each case that are permitted under the
definition of Permitted Debt;
(3) Liens arising pursuant to, or as a result of, any leases of
property or licensing or escrow arrangements that are excluded
from the definition of Asset Sale;
(4) any Lien the principal purpose and effect of which is to allow
the setting-off or netting of obligations with those of a
financial institution in the ordinary course of the cash
management arrangements of the Issuer or any Subsidiary of the
Issuer;
(5) Liens created pursuant to the Security Documents, the
Indentures, the Composite Guarantee, the Guarantee of the
Senior Notes, the Guarantee of the
Schedule 4 - 36
Junior Notes, the Escrow Agreement and the Security Trust and
Intercreditor Deed;
(6) Liens existing on the Scheme Launch Date;
(7) Liens existing on the Issue Date that are listed in Schedule 5
(Permitted Liens - Liens existing on the Issue Date) hereto;
(8) Liens (not securing Indebtedness) for Taxes, assessments or
governmental charges or claims that are not yet delinquent or
that are being contested in good faith by appropriate
proceedings promptly instituted and diligently concluded,
provided that any reserve or other appropriate provision as is
required in conformity with Floating UK GAAP has been made
therefor;
(9) Liens incurred or deposits made in connection with workers'
compensation, unemployment insurance, other types of social
security or welfare obligations and other types of related
statutory obligations;
(10) Liens arising in relation to Existing Performance Bonds as a
result of the provision of cash collateral for such Existing
Performance Bonds from the Existing Performance Bond Escrow
Account;
(11) Liens (not securing Indebtedness) in favor of customs or
revenue authorities to secure payment of customs duties in
connection with the importation of goods in the ordinary
course of business;
(12) easements, rights of way, zoning restrictions and other
similar charges or encumbrances in respect of real property
not interfering in any material respect with the ordinary
conduct of the business of the Issuer or any of its
Subsidiaries;
(13) carriers', warehousemen's, mechanics', landlords',
materialmen's, repairmen's or other like Liens arising in the
ordinary course of business in respect of obligations that are
not yet due or that are bonded or that are being contested in
good faith and by appropriate proceedings; provided that
adequate reserves with respect to such Lien are maintained on
the books of the Issuer or any Subsidiary of the Issuer for
whom the Lien relates, as the case may be, in accordance with
Floating UK GAAP;
(14) Liens arising by operation of law;
(15) rights of set-off under contracts entered into in the ordinary
course of business;
(16) any Lien the principal purpose and effect of which is to allow
the setting-off or netting of obligations with those of a
financial institution under or in connection with any
Permitted Hedging Transaction;
(17) any retention of title reserved by any seller of goods or any
Lien imposed, reserved or granted over goods supplied by such
seller in the ordinary course of business;
Schedule 4 - 37
(18) Liens arising out of or in connection with pre-judgment legal
process or a judgment or a judicial award relating to security
for costs;
(19) any right of first refusal, right of first offer, option,
contract, or other agreement to sell or otherwise dispose of
an asset of the Issuer or any Subsidiary of the Issuer;
(20) Liens arising from Uniform Commercial Code financing statement
filings regarding operating leases entered into by the Issuer
or any Subsidiary of the Issuer in the ordinary course of
business, provided that such Liens do not extend to any
property or assets which are not the subject of such operating
leases;
(21) Liens resulting from escrow arrangements entered into in
connection with a disposition of property or assets;
In relation to the Issuer and the Non-US Subsidiaries only:
(22) Liens arising from the provision of collateral by the Captive
Insurance Company that are required for the captive insurance
arrangements of the Issuer and its Subsidiaries, provided that
the Fair Market Value of such collateral does not exceed
L20 million (or the Sterling Equivalent) in the aggregate at
any time;
(23) Liens arising out of or in connection with Italian Invoice
Discounting;
(24) Liens on cash (including, for the avoidance of doubt, any
rights in respect of deposits with a bank or financial
institution) with respect to outstanding Indebtedness and
other obligations under the New Bonding Facility Agreement and
any Replacement New Bonding Facility Agreement (which Lien,
for the avoidance of doubt, may constitute a Lien ranking
prior to any Lien on cash collateral constituting Transaction
Security), provided that the aggregate at any time of all cash
collateral provided by the Issuer and its Subsidiaries to (a)
the New Bonding Facility Security Trustee (excluding all Cash
Collateral Releases transferred to the New Bonding Facility
Security Trustee and all amounts transferred from the Existing
Performance Bond Escrow Account to the New Bonding Facility
Security Trustee and other than as a result of the revaluation
of bonds issued under the New Bonding Facility Agreement
and/or any Replacement New Bonding Facility Agreement, as
applicable, in accordance with the terms of such agreement)
and (b) any agent, security trustee or lender under, or
otherwise in respect of, any Replacement New Bonding Facility
Agreement, does not exceed L25 million (or the Sterling
Equivalent);
(25) Liens with respect to outstanding Indebtedness or other
obligations of the Issuer or any Non-US Subsidiary (which
Liens in relation to cash, for the avoidance of doubt, may
constitute a Lien ranking prior to any Lien on cash collateral
constituting Transaction Security) that do not in the
aggregate for the Issuer and each Non-US Subsidiary at any
time exceed L20 million (or the Sterling Equivalent),
provided that for purposes of determining compliance with such
L20 million (or the Sterling Equivalent) aggregate amount, any
such Indebtedness or other obligation that is secured by a
Lien solely on cash
Schedule 4 - 38
(including, for the avoidance of doubt, rights to any deposit
at a bank or other financial institution) shall be deemed to
be in an amount equal to the amount of such cash (and not the
amount of such Indebtedness or other obligation);
In relation to the US Subsidiaries only:
(26) Liens with respect to surety bonds, appeal bonds, bid bonds,
performance bonds, letters of credit, bank guarantees or other
obligations of a like nature issued on behalf of any US
Subsidiary (which Liens in relation to cash, for the avoidance
of doubt, may constitute a Lien ranking prior to any Lien on
cash collateral constituting Transaction Security), provided
that the aggregate of all outstanding Indebtedness and other
obligations under all such instruments or agreements secured
by any Lien does not at any time exceed US$15 million (or the
Dollar Equivalent), provided further that for purposes of
determining compliance with such US$15 million (or the Dollar
Equivalent) aggregate amount, any such Indebtedness or other
obligation that is secured by a Lien solely on cash
(including, for the avoidance of doubt, rights to any deposit
at a bank or other financial institution) shall be deemed to
be in an amount equal to the amount of such cash (and not the
amount of such Indebtedness or other obligation);
(27) Liens on the Pittsburgh Facility and related assets and rights
securing Indebtedness under the US Working Capital Facility,
provided that the aggregate principal amount of all such
outstanding Indebtedness does not at any time exceed US$22.5
million (or the Dollar Equivalent); and
(28) Liens with respect to outstanding Indebtedness or other
obligations of any US Subsidiary (which Liens in relation to
cash, for the avoidance of doubt, may constitute a Lien
ranking prior to any Lien on cash collateral constituting
Transaction Security) that do not in the aggregate for all US
Subsidiaries at any time exceed US$5 million (or the Dollar
Equivalent), provided that for purposes of determining
compliance with such US$5 million (or the Dollar Equivalent)
aggregate amount, any such Indebtedness or other obligation
that is secured by a Lien solely on cash (including, for the
avoidance of doubt, rights to any deposit at a bank or other
financial institution) shall be deemed to be in an amount
equal to the amount of such cash (and not the amount of such
Indebtedness or other obligation).
"PERMITTED REFINANCING INDEBTEDNESS" means any Indebtedness of the
Issuer or any Subsidiary of the Issuer issued in exchange for, or the net
proceeds of which are used to extend, refinance, renew, replace, defease or
refund any Indebtedness that constitutes Permitted Debt pursuant to clauses (1),
(2), (6), (7), (8), (9) or (11) of the definition of Permitted Debt, other than
Indebtedness between or among the Issuer and its Subsidiaries, provided that:
(1) the principal amount (or accreted value, if applicable) of
such Permitted Refinancing Indebtedness does not exceed the
principal amount (or accreted value, if applicable) of the
Indebtedness extended, refinanced, renewed, replaced, defeased
or refunded (plus all accrued interest on such Indebtedness
and the amount of all expenses and premiums incurred in
connection therewith);
Schedule 4 - 39
(2) such Permitted Refinancing Indebtedness has a final maturity
date later than the final maturity date of, and has a Weighted
Average Life to Maturity equal to or greater than the Weighted
Average Life to Maturity of, the Indebtedness being extended,
refinanced, renewed, replaced, defeased or refunded;
(3) if the Indebtedness being extended, refinanced, renewed,
replaced, defeased or refunded is subordinated in right of
payment to the Junior Notes, such Permitted Refinancing
Indebtedness is subordinated in right of payment to the Junior
Notes and the Guarantee of the Junior Notes on terms at least
as favorable to the Holders of Junior Notes as those contained
in the documentation governing the Indebtedness being
extended, refinanced, renewed, replaced, defeased or refunded;
and
(4) such Permitted Refinancing Indebtedness is incurred either by
(a) if the obligor on the Indebtedness being extended,
refinanced, renewed, replaced, defeased or refunded is the
Issuer, the Issuer, (b) if the obligor on the Indebtedness
being extended, refinanced, renewed, replaced, defeased or
refunded is a Non-US Subsidiary, the Issuer or such Non-US
Subsidiary or (c) if the obligor on the Indebtedness being
extended, refinanced, renewed, replaced, defeased or refunded
is a US Subsidiary, such US Subsidiary.
"PERSON" means any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization, limited
liability company or government or other entity.
"PITTSBURGH FACILITY" means the property located at 1000 Marconi Drive,
Warrendale, Pennsylvania, USA.
"PLACE OF PAYMENT" when used with respect to the Junior Notes, means
the place or places where the principal of (and premium, if any), interest, or
Additional Amounts, if any, on the Junior Notes are payable, as specified in
Section 2.01 (Title and Terms).
"PREDECESSOR JUNIOR NOTE" of any particular Junior Note means every
previous Junior Note evidencing all or a portion of the same debt as that
evidenced by such particular Junior Note; and, for the purposes of this
definition, any Junior Note authenticated and delivered under Section 2.07
(Mutilated, Destroyed, Lost and Stolen Junior Notes) in exchange for or in lieu
of a mutilated, destroyed, lost or stolen Junior Note shall be deemed to
evidence the same debt as the mutilated, destroyed, lost or stolen Junior Note.
"PREFERRED STOCK" means, with respect to any Person, any Equity
Interest of any class or classes (however designated) which is preferred as to
the payment of dividends or distributions, or as to the distribution of assets
upon any voluntary or involuntary liquidation or dissolution of such Person,
over the Equity Interest of any other class in such Person.
Schedule 4 - 40
"PROFIT AFTER TAXES" means, with respect to any specified Person for
any period, the profit (loss) after tax of such Person, determined in accordance
with Floating UK GAAP, consistently applied, and before any reduction in respect
of preferred stock dividends, excluding, however:
(1) any gain (but not loss), together with any related provision
for Taxes on such gain (but not loss), realized in connection
with (a) any Asset Sale or (b) the disposition of any
securities by such Person or any of its Subsidiaries or the
extinguishment of any Indebtedness of such Person or any of
its Subsidiaries; and
(2) any extraordinary or exceptional gain (but not loss), together
with any related provision for Taxes on such extraordinary or
exceptional gain (but not loss).
"PURCHASE MONEY OBLIGATION" means any Indebtedness secured by a Lien on
assets or property used or useful in the Permitted Core Business and any
additions and accessions thereto, which are purchased by the Issuer or any
Subsidiary of the Issuer at any time after the Issue Date; provided that:
(1) the security agreement or conditional sales or other title
retention contract pursuant to which the Lien on such assets
is created (collectively a "PURCHASE MONEY SECURITY
AGREEMENT") shall be entered into within 360 days after the
purchase or substantial completion of the construction of such
assets and such Liens shall at all times be confined solely to
the assets so purchased or acquired, any additions and
accessions thereto and any proceeds therefrom;
(2) at no time shall the aggregate principal amount of the
outstanding Indebtedness secured thereby be increased, except
in connection with the purchase of additions and accessions to
the assets so purchased or acquired and except in respect of
fees and other obligations in respect of such Indebtedness;
and
(3) (a) the aggregate outstanding principal amount of Indebtedness
secured thereby (determined on a per asset basis in the case
of any additions and accessions) shall not at the time such
Purchase Money Security Agreement is entered into exceed 100%
of the purchase price to the Issuer or such Subsidiary of the
assets subject thereto or (b) the Indebtedness secured thereby
shall be with recourse solely to the assets so purchased or
acquired, any additions and accessions thereto and any
proceeds therefrom.
"REDEMPTION CERTIFICATE" means a certificate in substantially the form
set out in Schedule 4 to the Escrow Agreement.
"REFERENCE TREASURY DEALER" means a primary US Government securities
dealer in New York City selected by the Trustee if either (1) no Senior Notes
are outstanding or (2) only Junior Notes are being redeemed pursuant to the
provisions described in Section 3.07 (Optional Clean-Up Redemption), or
otherwise selected by the Senior Note Trustee.
"REFERENCE TREASURY DEALER QUOTATIONS" means, with respect to each
Reference Treasury Dealer and any Repayment Date, the average, as determined by
the Trustee if either (1) no Senior Notes are outstanding or (2) only Junior
Notes are being redeemed pursuant to the
Schedule 4 - 41
provisions described in Section 3.07 (Optional Clean-Up Redemption), or
otherwise as determined by the Senior Note Trustee, of the bid and asked prices
for the Comparable Treasury Issue for such Repayment Date (expressed in each
case as a percentage of its principal amount) quoted in writing to the Trustee
or the Senior Note Trustee, as the case may be, by such Reference Treasury
Dealer as at 5:00 p.m. (New York Time) on the third New York Business Day
preceding such Repayment Date.
"REGISTRAR" means any Person appointed by the Issuer to maintain an
office or agency where Definitive Registered Junior Notes may be presented for
transfer, exchange or payment under this Indenture, which initially shall be The
Bank of New York.
"REGULAR RECORD DATE" means, with respect to Definitive Registered
Junior Notes, the January 15, April 15, July 15 or October 15 immediately
preceding the relevant Junior Note Interest Payment Date.
"RELEVANT CURRENCY" means United States dollars, provided that in the
event the Issuer elects to pay a redemption amount in British pounds sterling as
set forth in Section 3.11 (Optional Payment of Redemption Amounts in British
Pounds Sterling), the Relevant Currency of such redemption amount shall be
British pounds sterling.
"RELEVANT DOCUMENTS" means the Security Trust and Intercreditor Deed,
any Agent/Trustee/New Bonding Facility Bank Accession Letter (as such term is
defined in the Security Trust and Intercreditor Deed), any Guarantor Accession
Letter (as such term is defined in the Security Trust and Intercreditor Deed),
the Indentures, the Escrow Agreement, the Senior Notes, the Junior Notes, the
New Bonding Facility Agreement, the Security Documents (including, for the
avoidance of doubt, the Guarantee of the Senior Notes, the Guarantee of the
Junior Notes and the Composite Guarantee), the Fee Letter and any Additional
Remuneration Fee Letter (as such terms are defined in 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.
"REPAYMENT DATE" means each date upon which the Issuer redeems all or
part of the Outstanding Junior Notes.
"REPLACEMENT NEW BONDING FACILITY AGREEMENTS" means any facility
agreement or agreements entered into on or after the Issue Date between or among
the Issuer and/or any Non-US Subsidiary with any bank, insurance company or
other financial institution 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 the Issuer and/or any Non-US
Subsidiary, as such agreement or agreements 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); provided that (1) the term of each such
facility shall not extend beyond the date that is 30 months after the Issue Date
(but, for the avoidance of doubt, Indebtedness and other obligations incurred or
arising under any such facility on or prior to the date that is 30 months after
the Issue Date may extend beyond such date in accordance with the provisions of
any such facility) and (2) no such facility agreement shall require the Issuer
and/or any Non-US Subsidiary to cash-collateralize any instrument issued
thereunder, or otherwise require the Issuer and/or any Non-US Subsidiary
Schedule 4 - 42
to grant any Lien to secure any instrument issued thereunder on any property or
asset having a value, in excess of 50% of the aggregate face or principal amount
of any such instrument.
"REQUIRED HOLDERS" means at any time, the Holder or Holders of at least
the specified percentage of the aggregate principal amount of the Junior Notes
at the time Outstanding.
"RESEARCH AND DEVELOPMENT COST SHARING AGREEMENT" means the research
and development cost sharing agreement entered into on or prior to the Issue
Date by Marconi Communications GmbH, Marconi Communications Inc, Marconi
Communications Limited and Marconi Communications S.p.A.
"RESPONSIBLE OFFICER", when used with respect to the Trustee, means any
officer of the Trustee assigned to or working in the Corporate Trust Department
of the Trustee or, with respect to a particular corporate trust matter, any
other officer to whom such matter is referred because of his or her knowledge of
and familiarity with the particular subject and who shall have direct
responsibility for the administration of this Indenture.
"RESTRUCTURING" means the Scheme of Arrangement under Section 425 of
the Companies ▇▇▇ ▇▇▇▇ between Marconi Corporation plc and its Scheme Creditors
(as defined therein) in the High Court of Justice of England and Wales.
"RINGFENCED IPR CO" means Marconi Intellectual Property (Ringfence)
Inc., a Wholly-Owned Subsidiary of Marconi Communications Inc. that is
incorporated under the laws of the State of Delaware, United States of America,
to which all legal and beneficial ownership of Patents relating to the North
American Access Business, the BBRS Business and the Outside Plant and Power
Business owned by any US IP Opco are transferred on or prior to the Issue Date.
"SALE AND LEASEBACK TRANSACTION" means an arrangement relating to
assets or property now owned or hereafter acquired whereby the Issuer or any
Subsidiary of the Issuer transfers such assets or property to a Person and the
Issuer or any Subsidiary of the Issuer leases such assets or property from such
Person, if the amount of the liability in respect of such lease would at that
time be required to be capitalized on a balance sheet in accordance with
Floating UK GAAP.
"SAME JURISDICTION" means (1) with respect to any Person organized and
existing under the laws of the United States of America, any state thereof or
the District of Columbia, any of such jurisdictions and (2) with respect to any
Person organized and existing under the laws of any other jurisdiction, such
other jurisdiction.
"SCHEME CREDITORS" means the creditors of the Issuer and Marconi plc in
respect of the Restructuring.
"SCHEME DOCUMENT" means the document entitled "Proposals in relation to
Schemes of Arrangement", dated 31 March 2003 and posted to Scheme Creditors
pursuant to the Restructuring.
"SCHEME LAUNCH DATE" means March 31, 2003.
Schedule 4 - 43
"SEC" means the US Securities and Exchange Commission, as from time to
time constituted, created under the US Exchange Act, or, if at any time after
the execution of this instrument such SEC is not existing and performing the
duties now assigned to it under the Trust Indenture Act, then the body
performing such duties at such time.
"SECURED CREDITORS" means the Security Trustee, any Receiver or
Delegate (each as defined in the Security Trust and Intercreditor Deed), the
Depositary, the Paying Agent, the Registrar, the Senior Note Trustee (for itself
and as trustee for the holders of the Senior Notes), the Trustee (for itself and
as trustee for the holders of the Junior Notes), the New Bonding Facility
Security Trustee, the Escrow Bank and each of the New Bonding Facility Banks and
their respective successors and assigns.
"SECURED OBLIGATIONS" means all present and future indebtedness,
liabilities and obligations (for the avoidance of doubt, including any
liabilities and obligations which have been cash-collateralized 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:
(1) any refinancing, novation, deferral or extension;
(2) any obligation relating to any increase in the amount of such
obligations;
(3) any claim for damages or restitution; and
(4) any claim as a result of any recovery by an Obligor of a
payment or discharge, or non-allowability, on the grounds of
preference,
and any amounts that would be included in any of the above but for any
discharge, non-provability or unenforceability of those amounts in any
insolvency or other proceedings (including interest accruing after the
commencement of any insolvency or other proceedings).
"SECURITY DOCUMENTS" means (1) the Initial Security Documents securing
the Secured Obligations, (2) any other pledge agreements, security agreements,
mortgages, deeds of trust and other agreements, instruments and documents
entered into from time to time by the Issuer or any Subsidiary of the Issuer
creating or granting any Guarantee, indemnity or Lien in favor of any of the
Secured Creditors or the Security Trustee, as trustee for the Secured Creditors,
as security for any of the Secured Obligations and (3) any other agreements,
instruments and documents executed and delivered pursuant to any of the
foregoing, in the case of each of clauses (1) through (3), as amended, modified,
restated or supplemented from time to time.
"SECURITY TRUST AND INTERCREDITOR DEED" means the security trust and
intercreditor deed dated the Issue Date between the Issuer, the Security
Trustee, the Guarantors, the Trustee, the Senior Note Trustee, the New Bonding
Facility Security Trustee, the New Bonding Facility Banks, the Depositary, the
Paying Agent, the Registrar, the Intra-Group Creditors (as defined therein) and
the Intra-Group Borrowers (as defined therein) as amended, modified, restated or
supplemented from time to time.
"SECURITY TRUSTEE" means The Law Debenture Trust Corporation p.l.c., as
security trustee under the Security Trust and Intercreditor Deed, and its
successors and assigns thereunder.
Schedule 4 - 44
"SENIOR NOTE INDENTURE" means the indenture dated as of May 19, 2003
between and among Marconi Corporation plc as issuer, the initial guarantors
named therein and Law Debenture Trust Company of New York as trustee, governing
the Senior Notes, as originally executed or as it may from time to time be
supplemented or amended by one or more indentures supplemental thereto entered
into pursuant to the applicable provisions thereof.
"SENIOR NOTE INTEREST PAYMENT DATE" means each January 15, April 15,
July 15 and October 15, commencing July 15, 2003.
"SENIOR NOTE TRUSTEE" means the Law Debenture Trust Company of New York
or any successor appointed pursuant to the applicable provisions of the Senior
Note Indenture.
"SIGNIFICANT SUBSIDIARY" means any Subsidiary of the Issuer if any of
the (a) unconsolidated Total Assets, (b) unconsolidated External Assets, (c)
unconsolidated External Sales, or (d) commencing on March 31, 2005,
unconsolidated EBITDA of such Subsidiary is greater than 5% of the (w) aggregate
of the unconsolidated Total Assets of the Issuer and each of its Subsidiaries,
or the (x) consolidated External Assets, (y) consolidated External Sales or (z)
Consolidated EBITDA, respectively, of the Issuer and its Subsidiaries, taken as
a whole (calculated in the manner specified in sub-clauses (2) through (6) of
clause (c) of Section 4.13 (Guarantor Coverage Requirements)). Solely for the
purposes of determining whether an Event of Default has occurred, or an
Insolvency Event has occurred under the Security Trust and Intercreditor Deed
(in each case other than with respect to the approval by stockholders of a
Subsidiary of the Issuer (other than a Guarantor or a Subsidiary of the Issuer
that is a Significant Subsidiary in its own right) of any plan or proposed plan
for the solvent liquidation or dissolution of such Subsidiary), "Significant
Subsidiary" shall include any Subsidiaries of the Issuer that would, in the
aggregate, collectively constitute a Significant Subsidiary.
"SINGAPORE ESOP ESCROW AGREEMENT" means the escrow agreement dated
November 12, 2002 between the Issuer, Marconi plc, Metapath Software
International Limited, HSBC Bank plc, Barclays Bank PLC, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Trustees
Limited and ▇▇▇▇▇ & Overy.
"STANDSTILL EVENT" means the occurrence of a Default (as such term is
defined in the Senior Note Indenture) under the Senior Notes except as provided
in clause (d) of Section 6.02 of the Senior Note Indenture.
"STANDSTILL NOTICE" means a notice delivered by the Senior Note Trustee
pursuant to clause (b) of Section 6.02 of the Senior Note Indenture, to the
Security Trustee (with a copy to the Issuer, the Trustee and the New Bonding
Facility Security Trustee) notifying the Security Trustee of a Standstill Event.
"STANDSTILL PERIOD" means the period from the date of the issuance of a
Standstill Notice by the Senior Note Trustee and ending on the earlier of:
(1) the expiration of a period of 179 days after the date of the
issuance of such Standstill Notice by the Senior Note Trustee;
(2) the date on which the Senior Note Trustee has confirmed in
writing to the Security Trustee (with a copy to the Issuer and
the other Secured Creditors) that the Default (as such term is
defined in the Senior Note Indenture) under the
Schedule 4 - 45
Senior Notes in respect of which that Standstill Notice was
issued is no longer continuing;
(3) the date on which the Senior Note Trustee has confirmed in
writing to the Security Trustee (with a copy to the Issuer and
the other Secured Creditors) that the Standstill Notice has
been cancelled by the Senior Note Trustee acting on the
instructions of the Required Holders (as such term is defined
in the Senior Note Indenture) of at least a majority of the
aggregate principal amount of the then Outstanding (as such
term is defined in the Senior Note Indenture) Senior Notes;
and
(4) the date on which the Senior Note Trustee has confirmed in
writing to the Security Trustee (with a copy to the Issuer and
the other Secured Creditors) that the Secured Obligations
under the Senior Notes and the Senior Note Indenture have been
discharged in full and there are no further liabilities under
the Senior Notes or the Senior Note Indenture.
"STATED MATURITY" means, with respect to the Junior Notes, the date on
which the payment of principal is scheduled to be paid.
"STERLING EQUIVALENT" means, with respect to any monetary amount in a
currency other than British pounds sterling, at any time of determination
thereof, the amount of British pounds sterling obtained by translating the
amount of such foreign currency into British pounds sterling at the spot rate
for the purchase of British pounds sterling with the applicable foreign currency
as published in the Financial Times on the date that is two (2) London Business
Days prior to such determination.
Except as set forth in Section 4.06 (Limitation on Indebtedness and
Preferred Stock), whenever it is necessary to determine (1) compliance with any
covenant that contains an amount expressed in British pounds sterling in this
Indenture or (2) whether a Default has occurred, and in either case an amount is
expressed in a currency other than British pounds sterling, such amount will be
treated as the Sterling Equivalent determined as of the date such amount is
initially determined in such currency.
"SUBORDINATED INDEBTEDNESS" means (1) with respect to the Issuer, any
Indebtedness that is expressly subordinated to the Senior Notes or the Junior
Notes and (2) with respect to any Guarantor, any Indebtedness of such Guarantor
that is expressly subordinated to such Guarantor's Guarantee of the Senior Notes
or Guarantee of the Junior Notes. For the avoidance of doubt, the Junior Notes
and any Guarantee of the Junior Notes shall not constitute Subordinated
Indebtedness.
"SUBSIDIARY" means, with respect to any specified Person:
(1) any corporation, association or other business entity of which
more than 50% of the total voting power of its Capital Stock
entitled (without regard to the occurrence of any contingency)
to vote in the election of directors, managers or trustees of
the corporation, association or other business entity is at
the time owned or controlled, directly or indirectly, by that
Person or one or more of the other Subsidiaries of that Person
(or a combination thereof); and
Schedule 4 - 46
(2) any partnership (a) the sole general partner or the managing
general partner of which is such Person or a Subsidiary of
such Person, or (b) the only general partners of which are
that Person or one or more Subsidiaries of that Person (or any
combination thereof).
Unless otherwise specified herein, or the context otherwise requires, a
reference to a "Subsidiary" herein or in the Junior Notes is to a Subsidiary of
the Issuer.
"TAX" and "TAXES" means any tax, duty, levy, impost, assessment or
other governmental charge of whatever nature (including penalties, interest and
other liabilities related thereto).
"TAXING AUTHORITY" means any government or political sub-division or
territory or possession of any government or any authority or agency therein or
thereof having power to impose a Tax.
"TOTAL ASSETS" means, with respect to any specified Person at any date,
the total gross assets of such Person on such date in accordance with Floating
UK GAAP.
"TRANSACTION SECURITY" means all assets, properties and rights of the
Issuer and its Subsidiaries that are subject to Liens pursuant to the terms and
provisions of the Security Documents in order to secure the Secured Obligations.
"TRUST INDENTURE ACT" means the United States Trust Indenture Act of
1939, as amended and as in force at the date as of which this instrument was
executed; provided however, that in the event the US Trust Indenture Act of 1939
is amended after such date, "Trust Indenture Act" means, to the extent required
by any such amendment, the US Trust Indenture Act of 1939 as so amended.
"TRUSTEE" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean the Person who is then the Trustee hereunder, and if at any
time there is more than one such Person, "Trustee" shall mean and include each
such Person.
"TRUSTEE ACTS" means the Trustee ▇▇▇ ▇▇▇▇ and the Trustee ▇▇▇ ▇▇▇▇ of
England and Wales.
"UK IP OPCOS" means all Non-US Subsidiaries organized or incorporated
in the United Kingdom having legal and beneficial ownership of Patents.
"UK IPR CO" means Marconi UK Intellectual Property Limited, a
Wholly-Owned Subsidiary of Marconi Communications Limited that is incorporated
under the laws of England and Wales, that is a Non-US Subsidiary and to which
all legal and beneficial ownership of Patents owned by UK IP Opcos are
transferred on or prior to the Issue Date.
"UNITED STATES DOLLAR", "US$" or "$" or any similar reference means the
coin or currency of the United States of America as at the time of payment is
legal tender for the payment of public and private debts.
"US CORE BUSINESS SALE" means any direct or indirect sale, assignment,
conveyance, lease or other disposition of all or substantially all of the Equity
Interests, properties or assets of
Schedule 4 - 47
one or more of the US Core Businesses or one or more of the US Core Business
Subsidiaries, or any consolidation, merger, sale, assignment, transfer, lease or
other disposition of or involving one or more of the US Core Businesses or one
or more of the US Core Business Subsidiaries or any of their respective Equity
Interests, properties or assets.
"US CORE BUSINESS SUBSIDIARY" means a US Subsidiary that is a direct or
indirect Wholly-Owned Subsidiary of the Issuer and designated as a holder of a
US Core Business by the Issuer by notice to the Trustee.
"US CORE BUSINESSES" means the assets and liabilities of each of:
(1) the Outside Plant and Power Business;
(2) the North American Access Business; and
(3) the BBRS Business.
"US EXCHANGE ACT" means the United States Securities Exchange Act of
1934, as amended, and the rules and regulations promulgated thereunder.
"US GAAP" means generally accepted accounting principles in the United
States, consistently applied, and as in effect from time to time.
"US GUARANTOR" means each of:
(1) Marconi Communications, Inc.
Marconi Networks Worldwide, Inc.
Marconi Communications Technology, Inc.
Marconi Communications Federal, Inc.
Marconi Acquisition Corp.
Marconi Intellectual Property (Ringfence) Inc.
Marconi Communications Limited, a private limited company
incorporated under the laws of the Republic of Ireland
Marconi Communications Optical Networks Limited
Marconi Communications, S.A. de ▇.▇.
▇▇▇▇▇▇▇ Communications de Mexico, S.A. de ▇.▇.
▇▇▇▇▇▇▇ Communications Exportel, S.A. de C.V.
Administrativa Marconi Communications, S.A. de ▇.▇.
▇▇▇▇▇▇▇ Communications B.V.; and
Marconi Communications GmbH, a private company incorporated
under the laws of Switzerland;
(2) any other US Subsidiary that executes a Guarantee of the
Junior Notes pursuant to this Indenture; and
(3) each of their respective successors and assigns.
"US IP OPCOS" means all Subsidiaries of the Issuer organized or
incorporated under the laws of the United States, any state thereof or the
District of Columbia having legal and beneficial ownership of Patents.
Schedule 4 - 48
"US IPR CO" means Marconi Intellectual Property (US) Inc., a
Wholly-Owned Subsidiary of Marconi Inc. that is incorporated under the laws of
the State of Delaware, United States of America, that is a Non-US Subsidiary and
to which all legal and beneficial ownership of Patents (other than any Patents
transferred to Ringfenced IPR Co) owned by any US IP Opco are transferred on or
prior to the Issue Date.
"US PARENT" means either (1) Marconi Communications Inc. or (2) a
Wholly-Owned Subsidiary of the Issuer which: (a) is incorporated after the Issue
Date; (b) becomes a US Guarantor; and (c) acquires the Equity Interests in
Marconi Communications Inc.
"US SUBSIDIARY" means each of the US Parent and each of its
Subsidiaries, provided that they constitute a Subsidiary of the Issuer.
"US WORKING CAPITAL FACILITY" means the US$22.5 million working capital
facility entered into on March 26, 2003, among Marconi Communications, Inc. and
Liberty Funding, LLC providing for revolving credit or working capital loans, as
such agreement, in whole or in part, may be amended, renewed, extended,
substituted, refinanced, restructured, replaced, supplemented or otherwise
modified from time to time (including, without limitation, any successive
amendments, renewals, extensions, substitutions, refinancings, restructurings,
replacements, supplements or other modifications of the foregoing in whole or in
part whether by the same or a different borrower or borrowers and/or lender or
group of lenders), which facility or facilities either is secured solely by a
Lien on the Pittsburgh Facility and related assets and rights or is unsecured.
"VOTING STOCK" of any Person as of any date means the Capital Stock of
such Person that is at the time entitled to vote in the election of the Board of
Directors of such Person.
"WEIGHTED AVERAGE LIFE TO MATURITY" means, when applied to any
Indebtedness at any date, the number of years obtained by dividing:
(1) the sum of the products obtained by multiplying (a) the amount
of each then remaining installment, sinking fund, serial
maturity or other required payments of principal, including
payment at final maturity, in respect of the Indebtedness, by
(b) the number of years (calculated to the nearest
one-twelfth) that will elapse between such date and the making
of such payment; by
(2) the then outstanding principal amount of such Indebtedness.
"WHOLLY-OWNED SUBSIDIARY" of any specified Person means a Subsidiary of
such Person all of the outstanding Capital Stock or other ownership interests of
which (other than directors' qualifying shares) are at the time owned by such
Person or by one or more Wholly-Owned Subsidiaries of such Person.
Schedule 4 - 49
OTHER DEFINITIONS
Defined in the Junior
Note Indenture in
Term Section
"Affiliate Transaction"....................................................... 4.10
"Deferred Interest"........................................................... 2.09
"Dispute"..................................................................... 13.09
"Executive Officers".......................................................... 4.19
"Guarantor Certification Date"................................................ 4.13
"Guarantor Test Dates"........................................................ 4.13
"Initial Guarantors".......................................................... Recitals
"Interim Test Date"........................................................... 4.13
"LSE"......................................................................... 4.24
"MD&A"........................................................................ 4.19
"New Security"................................................................ 4.14
"Non-US Restricted Payments".................................................. 4.03
"Note Trustee Fee Letter"..................................................... 7.07
"Parallel Obligations "....................................................... 13.20
"Pay the Junior Notes"........................................................ 6.02
"Payment Default"............................................................. 6.01
"PBGC Agreement".............................................................. 1.01
"Principal Obligations"....................................................... 13.20
"Proceedings"................................................................. 13.11
"Register".................................................................... 2.06
"Relevant Taxing Jurisdiction"................................................ 4.36
"Restricted Payments"......................................................... 4.03
"retiring Trustee"............................................................ 7.10
"Semi-Annual Test Date"....................................................... 4.13
"Special Record Date"......................................................... 2.09
"Taxing Jurisdiction"......................................................... 3.10
"US Restricted Payments"...................................................... 4.03
Schedule 4 - 50
INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT
The following Trust Indenture Act terms have the following meanings:
(1) "Commission" means the SEC;
(2) "indenture securities" means the Junior Notes and the
Guarantee of the Junior Notes;
(3) "indenture security holder" means a Holder;
(4) "indenture to be qualified" means this Indenture;
(5) "indenture trustee" or "institutional Trustee" means the
Trustee; and
(6) "obligor" on the indenture securities means the Issuer, the
Guarantors and any other obligor on the indenture securities.
All other Trust Indenture Act terms used in this Indenture that are
defined by the Trust Indenture Act, defined in the Trust Indenture Act by
reference to another statute or defined by SEC rule under the Trust Indenture
Act have the meanings so assigned to them.
RULES OF CONSTRUCTION
Unless the context otherwise requires
(1) a term has the meaning assigned to it;
(2) all references in this Schedule 4 to Articles, Sections,
Exhibits or Schedules refer to Articles or Sections of, or
Exhibits or Schedules to, the Junior Note Indenture, and all
references in this Schedule 4 to "this Indenture" refer to the
Junior Note Indenture, unless otherwise indicated;
(3) an accounting term not otherwise defined has the meaning
assigned to it in accordance with Floating UK GAAP,
consistently applied;
(4) "or" is not exclusive;
(5) "including" means including without limitation;
(6) words in the singular include the plural and words in the
plural include the singular;
(7) unsecured Indebtedness shall not be deemed to be subordinate
or junior to secured Indebtedness merely by virtue of its
nature as unsecured Indebtedness; and
(8) the principal amount of any Preferred Stock shall be (a) the
maximum liquidation value of such Preferred Stock or (b) the
maximum mandatory redemption or mandatory repurchase price
with respect to such Preferred Stock, whichever is greater.
Schedule 4 - 51
IN WITNESS WHEREOF this Guarantee has been executed as a deed by each Guarantor
and is intended to be and is hereby delivered by each Guarantor as a deed on the
date specified above.
SIGNATURES
THE INITIAL GUARANTORS
EXECUTED as a DEED )
by W ▇▇▇▇▇▇▇ )
acting as attorney-in-fact )
for and on behalf of ) /s/ W ▇▇▇▇▇▇▇
MARCONI COMMUNICATIONS, )
INC. )
in the presence of: )
Signature of witness: /s/ ▇.▇. ▇▇▇▇
----------------------
Name of witness: S LEVY
----------------------
Address: ▇▇▇▇▇ & ▇▇▇▇▇
----------------------
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▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
----------------------
Occupation: TRAINEE SOLICITOR
----------------------
EXECUTED as a DEED )
by W ▇▇▇▇▇▇▇ )
acting as attorney-in-fact )
for and on behalf of ) /s/ W ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ NETWORKS )
WORLDWIDE, INC. )
in the presence of: )
Signature of witness: /s/ ▇.▇. ▇▇▇▇
----------------------
Name of witness: ▇. ▇▇▇▇
----------------------
Address: ▇▇▇▇▇ & OVERY
----------------------
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----------------------
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
----------------------
Occupation: TRAINEE SOLICITOR
----------------------
EXECUTED as a DEED )
by W ▇▇▇▇▇▇▇ )
acting as attorney-in-fact )
for and on behalf of ) /s/ W ▇▇▇▇▇▇▇
MARCONI COMMUNICATIONS )
TECHNOLOGY, INC. )
in the presence of: )
Signature of witness: /s/ ▇.▇. ▇▇▇▇
----------------------
Name of witness: ▇. ▇▇▇▇
----------------------
Address: ▇▇▇▇▇ & ▇▇▇▇▇
----------------------
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----------------------
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
----------------------
Occupation: TRAINEE SOLICITOR
----------------------
EXECUTED as a DEED )
by W ▇▇▇▇▇▇▇ )
acting as attorney-in-fact )
for and on behalf of ) /s/ W ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ COMMUNICATIONS )
FEDERAL, INC. )
in the presence of: )
Signature of witness: /s/ ▇.▇. ▇▇▇▇
----------------------
Name of witness: ▇. ▇▇▇▇
----------------------
Address: ▇▇▇▇▇ & OVERY
----------------------
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----------------------
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
----------------------
Occupation: TRAINEE SOLICITOR
----------------------
EXECUTED as a DEED )
by W ▇▇▇▇▇▇▇ )
acting as attorney-in-fact ) /s/ W ▇▇▇▇▇▇▇
for and on behalf of )
MARCONI ACQUISITION CORP. )
in the presence of: )
Signature of witness: /s/ ▇.▇. ▇▇▇▇
______________________
▇. ▇▇▇▇
Name of witness: ______________________
▇▇▇▇▇ & ▇▇▇▇▇
Address: ______________________
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______________________
▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇
______________________
Occupation: TRAINEE SOLICITOR
______________________
EXECUTED as a DEED )
by W ▇▇▇▇▇▇▇ )
acting as attorney-in-fact )
for and on behalf of ) /s/ W ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ INTELLECTUAL )
PROPERTY (RINGFENCE) INC. )
in the presence of: )
Signature of witness: /s/ ▇.▇. ▇▇▇▇
______________________
▇. ▇▇▇▇
Name of witness: ______________________
▇▇▇▇▇ & OVERY
Address: ______________________
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______________________
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
______________________
TRAINEE SOLICITOR
Occupation: ______________________
SIGNED, SEALED AND DELIVERED
by W ▇▇▇▇▇▇▇ /s/ W ▇▇▇▇▇▇▇
the duly authorised attorney of
MARCONI COMMUNICATIONS LIMITED, a private limited company incorporated under
the laws of the Republic of Ireland
in the presence of:
Witness Signature: /s/ ▇.▇. ▇▇▇▇
______________________
Witness Name: ▇. ▇▇▇▇
______________________
Witness Address: ▇▇▇▇▇ & ▇▇▇▇▇
______________________
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______________________
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
______________________
SIGNED, SEALED AND DELIVERED
by W ▇▇▇▇▇▇▇ /s/ W ▇▇▇▇▇▇▇
the duly authorised attorney of
MARCONI COMMUNICATIONS OPTICAL NETWORKS LIMITED
in the presence of:
Witness Signature: /s/ ▇.▇. ▇▇▇▇
______________________
Witness Name: ▇. ▇▇▇▇
______________________
Witness Address: ▇▇▇▇▇ & ▇▇▇▇▇
______________________
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______________________
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
______________________
EXECUTED as a DEED )
by TCR SHEPHERD ) /s/ T.C.R. SHEPHERD
acting as attorney-in-fact )
for and on behalf of )
MARCONI COMMUNICATIONS, )
S.A. DE C.V. )
in the presence of: )
Signature of witness: /s/ ▇.▇. ▇▇▇▇
----------------------
Name of witness: ▇▇ ▇▇▇▇
----------------------
Address: ▇▇▇▇▇ & ▇▇▇▇▇
----------------------
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----------------------
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
---------------------
Occupation: TRAINEE SOLICITOR
---------------------
EXECUTED as a DEED )
by W ▇▇▇▇▇▇▇ ) /s/ W ▇▇▇▇▇▇▇
acting as attorney-in-fact )
for and on behalf of )
MARCONI COMMUNICATIONS )
DE MEXICO, S.A. DE C.V. )
in the presence of: )
Signature of witness: /s/ ▇.▇. ▇▇▇▇
----------------------
Name of witness: ▇. ▇▇▇▇
----------------------
Address: ▇▇▇▇▇ & ▇▇▇▇▇
----------------------
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----------------------
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
---------------------
Occupation: TRAINEE SOLICITOR
---------------------
EXECUTED as a DEED )
by W ▇▇▇▇▇▇▇ ) /s/ W ▇▇▇▇▇▇▇
acting as attorney-in-fact )
for and on behalf of )
MARCONI COMMUNICATIONS )
EXPORTEL, S.A. DE C.V. )
in the presence of: )
Signature of witness: /s/ ▇.▇. ▇▇▇▇
----------------------
Name of witness: ▇. ▇▇▇▇
----------------------
Address: ▇▇▇▇▇ & ▇▇▇▇▇
----------------------
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----------------------
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
---------------------
Occupation: TRAINEE SOLICITOR
---------------------
EXECUTED as a DEED )
by W ▇▇▇▇▇▇▇ ) /s/ W ▇▇▇▇▇▇▇
acting as attorney-in-fact )
for and on behalf of )
ADMINISTRATIVA MARCONI )
COMMUNICATIONS, S.A. DE C.V. )
in the presence of: )
Signature of witness: /s/ ▇.▇. ▇▇▇▇
----------------------
Name of witness: ▇. ▇▇▇▇
----------------------
Address: ▇▇▇▇▇ & ▇▇▇▇▇
----------------------
One New Change
----------------------
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
---------------------
Occupation: TRAINEE SOLICITOR
---------------------
EXECUTED as a DEED )
by W ▇▇▇▇▇▇▇ ) /s/ W ▇▇▇▇▇▇▇
acting as attorney-in-fact )
for and on behalf of )
MARCONI COMMUNICATIONS )
B.V. )
in the presence of: )
Signature of witness: /s/ ▇.▇. ▇▇▇▇
----------------------
Name of witness: ▇. ▇▇▇▇
----------------------
Address: ▇▇▇▇▇ & ▇▇▇▇▇
----------------------
One New Change
----------------------
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
---------------------
Occupation: TRAINEE SOLICITOR
---------------------
EXECUTED as a DEED )
by W ▇▇▇▇▇▇▇ ) /s/ W ▇▇▇▇▇▇▇
acting as attorney-in-fact )
for and on behalf of )
MARCONI COMMUNICATIONS )
GMBH, a private company incorporated )
under the laws of Switzerland )
in the presence of: )
Signature of witness: /s/ ▇.▇. ▇▇▇▇
----------------------
Name of witness: ▇. ▇▇▇▇
----------------------
Address: ▇▇▇▇▇ & ▇▇▇▇▇
----------------------
One New Change
----------------------
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
---------------------
Occupation: TRAINEE SOLICITOR
---------------------
EXECUTED as a DEED )
by W ▇▇▇▇▇▇▇ ) /s/ W ▇▇▇▇▇▇▇
acting as attorney-in-fact )
for and on behalf of )
METAPATH SOFTWARE )
INTERNATIONAL LIMITED )
in the presence of: )
Signature of witness: /s/ ▇.▇. ▇▇▇▇
----------------------
Name of witness: ▇. ▇▇▇▇
----------------------
Address: ▇▇▇▇▇ & OVERY
----------------------
One New Change
----------------------
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
---------------------
Occupation: TRAINEE SOLICITOR
---------------------
EXECUTED as a DEED )
by W ▇▇▇▇▇▇▇ ) /s/ W ▇▇▇▇▇▇▇
acting as attorney-in-fact )
for and on behalf of )
MOBILE SYSTEMS INTERNATIONAL )
HOLDINGS LIMITED )
in the presence of: )
Signature of witness: /s/ ▇.▇. ▇▇▇▇
----------------------
Name of witness: ▇. ▇▇▇▇
----------------------
Address: ▇▇▇▇▇ & ▇▇▇▇▇
----------------------
One New Change
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▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
---------------------
Occupation: TRAINEE SOLICITOR
---------------------
EXECUTED as a DEED )
by W ▇▇▇▇▇▇▇ )
acting as attorney-in-fact )
for and on behalf of ) /s/ W ▇▇▇▇▇▇▇
GPT SPECIAL PROJECT )
MANAGEMENT LIMITED )
in the presence of: )
Signature of witness: /s/ ▇. ▇. ▇▇▇▇
----------------------
Name of witness: ▇. ▇▇▇▇
----------------------
Address: ▇▇▇▇▇ & OVERY
----------------------
One New Change
----------------------
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
----------------------
Occupation: TRAINEE SOLICITOR
----------------------
EXECUTED as a DEED )
by W ▇▇▇▇▇▇▇ )
acting as attorney-in-fact )
for and on behalf of ) /s/ W ▇▇▇▇▇▇▇
MARCONI COMMUNICATIONS )
LIMITED, a private limited company )
incorporated under the laws of England )
and Wales )
in the presence of: )
Signature of witness: /s/ ▇. ▇. ▇▇▇▇
----------------------
Name of witness: ▇. ▇▇▇▇
----------------------
Address: ▇▇▇▇▇ & ▇▇▇▇▇
----------------------
One New Change
----------------------
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
----------------------
Occupation: TRAINEE SOLICITOR
----------------------
EXECUTED as a DEED )
by W ▇▇▇▇▇▇▇ )
acting as attorney-in-fact )
for and on behalf of ) /s/ W ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ COMMUNICATIONS )
INTERNATIONAL LIMITED )
in the presence of: )
Signature of witness: /s/ ▇. ▇. ▇▇▇▇
----------------------
Name of witness: S LEVY
----------------------
Address: ▇▇▇▇▇ & ▇▇▇▇▇
----------------------
One New Change
----------------------
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
----------------------
Occupation: TRAINEE SOLICITOR
----------------------
EXECUTED as a DEED )
by W ▇▇▇▇▇▇▇ )
acting as attorney-in-fact )
for and on behalf of ) /s/ W ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ COMMUNICATIONS )
CHINA LIMITED )
in the presence of: )
Signature of witness: /s/ ▇. ▇. ▇▇▇▇
----------------------
Name of witness: ▇. ▇▇▇▇
----------------------
Address: ▇▇▇▇▇ & OVERY
----------------------
One New Change
----------------------
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
----------------------
Occupation: TRAINEE SOLICITOR
----------------------
EXECUTED as a DEED )
by W ▇▇▇▇▇▇▇ )
acting as attorney-in-fact )
for and on behalf of ) /s/ W ▇▇▇▇▇▇▇
MARCONI COMMUNICATIONS )
INTERNATIONAL )
INVESTMENTS LIMITED )
in the presence of: )
Signature of witness: /s/ ▇.▇. ▇▇▇▇
______________________
Name of witness: ▇. ▇▇▇▇
______________________
Address: ▇▇▇▇▇ & ▇▇▇▇▇
______________________
One New Change
______________________
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
______________________
Occupation: TRAINEE SOLICITOR
______________________
EXECUTED as a DEED )
by W ▇▇▇▇▇▇▇ )
acting as attorney-in-fact )
for and on behalf of ) /s/ W ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ COMMUNICATIONS )
INTERNATIONAL HOLDINGS LIMITED )
in the presence of: )
Signature of witness: /s/ ▇.▇. ▇▇▇▇
______________________
Name of witness: ▇. ▇▇▇▇
______________________
Address: ▇▇▇▇▇ & OVERY
______________________
One New Change
______________________
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
______________________
Occupation: TRAINEE SOLICITOR
______________________
EXECUTED as a DEED )
by W ▇▇▇▇▇▇▇ )
acting as attorney-in-fact )
for and on behalf of ) /s/ W ▇▇▇▇▇▇▇
MARCONI COMMUNICATIONS )
INVESTMENTS LIMITED )
in the presence of: )
Signature of witness: /s/ ▇.▇. ▇▇▇▇
______________________
Name of witness: ▇. ▇▇▇▇
______________________
Address: ▇▇▇▇▇ & ▇▇▇▇▇
______________________
One New Change
______________________
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
______________________
Occupation: TRAINEE SOLICITOR
______________________
EXECUTED as a DEED )
by W ▇▇▇▇▇▇▇ )
acting as attorney-in-fact )
for and on behalf of ) /s/ W ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ COMMUNICATIONS )
HOLDINGS LIMITED )
in the presence of: )
Signature of witness: /s/ ▇.▇. ▇▇▇▇
______________________
Name of witness: ▇. ▇▇▇▇
______________________
Address: ▇▇▇▇▇ & OVERY
______________________
One New Change
______________________
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
______________________
Occupation: TRAINEE SOLICITOR
______________________
EXECUTED as a DEED )
by W ▇▇▇▇▇▇▇ )
acting as attorney-in-fact )
for and on behalf of ) /s/ W ▇▇▇▇▇▇▇
MARCONI (▇▇▇▇▇▇ STREET) )
LIMITED )
in the presence of: )
Signature of witness: /s/ ▇.▇. ▇▇▇▇
______________________
Name of witness: ▇. ▇▇▇▇
______________________
Address: ▇▇▇▇▇ & OVERY
______________________
One New Change
______________________
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
______________________
Occupation: TRAINEE SOLICITOR
______________________
EXECUTED as a DEED )
by W ▇▇▇▇▇▇▇ )
acting as attorney-in-fact )
for and on behalf of ) /s/ W ▇▇▇▇▇▇▇
MARCONI (DGP1) LIMITED )
in the presence of: )
Signature of witness: /s/ ▇.▇. ▇▇▇▇
______________________
Name of witness: ▇. ▇▇▇▇
______________________
Address: ▇▇▇▇▇ & ▇▇▇▇▇
______________________
One New Change
______________________
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
______________________
Occupation: TRAINEE SOLICITOR
______________________
EXECUTED as a DEED )
by W ▇▇▇▇▇▇▇ )
acting as attorney-in-fact )
for and on behalf of ) /s/ W ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ (DGP2) LIMITED )
in the presence of: )
Signature of witness: /s/ ▇.▇. ▇▇▇▇
______________________
Name of witness: ▇. ▇▇▇▇
______________________
Address: ▇▇▇▇▇ & OVERY
______________________
One New Change
______________________
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
______________________
Occupation: TRAINEE SOLICITOR
______________________
EXECUTED as a DEED )
by W ▇▇▇▇▇▇▇ )
acting as attorney-in-fact )
for and on behalf of ) /s/ W ▇▇▇▇▇▇▇
MARCONI BONDING LIMITED )
in the presence of: )
Signature of witness: /s/ ▇.▇. ▇▇▇▇
______________________
Name of witness: ▇. ▇▇▇▇
______________________
Address: ▇▇▇▇▇ & ▇▇▇▇▇
______________________
One New Change
______________________
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
______________________
Occupation: TRAINEE SOLICITOR
______________________
EXECUTED as a DEED )
by W ▇▇▇▇▇▇▇ )
acting as attorney-in-fact )
for and on behalf of ) /s/ W ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ OPTICAL )
COMPONENTS LIMITED )
in the presence of: )
Signature of witness: /s/ ▇. ▇. ▇▇▇▇
Name of witness: ▇. ▇▇▇▇
Address: ▇▇▇▇▇ & OVERY
▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Occupation: TRAINEE SOLICITOR
EXECUTED as a DEED )
by W ▇▇▇▇▇▇▇ )
acting as attorney-in-fact )
for and on behalf of ) /s/ W ▇▇▇▇▇▇▇
ASSOCIATED ELECTRICAL )
INDUSTRIES LIMITED )
in the presence of: )
Signature of witness: /s/ ▇. ▇. ▇▇▇▇
Name of witness: ▇. ▇▇▇▇
Address: ▇▇▇▇▇ & ▇▇▇▇▇
▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Occupation: TRAINEE SOLICITOR
EXECUTED as a DEED )
by W ▇▇▇▇▇▇▇ )
acting as attorney-in-fact )
for and on behalf of ) /s/ W ▇▇▇▇▇▇▇
ENGLISH ELECTRIC )
COMPANY LIMITED )
in the presence of: )
Signature of witness: /s/ ▇. ▇. ▇▇▇▇
Name of witness: ▇. ▇▇▇▇
Address: ▇▇▇▇▇ & OVERY
▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Occupation: TRAINEE SOLICITOR
EXECUTED as a DEED )
by W ▇▇▇▇▇▇▇ )
acting as attorney-in-fact )
for and on behalf of ) /s/ W ▇▇▇▇▇▇▇
MARCONI (▇▇▇▇▇▇▇ )
AUTOMATION) LIMITED )
in the presence of: )
Signature of witness: /s/ ▇. ▇. ▇▇▇▇
Name of witness: ▇. ▇▇▇▇
Address: ▇▇▇▇▇ & OVERY
▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Occupation: TRAINEE SOLICITOR
EXECUTED as a DEED )
by W ▇▇▇▇▇▇▇ ) /s/ W ▇▇▇▇▇▇▇
acting as attorney-in-fact )
for and on behalf of )
▇▇▇▇▇▇▇ AUTOMATION )
HOLDINGS LIMITED )
in the presence of: )
Signature of witness: /s/ ▇.▇. ▇▇▇▇
----------------------
Name of witness: ▇. ▇▇▇▇
----------------------
Address: ▇▇▇▇▇ & OVERY
----------------------
One New Change
----------------------
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
---------------------
Occupation: TRAINEE SOLICITOR
---------------------
EXECUTED as a DEED )
by W ▇▇▇▇▇▇▇ ) /s/ W ▇▇▇▇▇▇▇
acting as attorney-in-fact )
for and on behalf of )
MARCONI AEROSPACE )
UNLIMITED )
in the presence of: )
Signature of witness: /s/ ▇.▇. ▇▇▇▇
----------------------
Name of witness: ▇. ▇▇▇▇
----------------------
Address: ▇▇▇▇▇ & ▇▇▇▇▇
----------------------
One New Change
----------------------
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
---------------------
Occupation: TRAINEE SOLICITOR
---------------------
EXECUTED as a DEED )
by W ▇▇▇▇▇▇▇ ) /s/ W ▇▇▇▇▇▇▇
acting as attorney-in-fact )
for and on behalf of )
MARCONI UK INTELLECTUAL )
PROPERTY LIMITED )
in the presence of: )
Signature of witness: /s/ ▇.▇. ▇▇▇▇
----------------------
Name of witness: ▇. ▇▇▇▇
----------------------
Address: ▇▇▇▇▇ & ▇▇▇▇▇
----------------------
One New Change
----------------------
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
----------------------
Occupation: TRAINEE SOLICITOR
----------------------
EXECUTED as a DEED )
by W ▇▇▇▇▇▇▇ ) /s/ W ▇▇▇▇▇▇▇
acting as attorney-in-fact )
for and on behalf of )
MARCONI (NCP) LIMITED )
in the presence of: )
Signature of witness: /s/ ▇.▇. ▇▇▇▇
----------------------
Name of witness: ▇. ▇▇▇▇
----------------------
Address: ▇▇▇▇▇ & ▇▇▇▇▇
----------------------
One New Change
----------------------
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
----------------------
Occupation: TRAINEE SOLICITOR
----------------------
EXECUTED as a DEED )
by W ▇▇▇▇▇▇▇ ) /S/ W ▇▇▇▇▇▇▇
acting as attorney-in-fact )
for and on behalf of )
HIGHROSE LIMITED )
in the presence of: )
Signature of witness: /S/ ▇.▇. ▇▇▇▇
______________________
Name of witness: ▇. ▇▇▇▇
______________________
Address: ▇▇▇▇▇ & OVERY
______________________
One New Change
______________________
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
______________________
Occupation: TRAINEE SOLICITOR
______________________
EXECUTED as a DEED )
by W ▇▇▇▇▇▇▇ ) /S/ W ▇▇▇▇▇▇▇
acting as attorney-in-fact )
for and on behalf of )
MARCONI INC. )
in the presence of: )
Signature of witness: /S/ ▇.▇. ▇▇▇▇
______________________
Name of witness: ▇. ▇▇▇▇
______________________
Address: ▇▇▇▇▇ & ▇▇▇▇▇
______________________
One New Change
______________________
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
______________________
Occupation: TRAINEE SOLICITOR
______________________
EXECUTED as a DEED )
by W ▇▇▇▇▇▇▇ ) /S/ W ▇▇▇▇▇▇▇
acting as attorney-in-fact )
for and on behalf of )
MARCONI HOLDINGS, LLC )
in the presence of: )
Signature of witness: /S/ ▇.▇. ▇▇▇▇
______________________
Name of witness: ▇. ▇▇▇▇
______________________
Address: ▇▇▇▇▇ & ▇▇▇▇▇
______________________
One New Change
______________________
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
______________________
Occupation: TRAINEE SOLICITOR
______________________
EXECUTED as a DEED )
by W ▇▇▇▇▇▇▇ ) /S/ W ▇▇▇▇▇▇▇
acting as attorney-in-fact )
for and on behalf of )
MARCONI COMMUNICATIONS )
NORTH AMERICA INC. )
in the presence of: )
Signature of witness: /S/ ▇.▇. ▇▇▇▇
______________________
Name of witness: ▇. ▇▇▇▇
______________________
Address: ▇▇▇▇▇ & ▇▇▇▇▇
______________________
One New Change
______________________
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
______________________
Occupation: TRAINEE SOLICITOR
______________________
EXECUTED as a DEED )
by W ▇▇▇▇▇▇▇ ) /s/ W ▇▇▇▇▇▇▇
acting as attorney-in-fact )
for and on behalf of )
FS HOLDINGS CORP )
in the presence of: )
/s/ ▇. ▇. ▇▇▇▇
Signature of witness: ______________________
▇. ▇▇▇▇
Name of witness: ______________________
▇▇▇▇▇ & OVERY
Address: _______________________
One New Change
______________________
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
______________________
TRAINEE SOLICITOR
Occupation: ______________________
EXECUTED as a DEED )
by ▇. ▇▇▇▇▇▇▇ ) /s/ ▇. ▇▇▇▇▇▇▇
acting as attorney-in-fact )
for and on behalf of )
FS FINANCE CORP )
in the presence of: )
/s/ ▇.▇. ▇▇▇▇
Signature of witness: ______________________
▇. ▇▇▇▇
Name of witness: ______________________
▇▇▇▇▇ & ▇▇▇▇▇
Address: _______________________
One New Change
______________________
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
______________________
TRAINEE SOLICITOR
Occupation: ______________________
EXECUTED as a DEED )
by ▇. ▇▇▇▇▇▇▇ ) /s/ ▇. ▇▇▇▇▇▇▇
acting as attorney-in-fact )
for and on behalf of )
MARCONI SOFTWARE )
INTERNATIONAL, INC )
in the presence of: )
/s/ ▇.▇. ▇▇▇▇
Signature of witness: ______________________
▇. ▇▇▇▇
Name of witness: ______________________
▇▇▇▇▇ & ▇▇▇▇▇
Address: _______________________
One New Change
______________________
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
______________________
TRAINEE SOLICITOR
Occupation: ______________________
EXECUTED as a DEED )
by ▇. ▇▇▇▇▇▇▇ ) /s/ ▇. ▇▇▇▇▇▇▇
acting as attorney-in-fact )
for and on behalf of )
METAPATH SOFTWARE )
INTERNATIONAL (US), INC. )
in the presence of: )
/s/ ▇.▇. ▇▇▇▇
Signature of witness: ______________________
▇. ▇▇▇▇
Name of witness: ______________________
▇▇▇▇▇ & OVERY
Address: _______________________
One New Change
______________________
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
______________________
TRAINEE SOLICITOR
Occupation: ______________________
EXECUTED as a DEED )
by ▇. ▇▇▇▇▇▇▇ ) /s/ ▇. ▇▇▇▇▇▇▇
acting as attorney-in-fact )
for and on behalf of )
METAPATH SOFTWARE )
INTERNATIONAL, INC. )
in the presence of: )
Signature of witness: /s/ ▇.▇. ▇▇▇▇
----------------------
Name of witness: ▇. ▇▇▇▇
----------------------
Address: ▇▇▇▇▇ & ▇▇▇▇▇
▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
---------------------
Occupation: TRAINEE SOLICITOR
---------------------
EXECUTED as a DEED )
by ▇. ▇▇▇▇▇▇▇ ) /s/ ▇. ▇▇▇▇▇▇▇
acting as attorney-in-fact )
for and on behalf of )
MARCONI INTELLECTUAL )
PROPERTY (US), INC. )
in the presence of: )
Signature of witness: /s/ ▇.▇. ▇▇▇▇
----------------------
Name of witness: ▇. ▇▇▇▇
----------------------
Address: ▇▇▇▇▇ & ▇▇▇▇▇
▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
---------------------
Occupation: TRAINEE SOLICITOR
---------------------
EXECUTED as a DEED )
by ▇. ▇▇▇▇▇▇▇ ) /s/ ▇. ▇▇▇▇▇▇▇
acting as attorney-in-fact )
for and on behalf of )
MARCONI COMMUNICATIONS )
HOLDINGS GMBH )
in the presence of: )
Signature of witness: /s/ ▇.▇. ▇▇▇▇
----------------------
Name of witness: ▇. ▇▇▇▇
----------------------
Address: ▇▇▇▇▇ & ▇▇▇▇▇
▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
---------------------
Occupation: TRAINEE SOLICITOR
---------------------
EXECUTED as a DEED )
by ▇. ▇▇▇▇▇▇▇ ) /s/ W ▇▇▇▇▇▇▇
acting as attorney-in-fact )
for and on behalf of )
MARCONI COMMUNICATIONS )
GMBH, a private company incorporated )
under the laws of the Federal Republic )
of Germany )
in the presence of: )
Signature of witness: /s/ ▇.▇. ▇▇▇▇
----------------------
Name of witness: ▇. ▇▇▇▇
----------------------
Address: ▇▇▇▇▇ & ▇▇▇▇▇
▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
---------------------
Occupation: TRAINEE SOLICITOR
---------------------
EXECUTED as a DEED )
by ▇. ▇▇▇▇▇▇▇ ) /s/ ▇. ▇▇▇▇▇▇▇
acting as attorney-in-fact )
for and on behalf of )
MARCONI COMMUNICATIONS )
REAL ESTATE GMBH )
in the presence of: )
Signature of witness: /s/ ▇.▇. ▇▇▇▇
----------------------
Name of witness: ▇. ▇▇▇▇
----------------------
Address: ▇▇▇▇▇ & ▇▇▇▇▇
▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
---------------------
Occupation: TRAINEE SOLICITOR
---------------------
EXECUTED as a DEED )
by ▇. ▇▇▇▇▇▇▇ ) /s/ ▇. ▇▇▇▇▇▇▇
acting as attorney-in-fact )
for and on behalf of )
MARCONI HOLDINGS S.P.A. )
in the presence of: )
Signature of witness: /s/ ▇.▇. ▇▇▇▇
----------------------
Name of witness: ▇. ▇▇▇▇
----------------------
Address: ▇▇▇▇▇ & ▇▇▇▇▇
▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
---------------------
Occupation: TRAINEE SOLICITOR
---------------------
EXECUTED as a DEED )
by W ▇▇▇▇▇▇▇ ) /s/ W ▇▇▇▇▇▇▇
acting as attorney-in-fact )
for and on behalf of )
MARCONI COMMUNICATIONS )
S.P.A. )
in the presence of: )
Signature of witness: /s/ ▇.▇. ▇▇▇▇
----------------------
Name of witness: ▇. ▇▇▇▇
----------------------
Address: ▇▇▇▇▇ & ▇▇▇▇▇
▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
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Occupation: TRAINEE SOLICITOR
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EXECUTED as a DEED )
by W ▇▇▇▇▇▇▇ ) /s/ W ▇▇▇▇▇▇▇
acting as attorney-in-fact )
for and on behalf of )
MARCONI SUD S.P.A. )
in the presence of: )
Signature of witness: /s/ ▇.▇. ▇▇▇▇
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Name of witness: ▇. ▇▇▇▇
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Address: ▇▇▇▇▇ & ▇▇▇▇▇
▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
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Occupation: TRAINEE SOLICITOR
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EXECUTED by MARCONI )
AUSTRALIA HOLDINGS PTY )
LIMITED in accordance with section )
127(1) of the Corporations ▇▇▇ ▇▇▇▇ )
(Cwlth) by authority of its directors: ) /s/ ▇▇▇▇-▇▇▇▇ ▇▇▇▇▇
) __________________________________
) Signature of director/secretary*
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ) *delete whichever is not applicable
______________________________________ )
Signature of director )
) ▇▇▇▇-▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ) __________________________________
______________________________________ ) Name of director/company*
Name of director (block letters) ) (block letters)
*delete whichever is not applicable
EXECUTED by MARCONI )
AUSTRALIA PTY LIMITED in )
accordance with section 127(1) of the )
Corporations ▇▇▇ ▇▇▇▇ (Cwlth) by )
Authority of its directors: ) /s/ ▇▇▇▇-▇▇▇▇ ▇▇▇▇▇
) __________________________________
) Signature of director/secretary*
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ) *delete whichever is not applicable
_____________________________________ )
Signature of director )
) ▇▇▇▇-▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ) __________________________________
_____________________________________ ) Name of director/secretary*
Name of director (block letters) ) (block letters)
*delete whichever is not applicable
THE COMMON SEAL of
MARCONI COMMUNICATIONS ASIA LIMITED
was hereunto affixed
in the presence of:
▇▇▇▇ ▇▇▇▇ /s/ ▇▇▇▇ ▇▇▇▇
___________________________ Director
▇▇ ▇▇▇▇ /s/ ▇▇ ▇▇▇▇
___________________________ Director
Attention: ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇: ▇▇/▇, ▇▇▇▇ ▇▇▇▇'▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇ ▇▇▇▇
Fax: (▇▇▇) ▇▇▇▇▇▇▇▇
SIGNED, SEALED AND DELIVERED by )
▇. ▇▇▇▇▇▇▇ )
as lawful attorney for and in the name of )/s/ ▇. ▇▇▇▇▇▇▇
G.E.C. (HONG KONG) LIMITED )
in the presence of: )
Signature of witness: /s/ ▇.▇. ▇▇▇▇
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Name of witness: ▇. ▇▇▇▇
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Address: ▇▇▇▇▇ & ▇▇▇▇▇
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One New Change
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▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
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Occupation: TRAINEE SOLICITOR
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EXECUTED as a DEED )
by W ▇▇▇▇▇▇▇ ) /s/ W ▇▇▇▇▇▇▇
acting as attorney-in-fact )
for and on behalf of )
▇▇▇▇▇▇ STREET OVERSEAS )
INVESTMENTS LIMITED )
in the presence of: )
Signature of witness: /s/ ▇.▇. ▇▇▇▇
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Name of witness: ▇. ▇▇▇▇
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Address: ▇▇▇▇▇ & ▇▇▇▇▇
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One New Change
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▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
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Occupation: TRAINEE SOLICITOR
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EXECUTED as a DEED )
by W ▇▇▇▇▇▇▇ ) /s/ W ▇▇▇▇▇▇▇
acting as attorney-in-fact )
for and on behalf of )
REGENTS PLACE, INC. )
in the presence of: )
Signature of witness: /s/ ▇.▇. ▇▇▇▇
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Name of witness: ▇. ▇▇▇▇
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Address: ▇▇▇▇▇ & OVERY
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One New Change
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▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
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Occupation: TRAINEE SOLICITOR
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