Exhibit ▇▇▇.▇
▇ ▇ ▇ ▇ ▇ ▇ ▇ ▇
▇ H A N C E
LIMITED LIABILITY PARTNERSHIP
Draft 15 May 2003
MARCONI CORPORATION PLC,
as Issuer
THE INITIAL GUARANTORS NAMED HEREIN,
as Guarantors
TO
JPMORGAN CHASE BANK
as Trustee
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INDENTURE
Dated as of May 19, 2003
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Guaranteed Junior Secured Notes due 2008
CROSS REFERENCE TABLE
TRUST INDENTURE ACT INDENTURE
SECTION SECTION
------------------- ---------
310 (a)(1)................................................................. 7.09
(a)(2)................................................................. 7.09
(a)(3)................................................................. N.A.
(a)(4)................................................................. N.A.
(a)(5)................................................................. 7.09
(b).................................................................... 7.08
(c).................................................................... N.A.
311 (a).................................................................... 7.13
(b).................................................................... 7.13
(c).................................................................... N.A.
312 (a).................................................................... 8.01; 8.02(1)
(b).................................................................... 8.02(2)
(c).................................................................... 8.02(3)
313 (a).................................................................... 8.03(1)
(b)(1)................................................................. 12.05
(b)(2)................................................................. N.A.
(c).................................................................... 8.03(1)
(d).................................................................... 8.03(2)
314 (a).................................................................... 8.04; 6.19; 13.02
(b).................................................................... 12.02
(c)(1)................................................................. 13.03
(c)(2)................................................................. 13.03
(c)(3)................................................................. N.A.
(d).................................................................... 12.05
(e).................................................................... 13.04
(f).................................................................... 4.38
315 (a).................................................................... 7.01; 7.03
(b).................................................................... 7.02; 13.02
(c).................................................................... 7.01
(d).................................................................... 7.01; 7.03
(e).................................................................... 6.17
316 (a)(last sentence)..................................................... 1.01
(a)(1)(A).............................................................. 6.15
(a)(1)(B).............................................................. 6.16
(a)(2)................................................................. N.A.
(b).................................................................... 6.11; 6.16
317 (a)(1)................................................................. 6.06
(a)(2)................................................................. 6.07
(b).................................................................... 4.29
318 (a).................................................................... 13.01
N.A. means Not Applicable
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Note: This Cross-Reference Table shall not, for any purpose, be deemed to be
part of this
Indenture.
TABLE OF CONTENTS
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.01. Definitions..........................................................................1
Section 1.02. Other Definitions...................................................................51
Section 1.03. Incorporation by Reference of Trust
Indenture Act...................................52
Section 1.04. Rules of Construction...............................................................52
ARTICLE 2
THE SECURITIES
Section 2.01. Title and Terms.....................................................................53
Section 2.02. Denominations.......................................................................55
Section 2.03. Forms Generally.....................................................................55
Section 2.04. Form of the Guarantee of the Junior Notes...........................................55
Section 2.05. Execution, Authentication, Delivery and Dating......................................55
Section 2.06. Registration, Registration of Transfer and Exchange.................................56
Section 2.07. Mutilated, Destroyed, Lost and Stolen Junior Notes..................................59
Section 2.08. Covenant to Repay and Trustee's Requirements........................................60
Section 2.09. Payment; Interest Rights Preserved..................................................61
Section 2.10. Proof...............................................................................62
Section 2.11. Persons Deemed Owners...............................................................62
Section 2.12. Cancellation........................................................................63
Section 2.13. Computation of Interest.............................................................63
Section 2.14. Security Identification Numbers.....................................................63
Section 2.15. Registrar and Paying Agent..........................................................63
ARTICLE 3
REDEMPTION
Section 3.01. Redemption..........................................................................64
Section 3.02. Notice of Redemption................................................................64
Section 3.03. Selection of Junior Notes To Be Redeemed............................................65
Section 3.04. Effect of Notice of Redemption......................................................65
Section 3.05. Deposit of Redemption Price.........................................................66
Section 3.06. Optional Redemption.................................................................66
Section 3.07. Optional Clean-up Redemption........................................................66
Section 3.08. Mandatory Redemption out of Mandatory Redemption Escrow Account.....................67
Section 3.09. Mandatory Redemption upon Change of Control.........................................68
Section 3.10. Redemption Upon Changes in Withholding Taxes........................................68
Section 3.11. Optional Payment of Redemption Amounts in British Pounds Sterling...................69
ARTICLE 4
COVENANTS
Section 4.01. Covenants Regarding US Core Businesses..............................................70
Section 4.02. Asset Sales.........................................................................70
Section 4.03. Restricted Payments.................................................................71
Section 4.04. Purchase and Cancellation of Notes..................................................75
Section 4.05. Acquisitions........................................................................76
Section 4.06. Limitation on Indebtedness and Preferred Stock......................................76
Section 4.07. Derivative Transactions.............................................................77
Section 4.08. Limitation on Liens.................................................................77
Section 4.09. Dividends and other Payment Restrictions Affecting Subsidiaries.....................77
Section 4.10. Transactions with Affiliates........................................................79
Section 4.11. Limitation on Sale and Leaseback Transactions.......................................82
Section 4.12. Limitation on Issuances and Sales of Equity Interests in Subsidiaries...............83
Section 4.13. Guarantor Coverage Requirements.....................................................84
Section 4.14. Requirements with respect to Additional Guarantors..................................87
Section 4.15. Release of Guarantees and Collateral................................................91
Section 4.16. Limitation on Issuances of Guarantees of Indebtedness...............................92
Section 4.17. Restrictions on Amendments..........................................................92
Section 4.18. Limitation on Business Activities...................................................92
Section 4.19. SEC Reports; Other Information......................................................93
Section 4.20. Use of Intellectual Property........................................................96
Section 4.21. New Patent Applications.............................................................96
Section 4.22. Assignment of Patents...............................................................96
Section 4.23. UK IPR Co and US IPR Co.............................................................97
Section 4.24. Listing.............................................................................97
Section 4.25. Escrow Agreement....................................................................97
Section 4.26. Payment of Principal, Premium, Interest and Additional Amounts......................98
Section 4.27. Maintenance of an Office or Agency in the City of New York and the City of
London..............................................................................98
Section 4.28. Money for Payments to Be Held in Trust..............................................99
Section 4.29. Maintenance of Corporate Existence.................................................100
Section 4.30. Payment of Taxes and Other Claims..................................................100
Section 4.31. Maintenance of Properties..........................................................100
Section 4.32. Maintenance of Insurance...........................................................101
Section 4.33. Payments of Renewals and other Fees in Relation to Intellectual Property and
other Matters......................................................................101
Section 4.34. Provision of Opinions..............................................................101
Section 4.35. Currency Indemnity.................................................................101
Section 4.36. Additional Amounts.................................................................102
Section 4.37. Further Instruments and Acts.......................................................104
ARTICLE 5
MERGER, CONSOLIDATION OR SALE OF ASSETS
Section 5.01. Merger, Consolidation or Sale of Assets............................................105
ARTICLE 6
DEFAULTS AND REMEDIES
Section 6.01. Events of Default..................................................................108
Section 6.02. Payment Blockage Provisions........................................................111
Section 6.03. Acceleration.......................................................................112
Section 6.04. Rescission and Annulment...........................................................113
Section 6.05. Certain Amendments and Waivers of Senior Notes Binding on the Junior Notes.........113
Section 6.06. Collection of Indebtedness and Suits for Enforcement by Trustee....................113
Section 6.07. Trustee May File Proofs of Claim...................................................114
Section 6.08. Trustee May Enforce Claims Without Possession of Junior Notes......................115
Section 6.09. Application of Money Collected.....................................................115
Section 6.10. Limitation on Suits................................................................115
Section 6.11. Unconditional Rights of Holders to Receive Payment.................................116
Section 6.12. Restoration of Rights and Remedies.................................................116
Section 6.13. Rights and Remedies Cumulative.....................................................116
Section 6.14. Delay or Omission Not Waiver.......................................................117
Section 6.15. Control by Holders.................................................................117
Section 6.16. Waiver of Past Defaults............................................................118
Section 6.17. Undertaking for Costs..............................................................118
Section 6.18. Waiver of Usury, Stay or Extension Laws............................................118
Section 6.19. Compliance Certificate; Notices of Default.........................................119
ARTICLE 7
THE TRUSTEE
Section 7.01. Certain Duties of Trustee..........................................................120
Section 7.02. Notice of Defaults.................................................................121
Section 7.03. Certain Rights and Discretions of Trustee..........................................121
Section 7.04. Individual Rights of Trustee.......................................................124
Section 7.05. Money Held in Trust................................................................125
Section 7.06. Trustee's Disclaimer...............................................................125
Section 7.07. Compensation and Indemnity.........................................................125
Section 7.08. Disqualification; Conflicting Interests............................................126
Section 7.09. Corporation Trustee Required; Eligibility..........................................126
Section 7.10. Resignation and Removal; Appointment of Successor..................................127
Section 7.11. Acceptance of Appointment by Successor.............................................128
Section 7.12. Merger, Conversion, Consolidation or Succession to Business........................129
Section 7.13. Preferential Collection of Claims Against Issuer...................................129
ARTICLE 8
HOLDERS LISTS AND REPORTS BY TRUSTEE AND ISSUER
Section 8.01. Issuer to Furnish Trustee Names and Addresses of Holders...........................130
Section 8.02. Preservation of Information; Communications to Holders.............................130
Section 8.03. Reports by Trustee.................................................................130
Section 8.04. Reports by Issuer..................................................................131
ARTICLE 9
SATISFACTION AND DISCHARGE
Section 9.01. Satisfaction and Discharge.........................................................132
Section 9.02. Application of Trust Money.........................................................133
Section 9.03. Reinstatement......................................................................133
ARTICLE 10
SUPPLEMENTAL
INDENTURES, CONSENTS AND WAIVERS
Section 10.01. Supplemental
Indentures With Consent of Holders....................................134
Section 10.02. Supplemental
Indentures Without Consent of Holders.................................135
Section 10.03. Compliance with Trust
Indenture Act................................................136
Section 10.04. Revocation and Effect of Consents and Waivers......................................137
Section 10.05. Notation on or Exchange of Junior Notes............................................137
Section 10.06. Payment for Consents...............................................................137
Section 10.07. Execution of Supplemental
Indentures...............................................137
Section 10.08. Effect of Supplemental Indentures..................................................137
ARTICLE 11
GUARANTEE OF THE JUNIOR NOTES
Section 11.01. Guarantee of the Junior Notes......................................................139
ARTICLE 12
TRANSACTION SECURITY
Section 12.01. Security Documents.................................................................140
Section 12.02. Opinions...........................................................................141
Section 12.03. Impairment of Security Interests...................................................141
Section 12.04. Authorization of Receipt of Funds by the Trustee Under the Security Documents......142
Section 12.05. Release of Security................................................................142
ARTICLE 13
MISCELLANEOUS
Section 13.01. Trust Indenture Act Controls.......................................................143
Section 13.02. Notices............................................................................143
Section 13.03. Certificate and Opinion as to Conditions Precedent.................................144
Section 13.04. Statements Required in Certificate or Opinion......................................144
Section 13.05 Form of Documents Delivered to Trustee.............................................145
Section 13.06. Acts of Holders....................................................................145
Section 13.07. Rules by Trustee, Paying Agent and Registrar.......................................146
Section 13.08. Governing Law......................................................................147
Section 13.09. English Courts and New York Courts.................................................147
Section 13.10. Appropriate Forum..................................................................147
Section 13.11. Rights of the Trustee and Holders to Take Proceedings Outside England and the
State of New York..................................................................147
Section 13.12. Service of Process.................................................................147
Section 13.13. Consent to Enforcement.............................................................148
Section 13.14. Waiver of Immunity.................................................................148
Section 13.15. No Recourse Against Others.........................................................148
Section 13.16. Successors.........................................................................148
Section 13.17. Multiple Originals.................................................................148
Section 13.18. Table of Contents; Headings........................................................149
Section 13.19. Severability.......................................................................149
Section 13.20. Parallel Debt Obligations..........................................................149
Section 13.21. Benefits of Indenture..............................................................149
ARTICLE 14
MEETINGS OF HOLDERS OF THE JUNIOR NOTES
Section 14.01. Purposes of Meetings...............................................................151
Section 14.02. Place of Meetings..................................................................151
Section 14.03. Call and Notice of Meetings........................................................151
Section 14.04. Voting at Meetings.................................................................152
Section 14.05. Voting Rights, Conduct and Adjournment.............................................152
EXHIBIT A Form of Global Junior Note.........................................................A-1
EXHIBIT B Form of Definitive Registered Junior Note..........................................B-1
EXHIBIT C Form of Guarantee of the Junior Notes..............................................C-1
SCHEDULE 1 Initial Guarantors........................................................Schedule 1-1
SCHEDULE 2 Initial Security Documents................................................Schedule 2-1
SCHEDULE 3 Existing Indebtedness incurred after the Scheme Launch Date...............Schedule 3-1
SCHEDULE 4 Permitted Investments - Contractual Commitments in effect on the
Issue Date................................................................Schedule 4-1
SCHEDULE 5 Permitted Liens - Liens existing on the Issue Date........................Schedule 5-1
SCHEDULE 6 Certain Affiliate Transactions............................................Schedule 6-1
SCHEDULE 7 Form of Deposit Agreement.................................................Schedule 7-1
SCHEDULE 8 Form of Agency Agreement..................................................Schedule 8-1
INDENTURE dated as of May 19, 2003, among Marconi Corporation plc, a
public limited company organized under the laws of
England and Wales (the
"ISSUER"), the Guarantors listed on Schedule 1 (Initial Guarantors) hereto (the
"INITIAL GUARANTORS") and such other persons as may from time to time become
party to this Indenture as Guarantors as provided herein (collectively, the
"GUARANTORS") and JPMorgan Chase Bank, as trustee (the "TRUSTEE").
RECITALS OF THE ISSUER
The Issuer has duly authorized the execution and delivery of this
Indenture to provide for the issuance of its Guaranteed Junior Secured Notes due
2008 (the "JUNIOR NOTES") to be issued as in this Indenture provided.
All acts and things necessary have been done to make (i) the Junior
Notes, when duly executed and delivered by the Issuer and authenticated and
delivered by the Paying Agent hereunder, legal, valid and binding obligations of
the Issuer and (ii) this Indenture a legal, valid and binding agreement of the
Issuer.
RECITALS OF THE GUARANTOR
The Initial Guarantors desire to make the Guarantee of the Junior Notes
provided for herein.
All things necessary to make this Indenture a valid and legally binding
agreement of each Initial Guarantor, in accordance with its terms, have been
done, and each Initial Guarantor proposes to do all things necessary to make the
Guarantee of the Junior Notes, when executed by such Initial Guarantor and
delivered hereunder, the valid and legally binding obligations of such Initial
Guarantor as hereinafter provided.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises, it is mutually covenanted and
agreed, for the equal and proportionate benefit of all Holders of Junior Notes,
as follows:
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. 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 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 (i) the Comparable Treasury Price
for the Junior Notes for the Repayment Date plus (ii) 0.5%.
"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 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
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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 Pound Sterling 500,000;
(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 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 Pound Sterling 50 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;
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(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 Intellectual Property is not the subject of the
Intellectual Property Licence Agreements, 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.
"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
-4-
"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.
"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;
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(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 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.
-6-
"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 Euros 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 (1) 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.
"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;
-7-
(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 and approved 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 approved by the Senior Note Trustee) 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 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
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
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Security Documents, 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;
(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;
-9-
(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 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
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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 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
-11-
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 ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇.
"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.
-12-
"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 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
-13-
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 Account and the
Existing Performance Bond Escrow Account 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.
"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.
-14-
"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 Pound
Sterling 82 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 Pound
Sterling 20 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 Account
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.
-15-
"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 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 authenticated 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.
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"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;
(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
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(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.
"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.
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"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 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.
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"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 <128>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 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.
"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.
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"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 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 and
approved by the Trustee if either (1) no Senior Notes are outstanding
-21-
or (2) only Junior Notes are being redeemed pursuant to the provisions described
in Section 3.07 (Optional Clean-Up Redemption), or otherwise approved by the
Senior Note Trustee).
"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 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;
(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
-22-
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 4.04 (Purchase and
Cancellation of Notes).
"NEW BONDING FACILITY AGREEMENT" means the Pound Sterling 50 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
-23-
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 Pound Sterling 50 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) Pound Sterling 25,000,000 (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
Associated Electrical Industries Limited
English Electric Company Ltd
Marconi (▇▇▇▇▇▇▇ Automation) Limited
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▇▇▇▇▇▇▇ 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 Communications Telemulti Ltda
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 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,
-25-
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 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.
"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;
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(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 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.
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"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;
(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;
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(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 Pound
Sterling 20 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;
(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);
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(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
Pound Sterling 50 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 Pound Sterling 50 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.
"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
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(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 Pound Sterling 20 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
Pound Sterling 20 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
Pound Sterling 50 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, 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,
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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;
(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,
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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 4.01 (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
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(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, 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;
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(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 Pound Sterling 3 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 Pound Sterling 20 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, 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;
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(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) Pound
Sterling 30 million (or the Sterling Equivalent) or (b) from and
after the earlier of the second anniversary of the Issue Date,
Pound Sterling 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
the Issue Date shall not exceed Pound Sterling 15 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)
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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 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;
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(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;
(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;
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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 Pound
Sterling 20 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 (b)
any agent, security trustee or lender under, or otherwise in
respect of, any Replacement New Bonding Facility Agreement, does
not exceed Pound Sterling 25 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 Pound
Sterling 20 million (or the Sterling Equivalent), provided that
for purposes of determining compliance with such Pound Sterling
20 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:
(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
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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);
(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
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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.
"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
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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 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 1, April 1, July 1 or October 1 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
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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.
"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 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 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.
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"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.
"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 Agent 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;
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(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.
"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
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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 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
-46-
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
(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.
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"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 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.
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"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 BV; 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.
"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
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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.
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SECTION 1.02. Other Definitions.
Term Defined in Section
"Affiliate Transaction"....................................................... 4.10
"Deferred Interest"........................................................... 2.08
"Dispute"..................................................................... 13.09
"Executive Officers".......................................................... 4.19
"Guarantor Certification Date"................................................ 4.13
"Guarantor Test Dates"........................................................ 4.14
"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
"Parallel Obligations "....................................................... 13.19
"Pay the Junior Notes"........................................................ 6.02
"Payment Default"............................................................. 6.01
"PBGC Agreement".............................................................. 1.01
"Principal Obligations"....................................................... 13.19
"Proceedings"................................................................. 13.11
"Register".................................................................... 2.06
"Regular Record Date"......................................................... 2.01
"Relevant Taxing Jurisdiction"................................................ 4.36
"Restricted Payments"......................................................... 4.03
"retiring Trustee"............................................................ 7.10
"Semi-Annual Test Date"....................................................... 4.13
"Special Record Date"......................................................... 2.08
"Taxing Jurisdiction"......................................................... 3.09
"US Restricted Payments"...................................................... 4.03
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SECTION 1.03. 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.
SECTION 1.04. Rules of Construction.
Unless the context otherwise requires
(1) a term has the meaning assigned to it;
(2) all references herein to Articles, Sections, Exhibits or
Schedules refer to Articles or Sections of, or Exhibits or
Schedules to, this 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.
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ARTICLE 2
THE SECURITIES
SECTION 2.01. Title and Terms.
The aggregate principal amount of Junior Notes that may be authenticated
and delivered under this Indenture is limited to US$486,881,472 (four hundred
eighty-six million, eight hundred eighty-one thousand, four hundred seventy-two
United States dollars) (without taking into account any increase in principal
amount of the Junior Notes as a result of the payment of interest or Additional
Amounts, if any, in the form of Junior PIK Notes), except for Junior Notes
authenticated and delivered upon registration of transfer of, or in exchange
for, or in lieu of, other Junior Notes pursuant to Section 2.06 (Registration,
Registration of Transfer and Exchange), 2.07 (Mutilated, Destroyed, Lost and
Stolen Junior Notes), or 3.03 (Selection of Junior Notes to Be Redeemed).
The Junior Notes shall be known and designated as the "Guaranteed Junior
Secured Notes due 2008" of the Issuer. Their Stated Maturity shall be October
31, 2008, and they shall bear interest on their outstanding principal amount at
the applicable Junior Note Interest Rate, from the Issue Date (or if interest
has already been paid or duly provided for on the Junior Notes, from the most
recent Junior Note Interest Payment Date to which interest has been paid or duly
provided for), payable quarterly in arrears, on each Junior Note Interest
Payment Date (and, in the case of Definitive Registered Junior Notes, to Holders
of record at the close of business on the immediately preceding January 15,
April 15, July 15 and October 15, respectively (each such date a "REGULAR RECORD
DATE")), until the principal thereof is paid or made available for payment.
Subject to the following paragraph, the Issuer may, by giving notice to
the Trustee, the Paying Agent and the Holders as provided in Section 13.02
(Notices) not less than 15 days prior to a Junior Note Interest Payment Date,
elect to pay all (and not only some) of the interest (and any Additional
Amounts) due on such Junior Note Interest Payment Date in Junior PIK Notes. Any
such Junior PIK Notes will, immediately upon their issue, be consolidated and
form a single series with the Junior Notes then in issue.
If the Issuer elects, pursuant to the immediately preceding paragraph,
to issue Junior PIK Notes in lieu of any cash payment of interest (and any
Additional Amounts) due on any Junior Note Interest Payment Date the Paying
Agent shall, in the case of Global Junior Notes, make an appropriate notation on
Schedule A to such Global Junior Note to reflect the increase in the principal
amount of such Global Junior Note relating to such issue of Junior PIK Notes,
dated the date of such Junior Note Interest Payment Date, in an amount equal to
the amount of interest payable with respect to the Global Junior Notes in the
form of Junior PIK Notes. If the payment of interest in the form of Junior PIK
Notes by addition to principal in the manner provided above shall for any reason
be prohibited by applicable law on any Junior Note Interest Payment Date, the
Issuer shall instead issue, and the Paying Agent shall authenticate, an
additional Global Junior Note, substantially in the form of Exhibit A hereto, to
the Holder of the Global Junior Note in an aggregate principal amount equal to
the interest (and any Additional Amounts) due in the form of Junior PIK Notes on
the Global Junior Note on such Junior Note Interest Payment Date.
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If the Issuer elects, pursuant to the second preceding paragraph, to
issue Junior PIK Notes in lieu of any cash payment of interest due on any Junior
Note Interest Payment Date then, in the case of Definitive Registered Junior
Notes, the Issuer shall issue to the Person in whose name such Definitive
Registered Junior Note is registered, and the Paying Agent shall authenticate,
Definitive Registered Junior Notes, dated the date of such Junior Note Interest
Payment Date, in an amount equal to the amount of interest payable with respect
to that Definitive Registered Junior Note in the form of Junior PIK Notes.
The Issuer may not elect to pay interest (or Additional Amounts) due on
the Stated Maturity of the Junior Notes in Junior PIK Notes and shall pay all
such sums in cash. In the circumstances described in Section 6.02 (Payment
Blockage Provisions), the Issuer shall pay interest (and any Additional Amounts)
due in respect of any Junior Note Interest Period in Junior PIK Notes and not in
cash.
Junior PIK Notes will be deemed for all purposes to be issued on the
date on which the interest being paid by the issue of Junior PIK Notes is due.
Interest on the Junior PIK Notes will accrue from their issue date at the
applicable Junior Note Interest Rate.
The Junior Notes will be redeemed in cash at their outstanding principal
amount together with any other amounts due thereunder on their Stated Maturity,
if not earlier redeemed pursuant to the provisions of this Indenture. All
payments of principal, premium, if any, interest, Additional Amounts, if any,
and any other amounts due on the Junior Notes shall be made in the Relevant
Currency.
Any amount of principal, premium, if any, interest and Additional
Amounts, if any, on any Junior Note that is not paid when due shall, to the
fullest extent lawful, accrue interest at a rate per annum equal to the Default
Rate. Interest will be computed on the basis of a 360-day year of twelve 30-day
months.
In the event that any date for the payment of principal, premium, if
any, interest or Additional Amounts, if any, on the Junior Notes is not a
Business Day, such payment may be made on the next succeeding day that is a
Business Day, and, other than with respect to any payment of principal or
premium, if any (in which case interest shall accrue), no interest shall accrue
or be payable on any such payment as a result of any such delay.
If any Junior Note Interest Period comprises two or more Junior Note
Interest Accrual Periods, the amount of interest payable in respect of such
Junior Note Interest Period will be the sum of the amounts of interest payable
in respect of each of those Junior Note Interest Accrual Periods.
On the first Junior Note Interest Payment Date, the Issuer shall pay, in
addition to accrued interest on the outstanding principal amount of the Junior
Notes, an amount per Junior Note in the Relevant Currency equal to the amount of
interest that would have accrued on such Junior Note if such Junior Note had
been Outstanding for the period from and including May 1, 2003 to but excluding
the Issue Date, calculated using the Junior Note Interest Rate applicable to the
first Junior Note Interest Period and computed on the basis of a 360-day year of
twelve 30-day months.
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The principal of, premium, if any, and interest and Additional Amounts,
if any, on the Junior Notes will be payable, and the Junior Notes may be
exchanged or transferred, at the office or agency of the Paying Agent in London
and New York.
The Junior Notes shall be redeemable as provided in Article 3
(Redemption) and Section 5.01 (Merger, Consolidation or Sale of Assets) hereof,
shall be Guaranteed as provided in Article 11 (Guarantee of the Junior Notes)
hereof and secured as provided in Article 12 (Transaction Security) hereof.
SECTION 2.02. Denominations.
The Junior Notes shall be issued in denominations of US$1.00 and
integral multiples thereof, except with respect to Junior PIK Notes, which may
be issued in any denomination.
SECTION 2.03. Forms Generally.
The Global Junior Notes shall be issuable only in bearer form without
coupons. The Global Junior Notes shall be substantially in the form of Exhibit A
(Form of Global Junior Note) (as modified by any appropriate deletions or
additions), which is hereby incorporated in and expressly made a part of this
Indenture. No service charge shall be made for any transfer or exchange of any
of the Global Junior Notes, but the Issuer may require payment of a sum
sufficient to cover any tax or other governmental charge payable in connection
therewith.
The Definitive Registered Junior Notes (if any) shall be substantially
in the form of Exhibit B (Form of Definitive Registered Junior Note) (as
modified by any appropriate deletions or additions), which is hereby
incorporated in and expressly made a part of this Indenture. The Global Junior
Notes and the Definitive Registered Junior Notes may have such letters, numbers
or other marks of identification and such legends or endorsements placed thereon
as may be required to comply with any applicable law or rule or regulation made
pursuant thereto or with the rules of any securities exchange or as may,
consistently herewith, be determined by the Officers executing such Junior
Notes, all as evidenced by any such execution.
The Definitive Registered Junior Notes (if any) shall be printed,
lithographed or engraved or produced by any combination of these methods or may
be produced in any other manner permitted by the rules of any securities
exchange on which the Junior Notes may be listed, all as determined by the
Officers executing such Junior Notes, as evidenced by any such execution.
SECTION 2.04. Form of the Guarantee of the Junior Notes.
The Guarantee of the Junior Notes of each Guarantor shall be
substantially in the form of Exhibit C (Form of Guarantee of the Junior Notes),
which is hereby incorporated in and expressly made a part of this Indenture.
SECTION 2.05. Execution, Authentication, Delivery and Dating.
The Junior Notes shall be executed on behalf of the Issuer by one of its
Officers. The signature of any of these Officers on the Junior Notes may be
manual or by facsimile.
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Junior Notes bearing the manual or facsimile signatures of individuals
who were at any time the proper Officers of the Issuer shall bind the Issuer,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Junior Notes, provided
the relevant individual was the holder of such office at the time of such
execution.
At any time and from time to time after the execution and delivery of
this Indenture, the Issuer may deliver Junior Notes executed by the Issuer to
the Paying Agent for authentication, together with an Issuer Order for the
authentication and delivery of such Junior Notes, and the Paying Agent in
accordance with the Issuer Order shall authenticate and deliver such Junior
Notes as provided in this Indenture.
The Issuer Order shall specify the amount of Junior Notes to be
authenticated, the date on which the Junior Notes are to be authenticated,
whether the Junior Notes are to be Definitive Registered Junior Notes or Global
Junior Notes and whether or not the Junior Notes shall bear any legend, or such
other information as the Paying Agent may reasonably request.
In authenticating such Junior Notes and accepting the additional
responsibilities under this Indenture in relation to such Junior Notes the
Paying Agent shall be provided with, and shall be fully protected in relying
upon (unless revoked by superseding comparable documents or opinions), an
Opinion of Counsel stating (i) that all conditions precedent herein provided for
relating to the issuance, authentication and delivery of Junior Notes have been
satisfied and (ii) that the form and terms thereof have been established in
conformity with the provisions of this Indenture.
The Paying Agent shall not be required to authenticate such Junior Notes
if the issue of such Junior Notes pursuant to this Indenture will affect the
Trustee's own rights, duties or immunities under the Junior Notes and this
Indenture or otherwise in a manner which is not reasonably acceptable to the
Paying Agent.
Each Junior Note shall be dated the date of its authentication.
No Junior Note shall be entitled to any benefit under this Indenture or
be valid or obligatory for any purpose unless such Junior Note is authenticated
by or on behalf of the Paying Agent by manual signature of an authorized
officer, and such authentication upon any Junior Note shall be conclusive
evidence, and the only evidence, that such Junior Note has been duly
authenticated and delivered hereunder and that such Junior Note is entitled to
the benefits of this Indenture.
SECTION 2.06. Registration, Registration of Transfer and Exchange.
(1) Global Junior Notes; Exchange of Global Junior Notes for Definitive
Registered Junior Notes. Any Global Junior Notes shall be exchangeable
for Definitive Registered Junior Notes only as provided in this
paragraph. A Global Junior Note shall be exchangeable pursuant to this
Section 2.06 only if (a) DTC, Euroclear or Clearstream, Luxembourg
notifies the Depositary that it is unwilling or unable to continue to
hold the CDI or CDIs issued by the Depositary with respect to the Global
Junior Notes, or if at any time DTC is unable to or ceases to be a
clearing agency registered under the US Exchange Act and in either case
a successor to DTC, Euroclear and/or Clearstream, Luxembourg as
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applicable, is not appointed by the Depositary at the written request of
the Issuer within 120 days, (b) the Depositary notifies the Issuer and
the Trustee in writing that it is unwilling or unable to continue to act
as Depositary and a successor Depositary is not appointed by the Issuer
within 120 days of such notification, (c) so requested by DTC,
Euroclear, Clearstream, Luxembourg, the Issuer or the Trustee, in the
event of a winding-up of the Issuer or an Event of Default has occurred
and is continuing, or (d) Euroclear or Clearstream, Luxembourg is closed
for business for a continuous period of 14 days (other than by reason of
legal holidays) or announces an intention permanently to cease business.
Any Global Junior Note that is exchangeable pursuant to the preceding
sentence shall be exchangeable for Definitive Registered Junior Notes
bearing interest at the same rate, having the same date of issuance, the
same date or dates from which such interest shall accrue, the same
Junior Note Interest Payment Dates on which such interest shall be
payable, the same Stated Maturity, redemption provisions, and other
terms aggregating a like amount as the Global Junior Note so
exchangeable. Definitive Registered Junior Notes shall be registered in
the names of the owners of the beneficial interests in the Global Junior
Notes as such names are from time to time provided, in the case of
Global Junior Notes with respect to which a CDI is held by DTC,
Euroclear and/or Clearstream, Luxembourg by the relevant Participants
holding interests in such Global Junior Notes (as the names of such
Participants are provided to the Depositary from time to time by DTC,
Euroclear and/or Clearstream, Luxembourg and by the Depositary to the
Issuer) and, in all other cases, by the Holder of the Global Junior
Notes to the Issuer.
In connection with any exchange of interests in a Global Junior Note for
Definitive Registered Junior Notes, on, or as soon as practicable after,
the earliest date on which such interests may be so exchanged, the
Issuer shall deliver to the Paying Agent Definitive Registered Junior
Notes in aggregate principal amount equal to the principal amount of
such Global Junior Note (or the portion to be exchanged) and which have
been executed by the Issuer. On or after the earliest date on which such
interests may be so exchanged, such Global Junior Note to be exchanged
shall be surrendered by the Holder to the Paying Agent, to be exchanged,
in whole or from time to time in part, for Definitive Registered Junior
Notes without charge and the Paying Agent shall authenticate and
deliver, in exchange for each portion of such Global Junior Note, an
equal aggregate principal amount of Definitive Registered Junior Notes
of authorized denominations as the portion of such Global Junior Note to
be exchanged. Any Global Junior Note that is exchangeable pursuant to
this Section 2.06 shall be exchangeable for Junior Notes issuable in
denominations of US$1.00 and integral multiples thereof, and registered
in such names as the Holder of such Global Junior Note shall direct. If
a Definitive Registered Junior Note is issued in exchange for any
portion of a Global Junior Note after the close of business at the
office or agency where such exchange occurs on any Regular Record Date
and before the opening of business at such office or agency on the
relevant Junior Note Interest Payment Date, interest will not be payable
on such Junior Note Interest Payment Date in respect of such Definitive
Registered Junior Note, but will be payable on such Junior Note Interest
Payment Date only to the Person to whom payments of interest in respect
of such portion of such Global Junior Note are payable.
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Except as provided above, owners solely of beneficial interests in a
Global Junior Note shall not be entitled to receive physical delivery of
a Definitive Registered Junior Note and will not be considered the
Holders thereof for any purpose under this Indenture.
None of the Participants, DTC, Euroclear, Clearstream, Luxembourg nor
any beneficial owners of interests in a Global Junior Note shall have
any rights under this Indenture with respect to any Global Junior Note
held on their behalf by a Holder, and such Holder shall be treated by
the Issuer, the Trustee and any agent of the Issuer or the Trustee as
the owner of such Global Junior Note for all purposes whatsoever.
Notwithstanding the foregoing, nothing herein shall prevent the Issuer,
the Trustee or any agent of the Issuer or the Trustee from giving effect
to any written certification, proxy or other authorization furnished by
a Holder or impair, as between DTC, Euroclear, Clearstream, Luxembourg
and the Participants and Holders, the operation of customary practices
governing the exercise of the rights of a holder of any security,
including without limitation the granting of proxies or other
authorization of the Participants to give, receive, make or take any
request, demand, authorization, direction, notice, consent, waiver or
other action which a Holder is entitled to give, receive, make or take
under this Indenture.
(2) Exchange of Definitive Registered Junior Notes. Definitive Registered
Junior Notes may be exchanged for a like aggregate principal amount of
Definitive Registered Junior Notes of other authorized denominations
containing identical terms and provisions. Definitive Registered Junior
Notes to be exchanged shall be surrendered at the office or agency of
the Registrar in New York, and the Issuer shall execute, and the Paying
Agent shall authenticate and deliver, in exchange therefor, Definitive
Registered Junior Notes which the Holder making the exchange shall be
entitled to receive.
(3) Definitive Registered Junior Notes -- Generally. The Issuer shall cause
to be kept a register (the "REGISTER") in which, subject to such
reasonable regulations as it may prescribe, the Issuer shall provide for
the registration of Definitive Registered Junior Notes and for the
transfer of such Definitive Registered Junior Notes. The Bank of New
York has been appointed as Registrar pursuant to the Agency Agreement
for the purpose of maintaining the Register and registering Definitive
Registered Junior Notes and transfers of Definitive Registered Junior
Notes as herein and therein provided.
Definitive Registered Junior Notes shall be transferable only on the
Registrar's books. Upon surrender for registration of transfer of any
Definitive Registered Junior Note at the office or agency of the
Registrar in New York, the Issuer shall execute, and the Paying Agent
shall authenticate and deliver, in the name of the designated transferee
or transferees, one or more new Definitive Registered Junior Notes of
any authorized denominations containing identical terms and provisions
and of a like aggregate principal amount.
All Definitive Registered Junior Notes issued upon any registration of
transfer or exchange of Junior Notes shall be the valid obligations of
the Issuer, evidencing the same debt, and entitled to the same benefits
under this Indenture, as the Definitive Registered Junior Notes
surrendered upon such registration of transfer or exchange.
Every Definitive Registered Junior Note presented or surrendered for
registration of transfer or for exchange shall (if so required by the
Issuer or the Trustee) be duly
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endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Issuer and the Registrar duly executed by the Holder
thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Definitive Registered Junior Notes, but the Issuer may
require payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any
registration of transfer or exchange of Definitive Registered Junior
Notes.
The Issuer shall not be required to issue, register the transfer of or
exchange any Definitive Registered Junior Note during the 15-day period
preceding (i) the due date for any payment of principal of, premium, if
any, interest or Additional Amounts, if any, on the Definitive
Registered Junior Notes, or (ii) the day on which Definitive Registered
Junior Notes are scheduled for redemption, except the unredeemed portion
of Definitive Registered Junior Notes being redeemed in part.
SECTION 2.07. Mutilated, Destroyed, Lost and Stolen Junior Notes.
If any mutilated Junior Note is surrendered to the Registrar (in the
case of Registered Definitive Junior Notes) or the Paying Agent (in the case of
Global Junior Notes), the Issuer may execute, and upon receipt of an Issuer
Order, the Paying Agent shall authenticate and deliver in exchange therefor a
new Junior Note containing identical terms and provisions and of like amount,
and bearing a serial number not contemporaneously outstanding.
If there shall be delivered to the Issuer (1) evidence to its
satisfaction of the destruction, loss or theft of any Junior Note and (2) such
security or indemnity as may be required by it to ensure that it and any of its
agents are held harmless against any loss that it may suffer or incur as a
result of the issue of a new Junior Note pursuant to this paragraph, then, in
the absence of notice to the Issuer that such Junior Note has been acquired by a
bona fide purchaser, the Issuer shall execute, and upon receipt of an Issuer
Order, the Paying Agent shall authenticate and deliver in lieu of any such
destroyed, lost or stolen Junior Note a new Junior Note containing identical
terms and provisions and of like amount, and bearing a serial number not
contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Junior Note has
become or is about to become due and payable, the Issuer in its discretion may,
instead of issuing a new Junior Note, pay such Junior Note.
Upon the issuance of any new Junior Note under this Section 2.07, the
Issuer may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Paying Agent) connected
therewith.
Every new Junior Note issued pursuant to this Section 2.07 in lieu of
any destroyed, lost or stolen Junior Note shall constitute an original
additional contractual obligation of the Issuer, whether or not the destroyed,
lost or stolen Junior Note shall be at any time enforceable by anyone, and shall
be entitled to all the benefits of this Indenture equally and proportionately
with any and all other Junior Notes duly issued hereunder.
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The provisions of this Section 2.07 are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Junior Notes.
SECTION 2.08. Covenant to Repay and Trustee's Requirements.
The Issuer covenants with the Trustee that it will, in accordance with
this Indenture, on the Stated Maturity, or on such earlier date as the same or
any part thereof may become due and repayable under this Indenture, pay or
procure to be paid unconditionally to or to the order of the Trustee in
immediately available funds the principal amount of the Junior Notes repayable
on that date together with any applicable premium and accrued interest, or
Additional Amounts, if any, and shall in the meantime and until such date (both
before and after any judgment or other order of a court of competent
jurisdiction) pay or procure to be paid unconditionally to or to the order of
the Trustee as aforesaid interest (which shall accrue from day to day) on the
principal amount of the Junior Notes at the Junior Note Interest Rate payable
quarterly in arrear on each Junior Note Interest Payment Date provided that
every payment of principal, premium, if any, interest, and Additional Amounts,
if any, in respect of the Junior Notes to or to the account of the Paying Agent
in the manner provided in the Agency Agreement shall operate in satisfaction pro
tanto of the related covenant by the Issuer in this Section 2.08 except to the
extent that there is default in the subsequent payment thereof in accordance
with this Indenture to the Holders.
The Issuer shall pay interest on overdue installments of interest at the
Default Rate.
The Trustee will hold the benefit of these covenants on trust for the
Holders and itself in accordance with this Indenture.
At any time after a Default or an Event of Default shall have occurred
and shall be continuing or the Junior Notes shall otherwise have become due and
repayable or the Trustee shall have received any money which it proposes to pay
under Section 6.09 (Application of Money Collected) to the Holders, the Trustee
may:
(i) by notice in writing to the Issuer, each of the Guarantors, the
Paying Agent, and, where applicable, the Registrar, require the
Paying Agent and, where applicable, the Registrar pursuant to
the Agency Agreement:
(A) (I) to act thereafter as Paying Agent and, where
applicable, Registrar, respectively, of the
Trustee in relation to payments to be made by or
on behalf of the Trustee under the provisions of
this Indenture mutatis mutandis on the terms
provided in the Agency Agreement (save that the
Trustee's liability under any provisions thereof
for the indemnification, remuneration and
payment of out-of-pocket expenses of the Paying
Agent and, where applicable, the Registrar shall
be limited to the amounts for the time being
held by the Trustee on the trusts of this
Indenture relating to the Junior Notes and
available for such purpose) and thereafter to
hold all Junior Notes and all sums, documents
and records held by it in respect of Junior
Notes on behalf of the Trustee; and/or
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(II) with respect to the Registrar, where applicable,
and subject to applicable law, to act thereafter
pursuant to the Agency Agreement only with the
prior written consent of the Trustee (such
consent not to be unreasonably withheld or
delayed) and thereafter to hold all Junior Notes
and all sums, documents and records held by it
in respect of Junior Notes as the Trustee may
request in writing from time to time provided,
however, that there shall at all times be an
authorized Registrar so long as Definitive
Registered Junior Notes are issued and
outstanding; or
(B) to deliver up all Junior Notes and all sums, documents
and records held by it in respect of Junior Notes to the
Trustee or as the Trustee shall direct in such notice
provided that such notice shall be deemed not to apply
to any documents or records which the Paying Agent or,
where applicable, the Registrar, is obliged not to
release by any law or regulation; and
(ii) by notice in writing to the Issuer and each of the Guarantors
require the Issuer and each Guarantor to make all subsequent
payments in respect of the Junior Notes to or to the order of
the Trustee and not to the Paying Agent; with effect from the
issue of any such notice to the Issuer and each of the
Guarantors, and until such notice is withdrawn, subclause (i)
above, relating to the Junior Notes shall cease to have effect.
SECTION 2.09. Payment; Interest Rights Preserved.
Interest on any Junior Notes which is payable, and is punctually paid or
duly provided for, on any Junior Note Interest Payment Date shall be paid (a) in
the case of Definitive Registered Junior Notes, to the Person in whose name that
Definitive Registered Junior Note (or one or more Predecessor Junior Notes) is
registered at the close of business on the Regular Record Date for such payment
of interest and (b) in the case of Global Junior Notes held by any Holder, to
the Holder through the Paying Agent by wire transfer of same-day funds to the
Holder.
In the case of Definitive Registered Junior Notes where payment is to be
made in United States Dollars, payment at the Paying Agent's office will be made
in US Dollars by check drawn on, or, at the request of the Holder, by wire
transfer of same-day funds to a United States dollar account maintained by the
payee with, a bank in The City of New York provided however, that at the option
of the Issuer in the case of Definitive Registered Junior Notes, repayment of
any interest thereon may be made by check mailed to the address of the Person
entitled herein as such address shall appear in the Register, unless such Person
requests payment by wire transfer pursuant to this Section 2.09.
In the case of Definitive Registered Junior Notes where payment is to be
made in Euro, payment at the Paying Agent's office will be made in Euro by check
drawn on, or, at the request of the Holder, by wire transfer of same-day funds
to a Euro account maintained by the payee with, a bank in London provided
however, that at the option of the Issuer in the case of any interest thereon
may be made by check mailed to the address of the Person entitled herein as such
address shall appear in the Register, unless such Person requests payment by
wire transfer.
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Any interest on any Junior Note which is payable, but is not punctually
paid or duly provided for, on any Junior Note Interest Payment Date is herein
called "DEFERRED INTEREST". Deferred Interest on any Junior Note shall be paid
by the Issuer in accordance with clause (1) below (in the case of Definitive
Registered Junior Notes) or (2) below (in the case of Global Junior Notes):
(1) The Issuer shall make payment of any Deferred Interest in any
lawful manner. The Issuer may make payment of any Deferred
Interest to the Persons in whose names the Definitive Registered
Junior Notes (or their respective Predecessor Junior Notes) are
registered at the close of business on a date (the "SPECIAL
RECORD DATE"). The Issuer shall fix or cause to be fixed any
such Special Record Date and payment date to the reasonable
satisfaction of the Trustee; or
(2) The Issuer shall make payment of any Deferred Interest in the
case of the Global Junior Note held by any Holder, to the Holder
through the Paying Agent on the payment date notified to the
Holder by the Issuer.
The Issuer shall cause notice of the proposed payment of such Deferred
Interest, the Special Record Date therefor (in the case of Definitive Registered
Junior Notes) or the payment date (in the case of the Global Junior Notes) to be
given in the manner and to the extent provided in Section 13.02 (Notices), not
less than 10 days prior to such Special Record Date or payment date (as
applicable).
Subject to the foregoing provisions of this Section 2.09, each Junior
Note delivered under this Indenture upon transfer of or in exchange for or in
lieu of any other Junior Note shall carry the rights to interest accrued and
unpaid, and to accrue interest, which were carried by such other Junior Notes.
SECTION 2.10. Proof.
Proof that as regards any specified Junior Note the Issuer has defaulted
in paying any amount due in respect of such Junior Note shall (unless the
contrary be proved) be sufficient evidence that the same default has occurred as
regards all other Junior Notes in respect of which the relevant amount is due
and payable.
SECTION 2.11. Persons Deemed Owners.
The Issuer, the Trustee, the Paying Agent and the Registrar may (to the
fullest extent permitted by applicable law) deem and treat the Holder of any
Junior Note or of a particular principal amount of the Junior Notes as the
absolute owner of such Junior Note or principal amount, as the case may be, for
all purposes (whether or not such Junior Note or principal amount shall be
overdue and notwithstanding any notice of ownership thereof or of trust or other
interest with regard thereto, any notice of loss or theft thereof or any writing
thereon), and the Issuer, the Trustee, the Paying Agent and the Registrar shall
not be affected by any notice to the contrary. All payments made to any such
Holder of a Junior Note shall be valid and, to the extent of the sums so paid,
effective to satisfy and discharge the liability for the moneys payable in
respect of such Junior Note or principal amount, as the case may be.
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SECTION 2.12. Cancellation.
All Junior Notes surrendered for payment, redemption, registration of
transfer or exchange shall, if surrendered to any Person other than the Paying
Agent, be delivered to the Paying Agent and shall be promptly cancelled by the
Paying Agent in accordance with the Agency Agreement. The Issuer may at any time
deliver to the Paying Agent for cancellation any Junior Notes previously
authenticated and delivered hereunder which the Issuer or any of its
Subsidiaries may have acquired in any manner whatsoever, and all Junior Notes so
delivered shall be promptly cancelled by the Paying Agent. No Junior Notes shall
be authenticated in lieu of or in exchange for any Junior Notes cancelled as
provided in this Section 2.12, except as expressly permitted by the provisions
of the Junior Notes or pursuant to the provisions of this Indenture.
SECTION 2.13. Computation of Interest.
Payments of interest on the Junior Notes shall be computed on the basis
of a 360-day year of twelve 30-day months.
SECTION 2.14. Security Identification Numbers.
The Issuer in issuing the Junior Notes may use "CUSIP", "ISIN" and
"Common Code" numbers, if then generally in use, and thereafter with respect to
such Junior Notes, such numbers may be used by the Issuer, the Paying Agent or
the Trustee (as the case may be) in any notice of redemption or exchange with
respect to such Junior Notes, provided that any such notice may state that no
representation is made as to the correctness of such numbers either as printed
on the Junior Notes or as contained in any notice of redemption and that
reliance may be placed only on the other identification numbers printed on the
Junior Notes, and any such redemption shall not be affected by any defect in or
omission of such numbers. The Issuer will promptly notify the Paying Agent of
any change in the "CUSIP", "ISIN" and/or "Common Code" numbers.
SECTION 2.15. Registrar and Paying Agent.
The Issuer has initially appointed The Bank of New York as Registrar and
Paying Agent subject to and in accordance with the Agency Agreement. The Issuer,
upon notice to the Trustee, may appoint one or more co-Registrars and/or one or
more additional Paying Agents. The term "Registrar" includes any co-Registrar
and the term "Paying Agent" includes any additional Paying Agent.
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ARTICLE 3
REDEMPTION
SECTION 3.01. Redemption.
Redemption of Junior Notes shall be made in accordance with this Article
3 and, if applicable, Article 5 of this Indenture.
SECTION 3.02. Notice of Redemption.
Notice of redemption shall be given to each Holder of Junior Notes to be
redeemed, in the manner and to the extent provided in Section 13.02 (Notices),
(a) with respect to any redemption pursuant to Section 3.06 (Optional
Redemption), Section 3.07 (Option Clean-up Redemption), Section 3.09 (Mandatory
Redemption upon Change of Control) or Section 3.10 (Redemption Upon Changes in
Withholding Taxes), not less than thirty (30) but not more than sixty (60) days
prior to the applicable Repayment Date, (b) with respect to any redemption
pursuant to Section 5.01 (Merger, Consolidation or Sale of Assets), not less
than ten (10) but not more than thirty (30) days prior to the applicable
Repayment Date and (c) with respect to any redemption pursuant to Section 3.08
(Mandatory Redemption out of Mandatory Redemption Escrow Account), not less than
ten (10) but not more than fifteen (15) London Business Days prior to the
applicable Repayment Date. The notices of redemption may not be conditional and
shall be irrevocable.
All notices of redemption shall identify the Junior Notes to be redeemed
(including the CUSIP, ISIN and/or Common Code number if any) and shall state:
(1) the Repayment Date;
(2) the redemption price, plus, without duplication, accrued
interest and Additional Amounts, if any, to the Repayment Date;
(3) the name and address of the Paying Agent, or the place or places
where such Junior Notes are to be surrendered for payment of the
redemption price, if applicable;
(4) if fewer than all of the Outstanding Junior Notes are to be
redeemed, the identification and principal amounts of the
particular Junior Notes to be redeemed;
(5) that on the Repayment Date, the redemption price plus accrued
interest and Additional Amounts, if any, to the Repayment Date
will become due and payable upon each such Junior Note or
portion thereof called for redemption and that, unless the
Issuer defaults in making such redemption payment, interest on
the Junior Notes (or portion thereof) called for redemption
shall cease to accrue on and after the Repayment Date;
(6) the section of the Indenture pursuant to which the Junior Notes
called for redemption are being redeemed; and
(7) if applicable, the Issuer's election to pay the redemption price
in British pounds sterling.
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Notice of redemption shall be given by the Issuer or, at the Issuer's
request, by the Trustee in the Issuer's name and at the Issuer's expense. In
such event, the Issuer shall provide the Trustee with the information required
by this Section 3.02 in writing.
SECTION 3.03. Selection of Junior Notes To Be Redeemed.
If less than all of the Outstanding Junior Notes are to be redeemed at
any time, the Trustee shall allocate the principal amount of the Junior Notes to
be redeemed among all of the Junior Notes at the time Outstanding in proportion,
as nearly as practicable, to the respective unpaid principal amounts thereof not
theretofore called for redemption, subject to compliance with (1) the
requirements, if any, of the principal securities exchange on which the Junior
Notes are listed, if the Junior Notes are listed on any securities exchange and
(2) any applicable laws, rules and regulations and the rules and procedures of
DTC, Euroclear and/or Clearstream, Luxembourg, if interests in the Junior Notes
are held in such clearing systems.
The Trustee, provided it has received or obtained a copy of the Register
from the Registrar, shall promptly notify the Issuer in writing of the Junior
Notes selected for redemption as aforesaid and, in the case of any Junior Notes
selected for partial redemption as aforesaid, the principal amount thereof to be
redeemed.
The provisions of the two preceding paragraphs shall not apply with
respect to any redemption affecting only a single Junior Note, whether such
Junior Note is to be redeemed in whole or in part. In the case of any such
redemption in part, the unredeemed portion of the principal amount of the Junior
Note shall be in an authorized denomination (which shall not be less than the
minimum authorized denomination) for such Junior Note.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Junior Notes shall
relate, in the case of any Junior Notes redeemed or to be redeemed only in part,
to the portion of the principal amount of such Junior Notes which has been or is
to be redeemed.
Any Junior Note which is to be redeemed only in part shall be presented
at a Place of Payment therefor (with, only in the case of Definitive Registered
Junior Notes, if the Issuer or the Paying Agent so requires, due endorsement by,
or a written instrument of transfer in form satisfactory to the Issuer and the
Paying Agent duly executed by, the Holder thereof or his attorney duly
authorized in writing), and (1) in the case of Definitive Registered Junior
Notes the Issuer shall execute, and the Paying Agent shall authenticate and
deliver to the Holder of such Definitive Registered Junior Note without service
charge, a new Definitive Registered Junior Note or Junior Notes in any
authorized denomination as requested by such Holder, in aggregate principal
amount equal to and in exchange for the unredeemed portion of the principal
amount of the Junior Note so surrendered and (2) in the case of Global Junior
Notes, the Paying Agent shall make an appropriate notation on Schedule A thereto
to reflect the portion of the principal amount of such Global Junior Note
redeemed and the unredeemed portion of the principal of the Global Junior Note
so surrendered.
SECTION 3.04. Effect of Notice of Redemption.
Once notice of redemption is given in accordance with Section 3.02
(Notice of Redemption) and Section 13.02 (Notices), the Junior Notes called for
redemption shall become
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due and payable on the scheduled Repayment Date and at the redemption price
(plus, without duplication, accrued and unpaid interest, and Additional Amounts,
if any, to (but excluding) the scheduled Repayment Date) called for by this
Indenture, and from and after such date (unless the Issuer shall default in the
payment of the redemption price, Additional Amounts, if any, and accrued and
unpaid interest) such Junior Notes shall cease to bear interest. Upon surrender
of any such Junior Note for redemption in whole (but not in part) in accordance
with such notice, such Junior Notes shall be paid by the Issuer at the
redemption price called for by this Indenture, plus, without duplication,
accrued and unpaid interest, if any, and Additional Amounts, to (but excluding)
the scheduled Repayment Date provided however, that with respect to any
Definitive Registered Junior Notes, a payment of interest which is payable on a
Junior Note Interest Payment Date which is on or before the scheduled Repayment
Date, shall be payable to the Holders of such Junior Notes registered as such at
the close of business on the relevant Regular Record Date or Special Record Date
according to the terms of the Junior Notes and the provisions of Section 2.09
(Payment; Interest Rights Preserved). Failure to give notice of redemption or
any defect in the notice to any Holder shall not affect the validity of the
notice to any other Holder.
If any Junior Note called for redemption shall not be so paid upon
surrender thereof for redemption, the principal (and any premium) and accrued
and unpaid interest and Additional Amounts, if any, shall, to the fullest extent
lawful and until paid, bear interest from the scheduled Repayment Date at the
Default Rate in accordance with the terms of such Junior Note and this
Indenture.
SECTION 3.05. Deposit of Redemption Price.
Except otherwise as provided in Section 3.08 (Mandatory Redemption out
of Mandatory Redemption Escrow Account), prior to 10:00 a.m. New York City time
on the Business Day preceding each Repayment Date, the Issuer shall deposit with
a Paying Agent in New York an amount of money sufficient to pay on such
Repayment Date the redemption price plus, without duplication, accrued and
unpaid interest and Additional Amounts, if any, on all Junior Notes or portions
thereof to be redeemed on that date, other than Junior Notes or portions of
Junior Notes called for redemption which have been delivered by the Issuer to
the Paying Agent for cancellation.
SECTION 3.06. Optional Redemption.
The Junior Notes may be redeemed in whole (but not in part) at the
option of the Issuer at any time upon not less than 30 days' but not more than
60 days' notice (which notice shall be irrevocable) in cash at the Optional
Redemption Price, provided that the Issuer may only redeem the Junior Notes if
the Issuer simultaneously redeems all Outstanding Junior Notes and all
outstanding Senior Notes in accordance with the provisions of this Indenture and
the Senior Note Indenture, respectively. The election by the Issuer to redeem
the Junior Notes pursuant to this Section 3.06 shall be evidenced by or pursuant
to a Board Resolution of the Issuer and a copy of such Board Resolution shall be
delivered to the Trustee and the Paying Agent.
SECTION 3.07. Optional Clean-up Redemption.
The Junior Notes may be redeemed in whole (but not in part) at the
option of the Issuer at any time upon not less than 30 days' but not more than
60 days' notice, in cash at the Optional
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Redemption Price, if at any time (other than during a Standstill Period or at a
time when a Payment Stop Event has occurred and is continuing) the aggregate
principal amount of the then Outstanding Junior Notes is less than 10% of the
aggregate principal amount of the Junior Notes issued on the Issue Date. The
election by the Issuer to redeem the Junior Notes pursuant to this Section 3.07
shall be evidenced by or pursuant to a Board Resolution of the Issuer and a copy
of such Board Resolution shall be delivered to the Trustee and the Paying Agent.
SECTION 3.08. Mandatory Redemption out of Mandatory Redemption Escrow Account.
If at any time (other than during a Standstill Period or after a Payment
Stop Event has occurred and is continuing), the balance standing to the credit
of the Mandatory Redemption Escrow Account is equal to or greater than Pound
Sterling 20 million (or the Sterling Equivalent), the Issuer shall promptly
deliver a Redemption Certificate covering the balance then standing to the
credit of the Mandatory Redemption Escrow Account to the Security Trustee, the
Trustee, the Senior Note Trustee (if at such time there are any Senior Notes
outstanding), the Depositary, the Paying Agent and the Registrar and shall cause
the balance standing to the credit of the Mandatory Redemption Escrow Account to
be applied to redeem then Outstanding Junior Notes in accordance with this
Section 3.08. The Issuer shall, within five London Business Days after the date
of such Redemption Certificate, cause a notice of redemption to be given to the
Holders of Junior Notes to be redeemed in accordance with the requirements of
Section 3.02 (Notice of Redemption) and shall deliver a copy of such notice to
the Security Trustee and the Trustee. The Repayment Date specified in such
notice of redemption shall be not less than ten (10) and not more than fifteen
(15) London Business Days after the date of such notice of redemption. Upon
receipt of such notice of redemption, the Trustee shall instruct the Security
Trustee to direct the Escrow Bank to transfer the amount specified in such
Redemption Certificate on the London Business Day prior to the specified
Repayment Date to an account or accounts specified by the Trustee for redemption
of Junior Notes on the specified Repayment Date.
If at any time (other than during a Standstill Period or after a Payment
Stop Event has occurred and is continuing) the balance standing to the credit of
the Mandatory Redemption Escrow Account is equal to or greater than the amount
that would be required to redeem all Junior Notes then Outstanding, the Issuer
shall promptly deliver a Redemption Certificate to the Security Trustee, the
Trustee, the Senior Note Trustee (if at such time there are any Senior Notes
outstanding), the Depositary, the Paying Agent and the Registrar and shall
redeem all Junior Notes then Outstanding in accordance with this Section 3.08.
The Issuer shall, within five London Business Days after the date of such
Redemption Certificate, cause a notice of redemption to be given to the Holders
of Junior Notes in accordance with the requirements of Section 3.02 (Notice of
Redemption) and shall deliver a copy of such notice to the Security Trustee and
the Trustee. The Repayment Date specified in such notice of redemption shall be
not less than ten (10) and not more than fifteen (15) London Business Days after
the date of such notice of redemption. Upon receipt of such notice of
redemption, the Trustee shall instruct the Security Trustee to direct the Escrow
Bank to transfer the amount specified in the Redemption Certificate on the
London Business Day prior to the specified Repayment Date to an account or
accounts specified by the Trustee for redemption of Junior Notes on the
specified Repayment Date.
If at any time the Issuer receives a copy of a Standstill Notice (unless
a Standstill Period was in effect on the day preceding the Date of such
Standstill Notice), the Issuer shall cause the
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balance standing to the credit of the Mandatory Redemption Escrow Account to be
applied to redeem then Outstanding Junior Notes in accordance with this Section
3.08. The Issuer shall cause a notice of redemption to be given to the Holders
of Junior Notes to be redeemed in accordance with the requirements of Section
3.02 (Notice of Redemption) and shall deliver a copy of such notice to the
Security Trustee and the Trustee. The Repayment Date specified in such notice of
redemption shall be not less than ten (10) and not more than fifteen (15) London
Business Days after the date of such notice of redemption. Upon receipt of such
notice of redemption, the Trustee shall instruct the Security Trustee to direct
the Escrow Bank to transfer the balance standing to the credit of the Mandatory
Redemption Escrow Account on the London Business Day prior to the specified
Repayment Date to an account or accounts specified by the Trustee for redemption
of Junior Notes on the specified Repayment Date.
Any redemption of Junior Notes pursuant to this Section 3.08 shall be at
a redemption price in cash of 110% of the principal amount of Junior Notes to be
redeemed, plus accrued and unpaid interest thereon and Additional Amounts in
respect thereof, if any, to the Repayment Date. For the avoidance of doubt, the
calculation of the aggregate principal amount of Junior Notes to be redeemed
through the application of funds released from the Mandatory Redemption Escrow
Account shall reflect the amount of accrued and unpaid interest, Additional
Amounts (if any) and any premium that will be payable with respect to such
Junior Notes.
SECTION 3.09. Mandatory Redemption upon Change of Control.
If the Issuer becomes aware of the occurrence of a Change of Control,
the Issuer shall within five (5) London Business Days of so becoming aware call
for redemption, upon not less than 30 but not more than 60 days' notice and
shall redeem, on the date specified in such notice, all Outstanding Junior Notes
in cash at the Optional Redemption Price.
SECTION 3.10. Redemption Upon Changes in Withholding Taxes.
Subject to the further provisions of this Section 3.10, the Issuer at
its option may at any time redeem all, but not less than all, of the Junior
Notes (or in the event that the Junior Notes are in the form of Definitive
Registered Junior Notes, all, but not less than all, of the affected Definitive
Registered Junior Notes) in cash at 100% of the principal amount of such Junior
Notes, plus accrued and unpaid interest thereon and Additional Amounts, if any,
to the Repayment Date, upon not less than 30 nor more than 60 days' notice. This
right of redemption applies only if, as a result of any amendment to, or change
in, the laws (including any regulations or rulings thereunder) of
England and
Wales (including any European Union law or directive that has the effect of law
in
England and Wales) or any other jurisdiction in which the Issuer is
organized, engaged in business, resident for Tax purposes or generally subject
to Tax, or any political subdivision or Taxing Authority of or in any of the
foregoing (any of the aforementioned being a "TAXING JURISDICTION"), or any
amendment to or change in any official position concerning the administration,
application or interpretations of such laws or regulations (including a judgment
by a court of competent jurisdiction), which amendment or change is announced
and effective on or after the Issue Date, the Issuer satisfies the Trustee
immediately before giving any notice referred to above that it has become or
will become obligated to pay Additional Amounts pursuant to Section 4.36
(Additional Amounts) which are more than a de minimis amount (as determined by
the Issuer in its reasonable judgment) on the next date on which any amount
would be payable with respect to such Junior Notes and the Issuer
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determines in good faith that such obligation cannot be avoided by the use of
reasonable measures available to the Issuer (including, without limitation, by
changing the jurisdiction from which or through which payments on such Junior
Notes are made).
No such notice of redemption may be given earlier than 45 days prior to
the earliest date on which the Issuer would be obligated to pay such Additional
Amounts were a payment in respect of the Junior Notes then due. The Issuer may
give such notice only if, at the time such notice of redemption is given, such
obligation to pay such Additional Amounts remains in effect. Immediately prior
to giving any notice of redemption described above, the Issuer shall deliver to
the Trustee (1) an Officers' Certificate stating that the Issuer is entitled to
elect to effect such redemption and setting forth a statement of facts showing
that the conditions precedent to the right of the Issuer so to elect to redeem
have occurred and (2) an Opinion of Outside Counsel qualified under the laws of
the relevant Taxing Jurisdiction in form and substance reasonably satisfactory
to the Trustee to the effect that the Issuer has or will become obligated to pay
such Additional Amounts as a result of such amendment or change and that the
Issuer cannot avoid the payment of such Additional Amounts by taking reasonable
measures available to it. The Trustee shall be entitled to accept such
certificate and opinion as sufficient evidence of the satisfaction of the
circumstances referred to above, in which event they shall be conclusive and
binding on the holders of the Junior Notes.
Notwithstanding the foregoing, the Issuer shall not have the right to
redeem the Junior Notes pursuant to this Section at any time during a Standstill
Period or when a Payment Stop Event has occurred and is continuing.
SECTION 3.11. Optional Payment of Redemption Amounts in British Pounds Sterling.
In the event of mandatory or optional redemption of the Junior Notes,
other than at Stated Maturity, the redemption price to be paid by the Issuer on
the applicable Repayment Date shall be payable in United States dollars unless
the Issuer elects to make payment in British pounds sterling, which election
shall be irrevocable and shall be set forth in the applicable notice of
redemption given pursuant to Section 3.02 (Notice of Redemption). If the Issuer
elects to make payment in British pounds sterling, the amount payable in respect
of each Junior Note shall be the Sterling Equivalent of the principal amount of
the applicable Junior Note in United States dollars multiplied by the applicable
redemption price, multiplied by 1.005 and rounded (if necessary) to the nearest
▇▇▇▇▇ (with Pound Sterling 0.005 being rounded upwards). Such calculation shall
be made by the Issuer. If the Issuer so elects to make payment in British pounds
sterling, the Issuer shall deliver to the Trustee and the Paying Agent on the
Business Day prior to the applicable Repayment Date, an Officers' Certificate of
the Issuer stating the amount in British pounds sterling to be paid in respect
of each United States dollar principal amount of the Junior Notes and stating
that such calculation complies with this Section 3.11.
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ARTICLE 4
COVENANTS
SECTION 4.01. Covenants Regarding US Core Businesses.
The Issuer shall, no later than the second anniversary of the Issue
Date, cause each of the US Core Businesses to be held by a US Core Business
Subsidiary or US Core Business Subsidiaries designated as such by the Issuer,
provided however that (1) no US Core Business Subsidiary may engage in more than
one US Core Business and (2) no US Core Business Subsidiary may be a direct or
indirect Subsidiary of any other US Core Business Subsidiary that is not engaged
in the same US Core Business.
Prior to the date on which each US Core Business is held by a US Core
Business Subsidiary or US Core Business Subsidiaries designated as such by the
Issuer, the Issuer shall procure that, in the event any US Core Business becomes
significantly cash-flow negative (which for this purpose shall mean such US Core
Business has negative earnings before interest, taxes, depreciation and
amortization over a period of two successive fiscal quarters, taken as a whole,
of US$15 million (or the Dollar Equivalent) or more, as determined from the
management accounts for such US Core Business prepared on a basis consistent
with the preparation of such accounts prior to the Scheme Launch Date), the
relevant Subsidiaries take, as soon as reasonably practicable, such commercially
reasonable and practicable remedial action as is designed to eliminate or, to
the fullest extent commercially reasonable and practicable, reduce any
continuing negative operating cash flow condition.
From and after the date on which each US Core Business is held by a US
Core Business Subsidiary or US Core Business Subsidiaries designated as such by
the Issuer, the Issuer shall not, and shall not permit any Subsidiary of the
Issuer that is not a US Core Business Subsidiary to, make any Investment in any
US Core Business Subsidiary and shall not permit any US Core Business Subsidiary
to make any Investment in any other US Core Business Subsidiary that is not
engaged in the same US Core Business.
SECTION 4.02. Asset Sales.
(a) The Issuer shall not, and shall not permit any of its Subsidiaries to,
directly or indirectly, consummate an Asset Sale unless:
(1) the Issuer or such Subsidiary, as the case may be,
receives consideration at least equal to the Fair Market
Value at the time of the Asset Sale of the assets,
properties, rights or Equity Interests that are the
subject of the Asset Sale;
(2) if the consideration for such Asset Sale exceeds Pound
Sterling 10 million (or the Sterling Equivalent), the
determination of such Fair Market Value is evidenced by
a resolution of the Issuer's Board of Directors set
forth in an Officers' Certificate delivered to the
Trustee within five (5) Business Days following such
consummation; and
(3) at least 85% of the consideration received in the Asset
Sale by the Issuer or such Subsidiary is in the form of
Cash Equivalents.
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(b) The Issuer shall, on the later of the Issue Date and the date that is
five (5) London Business Days following receipt, deposit or cause to be
deposited the Net Proceeds of any Asset Sale (other than Excluded Asset
Sale and Liquidation Proceeds) that are received by the Issuer and its
Subsidiaries on or after May 1, 2003 into the Mandatory Redemption
Escrow Account.
The Issuer shall deposit or cause to be deposited all Liquidation
Proceeds (other than Excluded Asset Sale and Liquidation Proceeds) and
all Net Proceeds of Asset Sales described in Section 4.04 (Purchase and
Cancellation of Notes) into the Mandatory Redemption Escrow Account
within five (5) London Business Days following receipt.
All Liquidation Proceeds and all Net Proceeds of Asset Sales that
constitute cash or Cash Equivalents other than British pounds sterling,
Euro or United States dollars and that are required to be deposited into
the Mandatory Redemption Escrow Account shall be converted into British
pounds sterling, Euro or United States dollars, at the option of the
Issuer, by the Issuer or its Subsidiaries on or prior to deposit of such
Liquidation Proceeds or Net Proceeds of Asset Sales into the Mandatory
Redemption Escrow Account.
SECTION 4.03. Restricted Payments.
(a) Issuer and Non-US Subsidiaries. Subject to clause (c) of this Section
4.03, below, the Issuer shall not, and shall not permit any of its
Non-US Subsidiaries to, directly or indirectly:
(1) declare or pay any dividend or make any other payment or
distribution (a) on account of the Issuer's Equity Interests or
any Equity Interests of any Subsidiary of the Issuer (including,
without limitation, any payment in connection with any merger or
consolidation involving the Issuer or any Subsidiary of the
Issuer) or (b) to the direct or indirect holders of the Equity
Interests of the Issuer or any Subsidiary of the Issuer in their
capacity as such (other than, in the case of each of (a) and
(b), dividends or distributions payable (i) in Equity Interests
(other than Disqualified Stock) of the Issuer or such Non-US
Subsidiary or (ii) to the Issuer or a Non-US Subsidiary); or
(2) purchase, repurchase, redeem, defease or otherwise acquire or
retire for value (including, without limitation, in connection
with any merger or consolidation involving the Issuer or any
Subsidiary of the Issuer) any outstanding Equity Interests of
the Issuer or any Subsidiary of the Issuer (other than any
Equity Interests of a Non-US Subsidiary owned by the Issuer or
any other Non-US Subsidiary); or
(3) make any payment of principal on or with respect to, or
purchase, repurchase, redeem, defease or otherwise acquire or
retire for value, any Subordinated Indebtedness of the Issuer or
any Guarantor; or
(4) make any Investment in any Person (other than any Permitted
Investments) (all such payments and other actions set forth in
these subclauses (1) through (4) of
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clause (a) of this Section 4.03 being collectively referred to
as "NON-US RESTRICTED PAYMENTS");
unless, at the time of, and after giving effect to, such Non-US
Restricted Payment:
(A) no Default has occurred and is continuing or would occur as a
consequence of such Non-US Restricted Payment;
(B) the amount of such Non-US Restricted Payment, together with the
aggregate amount of all other Non-US Restricted Payments
declared or made by the Issuer and its Non-US Subsidiaries on or
after the Issue Date (excluding Non-US Restricted Payments
permitted by subclauses (2), (4), (5) and (9) of clause (c) of
this Section 4.03, below), shall not exceed the sum, without
duplication, of:
(i) 50% of the Consolidated Profit After Taxes of the Issuer
and its Subsidiaries (less the Consolidated Profit After
Taxes of the US Parent and its Subsidiaries) for the
period (taken as one accounting period) from the
beginning of the fiscal quarter immediately following
the fiscal quarter during which the Issue Date occurs to
the end of the most recent fiscal quarter for which
consolidated financial statements of the Issuer and its
Subsidiaries are available at the time of such Non-US
Restricted Payment (or, if such Consolidated Profit
After Taxes for such period is a deficit, less 100% of
such deficit), plus
(ii) 100% of the aggregate net cash proceeds received by the
Issuer since the Issue Date as a contribution to its
ordinary equity capital or from the issue or sale of
Equity Interests of the Issuer (other than Disqualified
Stock) or from the issue or sale of convertible or
exchangeable Disqualified Stock or convertible or
exchangeable Indebtedness of the Issuer that has been
converted into or exchanged for such Equity Interests
(other than Equity Interests (or Disqualified Stock or
debt securities) sold to a Subsidiary of the Issuer),
except as otherwise provided under subclause (4) of
clause (c) of this Section 4.03, below;
(C) the ratio of (i) Consolidated EBITDA of the Issuer and its
Subsidiaries (less the Consolidated EBITDA of the US Parent and
its Subsidiaries if on the date of such Non-US Restricted
Payment any Junior Notes are Outstanding) to (ii) Consolidated
Gross Finance Charges of the Issuer and its Subsidiaries (less
the Consolidated Gross Finance Charges of the US Parent and its
Subsidiaries, plus any Consolidated Gross Finance Charges paid
or payable to the Issuer and the Non-US Subsidiaries by the US
Parent and its Subsidiaries, if on the date of such Non-US
Restricted Payment any Junior Notes are Outstanding), as if such
Non-US Restricted Payment had been made at the beginning of the
applicable period, shall, in respect of the four fiscal quarters
ended prior to the date of such Non-US Restricted Payment, be
not less than 4.5: 1; and
(D) if such Non-US Restricted Payment is of a kind identified in
subclause (1), (2) or (3) of this clause (a) of this Section
4.03 and, in the case of such subclause (1) and (2), is in
respect of the Issuer's Equity Interests, interest due on the
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Junior Notes was paid in full in cash on the two consecutive
scheduled Junior Note Interest Payment Dates immediately
preceding the date of such Non-US Restricted Payment.
(b) US Subsidiaries. Subject to clause (c) of this Section 4.03, below, the
Issuer shall not permit any of its US Subsidiaries to, directly or
indirectly:
(1) declare or pay any dividend or make any other payment or
distribution (a) on account of the Issuer's Equity Interests or
any Equity Interests of any Subsidiary of the Issuer (including,
without limitation, any payment in connection with any merger or
consolidation involving the Issuer or any Subsidiary of the
Issuer) or (b) to the direct or indirect holders of the Equity
Interests of the Issuer or any Subsidiary of the Issuer in their
capacity as such (other than, in the case of each of (a) and
(b), dividends or distributions payable (i) in Equity Interests
(other than Disqualified Stock) of such US Subsidiary or (ii) to
(A) a US Subsidiary, (B) the Issuer or (C) the holder of the
Equity Interests in the US Parent);
(2) purchase, repurchase, redeem, defease or otherwise acquire or
retire for value (including, without limitation, in connection
with any merger or consolidation involving the Issuer or any
Subsidiary of the Issuer) any outstanding Equity Interests of
the Issuer or any Subsidiary of the Issuer (other than any
Equity Interests of a US Subsidiary owned by any other US
Subsidiary);
(3) make any payment of principal on or with respect to, or
purchase, repurchase, redeem, defease or otherwise acquire or
retire for value, any Subordinated Indebtedness of the Issuer or
any Guarantor; or
(4) make any Investment in any Person (other than any Permitted
Investments) (all such payments and other actions set forth in
these subclauses (1) through (4) of clause (b) of this Section
4.03 being collectively referred to as "US RESTRICTED PAYMENTS"
and, together with Non-US Restricted Payments, "RESTRICTED
PAYMENTS"),
unless, at the time of, and after giving effect to, such US Restricted
Payment:
(i) no Default has occurred and is continuing or would occur as a
consequence of such US Restricted Payment;
(ii) the amount of such US Restricted Payment, together with the
aggregate amount of all other US Restricted Payments declared or
made by the US Subsidiaries on or after the Issue Date
(excluding US Restricted Payments permitted by subclauses (3),
(4) and (5) of clause (c) of this Section 4.03, below) shall not
exceed 50% of the Consolidated Profit After Taxes of the US
Parent and its Subsidiaries for the period (taken as one
accounting period) from the beginning of the fiscal quarter
immediately following the fiscal quarter during which the Issue
Date occurs to the end of the most recent fiscal quarter for
which consolidated financial statements of the US Parent and its
Subsidiaries are available at the time of such US Restricted
Payment (or, if such Consolidated Profit After Taxes for such
period is a deficit, less 100% of such deficit);
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(iii) the ratio of (i) Consolidated EBITDA of the US Parent and its
Subsidiaries to (ii) Consolidated Gross Finance Charges of the
US Parent and its Subsidiaries, as if such US Restricted Payment
had been made at the beginning of the applicable period, shall,
in respect of the four fiscal quarters ended prior to the date
of such US Restricted Payment, be not less than 4.5: 1; and
(iv) if such US Restricted Payment is of a kind identified in
subclause (1), (2) or (3) of this clause (b) of this Section
4.03 and, in the case of such subclause (1) and (2), is in
respect of the Issuer's Equity Interests, interest due on the
Junior Notes was paid in full in cash on the two consecutive
scheduled Junior Note Interest Payment Dates immediately
preceding the date of such US Restricted Payment.
(c) Exceptions Applicable to the Issuer, Non-US Subsidiaries and US
Subsidiaries.
The provisions of clauses (a) and (b) of this Section 4.03 shall not
prohibit:
(1) the payment of any dividend within 60 days after the date of
declaration of the dividend, if at the date of declaration the
dividend payment would have complied with the provisions of this
Indenture;
(2) the payment of principal on or with respect to or the purchase,
repurchase, redemption, defeasance or other acquisition or
retirement for value of any Indebtedness owed by the Issuer or a
Non-US Subsidiary to the Issuer or a Subsidiary of the Issuer;
(3) the payment of principal on or with respect to or the purchase,
repurchase, redemption, defeasance or other acquisition or
retirement for value of any Indebtedness owed by a US Subsidiary
to the Issuer or a Subsidiary of the Issuer, if and to the
extent permitted by the Security Trust and Intercreditor Deed;
(4) so long as no Default has occurred and is continuing or would be
caused thereby under the Junior Notes or this Indenture the
repayment, redemption, repurchase, retirement, defeasance or
other acquisition of any Subordinated Indebtedness of the Issuer
or any Guarantor, or any Equity Interests of the Issuer, in each
case in exchange for, or out of the net cash proceeds of a
substantially concurrent sale (other than to a Subsidiary of the
Issuer) of, Equity Interests of the Issuer (other than
Disqualified Stock); provided that the amount of any such net
cash proceeds that are utilized for any such repayment,
redemption, repurchase, retirement, defeasance or other
acquisition will be excluded from subclause (B)(ii) under clause
(a) of this Section 4.03);
(5) so long as no Default has occurred and is continuing or would be
caused thereby under the Junior Notes or this Indenture, the
repayment, redemption, repurchase, retirement, defeasance or
other acquisition of any Subordinated Indebtedness of the Issuer
or any Guarantor (other than Indebtedness between or among the
Issuer or any of its Subsidiaries) with the net cash proceeds
from an incurrence of Permitted Refinancing Indebtedness;
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(6) the payment of any dividend or other distribution by a Non-US
Subsidiary to a minority holder of any Equity Interest in such
Non-US Subsidiary that is made on a pro rata basis to such
minority holder and to all other holders of such class of Equity
Interests of such Non-US Subsidiary at the time such dividend or
other distribution is made;
(7) the payment of any dividend or other distribution by a US
Subsidiary to a minority holder of any Equity Interest in such
US Subsidiary that is made on a pro rata basis to such minority
holder and to all other holders of such class of Equity
Interests of such US Subsidiary at the time such dividend or
other distribution is made;
(8) payments of cash in lieu of the issuance of fractional shares of
Capital Stock as a dividend or distribution; and
(9) any transfer by FS Holdings Corp. of Equity Interests in Marconi
Communications Inc. to the US Parent.
(d) The amount of all Restricted Payments (other than cash) shall be the
Fair Market Value on the date of such Restricted Payment of the assets
or securities proposed to be transferred or issued to or by the Issuer
or such Subsidiary of the Issuer, as the case may be, pursuant to such
Restricted Payment. The Fair Market Value of any assets or securities
that are required to be valued by this covenant shall be determined by
(1) an Officer of the Issuer if such assets or securities have a Fair
Market Value equal to or less than Pound Sterling 10 million (or the
Sterling Equivalent) or (2) if such assets or securities have a Fair
Market Value greater than Pound Sterling 10 million (or the Sterling
Equivalent), the Board of Directors of the Issuer whose resolution with
respect thereto shall be set forth in the Officers' Certificate required
to be delivered to the Trustee pursuant to the second succeeding
sentence of this clause (d) of this Section 4.03. The determination of
the Board of Directors of the Issuer shall be based upon an opinion or
appraisal issued by an accounting, appraisal or investment banking firm
of international standing if the Fair Market Value exceeds Pound
Sterling 20 million (or the Sterling Equivalent). Not later than the
fifth Business Day after the date of making any Restricted Payment in
excess of Pound Sterling 10 million (or the Sterling Equivalent) (other
than any Restricted Payment permitted under any of subclauses (1)
through (9) of clause (c) of this Section 4.03), the Issuer shall
deliver to the Trustee an Officers' Certificate stating that such
Restricted Payment is permitted and setting forth the calculations
required by this Section 4.03 and the basis upon which such calculations
were made, together with a copy of any opinion or appraisal required by
this clause (d) of this Section 4.03.
SECTION 4.04. Purchase and Cancellation of Notes.
(a) The Issuer shall not, and shall not permit any of its Subsidiaries to,
purchase, repurchase, redeem or otherwise acquire or retire for value
any Senior Notes or Junior Notes (other than pursuant to the redemption
provisions in the relevant Indenture), provided that (1) the Issuer or
any of the Guarantors may purchase, repurchase or otherwise acquire or
retire for value, in the open market or otherwise and at any price, any
Senior Notes at any time after the second scheduled Senior Note Interest
Payment Date or any Junior Notes at any time after the second scheduled
Junior Note Interest Payment Date, in each case if
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(a) no Default or Event of Default has occurred and is continuing under
this Indenture, (b) the payment of interest on the Junior Notes on the
two consecutive preceding Junior Note Interest Payment Dates was made in
cash (rather than in Junior PIK Notes), and (c) the Issuer has not given
notice pursuant to this Indenture electing to pay the interest (and any
Additional Amounts) due on the next Junior Note Interest Payment Date on
the Outstanding Junior Notes in Junior PIK Notes and (2) the Issuer may
acquire Senior Notes or Junior Notes for distribution to its Scheme
Creditors pursuant to any scheme of arrangement, reorganization or
insolvency proceeding in relation to Marconi plc.
(b) All Senior Notes and Junior Notes redeemed by the Issuer or any of its
Subsidiaries shall be immediately cancelled and may not be reissued or
resold. All Senior Notes and Junior Notes purchased, repurchased or
otherwise acquired or retired by the Issuer or any of its Subsidiaries
(other than Senior Notes or Junior Notes acquired pursuant to subclause
(2) of clause (a) of this Section 4.04, above) shall be cancelled not
later than ninety (90) days after such Senior Notes or Junior Notes are
purchased, repurchased or otherwise acquired or retired by the Issuer or
any of its Subsidiaries and may not be reissued or resold to any Person
other than the Issuer or any Guarantor. Any Notes acquired by the Issuer
pursuant to subclause (2) of clause (a) of this Section 4.04, above,
shall be promptly delivered to the Distribution Agent under the Escrow
and Distribution Agreement. Notwithstanding any other provision in this
Indenture, all payments of principal, premium, if any, interest and
Additional Amounts, if any, on all Senior Notes and all Junior Notes
owned by the Issuer or any of its Subsidiaries (other than Notes
acquired pursuant to subclause (2) of clause (a) of this Section 4.04,
above, provided that such Notes are held in escrow for distribution to
Scheme Creditors) shall constitute Net Proceeds of Asset Sales.
(c) The Issuer shall notify the Trustee, promptly in writing, after the
Issuer, any Guarantor, any other obligor on the Junior Notes or any
Affiliate of the Issuer, any Guarantor or any other obligor on the
Junior Notes repurchases or otherwise acquires Junior Notes, of the
aggregate principal amount of such Junior Notes so repurchased or
otherwise acquired.
SECTION 4.05. Acquisitions.
The Issuer shall not, and shall not permit any of its Subsidiaries to,
make any Acquisition from any Person other than: (1) an Acquisition by the
Issuer or a Subsidiary of the Issuer from a Subsidiary of the Issuer or the
Issuer; or (2) an Investment that is permitted to be made under Section 4.03
(Restricted Payments).
SECTION 4.06. Limitation on Indebtedness and Preferred Stock.
The Issuer shall not, and shall not permit any of its Subsidiaries to,
directly or indirectly, create, incur, issue, assume, Guarantee, permit to be
outstanding or otherwise be or become directly or indirectly liable,
contingently or otherwise, with respect to any Indebtedness (including Acquired
Debt), and the Issuer will not issue or have in issue any Disqualified Stock and
will not permit any of its Subsidiaries to issue or have in issue any shares of
Preferred Stock or any shares of Disqualified Stock, other than, in each case,
any Permitted Debt.
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For the purposes of determining compliance with this covenant:
(1) the outstanding principal amount of any particular Indebtedness
shall be counted only once and any obligation arising under any
Guarantee, indemnity, Lien, letter of credit or similar
instrument supporting such Indebtedness shall be disregarded to
the extent of the outstanding principal amount of such
Indebtedness included in any clause of the definition of
Permitted Debt;
(2) in the event that an item of Indebtedness meets the criteria of
more than one of the types of Permitted Debt, the Issuer, in its
sole discretion, shall classify such item of Indebtedness and
shall only be required to include the amount and type of such
Indebtedness in one of the clauses of the definition of
Permitted Debt; and
(3) in the event that an item of Indebtedness meets the criteria of
more than one of the types of Permitted Debt, the Issuer, in its
sole discretion, may divide and classify such item of
Indebtedness under more than one of the types of Permitted Debt.
For purposes of determining compliance with any sterling-denominated
restriction on Indebtedness, if the Indebtedness incurred is denominated in a
currency other than sterling, the amount of such Indebtedness shall be the
Sterling Equivalent, determined on the date of the incurrence of such
Indebtedness (or, if later, the Issue Date). For purposes of determining
compliance with any United States dollar-denominated restriction on
Indebtedness, if the Indebtedness incurred is denominated in a currency other
than United States dollars, the amount of such Indebtedness shall be the Dollar
Equivalent, determined on the date of the incurrence of such Indebtedness (or,
if later, the Issue Date).
SECTION 4.07. Derivative Transactions.
The Issuer shall not, and shall not permit any of its Subsidiaries to,
enter into any Derivative Transaction other than a Permitted Hedging Transaction
or a Permitted Intra-Group Hedging Transaction.
SECTION 4.08. Limitation on Liens.
The Issuer shall not, and shall not permit any of its Subsidiaries to,
directly or indirectly, create, incur, assume or suffer to exist any Lien of any
kind on any property or asset now owned or hereafter acquired, except Permitted
Liens.
SECTION 4.09. Dividends and other Payment Restrictions Affecting Subsidiaries.
(a) Subject to clause (b) of this Section 4.09, below, the Issuer shall not,
and shall not permit any of its Subsidiaries to, directly or indirectly,
create or permit to exist or be or become effective any consensual
encumbrance or restriction on the ability of any Subsidiary of the
Issuer to:
(1) pay dividends or make any other distributions on its Capital
Stock to the Issuer or any Subsidiary of the Issuer, or with
respect to any other interest or participation in, or measured
by, its profits;
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(2) pay any indebtedness owed to the Issuer or any Subsidiary of the
Issuer;
(3) make loans or advances to the Issuer or any Subsidiary of the
Issuer; or
(4) transfer any of its properties or assets to the Issuer or any
Subsidiary of the Issuer.
(b) The restrictions contained in clause (a) of this Section 4.09, above,
shall not apply to encumbrances or restrictions existing under or by
reason of:
(1) Permitted Debt that imposes restrictions of the nature described
in subclause (4) of clause (a) of this Section 4.09, above;
(2) agreements as in effect on the Scheme Launch Date or entered
into to give effect to, or otherwise implement, the
Restructuring, and any amendments, modifications, restatements,
renewals, increases, supplements, refundings, replacements or
refinancings of those agreements; provided that the amendments,
modifications, restatements, renewals, increases, supplements,
refundings, replacements or refinancings are no more
restrictive, taken as a whole, with respect to such dividend and
other payment restrictions than those contained in those
agreements on the Scheme Launch Date or, if any such agreement
is entered into or amended to give effect to, or otherwise
implement, the Restructuring, on the date of such agreement or
amendment;
(3) the Indentures, the Senior Notes, the Junior Notes, the
Guarantee of the Senior Notes, the Guarantee of the Junior
Notes, the Composite Guarantee, the Security Documents and the
Security Trust and Intercreditor Deed;
(4) any mandatory provision of applicable law;
(5) any instrument or agreement of a Person acquired by the Issuer
or any Subsidiary of the Issuer as in effect at the time of such
acquisition (except to the extent such encumbrance or
restriction, or the related instrument or agreement, was
created, incurred or assumed in connection with or in
contemplation of such acquisition), which encumbrance or
restriction is not applicable to any Person, or the properties
or assets of any Person, other than the Person, or the property
or assets of the Person, so acquired; provided that, in the case
of Indebtedness, such Indebtedness was permitted by the terms of
this Indenture to be incurred;
(6) customary non-assignment or similar provisions in any contract,
agreement or undertaking entered into in the ordinary course of
business;
(7) Purchase Money Obligations for property acquired in the ordinary
course of business that impose restrictions on that property of
the nature described in subclause (4) of clause (a) of this
Section 4.09, above;
(8) any agreement for the sale or other disposition of a Subsidiary
of the Issuer or any assets of the Issuer or any Subsidiary of
the Issuer pending sale or other disposition;
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(9) Permitted Liens;
(10) any customary encumbrances or restrictions required by any
governmental, local or regulatory authority having jurisdiction
over the Issuer or any Subsidiary of the Issuer or any of their
businesses in connection with any development grant made or
other assistance provided to the Issuer or any Subsidiary of the
Issuer by such governmental authorities;
(11) with respect to any joint venture formed after the Issue Date in
compliance with this Indenture and any Subsidiary of the Issuer
that is a co-venturer therein, the terms of the agreements
governing such joint venture and the organizational documents of
the entities constituting the joint venture; provided, however,
that any such encumbrance or restriction (a) is customary in
joint venture agreements and (b) will not materially affect the
Issuer's and the Guarantors' ability to make principal and
interest payments on the Senior Notes or Junior Notes, as
determined by the Board of Directors of the Issuer in good faith
at the time of entering into such agreements (and at the time of
any amendment, modification, restatement, renewal, supplement or
replacement thereof); and
(12) the US Working Capital Facility.
SECTION 4.10. Transactions with Affiliates.
(a) Except as provided below in this Section 4.10, the Issuer shall not, and
shall not permit any of its Subsidiaries to, directly or indirectly,
make any payment to, or sell, lease, transfer or otherwise dispose of
any of its properties or assets to, or purchase any property or assets
from, or enter into or make or amend any transaction, contract,
agreement, arrangement, loan, advance or Guarantee with, or for the
benefit of, any Affiliate (each such transaction individually or, where
identified as part of a series with one or more other transactions, an
"AFFILIATE TRANSACTION"), unless:
(1) the Affiliate Transaction is entered into in good faith and in
writing and is on terms that are no less favorable to the Issuer
or such Subsidiary of the Issuer than those that would have been
obtained in a comparable transaction by the Issuer or such
Subsidiary of the Issuer with an unrelated Person; and
(2) the Issuer delivers to the Trustee within ten London Business
Days of this relevant Affiliate Transaction:
(A) with respect to any Affiliate Transaction or series of
related Affiliate Transactions involving aggregate
consideration in excess of Pound Sterling 2 million (or
the Sterling Equivalent), an Officers' Certificate from
two Disinterested Officers of the Issuer certifying that
such Affiliate Transaction or series of related
Affiliate Transactions complies with subclause (1) of
clause (a) of this Section 4.10, above;
(B) with respect to any Affiliate Transaction or series of
related Affiliate Transactions involving aggregate
consideration in excess of Pound Sterling 10 million (or
the Sterling Equivalent), a resolution of the Board of
Directors of the Issuer set forth in an Officers'
Certificate certifying that such Affiliate
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Transaction or series of related Affiliate Transactions
complies with this Section 4.10 and that such Affiliate
Transaction or series of related Affiliate Transactions
has been approved by a majority of the Disinterested
Directors of the Board of Directors of the Issuer, or,
if there are no Disinterested Directors, by a majority
of all members of the Board of Directors of the Issuer;
and
(C) with respect to any Affiliate Transaction or series of
related Affiliate Transactions involving aggregate
consideration in excess of Pound Sterling 20 million (or
the Sterling Equivalent), a written opinion as to the
fairness to the Issuer or such Subsidiary of such
Affiliate Transaction or series of related Affiliate
Transactions from a financial point of view issued by an
accounting, appraisal or investment banking firm of
international standing.
(b) The following items shall not be subject to the foregoing requirements
of clause (a) of this Section 4.10, above:
(1) any transaction between or among the Issuer and/or Non-US
Subsidiaries;
(2) any transaction between or among US Subsidiaries;
(3) any employment, collective bargaining or service agreement
entered into by the Issuer or any Subsidiary of the Issuer with
any of their respective officers, directors or employees (or any
bargaining entities on their behalf) in the ordinary course of
business and which is customary in the industry in which the
Issuer or such Subsidiary operates;
(4) sales of Equity Interests of the Issuer (other than Disqualified
Stock) to Affiliates of the Issuer other than any Subsidiary of
the Issuer;
(5) Restricted Payments that are permitted by Section 4.03
(Restricted Payments);
(6) Permitted Investments which (other than Permitted Intra-Group
Hedging Transactions) are on arm's-length terms;
(7) transactions with Affiliates solely in their capacity as holders
of Indebtedness of or Equity Interests in the Issuer or any
Subsidiary of the Issuer where such Affiliates are treated no
more favorably than holders of such Indebtedness or such Equity
Interests generally;
(8) payment of compensation or reimbursement or advances of expenses
by the Issuer or any Subsidiary of the Issuer to their
respective officers, directors or employees in the ordinary
course of business and which are customary in the industry in
which the Issuer or such Subsidiary operates;
(9) maintenance in the ordinary course of business (and payments
required thereby) of benefit programs, or arrangements for
employees, officers or directors, including vacation plans,
health and life insurance plans, deferred compensation and other
stock option plans, directors' and officers' indemnification
agreements
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and retirement or saving plans and similar plans, provided that
any such plan or agreement which is entered into or adopted on
or after the Scheme Launch Date shall have been approved by a
majority of the Disinterested Directors of the Board of
Directors of the Issuer, or, if there are no Disinterested
Directors, by a majority of all members of the Board of
Directors of the Issuer;
(10) a Permitted Intra-Group Transfer (and payments required
thereby);
(11) Permitted Intra-Group Indebtedness (and payments required
thereby);
(12) supply, purchase or sale transactions with suppliers or
purchasers or sellers of goods or services (other than the
Issuer and its Subsidiaries), in each case in the ordinary
course of business and otherwise in compliance with the terms of
this Indenture, which, if initially effected on or after the
Issue Date, are fair to the Issuer or such Subsidiary of the
Issuer or are on terms (taken as a whole) at least as favorable
as might reasonably have been obtained at such time from an
unaffiliated party, in the reasonable determination of (a) a
majority of the Disinterested Directors of the Board of
Directors of the Issuer or, if there are no Disinterested
Directors, a majority of all members of the Board of Directors
of the Issuer or (b) two Disinterested Officers of the Issuer;
(13) the sale or other disposition of inventory and/or related
services (and payments related thereto) in the ordinary course
of business on an arm's-length basis between or among the Issuer
and/or any Non-US Subsidiaries, on the one hand, and any US
Subsidiaries, on the other;
(14) payments made pursuant to or in relation to an obligation (a)
between or among the Issuer and/or its Subsidiaries or (b)
between or among the Issuer and/or its Subsidiaries, on the one
hand, and any Person in which the Issuer and/or its Subsidiaries
own an Equity Interest (other than any such Person that is an
Affiliate of a director or officer of the Issuer or any of its
Subsidiaries by virtue of such director or officer owning an
Equity Interest in such Person), on the other hand, in each case
(1) that exists on the Scheme Launch Date, and (2) other than an
obligation that constitutes Indebtedness;
(15) the provision of administrative, treasury, finance, tax, legal,
accounting, human resources, pension and benefits, insurance,
risk management, intellectual property, information technology,
sales support and other central services to or by the Issuer or
one or more Non-US Subsidiaries by or to one or more US
Subsidiaries in the ordinary course of business and on an
arm's-length basis pursuant to an instrument in writing provided
that with respect to any such services provided by any US
Subsidiary to the Issuer or a Non-US Subsidiary, services of
such type were provided by such US Subsidiary prior to the Issue
Date;
(16) allocation of costs between or among the US Subsidiaries, the
Non-US Subsidiaries and/or the Issuer relating to (a) tax,
information technology, intellectual property, insurance, audit,
real estate, statutory compliance and employee benefit and
welfare plans (including health and life insurance plans,
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deferred compensation and other stock option plans and
retirement and savings plans) or (b) any products or services
provided by Persons other than the Issuer or any of its
Subsidiaries to multiple Group Companies, in the case of each of
(a) and (b) pursuant to an instrument in writing;
(17) payments made pursuant to or in relation to either (a) trading
and other accrued current liabilities existing on the Issue Date
or (b) Existing Intercompany Indebtedness; and
(18) any spot foreign exchange transaction between or among the
Issuer and/or its Subsidiaries.
(c) The Issuer shall not, and shall not permit any Non-US Subsidiary to,
enter into or effect any Affiliate Transaction with, or for the benefit
of, any US Subsidiary other than:
(1) an Affiliate Transaction that falls within clause (11), (12) or
(14) of the definition of Permitted Intra-Group Transfer, and
payments required thereby;
(2) an Affiliate Transaction that falls within clause (9), (10),
(13), (14) or (15) of the definition of Permitted Intra-Group
Indebtedness, and payments required thereby;
(3) an Affiliate Transaction that falls within clause (13), (15),
(16), (17) or (18) of clause (b) of this Section 4.10, above;
(4) payments made pursuant to or in relation to an obligation
between or among the Issuer and/or its Subsidiaries that exists
on the Scheme Launch Date, other than an obligation that
constitutes Indebtedness, provided that if the aggregate of all
payments made or to be made on or after the Issue Date pursuant
to or in relation to any such obligation exceeds Pound Sterling
5 million (or the Sterling Equivalent), such obligation shall be
set forth in Schedule 6 (Certain Affiliate Transactions) hereto;
and
(5) an Affiliate Transaction or series of related Affiliate
Transactions involving payments, or having a value, of less than
Pound Sterling 500,000 (or the Sterling Equivalent).
Any Affiliate Transaction permitted by clause (c) of this Section 4.10
shall not be subject to the restrictions or requirements of clause (a) of this
Section 4.10.
SECTION 4.11. Limitation on Sale and Leaseback Transactions.
The Issuer shall not, and shall not permit any of its Subsidiaries to,
enter into any Sale and Leaseback Transaction; provided that the Issuer or any
Subsidiary of the Issuer may enter into a Sale and Leaseback Transaction if:
(1) the Issuer or such Subsidiary, as applicable, could have (a)
outstanding Indebtedness in an amount equal to the Attributable
Debt relating to such Sale and Leaseback Transaction pursuant to
Section 4.06 (Limitation on Indebtedness and Preferred Stock),
provided that the aggregate amount of such Attributable Debt
outstanding at any time shall not exceed Pound Sterling 27
million (or the
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Sterling Equivalent) and (b) incurred a Lien to secure such
Indebtedness pursuant to Section 4.08 (Limitation on Liens);
(2) the gross cash proceeds of that Sale and Leaseback Transaction
are at least equal to the Fair Market Value of the property that
is the subject of that Sale and Leaseback Transaction, as
determined in good faith by the Board of Directors of the Issuer
and, if such proceeds exceed Pound Sterling 10 million, the
Issuer shall deliver an Officers' Certificate to the Trustee
certifying such determination by the Board of Directors of the
Issuer; and
(3) the transfer of assets in that Sale and Leaseback Transaction is
not restricted by, or if applicable the Issuer applies the
proceeds of such transaction in compliance with, Section 4.02
(Asset Sales).
SECTION 4.12. Limitation on Issuances and Sales of Equity Interests in
Subsidiaries.
Except as provided below in this Section 4.12, the Issuer shall not, and
shall not permit any of its Subsidiaries to, transfer, convey, sell or otherwise
dispose of any Equity Interests in any Subsidiary of the Issuer to any Person
(other than, in the case of Equity Interests in a Non-US Subsidiary, to the
Issuer or a Non-US Subsidiary or, in the case of Equity Interests in a US
Subsidiary, to a US Subsidiary, or in any case to the extent necessary to comply
with any applicable law or regulation), unless (1) such transfer, conveyance,
sale or other disposition is of all the Equity Interests in such Subsidiary
(except in the case of a Subsidiary of the Issuer that is not a Wholly-Owned
Subsidiary of the Issuer on the Issue Date, in which case the Issuer or a
Subsidiary of the Issuer may transfer, convey, sell or otherwise dispose of any
Equity Interest of such Subsidiary) and the Net Proceeds from such transfer,
conveyance, sale or other disposition are applied in Section 4.02 (Asset Sales)
or (2) such transfer, conveyance, sale or other disposition is either a
Restricted Payment that is permitted to be made in accordance with Section 4.03
(Restricted Payments) or a Permitted Investment.
In addition, the Issuer shall not permit any of its Subsidiaries to
issue any of their respective Equity Interests (other than shares of Capital
Stock constituting directors' qualifying shares or otherwise to the extent
necessary to comply with any applicable law or regulation) to any Person other
than (1) in the case of the issuance of Equity Interests by a Non-US Subsidiary,
an issuance to the Issuer or a Non-US Subsidiary, (2) in the case of the
issuance of Equity Interests by a US Subsidiary, an issuance to a US Subsidiary
or an issuance of Equity Interests of the US Parent to FS Holdings Corp., (3) an
issuance by a Subsidiary of the Issuer to an existing holder of Capital Stock of
such Subsidiary pursuant to legal or contractual requirements applicable to such
Subsidiary in an amount that is no greater than is contractually or legally
required for such holder, provided that after giving effect to such issuance
such Subsidiary remains a Subsidiary of the Issuer or (4) an issuance that is
either a Restricted Payment that is permitted to be made in accordance with
Section 4.03 (Restricted Payments) or a Permitted Investment.
The Issuer shall not permit any Subsidiary, any of the Equity Interests
of which constitute Transaction Security, to issue any additional Equity
Interests to the Issuer or any other Subsidiary of the Issuer unless the Issuer
or such other Subsidiary takes all steps necessary to cause such additional
Equity Interests also to constitute Transaction Security pursuant to a
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Security Document governed by the law of the jurisdiction in which the issuing
Subsidiary is organized.
SECTION 4.13. Guarantor Coverage Requirements.
(a) Subject to clause (c) of this Section 4.13, below, the Issuer shall
ensure that the following requirements are met as of the end of the
second fiscal quarter and the fourth fiscal quarter of each fiscal year
of the Issuer commencing with the quarter ending September 30, 2003
(each a "SEMI-ANNUAL TEST DATE") and as of any date on which the Issuer
or any of its Subsidiaries acquires from, or disposes of to, any Person
(other than the Issuer or any of its Subsidiaries) any Significant
Subsidiary (or assets, properties or rights that would, if held by a
single Subsidiary of the Issuer, constitute a Significant Subsidiary),
other than any date on or prior to September 30, 2003 on which the
Issuer or any of its Subsidiaries consummates a disposition of the North
American Access Business (each such date an "INTERIM TEST DATE" and,
together with the Semi-Annual Test Dates, the "GUARANTOR TEST DATES"):
(1) if any of (a) the aggregate of the unconsolidated Total Assets,
(b) the aggregate of the unconsolidated External Assets, (c) the
aggregate of the unconsolidated External Sales or (d) commencing
as of March 31, 2005, the aggregate of the unconsolidated EBITDA
of all of the Guarantors as of any Guarantor Test Date (other
than, with respect to Interim Test Dates only, unconsolidated
Total Assets, which shall not be tested as of such Interim Test
Dates) are less than 80% 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, as of such Guarantor Test Date, the Issuer shall procure
that, on or prior to the applicable Guarantor Certification Date
(as defined below), sufficient Additional Guarantor(s) execute
and deliver a supplemental indenture to this Indenture in form
and substance reasonably satisfactory to the Trustee pursuant to
which they become Guarantors of the Junior Notes such that each
of (a) the aggregate of the unconsolidated Total Assets, (b) the
aggregate of the unconsolidated External Assets, (c) the
aggregate of the unconsolidated External Sales and (d) from and
after March 31, 2005, the aggregate of the unconsolidated EBITDA
of all of the Guarantors are not less than 80% of the (w)
aggregate of the unconsolidated Total Assets of the Issuer and
each of its Subsidiaries and the (x) consolidated External
Assets, (y) consolidated External Sales and (z) Consolidated
EBITDA, respectively, of the Issuer and its Subsidiaries, taken
as a whole, as of such Guarantor Test Date; and
(2) if any Subsidiary of the Issuer that is not a Guarantor would be
a Significant Subsidiary as of any Guarantor Test Date (other
than, with respect to Interim Test Dates only, a Subsidiary that
would be a Significant Subsidiary by virtue of its
unconsolidated Total Assets, which shall not be tested as of
such Interim Test Dates) then, on or prior to the applicable
Guarantor Certification Date, any such Subsidiary shall execute
and deliver a supplemental indenture to this
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Indenture in form and substance reasonably satisfactory to the
Trustee pursuant to which such Subsidiary becomes a Guarantor of
the Junior Notes.
(b) As of the end of the second fiscal quarter and the fourth fiscal quarter
of each fiscal year of the Issuer, and as of each other Guarantor Test
Date, the Issuer shall deliver, within the applicable time period after
the end of each such fiscal quarter or fiscal year (in the case of the
fourth fiscal quarter) during which a domestic US issuer that is an
"accelerated filer" would be required to file an annual report on Form
10-K (in the case of the fourth fiscal quarter) or a quarterly report on
Form 10-Q (in the case of the second fiscal quarter), as applicable, by
the rules and regulations of the SEC from time to time in effect (but in
no event later than the date on which the Issuer publicly releases its
annual and quarterly consolidated financial statements for such
periods), and within 30 days after each other Guarantor Test Date (each
such foregoing date being a "GUARANTOR CERTIFICATION DATE"), to the
Trustee, an Officers' Certificate stating whether or not the Issuer is
in compliance with subclauses (1) and (2) of clause (a) of this Section
4.13, above, and setting forth the calculations required by this Section
4.13 as of the applicable Guarantor Test Date and the basis on which
such calculations were made. For the avoidance of doubt, Additional
Guarantors may enter into the Guarantee of the Junior Notes irrespective
of the above tests being met.
(c) For the purpose of this Section 4.13:
(1) for purposes of the calculations required to be made pursuant to
subclause (1) of clause (a) of this Section 4.13 and subclause
(2) of this clause (c), the phrase "all of the Guarantors" shall
include the Issuer;
(2) (i) the aggregate of the unconsolidated Total Assets, (ii) the
aggregate of the unconsolidated External Assets, (iii) the
aggregate of the unconsolidated External Sales and (iv) the
aggregate of the unconsolidated EBITDA of all of the Guarantors
that have not provided any Transaction Security may not account
for more 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, as of any Guarantor Test
Date;
(3) the unconsolidated Total Assets, unconsolidated External Assets,
unconsolidated External Sales and unconsolidated EBITDA of a
Subsidiary of the Issuer as of any date will be determined from
the accounting records upon which the latest consolidated
financial statements of the Issuer and its Subsidiaries have
been based and, in the case of unconsolidated EBITDA and
unconsolidated External Sales, for the period consisting of the
four fiscal quarters ended on or (in the case of an Interim Test
Date) prior to the Guarantor Test Date (or, in the case of
unconsolidated EBITDA for any Guarantor Test Date prior to
December 31, 2005, the period consisting of each completed
fiscal quarter of the Issuer commencing on or after January 1,
2005);
(4) if a Person becomes a Subsidiary of the Issuer after the date as
of which the latest consolidated financial statements of the
Issuer and its Subsidiaries have
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been prepared, the unconsolidated Total Assets, unconsolidated
External Assets, unconsolidated External Sales and
unconsolidated EBITDA of that Subsidiary will be determined from
such Subsidiary's latest financial statements, and in the case
of unconsolidated EBITDA and unconsolidated External Sales, for
the period consisting of the four fiscal quarters ended on or
(in the case of an Interim Test Date) prior to the Guarantor
Test Date (or, in the case of unconsolidated EBITDA for any
Guarantor Test Date prior to December 31, 2005, the period
consisting of each completed fiscal quarter of the Issuer
commencing on or after January 1, 2005);
(5) the aggregate of the unconsolidated Total Assets of the Issuer
and each of its Subsidiaries, and the consolidated External
Assets, consolidated External Sales and Consolidated EBITDA of
the Issuer and its Subsidiaries, taken as a whole, will be
determined from the Issuer's latest consolidated financial
statements, and, in the case of consolidated External Sales and
Consolidated EBITDA, for the period consisting of the four
fiscal quarters ended on or (in the case of an Interim Test
Date) prior to the Guarantor Test Date (or, in the case of
Consolidated EBITDA for any Guarantor Test Date prior to
December 31, 2005, the period consisting of each completed
fiscal quarter of the Issuer commencing on or after January 1,
2005), adjusted (where appropriate) to reflect the Total Assets,
External Assets, External Sales and EBITDA of any Significant
Subsidiary (or assets, properties or rights that would, if held
by a single Subsidiary of the Issuer, constitute a Significant
Subsidiary) that has been subsequently disposed of or acquired;
and
(6) the Issuer shall not be obliged to meet the requirements of
subclause (2) of clause (a) of this Section 4.13 in respect of
any Subsidiary of the Issuer that would otherwise be required to
provide a Guarantee of the Junior Notes thereunder if:
(i) such Subsidiary cannot provide a Guarantee of the Junior
Notes by reason of any legal or regulatory impediment
which is beyond the reasonable control of the Issuer and
its Subsidiaries;
(ii) such Subsidiary cannot provide a Guarantee of the Junior
Notes by reason of any contractual restriction or
obligation in effect prior to the Scheme Launch Date,
provided that the Issuer certifies in the Officers'
Certificate required to be delivered by this subclause
(6) of clause (c) of this Section 4.13 that such
restriction or obligation was in existence prior to the
Scheme Launch Date;
(iii) in respect of any Person that becomes a Subsidiary of
the Issuer after the Issue Date, such Subsidiary cannot
meet such requirements by reason of any contractual
restriction or obligation that was in existence when
that Person became a Subsidiary of the Issuer, provided
that such contractual restriction or obligation was not
created in contemplation of or in connection with that
Person becoming a Subsidiary of the Issuer and such
restriction or obligation continues in effect; or
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(iv) there is any material risk that the directors of such
Subsidiary could be held to be in breach of applicable
corporate, criminal or other law as a result of such
Subsidiary providing a Guarantee of the Junior Notes.
The Issuer shall deliver an Officers' Certificate to the Trustee
supplying details of the relevant Subsidiary of the Issuer and
the relevant circumstances affecting such Subsidiary no later
than the applicable Guarantor Certification Date in the event
that any such Subsidiary does not provide a Guarantee of the
Junior Notes by virtue of this subclause (6) of clause (c) of
this Section 4.13.
SECTION 4.14. Requirements with respect to Additional Guarantors.
(a) The Issuer shall ensure that any of its Subsidiaries that Guarantees any
of the Junior Notes after the Issue Date:
(1) executes and delivers supplemental indentures to this Indenture
and, if at such time there are any Senior Notes Outstanding
(within the meaning of the Senior Note Indenture), the Senior
Note Indenture pursuant to which it becomes a Guarantor of the
Junior Notes and, if at such time there are any Senior Notes
Outstanding (within the meaning of the Senior Note Indenture),
the Senior Notes, in each case, in form and substance reasonably
satisfactory to the Security Trustee;
(2) executes and delivers a Guarantee of the Junior Notes and, if at
such time there are any Senior Notes Outstanding (within the
meaning of the Senior Note Indenture), a Guarantee of the Senior
Notes in form and substance reasonably satisfactory to the
Senior Note Trustee (which, for the avoidance of doubt, may be
an accession letter to such Guarantee); and an accession letter
to the Composite Guarantee in form and substance reasonably
satisfactory to the Security Trustee; and
(3) becomes a party to the Security Trust and Intercreditor Deed and
the Agency Agreement.
(b) On or prior to the date on which any Additional Guarantor executes a
supplemental indenture to this Indenture to Guarantee the Junior Notes
and, if at such time there are any Senior Notes Outstanding (within the
meaning of the Senior Note Indenture), a supplemental indenture to the
Senior Note Indenture to Guarantee the Senior Notes, the Issuer shall,
and shall procure that its relevant Subsidiaries (including the
Additional Guarantor), execute and deliver to the Security Trustee, on
behalf of the Note Trustees (for the benefit of the Holders of the
Junior Notes and, if at such time there are any Senior Notes Outstanding
(within the meaning of the Senior Note Indenture) the holders of the
Senior Notes) and the other Secured Creditors, Security Documents that
provide security (the "NEW SECURITY") for the obligations of such
Additional Guarantor under its Guarantee of the Senior Notes, its
Guarantee of the Junior Notes and its Guarantee of the other Secured
Obligations, which complies with the requirements set forth in this
Section 4.14, including subclauses (1) to (8) of clause (c) of this
Section 4.14. The Issuer shall deliver, on each date on which an
Additional Guarantor executes a supplemental indenture to this Indenture
and a Guarantee of the Junior Notes, to the Trustee an
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Officers' Certificate stating that the Issuer and its relevant
Subsidiaries have complied with this Section 4.14 and an Opinion of
Outside Counsel in form and substance reasonably satisfactory to the
Trustee with respect to the validity of such Guarantee of the Junior
Notes and any New Security.
The New Security shall be subject to the general principles in subclause
(4) of Clause (c) of this Section 4.14, below, and shall consist of:
(1) share pledges over the Equity Interests in such Additional
Guarantor;
(2) fixed security over any key freehold or leasehold real property
(determined by reference to whether such property is key to the
business of the Group as a whole) owned or leased by such
Additional Guarantor;
(3) with respect to any Additional Guarantor that is incorporated or
organized under the laws of England, the Republic of Ireland,
any state of the United States, Australia, Canada or Hong Kong
or any other jurisdiction in which a floating charge (or similar
security) is recognized, floating charges (or similar types of
security) over all or substantially all of the assets of such
Additional Guarantor; and
(4) with respect to any Additional Guarantor that is incorporated or
organized under the laws of Italy, Germany or any other
jurisdiction in which a floating charge (or similar security) is
not recognized, security over all material assets (including
Equity Interests in any Wholly-Owned Subsidiary of such
Additional Guarantor that is directly owned by such Additional
Guarantor, receivables, bank accounts, Intellectual Property and
movables) of such Additional Guarantor.
In addition, the Issuer shall, and shall cause each of its relevant
Subsidiaries to, take all necessary action to ensure that the
organizational documents of any Subsidiary of the Issuer whose Equity
Interests are the subject of a share pledge shall not contain any
restrictions or limitations on the transfer of the pledged Equity
Interests, including any transfer pursuant to any enforcement of such
share pledge.
(c) For the purposes of clause (b) of this Section 4.14:
(1) Share Pledges. With respect to share pledges over Equity
Interests, unless required by applicable law as the only means
of procuring a security interest, but provided also that the
Security Trustee shall not be required to accept such transfer
if it may be prejudiced thereby, the taking of security shall
not require transfer of legal title to the pledged Equity
Interests to the Security Trustee. Until the occurrence of an
Enforcement Event, (a) the pledgor of Equity Interests
constituting New Security shall be permitted to exercise voting
rights with respect to the Equity Interests pledged in such
manner as it sees fit, provided that such exercise would not
constitute a Default under any Relevant Document; (b) the
pledgor of the Equity Interests constituting the New Security
shall be permitted to receive and retain dividends and other
distributions on such Equity Interests except to the extent
otherwise required by Section 4.02
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(Asset Sales); and (c) to the extent that legal title to the
pledged Equity Interests is vested in the Security Trustee, the
documentation of the pledge of such Equity Interests shall
provide that the Security Trustee, as the holder of such Equity
Interests, shall (subject to the terms of the Security Trust and
Intercreditor Deed) be required to pay all dividends and
distributions on such Equity Interests and exercise all voting
and other rights with respect to such Equity Interests in such
manner as the pledgor of such Equity Interests may reasonably
direct, provided that any such action by the Security Trustee
would not result in a default under any Relevant Document.
(2) Bank Accounts. With respect to bank accounts, all security over
such accounts shall permit the relevant Additional Guarantor to
operate those accounts freely without reference to the Security
Trustee prior to a notice being delivered by the Security
Trustee to such Additional Guarantor following the occurrence of
an Enforcement Event or an Insolvency Event of Default (as such
term is defined in the Security Trust and Intercreditor Deed)
or, if the Security Trustee is instructed to do so pursuant to
the Security Trust and Intercreditor Deed, at any time after the
occurrence of any Event of Default which is continuing.
(3) Notification/Perfection Requirements. With respect to security
over the following assets, the notification/perfection
requirement shall be as follows:
(a) Initial Notification/Perfection Requirements: In
relation to any jurisdiction where New Security is to be
provided, the relevant Additional Guarantor shall (where
such action is required for the creation, continued
effectiveness or perfection of the New Security), on the
date such Additional Guarantor executes any Relevant
Document:
(i) procure the endorsement of the share pledge on
the Additional Guarantor's and relevant
Wholly-Owned Subsidiaries' share register or
share certificates or deliver share certificates
or blank stock transfer forms and satisfy any
other notification or perfection requirements;
(ii) provide a list of bank accounts and serve
notices of the creation of the relevant security
interest (or permit the Security Trustee to
serve notices) to account banks;
(iii) (in Italy and Germany and in any other
jurisdiction the law of which may impose similar
obligations on an Additional Guarantor) send to
the Security Trustee details of pledged
receivable claims;
(iv) where relevant, notify the insurer of the
assignment or charge of an insurance policy; and
(v) deliver to the Security Trustee real estate
documents of title.
(b) Ongoing Notification/Perfection Requirements in Italy.
Any Additional Guarantor organized or incorporated under
the laws of Italy shall, (A)
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within ten (10) London Business Days of the end of each
calendar quarter, provide to the Security Trustee, (x)
the most recent monthly bank statements from each
account bank and (y) a list of all receivable claims
together with contact details of all debtors, and (B)
within ten (10) London Business Days of the acquisition
of any shares, carry out the steps required to perfect
security over future shareholdings. Any Additional
Guarantor incorporated under the law of any other
jurisdiction where similar on-going requirements apply
to the creation, continued effectiveness or perfection
of New Security shall comply with such requirements.
(4) General Principles. Subject to the terms of the Security Trust
and Intercreditor Deed, any security shall (to the extent
legally possible and without the Security Trustee or the
directors of the relevant Subsidiary of the Issuer being exposed
to material personal risk) secure the obligations of such
Additional Guarantor under the Relevant Documents and shall (to
the extent legally possible and subject to the other provisions
below) create valid, perfected and first priority security over
such assets.
With regard to any security to be provided by an Additional
Guarantor, due regard shall be had to:
(a) any risk that the Security Trustee or the directors of a
Subsidiary of the Issuer being asked to provide or
receive, as the case may be, security could be held to
be in breach of applicable corporate, criminal or other
law in providing such security;
(b) the practicality and costs involved in taking any such
security;
(c) the value of the proposed security to the Secured
Creditors in light of the whole of the security already
provided to them at such time; and
(d) legitimate operational requirements of the Additional
Guarantor;
provided that if security is to be provided by an Additional
Guarantor in any jurisdiction where security has been taken on
the Issue Date, such Additional Guarantor shall grant the same
types of security (assuming such Additional Guarantor has the
same types of assets) pursuant to the same form of documentation
(to the extent reasonably practicable) in such jurisdiction as
the Guarantors organized or incorporated in that jurisdiction as
of the Issue Date unless there has been an amendment to or
change in the laws, regulations or rulings of such jurisdiction,
or any amendment to or change in any position concerning the
administration, application or interpretation of such laws,
regulations or rulings, which amendment or change has become
effective on or after the Issue Date and is relevant to the
granting of security in such jurisdiction (in which case the
security granted by such Additional Guarantor and the
documentation, as applicable, shall take into account any such
amendment or change).
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In the event that the terms of the Senior Note Indenture, this
Indenture, the Senior Notes and the Junior Notes do not restrict
the freedom of an Additional Guarantor to deal in assets over
which security has been granted, the Additional Guarantor shall
have freedom to deal under the terms of the Security Documents
granting New Security.
(5) Security Trustee. To the extent possible, all security shall be
granted in favor of the Security Trustee and not other Secured
Creditors individually. "Parallel debt" provisions shall be
used, which provisions shall be as contained in the Security
Trust and Intercreditor Deed and not the Security Documents
granting New Security. To the extent possible, no action shall
be required to be taken in relation to New Security when any
Secured Creditor transfers any of its participation in any
Relevant Document to another Person.
(6) No Commercial Provisions. The provisions of the Security
Documents granting New Security shall operate only so as to
create and preserve effective security and shall not impose
commercial undertakings or include any provisions which are
credit protections or which seek to preserve the value of
assets, unless those are legally required for the creation,
continued effectiveness or perfection of the New Security.
Representations and further assurance provisions shall be
included in the Security Documents granting New Security to the
extent necessary or desirable to create security under
applicable law. Additional undertakings shall only be included
if they will not unduly interfere with the normal running of the
business of such Additional Guarantor.
(7) Enforcement. All Transaction Security shall only be enforceable
upon an Enforcement Event. Security Documents granting New
Security shall include any limitations on enforcement of
security which are needed in order to give effect to the general
principles in subclause (4) of this clause (c) of this Section
4.14.
(8) Release of Security. The circumstances under which the Security
Trustee shall be required to release New Security, which shall
be as set forth in the Security Trust and Intercreditor Deed,
shall not be included in the Security Documents granting New
Security unless pursuant to applicable law those provisions must
be set forth in such Security Documents in order to give effect
to the provisions set forth in the Security Trust and
Intercreditor Deed or required by applicable law and any such
provisions in any Security Document shall be consistent with
those set forth in the Security Trust and Intercreditor Deed.
SECTION 4.15. Release of Guarantees and Collateral.
Subject to the terms of the Security Trust and Intercreditor Deed, the
Guarantee of the Junior Notes by any Guarantor under this Indenture, and the
Transaction Security that secures such Guarantor's obligation under the
Guarantee of the Junior Notes shall be released upon a sale or other disposition
of all of the Equity Interests of such Guarantor by the Issuer or a Subsidiary
of the Issuer, in compliance, to the extent applicable, with Section 4.02 (Asset
Sales). In addition, subject to the terms of the Security Trust and
Intercreditor Deed, each of the
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Guarantors shall be discharged from its obligations in respect of its Guarantee
of the Junior Notes in the circumstances set forth in Section 9.01 (Satisfaction
and Discharge).
Subject to the terms of the Security Trust and Intercreditor Deed, the
Transaction Security shall be released upon the sale or other disposition of the
assets constituting such Transaction Security by the Issuer or any of its
Subsidiaries in compliance, to the extent applicable, with Section 4.02 (Asset
Sales).
Notwithstanding the foregoing, the Guarantee of the Junior Notes by MCHI
and any Transaction Security related thereto shall be released at the request of
the Issuer upon certification provided by the Issuer to the Security Trustee,
the Trustee and the Senior Note Trustee that, subject to such releases, MCHI has
completed all distributions to the stockholders of MCHI pursuant to and in
accordance with the MCHI Plan of Liquidation and Dissolution.
SECTION 4.16. Limitation on Issuances of Guarantees of Indebtedness.
The Issuer shall not permit any of its Subsidiaries that is not a
Guarantor to, directly or indirectly, Guarantee any Indebtedness of the Issuer
or any Guarantor unless such Subsidiary simultaneously executes and delivers a
supplemental indenture in form and substance reasonably satisfactory to the
Trustee providing for the Guarantee of all Outstanding Junior Notes by such
Subsidiary, which Guarantee will, subject to the terms of the Security Trust and
Intercreditor Deed, be at least pari passu with such Subsidiary's Guarantee of
such other Indebtedness and be secured by New Security in accordance with the
principles set forth in Section 4.14 (Requirements with respect to Additional
Guarantors).
The requirements in this Section 4.16 shall not apply to any
counter-indemnity obligation permitted by clause (11), (12), (14) or (15) of the
definition of Permitted Intra-Group Indebtedness.
SECTION 4.17. Restrictions on Amendments.
The Issuer shall not, and shall not permit any of its Subsidiaries to,
(1) amend, modify or alter the Security Trust and Intercreditor Deed except as
provided for in the Security Trust and Intercreditor Deed or (2) amend, modify
or supplement this Indenture, the Junior Notes or the Guarantee of the Junior
Notes while any Senior Notes are Outstanding (as such term is defined in the
Senior Note Indenture), other than (a) to give effect to required amendments to
the Junior Notes and/or this Indenture as a result of amendments made to the
Senior Notes and/or the Senior Note Indenture pursuant to the provisions of
Section 6.05 (Certain Amendments and Waivers of Senior Notes Binding on the
Junior Notes), (b) to amend or supplement this Indenture, the Junior Notes or
the Guarantee of the Junior Notes in the manner specified in any of clauses (2),
(3), (4), (5) or (6) of the first paragraph in Section 10.02 (Supplemental
Indentures Without Consent of Holders) of this Indenture or (c) with the prior
written consent of the Senior Note Trustee.
SECTION 4.18. Limitation on Business Activities.
The Issuer shall not, and shall not permit any of its Subsidiaries to,
engage in any business other than Permitted Businesses.
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SECTION 4.19. SEC Reports; Other Information.
Whether or not required by the SEC, the Issuer will file with or furnish
to the SEC and furnish to the Trustee:
(a) from and after September 30, 2003, within the applicable period
required for domestic US issuers that are "accelerated filers"
by the rules and regulations of the SEC:
(i) annual reports on Form 10-K (or any successor form) in
respect of each of the Issuer's fiscal years, commencing
with the fiscal year ended ▇▇▇▇▇ ▇▇, ▇▇▇▇,
(▇▇) quarterly reports on Form 10-Q (or any successor form)
in respect of the first three fiscal quarters of each of
the Issuer's fiscal years, commencing with the fiscal
quarter ended September 30, 2003, and
(iii) reports on Form 6-K or 8-K (or any successor form to
either such form) containing the information that would
be required to be filed on Form 8-K if the Issuer were
so required to file Form 8-K (or any successor form to
such form),
in the case of each of (i), (ii) and (iii) containing:
(1) the information required to be contained therein (or
required in such successor form) as if the Issuer were a
domestic US issuer with equity securities registered
pursuant to Section 12(b) of the US Exchange Act and
were not a "foreign private issuer" as such term is
defined by Rule 3b-4 under the US Exchange Act
including, for the avoidance of doubt, in the case of
Form 10-Ks and 10-Qs, consolidated income statements,
consolidated balance sheets and consolidated statements
of cash flows, in each case prepared in accordance with
US GAAP, together with a "Management's Discussion and
Analysis of Financial Condition and Results of
Operations" that meets the requirements of Item 303 of
Regulation S-K ("MD&A") and includes a discussion of
segment information;
(2) certifications applicable to such filings of the
principal executive officer or officers and the
principal financial officer or officers or persons
performing similar functions ("EXECUTIVE OFFICERS") of
the Issuer required under Sections 302 and 906 of the US
▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 as amended from time to time
(or any successor law) and any rules and regulations
adopted thereunder by the SEC or any governmental
authority as if the Issuer were a domestic US issuer
with equity securities registered pursuant to Section
12(b) of the US Exchange Act and were not a "foreign
private issuer"; and
(3) the following supplemental information:
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(A) consolidated income statements, consolidated balance sheets and
consolidated statements of cash flows, in each case prepared in
accordance with US GAAP, in respect of each of (x) the Issuer and
its Non-US Subsidiaries and (y) the US Parent and its
Subsidiaries; provided that the Issuer shall not be required to
include consolidated financial statements for the Issuer and its
Non-US Subsidiaries or the US Parent and its Subsidiaries as of
any date prior to April 1, 2003 or for any period prior to the
fiscal quarter commencing on April 1, 2003; and
(B) an MD&A for each of (x) the Issuer and its Non-US Subsidiaries
and (y) the US Parent and its Subsidiaries, provided that, in
respect of reports relating to fiscal periods ending on or prior
to March 31, 2004 such MD&A will be required to include
discussions of the material changes in financial condition and
results of operations as of or for the fiscal quarter then ended
from the financial condition and results of operations as of or
for the previous fiscal quarter instead of as of or for the
corresponding fiscal quarter in the fiscal year ended March 31,
2003;
and in the case of (iii) containing:
the information required to be contained therein as if the Issuer were
a foreign private issuer except (i) with respect to information
required by Item 7 of Form 8-K or any successor or additional
provision requiring or relating to the furnishing of financial
statements, which shall be prepared as if the Issuer were a domestic
US issuer with equity securities registered pursuant to Section 12(b)
of the US Exchange Act and were not a foreign private issuer, or (ii)
to the extent otherwise required if the Issuer is not actually a
foreign private issuer at such time.
(b) within 90 days after the Issuer's fiscal year ending March 31, 2003,
an annual report on Form 20-F containing:
(i) consolidated income statements, consolidated balance sheets and
consolidated cash flow statements of the Issuer and its
Subsidiaries prepared in accordance with either (x) Floating UK
GAAP, consistently applied, and reconciled to US GAAP in
accordance with the requirements of Item 18 of Form 20-F or (y)
US GAAP (but with any financial statement schedules prepared in
accordance with Floating UK GAAP, consistently applied);
(ii) all non-financial statement disclosures required by Form 10-K
that are not otherwise required to be contained in Form 20-F, as
if the Issuer were a domestic US issuer required to file such
Form 10-K and were not a "foreign private issuer", other than
quarterly financial data required by Item 302 of Regulation S-K;
and
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(iii) certifications of Executive Officers of the Issuer required
under Sections 302 and 906 of the US ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002
as amended from time to time (or any successor law) and any
rules and regulations adopted thereunder by the SEC or any
governmental authority that are applicable to Form 10-K as if
the Issuer were a domestic US issuer with equity securities
registered pursuant to Section 12(b) of the US Exchange Act and
were not a "foreign private issuer";
(c) within 60 days after the Issuer's fiscal quarter ending June 30, 2003,
a quarterly report on Form 6-K containing:
(i) consolidated financial statements of the Issuer and its
Subsidiaries prepared in accordance with either (x) Floating UK
GAAP, consistently applied, and reconciled to US GAAP in
accordance with the requirements of Item 18 of Form 20-F or (y)
US GAAP (but with any financial statement schedules prepared in
accordance with Floating UK GAAP, consistently applied);
(ii) all non-financial statement disclosures required by Form 10-Q as
if the Issuer were a domestic US issuer required to file such
form and were not a "foreign private issuer"; and
(iii) certifications of Executive Officers of the Issuer required
under Sections 302 and 906 of the US ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002
as amended from time to time (or any successor law) and any
rules and regulations adopted thereunder by the SEC or any
governmental authority that are applicable to Form 10-Q as if
the Issuer were a domestic US issuer with equity securities
registered pursuant to Section 12(b) of the US Exchange Act and
were not a "foreign private issuer".
(d) Within three (3) London Business Days after each annual and quarterly
filing described above and within three (3) London Business Days after
the release of its consolidated financial statements for each fiscal
quarter and each fiscal year described in clause (a) of this Section
4.19, the Issuer shall also (1) file a press release with one or more
internationally recognized wire services in connection with such
report and (2) post such press release on its website. In addition,
within three (3) London Business Days after the release of its
consolidated financial statements for each fiscal quarter and each
fiscal year described in clause (a) of this Section 4.19,, the Issuer
shall also host a conference call, at a time during the Business Day
in each of New York City, London and Frankfurt, to discuss the results
for such fiscal quarter or year.
(e) The Issuer will furnish to the Trustee:
(i) audited consolidated financial statements of the Issuer and its
Subsidiaries for each fiscal year prepared in accordance with
Floating UK GAAP, consistently applied, as soon as the Issuer
publicly releases such financial statements, but in any event
within 90 days after the end of such fiscal year; and
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(ii) consolidated financial statements of the Issuer and its
Subsidiaries, which may be unaudited, for the first half of each
of the Issuer's fiscal years prepared in accordance with
Floating UK GAAP, consistently applied, as soon as the Issuer
publicly releases such financial statements, but in any event
within 60 days after the end of such fiscal half year.
SECTION 4.20. Use of Intellectual Property.
Each license or sublicense, directly or indirectly, of Intellectual
Property (other than trade and service marks) between or among the Issuer and
any of its Subsidiaries (or between or among its Subsidiaries) on or after the
Issue Date shall be recorded in writing. The Issuer shall procure that the Group
Licence Agreement is not amended or terminated so as to deprive the Issuer or
any of its Subsidiaries of any rights or benefits enjoyed under such licence so
long as any such Group Company remains within the Group.
SECTION 4.21. New Patent Applications.
The Issuer shall procure that all New Patent applications owned by the
Issuer or a Subsidiary of the Issuer incorporated or organized in the United
Kingdom or under the laws of the United States, any state thereof or the
District of Columbia, if not filed in the name of the relevant IPR SPV, will be
assigned to the relevant IPR SPV concurrently with such application, or if that
is not procedurally possible, as soon as reasonably practicable thereafter. The
Issuer shall procure that each Subsidiary of the Issuer filing a Patent
application in the United States, any state thereof, the District of Columbia or
Germany notifies the Security Trustee of the relevant patent office details, the
name of the patentee, the application number and the date of filing.
SECTION 4.22. Assignment of Patents.
The Issuer shall not permit any IPR SPV to transfer, dispose of or grant
any exclusive licence under any Patent such IPR SPV owns, whether to a
Subsidiary of the Issuer or any other Person, other than:
(1) to a Subsidiary of the Issuer in the context of infringement
proceedings against a third party where, absent such transfer,
disposal or grant, substantial damages would be irrecoverable (in
which case the relevant Patent or Patents shall be re-transferred back
to such IPR SPV as soon as such condition no longer prevails);
(2) to a third party or to a Subsidiary of the Issuer, in either case in
connection with any disposal (which is otherwise permitted by this
Indenture) of such Subsidiary or assets, property or rights of such
Subsidiary; or
(3) to a customer of the Issuer or of any Subsidiary of the Issuer where
the Patent has been commissioned by such customer and developed by a
Group Company (whether alone or jointly with the customer) for such
customer's exclusive use pursuant to a development agreement.
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SECTION 4.23. UK IPR Co and US IPR Co.
The Issuer shall procure that the UK IPR Co and the US IPR Co remain
Wholly-Owned Subsidiaries of the Issuer.
SECTION 4.24. Listing.
The Issuer shall (1) use its reasonable endeavours to procure that as soon
as possible on or after the effective date of the Restructuring, the Junior
Notes, excluding the Junior PIK Notes, (2) procure that as of their respective
dates of issuance the Junior PIK Notes, if any, are admitted to the Official
List of the UK Listing Authority and trading on the London Stock Exchange plc
("LSE") and (3) procure that such listings are maintained at all times.
SECTION 4.25. Escrow Agreement.
(1) Not later than the Issue Date, the Issuer will execute and deliver the
Escrow Agreement and, under the terms thereof, establish the Mandatory
Redemption Escrow Account and the Existing Performance Bond Escrow
Account. The Issuer will comply with its obligations under the Escrow
Agreement and use all reasonable efforts to enforce compliance with
the Escrow Agreement by each other party thereto.
(2) The Issuer, notifying the Security Trustee of the same, shall deposit
or cause to be deposited all of the following into the Mandatory
Redemption Escrow Account:
(a) all Cash Collateral Releases, other than Cash Collateral
Releases required to be delivered to the New Bonding Facility
Security Trustee pursuant to clause (5) of this Section 4.25;
and
(b) all Net Proceeds of Asset Sales and all Liquidation Proceeds (in
each case other than Excluded Asset Sale and Liquidation
Proceeds), to the extent required by Section 4.02 (Asset Sales).
(3) If at any time the amount transferred to the New Bonding Facility
Security Trustee to be held as collateral under the New Bonding
Facility Agreement, whether pursuant to Cash Collateral Releases or
otherwise (including all interest earned on all such amounts), exceeds
the lesser of (i) (pound)50 million determined in accordance with the
terms of the Security Agreement (as defined in the New Bonding
Facility Agreement) or (ii) the aggregate facility limit then in
effect under the New Bonding Facility Agreement, the Issuer will cause
the New Bonding Facility Security Trustee to, within three (3)
Business Days, transfer the amount of such excess to the Mandatory
Redemption Escrow Account.
(4) Not later than the Issue Date, the Issuer shall deposit or cause to be
deposited into the Existing Performance Bond Escrow Account an amount
of not less than(pound)41.86 million (or the Sterling Equivalent), to
be applied in the manner set forth under clause (6) of this Section
4.25.
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(5) The Issuer shall transfer or cause to be transferred to the New
Bonding Facility Security Trustee all Cash Collateral Releases (other
than Cash Collateral Releases described in clause (2) of the
definition thereof), until the aggregate of all such Cash Collateral
Releases, including all amounts transferred from the Existing
Performance Bond Escrow Account to the New Bonding Facility Security
Trustee (including all interest earned on such amounts), is equal to
the New Bonding Facility Funding Amount.
(6) On the first anniversary of the Issue Date, or, if such date is not a
London Business Day, the preceding London Business Day, the Issuer
shall assure that the Security Trustee instructs the Escrow Bank to
transfer all amounts standing to the credit of the Existing
Performance Bond Escrow Account on that date (a) first, the amount
that is certified by the New Bonding Facility Security Trustee to the
Security Trustee as being, together with all other Cash Collateral
Releases transferred to the New Bonding Facility Security Trustee
since the Issue Date (together with all interest earned on such
transferred amounts), equal to the New Bonding Facility Funding Amount
to the New Bonding Facility Security Trustee in accordance with the
terms of the Escrow Agreement, and (b) second, to the extent of any
amount remaining after giving effect to subclause (a) of this clause
(6), to the Mandatory Redemption Escrow Account.
(7) All Cash Collateral Releases that constitute cash or Cash Equivalents
other than British pounds sterling, Euro or United States dollars and
that are required to be deposited into the Mandatory Redemption Escrow
Account shall be converted into British pounds sterling, Euro or
United States dollars, at the option of the Issuer, by or on behalf of
the Issuer or its Subsidiaries on or prior to deposit of such into the
Mandatory Redemption Escrow Account.
SECTION 4.26. Payment of Principal, Premium, Interest and Additional Amounts.
The Issue hereby covenants and agrees for the benefit of the Holders of all
Junior Notes that it will duly and punctually pay the principal of (and premium,
if any), interest and Additional Amounts, if any, on the Junior Notes in
accordance with the terms of the Junior Notes and this Indenture.
SECTION 4.27. Maintenance of an Office or Agency in the City of New York and the
City of London.
The Issuer will maintain in each Place of Payment an office or agency where
Global Junior Notes may be presented or surrendered for payment to the Paying
Agent, where Global Junior Notes may be surrendered for transfer or exchange and
where notices and demands to or upon the Issuer in respect of the Global Junior
Notes and this Indenture may be served. At the option of the Issuer in the case
of Definitive Registered Junior Notes, payment of any interest thereon may be
made by check mailed to the address of the Person entitled herein as such
address shall appear in the Register, unless such Person requests payment by
wire transfer pursuant to Section 2.09 (Payment; Interest Rights Preserved).
Such office or agency in each Place of Payment initially shall be (i) in New
York, The Bank of New York, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, and (ii) in
London, The Bank of ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇. The Issuer will
maintain in the Borough of Manhattan, The City of New York,
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an office or agency where notices and demands to or upon the Issuer in respect
of the Junior Notes and this Indenture may be served. The Issuer will give
prompt written notice to the Trustee of the location, and any change in the
location, of any such office or agency. If at any time the Issuer shall fail to
maintain any such required office or agency or shall fail to furnish the Trustee
with the address thereof, such presentations, surrenders, notices and demands
may be made or served at the Corporate Trust Office of the Trustee, and the
Issuer hereby appoints the Trustee as its agent to receive all such
presentations, surrenders, notices and demands.
SECTION 4.28. Money for Payments to Be Held in Trust.
Whenever the Issuer shall have a Paying Agent for the Junior Notes it will,
no later than 10:00 am New York City time on the Business Day preceding each due
date for payment of the principal of (and premium, if any), interest or
Additional Amounts, if any, on the Junior Notes, deposit with the Paying Agent
in New York a sum sufficient to pay the principal (and premium, if any),
interest or Additional Amounts, if any, so becoming due, such sum to be held as
provided by the Trust Indenture Act, and (unless such Paying Agent is the
Trustee) the Issuer will promptly notify the Trustee of its action or its
failure so to act.
The Issuer will cause each Paying Agent for the Junior Notes, other than
the Trustee, to execute and deliver to the Trustee an instrument in which such
Paying Agent shall agree with the Trustee, subject to the provisions of this
Section 4.28, that such Paying Agent will:
(a) comply with the provisions of the Trust Indenture Act applicable to it
as Paying Agent;
(b) during the continuance of any Default by the Issuer or any Guarantor
(or any other obligor upon the Junior Notes) in the making of any
payment in respect of the Junior Notes, and upon written request of
the Trustee, forthwith pay to the Trustee all sums so held in trust by
such Paying Agent for payment in respect of the Junior Notes.
The Issuer may at any time, for the purpose of obtaining the satisfaction
and discharge of this Indenture or for any other purpose, pay, or by Issuer
Request direct the Paying Agent to pay, to the Trustee all sums held in trust by
such Paying Agent, such sums to be held by the Trustee upon the same trusts as
those upon which such sums were held by such Paying Agent; and, upon such
payment by any Paying Agent to the Trustee such Paying Agent shall be released
from all further liability with respect to such money.
Any money deposited with the Trustee or any Paying Agent in trust for the
payment of the principal of (and premium, if any), interest or Additional
Amounts, if any, on any Junior Notes and remaining unclaimed for two years after
such principal (and premium, if any), interest or Additional Amounts, if any,
have become due and payable shall be paid to the Issuer on Issuer Request; and
the Holder of such Junior Notes shall thereafter, as an unsecured general
creditor, look only to the Issuer for payment thereof, and all liability of the
Trustee or such Paying Agent with respect to such trust money, and all liability
of the Issuer as trustee thereof, shall thereupon cease; provided, however, that
the Trustee or such Paying Agent, before being required to make any such
repayment, may at the expense of the Issuer give to each such Holder in the
manner provided in this Indenture, notice that such money remains unclaimed and
that,
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after a date specified therein, which shall not be less than 30 days after
the date of such notification, publication and mailing, any unclaimed balance of
such money then remaining will promptly be repaid to the Issuer.
SECTION 4.29. Maintenance of Corporate Existence.
The Issuer shall do or cause to be done all things necessary and reasonably
practicable to preserve and keep in full force and effect the corporate
existence and related rights and franchises (charter and statutory) of the
Issuer and each of its Subsidiaries; provided, however, that the Issuer shall
not be required to preserve any such right or franchise or the corporate
existence of any such Subsidiary (other than any Guarantor) if the Board of
Directors of the Issuer shall determine that the preservation thereof is no
longer necessary or desirable in the conduct of the business of the Issuer and
its Subsidiaries as a whole and that the loss thereof would not reasonably be
expected to have a material adverse effect on the ability of the Issuer or any
Guarantor to perform their respective obligations under this Indenture, the
Junior Notes or the Guarantee of the Junior Notes; and provided, further, that
the foregoing shall not prohibit a sale, transfer or conveyance of a Subsidiary
of the Issuer or any of its assets in compliance with the terms of this
Indenture.
SECTION 4.30. Payment of Taxes and Other Claims.
The Issuer shall pay or discharge or cause to be paid or discharged, on or
before the date the same shall become due and payable, (1) all Taxes,
assessments and governmental charges levied or imposed upon the Issuer or any of
its Subsidiaries shown to be due on any return of the Issuer or any of its
Subsidiaries if failure to pay or discharge the same would be reasonably likely
to have a material adverse effect on the ability of the Issuer or any Guarantor
to perform their respective obligations under this Indenture, the Junior Notes
or the Guarantee of the Junior Notes and (2) all lawful claims for labor,
materials and supplies, which, if unpaid, would by law become a Lien upon the
property of the Issuer or any of its Subsidiaries, except for any Lien permitted
to be incurred under Section 4.08 (Limitation on Liens), if failure to pay or
discharge the same would be reasonably likely to have a material adverse effect
on the ability of the Issuer or any Guarantor to perform their respective
obligations under this Indenture, the Junior Notes or the Guarantee of the
Junior Notes; provided, however, that the Issuer shall not be required to pay or
discharge or cause to be paid or discharged any such Tax, assessment, charge or
claim whose amount, applicability or validity is being contested in good faith
by appropriate proceedings properly instituted and diligently conducted and in
respect of which appropriate reserves (in the good faith judgment of management
of the Issuer) are being maintained in accordance with Floating UK GAAP.
SECTION 4.31. Maintenance of Properties.
The Issuer shall cause all material properties owned by the Issuer or any
of its Subsidiaries or used or held for use in the conduct of its business or
the business of any of its Subsidiaries to be maintained and kept in reasonably
good condition, repair and working order (ordinary wear and tear excepted) and
supplied with all reasonably necessary equipment and will cause to be made all
reasonably necessary repairs, renewals, replacements, betterments and
improvements thereof, all as in the reasonable judgment of the Issuer may be
consistent with sound business practice and necessary so that the business
carried on in connection therewith may be properly conducted; provided, however,
that nothing in this Section 4.31 shall prevent
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the Issuer from discontinuing the operation or maintenance of any of such
properties if such discontinuance is, in the reasonable judgment of the Board of
Directors of the Issuer acting in good faith, desirable in the conduct of its
business or the business of any of its Subsidiaries and would not be reasonably
likely to have a material adverse effect on the ability of the Issuer or any
Guarantor to perform their respective obligations under this Indenture, the
Junior Notes or the Guarantee of the Junior Notes; provided, further, that the
foregoing shall not prohibit a sale, transfer or conveyance of a Subsidiary of
the Issuer or any of its properties or assets in compliance with the terms of
this Indenture.
SECTION 4.32. Maintenance of Insurance.
The Issuer shall at all times keep all of its and its Subsidiaries'
properties which are of an insurable nature insured with insurers, believed by
the Issuer in good faith to be financially sound and responsible, against loss
or damage to the extent that property of similar character is usually so insured
by corporations similarly situated and owning like properties in the same
general geographic areas in which the Issuer and its Subsidiaries operate,
except where the failure to do so would not be reasonably likely to have a
material adverse effect on the condition (financial or otherwise), earnings,
business affairs or prospects of the Issuer and its Subsidiaries, taken as a
whole.
SECTION 4.33. Payments of Renewals and other Fees in Relation to Intellectual
Property and other Matters.
The Issuer shall at all times use its commercially reasonable discretion to
maintain all of the registered Intellectual Property of the Group and shall
procure that its Subsidiaries maintain all of their registered Intellectual
Property in accordance with the directions of the Issuer. The Issuer shall apply
the policies for maintaining the registered Intellectual Property of the Group
as they were applied to such registered Intellectual Property during the 12
month period immediately preceding the date of this Indenture.
SECTION 4.34. Provision of Opinions.
The Issuer shall deliver to the Trustee and the Security Trustee on the
Issue Date (1) an Opinion of Counsel to the Issuer under English law, (2) an
Opinion of Counsel to each Initial Guarantor under English law, (3) an Opinion
of Counsel to the Issue and each Guarantor under Delaware, New York State and
United States federal law, and (4) an Opinion of Counsel to each Guarantor,
other than Guarantors incorporated or organized under the laws of
England and
Wales, under the laws of the jurisdiction or organization of such Guarantors, in
all respects satisfactory to ▇▇▇▇▇▇▇▇ Chance Limited Liability Partnership,
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ LLP and White & Case LLP.
SECTION 4.35. Currency Indemnity.
All sums payable by the Issuer or the Guarantors under the Junior Notes,
the Guarantee of the Junior Notes and this Indenture shall be payable in the
Relevant Currency. Any amount received or recovered in a currency other than the
Relevant Currency with respect to the Junior Notes (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 the Holder of such Junior Notes in respect of any
sum expressed to be
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due to it from the Issuer or any Guarantor shall constitute a discharge of the
Issuer or any 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 under any Junior Note, the
Issuer and each Guarantor, jointly and severally, shall indemnify the recipient
against the cost of making any such purchase. For the purposes of this
indemnity, it will be sufficient for the Holder 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 the Issuer and each Guarantor; (2) shall give rise to a separate and
independent cause of action; (3) shall apply irrespective of any waiver granted
by any Holder of Junior Notes; 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 sum due under any Junior Note, or any other judgment or order.
SECTION 4.36. Additional Amounts.
All payments made under, or with respect to, the Junior Notes and the
Guarantee of the Junior Notes will be made free and clear of, and without
withholding or deduction for or on account of, any present or future Taxes,
unless the Issuer or any Guarantor is required to withhold or deduct Taxes by
law or by the interpretation or administration thereof. If the Issuer or any
Guarantor is required to withhold or deduct any amount for, or on account of,
Taxes imposed by the United Kingdom or by any other jurisdiction in which the
Issuer or any Guarantor is organized or resident for Tax purposes or any
political subdivision thereof or any Taxing Authority therein (each, a "Relevant
Taxing Jurisdiction"), from any payment made under or with respect to the Junior
Notes or the Guarantee of the Junior Notes, the Issuer or the Guarantor will pay
such additional amounts ("Additional Amounts") as may be necessary so that the
net amount received by each Holder (including Additional Amounts) after such
withholding or deduction will equal the amount the Holder would have received
had no such withholding or deduction been required; provided, however, that no
Additional Amounts will be payable with respect to any Tax:
(1) that would not have been imposed, payable or due:
(a) but for the existence of any connection between the Holder (or
the Beneficial Owner of, or Person ultimately entitled to obtain
an interest in, the Junior Notes or the Guarantee of the Junior
Notes) and the Relevant Taxing Jurisdiction (including being a
citizen or resident or national of, or carrying on a trade or
business or maintaining a permanent establishment or fixed base
in, or being physically present in, or having made an election,
the effect of which is to subject the Holder to such Taxes in, in
each case whether by himself or through an agent, of the Relevant
Taxing Jurisdiction) other than the mere holding of the Junior
Notes or the
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Guarantee of the Junior Notes or enforcement of rights
thereunder or the receipt of payments in respect thereof;
(b) if the presentation of the Junior Notes (where presentation is
required) for payment had occurred within 30 days after the date
such payment was due and payable or was duly provided for,
whichever is later except to the extent that the Holder of such
Junior Notes would have been entitled to such Additional Amounts
on presenting such Junior Notes for payment on the last day of
such period of 30 days; or
(2) on a payment to an individual where such withholding or deduction is
required to be made pursuant to any European Union Directive on the
taxation of savings implementing the conclusions of the ECOFIN Council
meeting of November 26-27, 2000 or any law implementing or complying
with or introduced in order to conform to, such Directive; or
(3) if the Holder of the Junior Note would have been able to avoid such
withholding or deduction by presenting the Junior Note to another
Paying Agent in a money-center in a member state of the European
Union; or
(4) where the payment of such Additional Amounts is prevented by any
combination of (1), (2) or (3).
With respect to paragraph (3) above, the Issuer shall undertake to ensure
that it maintains a Paying Agent in a European Union member state that will not
be obliged to withhold or deduct tax pursuant to the European Union Directive.
If the Issuer or any Guarantor will be obliged to pay Additional Amounts
with respect to any payment under or with respect to the Junior Notes or its
Guarantee of the Junior Notes, the Issuer or such Guarantor will deliver to the
Trustee at least 30 days prior to the date of that payment (unless the
obligation to pay Additional Amounts arises after the 30th day prior to that
payment date, in which case the Issuer or such Guarantor shall notify the
Trustee promptly thereafter) an Officers' Certificate stating the fact that
Additional Amounts will be payable and the amount so payable. The Officers'
Certificate shall also set forth any other information necessary to enable the
Paying Agent to pay Additional Amounts to Holders on the relevant payment date.
The Issuer or such Guarantor will make all required withholdings and
deductions and will remit the full amount deducted or withheld to the relevant
authority in accordance with applicable law. The Issuer and such Guarantor will
use their respective reasonable efforts to obtain certified copies of tax
receipts evidencing the payment of any Taxes so deducted or withheld from each
Taxing Authority. The Issuer or the relevant Guarantor will furnish to the
Trustee, within 60 days after the date the payment of any Taxes so deducted or
withheld is due pursuant to applicable law, certified copies of tax receipts
evidencing payment by the Issuer or such Guarantor, or if, notwithstanding the
Issuer's and such Guarantor's efforts to obtain receipts, receipts are not
obtained, other evidence of payments by the Issuer or such Guarantor.
The Issuer or any Guarantor will pay any stamp duty reserve tax, stamp
duty, court or documentary taxes, or any other excise or property taxes, charges
or similar levies or Taxes
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which arise from the initial execution, delivery or registration of the Junior
Notes and the enforcement of the Junior Notes following the occurrence of any
Event of Default.
Whenever in this Indenture or in any Junior Notes there is mentioned, in
any context, the payment of amounts based upon the principal amount of such
Junior Notes or of principal, interest, premium, if any, or of any other amount
payable under, or with respect to, the Junior Notes, such mention shall be
deemed to include mention of the payment of Additional Amounts to the extent
that, in such context, Additional Amounts are, were or would be payable in
respect thereof.
The obligations described under this Section 4.36 shall survive any
termination, defeasance or discharge of this Indenture and shall apply mutatis
mutandis to any jurisdiction in which any successor Person to the Issuer is
organized or any political subdivision or Taxing Authority or agency thereof or
therein.
SECTION 4.37. Further Instruments and Acts.
Upon request of the Trustee, the Issuer and each Guarantor shall execute
and deliver such further instruments and do such further acts as may be
reasonably necessary or proper to carry out more effectively the purpose of this
Indenture.
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ARTICLE 5
MERGER, CONSOLIDATION OR SALE OF ASSETS
SECTION 5.01. Merger, Consolidation or Sale of Assets.
The Issuer shall not, in a single transaction or through a series of
related transactions, directly or indirectly, (1) consolidate, merge or
reorganize with or into another Person (whether or not the Issuer is the
surviving corporation) or (2) sell, assign, transfer, convey, lease or otherwise
dispose of all or substantially all of the properties or assets of the Issuer
and its Subsidiaries, taken as a whole, in each case unless immediately prior
to, or contemporaneously with, such transaction or series of related
transactions, all Outstanding Junior Notes and, simultaneously therewith, all
outstanding Senior Notes are redeemed, in each case upon not less than ten (10)
but not more than thirty (30) days notice, at a redemption price in cash equal
to the Optional Redemption Price for such Junior Notes and the Optional
Redemption Price (as defined in the Senior Note Indenture) for such Senior
Notes.
For purposes of this Section 5.01, any US Core Business Sale will not be
considered a sale of "all or substantially all" of the properties or assets of
the Issuer and its Subsidiaries taken as a whole.
The Issuer shall not permit any of its Subsidiaries, in a single
transaction or through a series of related transactions, to, directly or
indirectly, consolidate, merge or reorganize with or into another Person unless
the provisions of clause (1) or (2) below are satisfied:
(1) Such consolidation, merger or reorganization complies with Section
4.02 (Asset Sales) or is excluded from the definition of Asset Sale
pursuant to clause (1), (4) or (8) of the second paragraph of the
definition thereof; or
(2) (a) in the case of a consolidation, merger or reorganization of a
Non-US Subsidiary with or into another Person, such other Person
is a Non-US Subsidiary, and if either of such Non-US
Subsidiaries is a Non-US Guarantor, the Person formed by or
surviving such consolidation, merger or reorganization is a
Non-US Guarantor;
(b) in the case of a consolidation, merger or reorganization of a US
Subsidiary with or into another Person, such other Person is a
US Subsidiary, and if either of such US Subsidiaries is a US
Guarantor, the Person formed by or surviving such consolidation,
merger or reorganization is a US Guarantor (provided that a US
Core Business Subsidiary may not consolidate, merge or
reorganize with (i) any US Core Business Subsidiary engaged in
any other US Core Business or (ii) the US Parent);
(c) if the Person formed by or surviving such consolidation, merger
or reorganization is a Guarantor, such Guarantor shall have
executed and delivered a written instrument in form and
substance reasonably satisfactory to the Trustee confirming that
such Guarantor's obligations under the applicable Security
Documents, the Security Trust and Intercreditor Deed, this
Indenture, its Guarantee of the Junior Notes, its Guarantee of
the Senior Notes (if there are then any Senior Notes
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outstanding) and the Composite Guarantee remain valid and, where
such Guarantor is not bound by the Security Documents entered
into by the party to such consolidation, merger or
reorganization or the security created by such Security
Documents does not constitute valid and perfected security over
all or substantially all of the assets of such Guarantor, such
Guarantor shall have executed and delivered to the Security
Trustee, on behalf of the Note Trustees (for the benefit of the
Holders of the Junior Notes and the holders of the Senior Notes
if there are then any Senior Notes outstanding) and the other
Secured Creditors, Security Documents that provide New Security
for the obligations of such Guarantor under its Guarantee of the
Junior Notes, its Guarantee of the Senior Notes and the
Composite Guarantee, which complies, if so required to comply,
with the requirements set forth in Section 4.14 (Requirements
with respect to Additional Guarantors), including subclauses (1)
to (8) of clause (c) thereof, as if such Guarantor were an
Additional Guarantor; and
(d) immediately after such transaction, no Default exists or will
result from such transaction.
The Issuer shall not, and shall not permit any of its Subsidiaries, in a
single transaction or through a series of related transactions, to, directly or
indirectly, sell, assign, transfer, convey, lease or otherwise dispose of all or
substantially all of the properties or assets of any Subsidiary of the Issuer,
in one or more related transactions, to another Person unless the provisions of
clause (1) or (2) below are satisfied:
(1) such sale, assignment, transfer, conveyance, lease or other disposal
complies with Section 4.02 (Asset Sales) or is excluded from the
definition of Asset Sale pursuant to clause (1), (4) or (8) of the
second paragraph of the definition thereof; or
(2) (a) in the case of a sale, assignment, transfer, conveyance, lease
or other disposition of all or substantially all of the
properties or assets of a Non-US Subsidiary, the Person
acquiring the properties or assets is the Issuer or a Non-US
Subsidiary or, in the case of the sale, assignment, transfer,
conveyance, lease or other disposition of Equity Interests of
Marconi Communications, Inc., the US Parent;
(b) in the case of a sale, assignment, transfer, conveyance, lease
or other disposition of all or substantially all of the
properties or assets of a US Subsidiary, the Person acquiring
the properties or assets is a US Subsidiary (provided that a US
Core Business Subsidiary may not sell, assign, transfer, convey,
lease or otherwise dispose of all or substantially all of its
property or assets to another US Subsidiary unless such US
Subsidiary is a US Core Business Subsidiary engaged in the same
US Core Business);
(c) each transferor and transferee that is a Guarantor shall have
executed and delivered a written instrument in form and
substance reasonably satisfactory to the Trustee confirming that
its obligations under the applicable Security Documents covering
properties or assets such
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Guarantor owns after the transaction, the Security Trust and
Intercreditor Deed, this Indenture, its Guarantee of the Junior
Notes, its Guarantee of the Senior Notes (if there are any
Senior Notes outstanding) and the Composite Guarantee remain
valid and, where the Security Documents entered into by the
transferee Guarantor do not create valid and perfected security
over or in respect of the relevant properties and/or assets
transferred to the transferee Guarantor, such transferee
Guarantor shall have executed and delivered to the Security
Trustee, on behalf of the Note Trustees (for the benefit of the
Holders of the Junior Notes and the holders of the Senior Notes
if there are any Senior Notes outstanding) and the other Secured
Creditors, Security Documents that provide New Security for the
obligations of such Guarantor under its Guarantee of the Junior
Notes, its Guarantee of the Senior Notes and the Composite
Guarantee, which complies, if so required to comply, with the
requirements set forth in Section 4.14 (Requirements with
respect to Additional Guarantors), including subclauses (1) to
(8) of clause (c) thereof, as if such Guarantor were an
Additional Guarantor; and
(d) immediately after such transaction, no Default exists or will
result from such transaction.
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ARTICLE 6
DEFAULTS AND REMEDIES
SECTION 6.01. Events of Default.
"Event of Default", wherever used herein with respect to the Junior Notes,
means any one of the following events which shall have occurred and be
continuing (whatever the reason for such Event of Default and whether it shall
be voluntary or involuntary or be effected by operation of law or pursuant to
any judgment, decree or order of any court or any order, rule or regulation of
any administrative or governmental body):
(1) default for 14 days or more in the payment when due of any interest
on, or Additional Amounts with respect to, any Junior Note;
(2) default in the payment when due of all or any part of the principal of
or premium, if any, on, any Junior Note, whether at Stated Maturity,
upon acceleration, optional or mandatory redemption, if any, or
otherwise including for these purposes, the failure to call the Junior
Notes for redemption in accordance with the provisions set forth in
Section 3.09 (Mandatory Redemption upon Change of Control) or Section
4.02 (Asset Sales);
(3) failure by the Issuer or any of its Subsidiaries to comply with the
provisions set forth in Section 5.01 (Merger, Consolidation or Sale of
Assets), provided that, with respect to any failure to comply that is
capable of being remedied, such failure shall not become an Event of
Default unless it continues unremedied for a period of 30 days;
(4) failure by the Issuer or any of its Subsidiaries to comply with any of
the other covenants or agreements in this Indenture or the Junior
Notes (a) (i) for 90 days after notice from the Trustee or the
Required Holders of at least 35% in aggregate principal amount of the
then Outstanding Junior Notes or (ii) for 30 days after notice from
the Required Holders of at least 66-2/3% in aggregate principal amount
of the then Outstanding Junior Notes, in the case of each of clause
(a)(i) and (a)(ii) if there are any Senior Notes Outstanding (as such
term is defined in the Senior Note Indenture) on the date of the
applicable notice or (b) for 30 days after notice from the Trustee or
the Required Holders of at least 25% in aggregate principal amount of
the then Outstanding Junior Notes, if there are no Senior Notes
Outstanding (as such term is defined in the Senior Note Indenture) on
the date of such notice;
(5) default under any mortgage, trust deed, indenture or instrument under
which there may be issued or by which there may be secured or
evidenced any Indebtedness for borrowed money by the Issuer or any of
its Subsidiaries (or the payment of which is Guaranteed by the Issuer
or any of its Subsidiaries) (including, for the avoidance of doubt,
default under any bonding facility, including the New Bonding Facility
Agreement) in each case other than Indebtedness solely between or
among the Issuer and any of its Subsidiaries, whether such
Indebtedness or Guarantee now exists, or is created after the Issue
Date, if that default:
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(a) is caused by a failure to pay principal of, or interest or
premium, if any, on, such Indebtedness prior to the expiration
of any applicable grace period provided with respect to such
Indebtedness on the date of such default (a "Payment Default"),
or
(b) results in the acceleration of such Indebtedness prior to its
stated maturity;
and, in each case, the principal amount of any such Indebtedness,
together with the principal amount of any other such Indebtedness
under which there has been a Payment Default or the maturity of which
has been so accelerated, aggregates (pound)15 million (or the Sterling
Equivalent) or more;
(6) failure by the Issuer or any of its Subsidiaries to pay final
judgments aggregating in excess of (pound)15 million (or the Sterling
Equivalent) which judgments remain unpaid or undischarged for a period
of 60 days (not including any period during which such judgments are
stayed);
(7) (a) the Guarantee of the Junior Notes by any Guarantor being held in
any judicial proceeding to be unenforceable or invalid or ceasing for
any reason to be in full force and effect except as expressly
permitted under this Indenture, provided that such unenforceability,
invalidity or cessation shall not become an Event of Default unless it
continues unremedied for a period of 30 days after the Issuer or the
relevant Guarantor has actual knowledge of such unenforceability,
invalidity or cessation or (b) any Person acting on behalf of any
Guarantor denying or disaffirming such Guarantor's obligations under
its Guarantee of the Junior Notes;
(8) entry by a court of competent jurisdiction of (a) a decree or order
for relief in respect of the Issuer, any Guarantor or any Significant
Subsidiary, in an involuntary case or proceeding under any Bankruptcy
Law or (b) a decree or order (i) adjudging the Issuer, any Guarantor
or any Significant Subsidiary bankrupt or insolvent, (ii) approving as
properly filed a petition seeking moratorium, reorganization,
arrangement, adjustment or composition of or in respect of the Issuer,
any Guarantor or any Significant Subsidiary under any Bankruptcy Law,
(iii) appointing a custodian, receiver, manager, liquidator, assignee,
trustee, sequestrator or other similar official of the Issuer, any
Guarantor or any Significant Subsidiary or of any substantial part of
their respective properties, or (iv) ordering the winding up or
liquidation of the affairs of the Issuer, any Guarantor or any
Significant Subsidiary, and in each case any such decree or order for
relief continues to be in effect, or any such other decree or order
continues unstayed and in effect, for a period of 60 consecutive
calendar days, in the case of each of clauses (a) and (b) otherwise
than, (i) in the case of a Subsidiary of the Issuer, for the purposes
of or pursuant to an amalgamation, reorganization or restructuring
while solvent on terms approved by the Trustee or by the Required
Holders of at least 25% in aggregate principal amount of the then
Outstanding Junior Notes or (ii) in furtherance of, or otherwise in
connection with, the liquidation or dissolution of MCHI pursuant to
the MCHI Plan of Liquidation and Dissolution;
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(9) (a) commencement by the Issuer, any Guarantor or any Significant
Subsidiary of a voluntary case or proceeding or process (whether
or not requiring the order of a court or tribunal) under any
Bankruptcy Law or of any other case or proceeding to be
adjudicated bankrupt or insolvent, or filing for or having been
granted a moratorium on payment of its debts or filing for
bankruptcy or being declared bankrupt,
(b) consent by the Issuer, any Guarantor or any Significant
Subsidiary to the entry of a decree or order for relief in
respect of the Issuer, any Guarantor or any Significant
Subsidiary in an involuntary case or proceeding under any
Bankruptcy Law or to the commencement of any bankruptcy or
insolvency case or proceeding against the Issuer, any Guarantor
or any Significant Subsidiary,
(c) filing of a petition or answer or consent by the Issuer, any
Guarantor or any Significant Subsidiary seeking reorganization
or relief under any Bankruptcy Law,
(d) the Issuer, any Guarantor or any Significant Subsidiary (i)
consenting to the filing of a petition seeking reorganization or
relief under any Bankruptcy Law or to the appointment of, or
taking possession by, an administrator, custodian, receiver,
manager, liquidator, assignee, trustee, sequestrator or other
similar official of the Issuer, any Guarantor or such
Significant Subsidiary or of any substantial part of their
respective properties, (ii) making an assignment for the benefit
of its creditors generally or (iii) admitting in writing its
inability to pay its debts generally as they become due,
(e) the approval by stockholders of the Issuer, any Guarantor or any
Significant Subsidiary of any plan or proposal for the
liquidation or dissolution of the Issuer, any Guarantor or any
Significant Subsidiary,
(f) the whole or any substantial part of the assets of the Issuer,
any Guarantor or any Significant Subsidiary being placed under
administration, receivership or administrative receivership, or
(g) the Issuer, any Guarantor or any Significant Subsidiary taking
any corporate action in furtherance of any such actions in
clause (8) above or this clause (9),
in the case of each of clauses (a) through (g) otherwise than (i) in
the case of a Subsidiary of the Issuer, for the purposes of or
pursuant to an amalgamation, reorganization or restructuring while
solvent on terms approved by the Trustee or by the Required Holders of
at least 25% in aggregate principal amount of the then Outstanding
Junior Notes or (ii) in furtherance of, or otherwise in connection
with, the liquidation or dissolution of MCHI pursuant to the MCHI Plan
of Liquidation and Dissolution;
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(10) failure by the Issuer or any of its Subsidiaries to comply with any
material obligations set forth in any Intellectual Property Licence
Agreement that continues unremedied for 30 days after the Issuer has
actual knowledge of such failure;
(11) (a) failure by the Issuer or any of its Subsidiaries to comply with
any material obligation set forth in the Security Trust and
Intercreditor Deed, (b) the Security Trust and Intercreditor Deed
being held in any judicial proceeding to be unenforceable or invalid
or ceasing for any reason to be in full force and effect, or (c) the
Security Trust and Intercreditor Deed being declared null and void,
provided that any such failure, cessation or declaration shall not
become an Event of Default unless it continues unremedied for 30 days
after the Issuer or any of its Subsidiaries has actual knowledge of
such failure, cessation or declaration; and
(12) (a) failure by the Issuer or any of its Subsidiaries to comply with
any material obligation set forth in, or breach by the Issuer or any
of its Subsidiaries of any material provision of, any Security
Document to which the Issuer or such Subsidiary is a party, (b) any of
the Security Documents being held in any judicial proceeding to be
unenforceable or invalid or ceasing for any reason to be in full force
and effect or to secure the payment of the Obligations payable under
the Junior Notes, the Guarantee of the Junior Notes or this Indenture,
(c) except as permitted under this Indenture, any of the Security
Documents ceasing to give the Security Trustee, on behalf of the
Trustee (for the benefit of the Holders of the Junior Notes), any of
the Liens purported to be created thereby or to secure the payment of
the Obligations payable under the Junior Notes, the Guarantee of the
Junior Notes or this Indenture or (d) any of the Security Documents
being declared null and void, provided that, in the case of any such
failure, cessation or declaration that does not materially adversely
affect the rights of the Holders of the Junior Notes, such failure,
cessation or declaration shall not become an Event of Default unless
it continues unremedied for 30 days after the Issuer or any of its
Subsidiaries receives actual knowledge of such cessation or
declaration.
SECTION 6.02. Payment Blockage Provisions.
(a) Subject to, and after giving effect to, the payment from the Mandatory
Redemption Escrow Account described in clause (b) of this Section 6.02,
below, neither the Issuer nor any Subsidiary of the Issuer may pay any
principal of, premium (if any) or interest or Additional Amounts (if any)
on any Junior Notes, other than interest or Additional Amounts paid in the
form of Junior PIK Notes, and none of them 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.
(b) If at any time a Standstill Event has occurred, neither the Issuer nor any
Subsidiary of the Issuer may Pay the Junior Notes (other than, for the
avoidance of doubt, the payment of interest and Additional Amounts, if any,
on the Junior Notes in the form of Junior PIK
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Notes) during the applicable Standstill Period; provided, however, that any
balance in the Mandatory Redemption Escrow Account on the first day of any
Standstill Period, provided that on the preceding day no Standstill Period
was in effect, shall be applied by the Issuer to redeem outstanding Junior
Notes pursuant to Section 3.08 (Mandatory Redemption out of Mandatory
Redemption Account) of this Indenture.
(c) Notwithstanding the provisions described in clause (b) of this Section 6.02
(but subject to the provisions contained in clauses (a) and (d) of this
Section 6.02), unless the Holders of the Senior Notes or the Senior Note
Trustee have accelerated the maturity of the Senior Notes, the Issuer and
the Guarantors 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.
(d) No Default (as such term is defined in the Senior Note Indenture) that
existed or was continuing on the date of the commencement of any Standstill
Period shall be, or be made, the basis of the commencement of a subsequent
Standstill Period by the Senior Note Trustee, unless such Default shall
have been cured or waived for a period of not less than 90 consecutive
days. Except as provided in the preceding sentence, there shall be no limit
on the number or frequency of Standstill Periods that may arise.
SECTION 6.03. Acceleration.
If an Event of Default arising from any event specified in clause (8) or
(9) of Section 6.01 (Events of Default) with respect to the Issuer occurs, the
principal amount of, premium, if any and accrued interest and any Additional
Amounts on all Outstanding Junior Notes shall be due and payable immediately
without any declaration, action or notice on the part of the Trustee or any
Holder of Junior Notes. If any other Event of Default occurs and is continuing
(other than an Event of Default specified in clause (4) of Section 6.01 (Events
of Default)), then in every such case the Trustee or the Required Holders of at
least 25% in aggregate principal amount of the then Outstanding Junior Notes
may, subject to the restrictions of the Security Trust and Intercreditor Deed,
declare, by written notice to the Issuer (and to the Trustee if given by the
Required Holders), the principal amount of, premium, if any, and accrued
interest and any Additional Amounts on all the Junior Notes to be due and
payable immediately unless prior to such date all Events of Default under this
Indenture shall have been cured. If an Event of Default occurs and is continuing
under clause (4) of Section 6.01 (Events of Default), then in every such case
the Trustee or the Required Holders of at least 35% (or, in the event that no
Senior Notes are Outstanding (as such term is defined in the Senior Note
Indenture), 25%) in aggregate principal amount of the then Outstanding Junior
Notes may, subject to the restrictions of the Security Trust and Intercreditor
Deed, declare, by written notice to the Issuer (and to the Trustee if given by
the Required Holders), the principal amount of, premium, if any, and accrued
interest and any Additional Amounts on all the Junior Notes to be due and
payable immediately unless prior to such date all Events of Default under this
Indenture shall have been cured. Upon any such declaration of acceleration, such
principal amount, premium, if any, and accrued interest and any Additional
Amounts on the Junior Notes shall become immediately due and payable, without
presentment, demand, protest or notice of any kind, all of which are hereby
expressly waived.
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If payment of the Junior Notes is accelerated because of an Event of
Default, the Issuer shall promptly notify the Trustee, the Holders of the Junior
Notes, the Senior Note Trustee and the holders of the Senior Notes.
SECTION 6.04. Rescission and Annulment.
At any time after a declaration of acceleration of the Junior Notes has
been made, but before a judgment or decree of payment of the money due has been
obtained by the Trustee, the Required Holders of at least a majority in
aggregate principal amount of the then Outstanding Junior Notes, by written
notice to the Issuer and the Trustee, may rescind and annul such declaration and
its consequences, but only if:
(1) the Issuer has paid or deposited with the Trustee a sum sufficient to
pay (a) all sums paid or advanced by the Trustee under this Indenture
and the reasonable compensation, expenses, disbursements and advances
of the Trustee, its agents and counsel, (b) all overdue interest on
all Junior Notes then Outstanding, (c) the principal of, and premium,
if any, and Additional Amounts, if any, on any Junior Notes then
Outstanding which have become due otherwise than by such declaration
of acceleration and interest thereon at the rate borne by the Junior
Notes, and (d) to the extent that payment of such interest is lawful,
interest upon overdue interest at the Default Rate;
(2) the rescission would not conflict with any judgment or decree of a
court of competent jurisdiction; and
(3) all Events of Default, other than the non-payment of principal of,
premium, if any, and interest and Additional Amounts, if any, on the
Junior Notes which have become due solely by such declaration of
acceleration, have been cured or waived as provided in this Indenture.
No such rescission shall affect any subsequent Default or impair any right
consequent thereon.
SECTION 6.05. Certain Amendments and Waivers of Senior Notes Binding on the
Junior Notes.
Subject to the restrictions in the Security Trust and Intercreditor Deed,
if the Holders of the Senior Notes agree to waive a Default or Event of Default
(as such terms are defined in the Senior Note Indenture) and/or amend the terms
of any covenant in the Senior Notes and/or the Senior Note Indenture to address
the circumstances leading to such Default or Event of Default during any
Standstill Period, the Issuer and the Guarantors promptly shall enter into a
supplemental indenture to this Indenture with the Trustee to amend the Junior
Notes to the same effect, without the consent of the Holders, provided that no
such amendment shall effect any of the changes specified in clauses (1) through
(14), inclusive, of Section 10.01 (Supplemental Indentures With Consent of
Holders) of this Indenture without the consent of each Holder affected thereby.
SECTION 6.06. Collection of Indebtedness and Suits for Enforcement by Trustee.
The Issuer covenants that if:
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(a) default is made in the payment of interest or any Additional Amounts
on any Junior Note when such interest or Additional Amount becomes due
and payable and such default continues for a period of 14 days; or
(b) default is made in the payment of the principal of (or premium, if
any, on) any Junior Note at the maturity thereof,
the Issuer will, upon demand of the Trustee, subject to the provisions of the
Security Trust and Intercreditor Deed, pay to the Trustee, for the benefit of
the Holders of such Junior Notes, the whole amount then due and payable on such
Junior Notes for principal (and premium, if any), interest and Additional
Amounts, if any, and interest on any overdue principal (and premium, if any) and
Additional Amounts and, to the extent that payment of such interest shall be
legally enforceable, interest on any overdue interest, at the Default Rate; and,
in addition thereto, such further amount as shall be sufficient to cover the
costs and expenses of collection, including the reasonable compensation,
expenses, disbursements and advances (except those made in bad faith or as a
result of negligence) of the Trustee, its agents and counsel.
If an Event of Default with respect to the Junior Notes occurs and is
continuing, the Trustee may in its discretion, subject to the provisions of the
Security Trust and Intercreditor Deed, proceed to protect and enforce its rights
and the rights of the Holders of Junior Notes by such appropriate judicial
proceedings as the Trustee shall deem most effectual to protect and enforce any
such rights, whether for the specific enforcement of any covenant or agreement
in this Indenture or in aid of the exercise of any power granted herein, or to
enforce any other proper remedy.
SECTION 6.07. Trustee May File Proofs of Claim.
In case of any judicial proceeding relative to the Issuer or any other
Obligor, including any Guarantor, on the Junior Notes, or the property of the
Issuer or of such other Obligor, the Trustee shall be entitled and empowered, by
intervention in such proceeding or otherwise, to take any and all actions
authorized under the Trust Indenture Act in order to have claims of the Holders
and the Trustee allowed in any such proceeding. In particular, the Trustee shall
be authorized to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same; and any custodian,
receiver, assignee, trustee, liquidator, sequestrator or other similar official
in any such judicial proceeding is hereby authorized by each Holder of a Junior
Note to make such payments to the Trustee and, in the event that the Trustee
shall consent to the making of such payments directly to the Holders, to pay to
the Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and its counsel, and any
other amounts due to the Trustee under Section 7.07 (Compensation and
Indemnity).
No provision of this Indenture shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Junior
Notes or the rights of any Holder thereof, or to authorize the Trustee to vote
in respect of the claim of any Holder in any such proceeding; provided, however,
that the Trustee may, on behalf of the Holders, vote for the election of a
trustee in bankruptcy or similar official and be a member of a creditors' or
other similar committee.
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SECTION 6.08. Trustee May Enforce Claims Without Possession of Junior Notes.
All rights of action and claims under this Indenture or the Junior Notes
may be prosecuted and enforced by the Trustee without the possession of any of
the Junior Notes or the production thereof in any proceeding relating thereto,
and any such proceeding instituted by the Trustee shall be brought in its own
name as trustee of an express trust, and any recovery of judgment shall, after
provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel and any other
amounts due to the Trustee under Section 7.07 (Compensation and Indemnity), be
for the ratable benefit of the Holders of the Junior Notes in respect of which
such judgment has been recovered.
SECTION 6.09. Application of Money Collected.
Any money collected by the Trustee pursuant to this Article 6 in respect of
the Junior Notes shall be applied in the following order, at the date or dates
fixed by the Trustee and, in the case of the distribution of such money on
account of principal (and premium, if any), interest, or Additional Amounts, if
any, upon presentation of such Junior Notes and notation thereon of the payment
if only partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts applicable to such Junior Notes in
respect of which or for the benefit of which such money has been collected due
to the Trustee under Section 7.07 (Compensation and Indemnity);
SECOND: To the payment of the amounts then due and unpaid for principal of
(and premium, if any) interest, and Additional Amounts, if any, on such Junior
Notes in respect of which or for the benefit of which such money has been
collected, ratably, without preference or priority of any kind, according to the
amounts due and payable on such Junior Notes for principal (and premium, if any)
interest, and Additional Amounts, if any, respectively; and
THIRD: To the payment of the balance, if any, to the Issuer or any other
Person or Persons legally entitled thereto.
SECTION 6.10. Limitation on Suits.
No Holder of any Junior Note shall have any right to institute any
proceeding, judicial or otherwise, with respect to this Indenture or the Junior
Notes or the Guarantee of the Junior Notes, or for the appointment of a receiver
or trustee, or for any other remedy, unless:
(1) such Holder has previously given written notice to the Trustee of a
continuing Event of Default;
(2) the Required Holders of at least:
(a) 25%, in the case of any Event of Default other than an Event of
Default specified in clause (4) of Section 6.01 (Events of
Default);
(b) 25%, in the case of an Event of Default specified in clause (4)
of Section 6.01 (Events of Default) if no Senior Notes are
Outstanding (as such term is defined in the Senior Note
Indenture); or
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(c) 35%, in the case of an Event of Default specified in clause (4)
of Section 6.01 (Events of Default) if any Senior Notes are
Outstanding (as such term is defined in the Senior Note
Indenture),
in aggregate principal amount of the then Outstanding Junior Notes
shall have made written request to the Trustee to institute
proceedings in respect of such Event of Default in its own name, as
trustee hereunder;
(3) such Holder has offered to the Trustee indemnity reasonably acceptable
to it against the costs, expenses and liabilities to be incurred in
compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice, request and
offer of indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has been given to
the Trustee during such 60-day period by the Required Holders of at
least a majority in aggregate principal amount of the then Outstanding
Junior Notes;
it being understood and intended that no one or more Holders of Junior Notes
shall have any right in any manner whatsoever by virtue of, or by availing of,
any provision of this Indenture to affect, disturb or prejudice the rights of
any other such Holder or Holders, or to obtain or to seek to obtain priority or
preference over any other such Holder or Holders or to enforce any right under
this Indenture, except in the manner herein provided and for the equal and
ratable benefit of all Holders of Junior Notes.
SECTION 6.11. Unconditional Rights of Holders to Receive Payment.
Notwithstanding any other provision in this Indenture or in the Security
Trust and Intercreditor Deed, each Holder of any Junior Note shall have the
right, which is absolute and unconditional, to receive payment of the principal
of (and premium, if any), interest, and Additional Amounts, if any, on such
Junior Note on the respective dates when such payments are due and to institute
suit for the enforcement of any such payment, and such rights shall not be
impaired without the consent of such Holder.
SECTION 6.12. Restoration of Rights and Remedies.
If the Trustee or any Holder of any Junior Note has instituted any
proceeding to enforce any right or remedy under this Indenture and such
proceeding has been discontinued or abandoned for any reason or has been
determined adversely to the Trustee or to such Holder, then and in every such
case, subject to any determination in such proceeding, the Issuer, the Trustee
and the Holders of Junior Notes shall be restored severally and respectively to
their former positions hereunder and thereafter all rights and remedies of the
Trustee and the Holders of Junior Notes shall continue as though no such
proceeding had been instituted.
SECTION 6.13. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or payment of
mutilated, destroyed, lost or stolen Junior Notes in Section 2.07 (Mutilated,
Destroyed, Lost or Stolen Junior Notes), no right or remedy herein conferred
upon or reserved to the Trustee or to the
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Holders of Junior Notes is intended to be exclusive of any other right or
remedy, and every right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given hereunder or
now or hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not prevent the
concurrent assertion or employment of any other appropriate right or remedy.
SECTION 6.14. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Junior Note to
exercise any right or remedy accruing upon any Event of Default shall impair any
such right or remedy or constitute a waiver of any such Event of Default or an
acquiescence therein. Subject to the other provisions of this Article 6, and, in
the case of the Trustee, subject to the provisions of the Security Trust and
Intercreditor Deed, every right and remedy given by this Article 6 or by law to
the Trustee or to the Holders of Junior Notes may be exercised from time to
time, and as often as may be deemed expedient, by the Trustee or by the Holders
of Junior Notes.
SECTION 6.15. Control by Holders.
Holders of the Junior Notes may not enforce this Indenture or the Junior
Notes except as provided in this Indenture. The Required Holders of at least a
majority in aggregate principal amount of the Junior Notes then Outstanding
shall have the right to direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee, or exercising any trust or
power conferred on the Trustee with respect to the Junior Notes, provided that:
(1) such direction is not in conflict with any rule of law, with this
Indenture or with the Security Trust and Intercreditor Deed; and
(2) the Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with such direction.
If an Event of Default has occurred and is continuing, subject to the prior
rights of the holders of the Senior Notes and the Senior Note Trustee under the
Senior Note Indenture and the Security Trust and Intercreditor Deed, the
Required Holders of at least:
(1) 25%, in the case of any Event of Default other than an Event of
Default specified in clause (4) of Section 6.01 (Events of Default);
(2) 25%, in the case of an Event of Default specified in clause (4) of
Section 6.01 (Events of Default) if no Senior Notes are Outstanding
(as such term is defined in the Senior Note Indenture); or
(3) 35%, in the case of an Event of Default specified in clause (4) of
Section 6.01 (Events of Default) if any Senior Notes are Outstanding
(as such term is defined in the Senior Note Indenture),
in aggregate principal amount of the Junior Notes then Outstanding shall have
the right to direct the Trustee in writing to direct that (a) action be taken to
enforce the security interests in favor of the Security Trustee on behalf of the
Secured Creditors in the Transaction Security, subject to the terms of the
Security Trust and Intercreditor Deed, provided that no direction inconsistent
with such written direction has been given to the Trustee by the Required
Holders of at least a
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majority in aggregate principal amount of the Junior Notes then Outstanding or
(b) enforcement action be taken in relation to any of the Intra-Group
Liabilities pursuant to the Security Trust and Intercreditor Deed, subject to
the terms thereof.
SECTION 6.16. Waiver of Past Defaults.
The Required Holders of at least a majority in aggregate principal amount
of the Junior Notes then Outstanding by notice to the Trustee may on behalf of
the Holders of all of the Junior Notes waive any existing Default or Event of
Default and its consequences under this Indenture, except (1) a continuing
Default or Event of Default in the payment of interest or Additional Amounts, if
any, on, or the principal of or premium, if any, on the Junior Notes or (2) a
Default or Event of Default in respect of a covenant or provision hereof which
under Article 10 (Supplemental Indentures, Consents and Waivers) cannot be
modified or amended without the consent of the Holder of each Outstanding Junior
Note affected. Upon any such waiver, such Event of Default or Default shall
cease to exist, and any Event of Default or Default arising therefrom will be
deemed to have been cured and not to have occurred for every purpose of this
Indenture. No such waiver shall extend to any subsequent or other Event of
Default or Default or impair any right consequent thereon.
SECTION 6.17. Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this
Indenture, or in any suit against the Trustee for any action taken, suffered or
omitted by it as Trustee, a court in its discretion may require the filing by
any party litigant in the suit of an undertaking to pay the costs of the suit,
and the court in its discretion may assess reasonable costs, including
reasonable attorneys' fees, against any party litigant in the suit, having due
regard to the merits and good faith of the claims or defenses made by the party
litigant and in the manner and to the extent provided in the Trust Indenture
Act; provided that neither this Section 6.17 nor the Trust Indenture Act shall
be deemed to authorize any court to require such an undertaking or to make such
assessment in any suit instituted by the Issuer, in any suit instituted by the
Trustee, in any suit instituted by any Holder, or group of Required Holders
holding in the aggregate more than 10% in aggregate principal amount of the
Junior Notes then Outstanding, or in any suit instituted by any Holder for the
enforcement of the payment of the principal of or any premium or interest or
Additional Amounts on any Junior Notes pursuant to Section 6.11 (Unconditional
Rights of Holders to Receive Payments).
SECTION 6.18. Waiver of Usury, Stay or Extension Laws.
The Issuer and each Guarantor covenants (to the extent that it may lawfully
do so) that it shall not at any time insist upon, or plead, or in any manner
whatsoever claim or take the benefit or advantage of, any usury, stay or
extension law wherever enacted, now or at any time hereafter in force, which may
affect the covenants or the performance of this Indenture; and the Issuer and
each Guarantor (to the extent that it may lawfully do so) hereby expressly
waives all benefit or advantage of any such law, and covenants that it shall not
hinder, delay or impede the execution of any power herein granted to the
Trustee, but shall suffer and permit the execution of every such power as though
no such law had been enacted.
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SECTION 6.19. Compliance Certificate; Notices of Default.
The Issuer will deliver to the Trustee a semi-annual statement on or about
June 15 and December 15 of each year, commencing December 15, 2003 in the form
of a certificate signed in the name of the Issuer by any two of the chief
executive officer, the chief financial officer and the chief accounting officer
of the Issuer as to compliance with this Indenture. Furthermore, upon becoming
aware of any Default or Event of Default under this Indenture, the Issuer shall
deliver to the Trustee and the Security Trustee a statement, in the form of an
Officers' Certificate, specifying such Default or Event of Default and the
nature and status thereof.
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ARTICLE 7
THE TRUSTEE
SECTION 7.01. Certain Duties of Trustee.
(1) Except during the continuance of an Event of Default, the Trustee
undertakes to perform such duties and only such duties as are specifically
set forth in this Indenture and no implied covenants or obligations shall
be read into this Indenture against the Trustee.
(2) The Trustee may conclusively rely (and will not be liable to any Holder of
a Junior Note for so relying), as to the truth of the statements and the
correctness of the opinions expressed therein, upon Officers' Certificates
or Opinions of Counsel furnished to the Trustee and conforming to the
requirements of this Indenture.
(3) If an Event of Default has occurred and is continuing, the Trustee shall
exercise the rights and powers vested in it by this Indenture and use the
same degree of care and skill in their exercise as a prudent person would
exercise or use under the circumstances in the conduct of such person's own
affairs.
(4) The Trustee may not be relieved from liability for its own negligent
action, its own negligent failure to act or its own willful misconduct,
except that:
(a) this paragraph does not limit the effect of clause (1) or (2) of this
Section 7.01;
(b) the Trustee shall not be liable for any error of judgment made in good
faith by a Responsible Officer of the Trustee unless it is proved that
the Trustee was negligent in ascertaining the pertinent facts; and
(c) the Trustee shall not be liable with respect to any action it takes or
omits to take in good faith in accordance with a direction received by
it pursuant to Section 6.15 (Control by Holders); and
(d) no provision of this Indenture shall require the Trustee to expend or
risk its own funds or otherwise incur financial liability in the
performance of any of its duties hereunder or in the exercise of any
of its rights or powers, if it shall have reasonable grounds to
believe that repayment of such funds or adequate indemnity against
such risk or liability is not reasonably assured to it.
(5) Every provision of this Indenture that in any way relates to the Trustee is
subject to this Section 7.01 and to the provisions of the Trust Indenture
Act (regardless of whether it is so stated).
(6) Nothing in this Indenture shall in any case in which the Trustee has failed
to show the degree of care and diligence required of it as trustee having
regard to the provision of this Indenture conferring on it any trusts,
powers, authorities or discretions exempt the Trustee from or indemnify it
against any liability for breach of trust, its own negligent action, its
own negligent failure to act or its own wilful misconduct.
(7) Without being liable to any Person for any delay or loss caused thereby,
the Trustee may refrain from exercizing any of the discretions,
authorities, rights or powers vested in it by this Indenture at the request
or direction of any of the Holders pursuant to this Indenture,
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unless such Holders shall have offered to the Trustee an indemnity
satisfactory to it against the losses, costs, charges, actions,
proceedings, damages, claims, demands, expenses and other liabilities which
might be incurred by it or which it may be exposed to by so doing in
compliance with such request or direction.
SECTION 7.02. Notice of Defaults.
The Trustee shall give the Holders of the Junior Notes notice of each
Default under this Indenture known to the Trustee, within 30 days after it
becomes aware of such Default, as and to the extent provided by the Trust
Indenture Act, unless such Default shall have been cured or waived.
SECTION 7.03. Certain Rights and Discretions of Trustee.
The Trustee shall have all the powers conferred upon trustees by the
Trustee Acts and by way of supplement thereto and, subject to Section 7.01
(Certain Duties of Trustee), it is expressly declared as follows:
(a) The Trustee may rely on any document reasonably believed by it to be
genuine and to have been signed or presented by the proper Person. In
the absence of manifest error, the Trustee need not investigate any
fact or matter or the expediency of any transaction or thing stated or
referred to in the document.
(b) Before the Trustee acts or refrains from acting, it may require an
Officers' Certificate and/or an Opinion of Counsel, in each case as to
any fact or matter or the expediency of any transaction or thing. The
Trustee shall not be bound in any such case to call for further
evidence and shall not be liable for any action it or any other Person
takes or omits to take in good faith in reliance on such Officers'
Certificate or Opinion of Counsel. Without limiting the foregoing, in
formulating its opinion under Section 10.02 (Supplemental Indentures
Without Consent of Holders), the Trustee may rely on any such evidence
as it deems reasonably appropriate, including, without limitation, an
Opinion of Counsel.
(c) The Trustee shall not be charged with knowledge of any Default or
Event of Default under clauses (2) to (10) (inclusive) of Section 6.01
(Events of Default) hereof, of the identity of any Subsidiary or
Significant Subsidiary, or of the existence of any Change of Control
or Asset Sale unless an officer located at the Trustee's address given
in Section 13.02 (Notices) shall have received written notice thereof
from the Issuer or any Guarantor.
(d) The Trustee may in relation to this Indenture act on the advice or
opinion of or any information obtained by the Trustee in writing from
any lawyer, valuer, accountant, surveyor, banker, broker, auctioneer
or other expert whether obtained by the Issuer, a Guarantor, the
Trustee or otherwise and shall not be responsible for any liability
occasioned by so acting.
(e) Any such advice, opinion or information may be sent or obtained by
letter, telex, telegram, facsimile transmission or cable and the
Trustee shall not be liable for acting on any advice, opinion or
information purporting to be
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conveyed by any such letter, telex, telegram, facsimile transmission or
cable although the same shall contain some error or shall not be authentic.
(f) The Trustee shall be at liberty to hold this Indenture and any other
documents relating thereto or to deposit them in any part of the world
with any banker or banking company or company whose business includes
undertaking the safe custody of documents or lawyer or firm of lawyers
considered by the Trustee to be of good repute and the Trustee shall
not be responsible for or required to insure against any liability
incurred in connection with any such holding or deposit and may pay
all sums required to be paid on account of or in respect of any such
deposit.
(g) The Trustee shall not be responsible for the receipt or application of
any proceeds of the issue of any of the Junior Notes by the Issuer,
the exchange of any Global Junior Note for another Global Junior Note
or Definitive Registered Junior Notes, the delivery of any Global
Junior Note or Definitive Registered Junior Notes to the Person(s)
entitled to it or them or the exchange of Global Senior Notes for
Definitive Registered Senior Notes.
(h) The Trustee shall not be bound to give notice to any Person of the
execution of any documents comprised or referred to in this Indenture
or to take any steps to ascertain whether any Event of Default or any
Default has happened and, subject to clause (c) above, the Trustee
shall be entitled to assume that no Event of Default or Default has
happened and that each of the Issuer and each of the Guarantors is
observing and performing all its obligations under this Indenture, the
Junior Notes or the Security Trust and Intercreditor Deed.
(i) Save as expressly otherwise provided in this Indenture or the Trust
Indenture Act, the Trustee shall have absolute and uncontrolled
discretion as to the exercise or non-exercise of its trusts, powers,
authorities and discretions under this Indenture and the Security
Trust and Intercreditor Deed (the exercise or non-exercise of which as
between the Trustee and the Holders shall be conclusive and binding on
the Holders) and shall not be responsible for any liability which may
result from their exercise or non-exercise.
(j) Subject to Section 6.15 (Control by Holders), the Trustee as between
itself and the Holders may determine all questions and doubts arising
in relation to any of the provisions of this Indenture relating to the
functions of the Trustee hereunder. Every such determination, whether
or not relating in whole or in part to the acts or proceedings of the
Trustee, shall be conclusive and shall bind the Trustee and the
Holders as between themselves.
(k) Without limiting clause (a) above the Trustee shall not be liable to
any Person by reason of having accepted as valid or not having
rejected any Junior Note purporting to be such and subsequently found
to be forged or not authentic.
(l) Any consent or approval given by the Trustee for the purposes of this
Indenture may be given on such terms and subject to such conditions
(if any) as the
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Trustee thinks fit and notwithstanding anything to the contrary in
this Indenture may be given retrospectively.
(m) Save as otherwise expressly provided in this Indenture, the Trustee
shall not (unless and to the extent ordered so to do by a court of
competent jurisdiction) be required to disclose to any Holder any
information (including, without limitation, information of a
confidential, financial or price sensitive nature) made available to
the Trustee by the Issuer or any Guarantor or any other Person in
connection with this Indenture or the Junior Notes and no Holder shall
be entitled to take any action to obtain from this Trustee any such
information.
(n) In connection with the exercise by it of any of its trusts, powers,
authorities and discretions under this Indenture (including, without
limitation, any modification, waiver, authorization or determination),
the Trustee shall have regard to the general interests of the Holders
as a class and shall not have regard to any interests arising from
circumstances particular to any individual Holder or Holders (whatever
their number) and, in particular but without limitation, shall not
have regard to the consequences of any such exercise for individual
Holders (whatever their number) resulting from their being for any
purpose domiciled or resident in, or otherwise connected with, or
subject to the jurisdiction of, any particular territory or any
political subdivision thereof and the Trustee shall not be entitled to
require, nor shall any Holder be entitled to claim, from the Issuer,
any Guarantor, the Trustee or any other person any indemnification or
payment in respect of any tax consequence of any such exercise upon
individual Holders except to the extent already provided for in
Section 4.36 (Additional Amounts) and/or any undertaking given in
addition thereto or in substitution therefor under this Indenture.
(o) Subject to requirements of and limitations in the Trust Indenture Act,
the Trustee may whenever in its reasonable judgment it thinks fit
delegate by power of attorney or otherwise to any person or persons or
fluctuating body of persons (whether being a joint trustee of this
Indenture or not) all or any of its trusts, powers, authorities and
discretions under this Indenture. Such delegation may be made upon
such terms (including power to sub-delegate), for such fixed or
indefinite period of time and subject to such conditions and
regulations as the Trustee may in the interests of the Holders and in
its reasonable judgment think fit. The Trustee shall not be under any
obligation to supervise the proceedings or acts of any such delegate
or sub-delegate or be in any way responsible for any liability
incurred by reason of any misconduct or default on the part of any
such delegate or sub-delegate. The Trustee shall promptly after any
such delegation or any renewal, extension or termination thereof give
notice thereof to the Issuer.
(p) The remuneration the Trustee may pay to any Person to whom it
delegates any or all of its rights, powers and discretions pursuant to
subclause (o) of this Section 7.03 and to any agent it appoints
pursuant to subclause (q) of this Section 7.03, together with any
reasonable costs and expenses incurred by that person in performing
its functions pursuant to its appointment as a delegate, or
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as the case may be, agent of the Trustee, shall, for the purposes of
this Indenture, be treated as costs and expenses incurred by the
Trustee.
(q) The Trustee may in the conduct of the trusts of this indenture instead
of acting personally employ and pay an agent (including but not
limited to a lawyer or other professional person) to transact or
conduct, or concur in transacting or conducting, any business and to
do, or concur in doing, all acts required to be done in connection
with this Indenture. Provided that the Trustee has exercised
reasonable care in the selection of such agent, the Trustee shall not
be in any way responsible for any liability incurred by reason of any
misconduct or default on the part of any such agent or be bound to,
supervise the proceedings or acts of any such agent.
(r) The Trustee shall not be responsible for the execution, delivery,
legality, effectiveness, adequacy, genuineness, validity, performance,
enforceability or admissibility in evidence of this Indenture or the
Junior Notes or any other document relating or expressed to be
supplemental thereto and shall not be liable for any failure to obtain
any license, consent or other authority for the execution, delivery,
legality, effectiveness, adequacy, genuineness, validity, performance,
enforceability or admissibility in evidence of this Indenture or any
other document relating or expressed to be supplemental thereto
except, in each case, for its own execution and delivery of this
Indenture or the Junior Notes and such other documents.
SECTION 7.04. Individual Rights of Trustee.
Subject to the Trust Indenture Act, neither the Trustee nor any director or
officer or holding company, subsidiary or associated company of the Trustee
(including, for the avoidance of doubt, the Security Trustee) or a corporation
acting as a trustee under this Indenture shall by reason of its or his fiduciary
position be in any way precluded from:
(a) entering into or being interested in any contract or financial or
other transaction or arrangement with the Issuer or any Guarantor or
any Person associated with the Issuer or any Guarantor (including
without limitation any contract, transaction or arrangement of a
banking or insurance nature or any contract, transaction or
arrangement in relation to the making of loans or the provision of
financial facilities or financial advice to, or the purchase, placing
or underwriting of or the subscribing or procuring subscriptions for
or otherwise acquiring, holding or dealing with, or acting as paying
agent in respect of, the Junior Notes or any other notes, bonds,
stocks, shares, debenture stock, debentures or other securities of the
Issuer or any Guarantor or any Person associated as aforesaid); or
(b) accepting or holding the trusteeship of any other trust deed
constituting or securing any other securities issued by or relating to
the Issuer or any Guarantor or any such Person so associated with the
Issuer or any Guarantor;
and shall be entitled to exercise and enforce its rights, comply with its
obligations and perform its duties under or in relation to any such contract,
transaction or arrangement as is referred to in
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clause (a) above or, as the case may be, any such trusteeship as is referred to
in clause (b) above without regard to the interests of the Holders and shall not
be responsible for any liability occasioned to the Holders thereby and shall be
entitled to retain and shall not be in any way liable to account for any profit
made or share of brokerage or commission or remuneration or other amount or
benefit received thereby or in connection therewith.
Where any holding company, subsidiary or associated company of the Trustee
or any director or officer of the Trustee acting other than in his capacity as
such a director or officer has any information, the Trustee shall not, unless it
shall have actual knowledge of such information, be responsible for any loss
suffered by Holders resulting from the Trustee's failing to take such
information into account in acting or refraining from acting under or in
relation to this Indenture. Any agent appointed by the Trustee hereunder may do
the same with like rights. However, the Trustee is subject to Sections 7.08
(Disqualification; Conflicting Interests), 7.09 (Corporation Trustee Required;
Eligibility) and 7.13 (Preferential Collection of Claims Against Issuer).
SECTION 7.05. Money Held in Trust
Money held by the Trustee in trust hereunder need not be segregated from
other funds except to the extent required by law. The Trustee shall be under no
liability for interest on any money received by it hereunder except as otherwise
agreed with the Issuer.
SECTION 7.06. Trustee's Disclaimer.
The Trustee shall not be responsible for and makes no representation as to
the validity or adequacy of this Indenture or the Junior Notes, it shall not be
accountable for the Issuer's use of any proceeds from the Junior Notes, and it
shall not be responsible for any statement of the Issuer in this Indenture or in
any document issued in connection with the issuance of the Junior Notes or in
the Junior Notes.
SECTION 7.07. Compensation and Indemnity.
The Issuer shall pay to the Trustee for its own account from time to time
such compensation together with any applicable, value added tax, or similar tax
chargeable in respect of such compensation other than any tax on its income for
its services as agreed in writing between the parties in the letter dated on or
about the Issue Date (the "Note Trustee Fee Letter") from the Trustee to the
Issuer, at the times and of the amounts specified in the Note Trustee Fee Letter
and as otherwise due under the terms of this Indenture. The Trustee's
compensation shall not be limited by any law on compensation of a trustee of an
express trust. The Issuer shall reimburse the Trustee upon request for all
properly incurred out-of-pocket expenses incurred or made by it, including costs
of collection, in addition to the compensation for its services. Such expenses
shall include the properly incurred compensation and expenses of the Trustee's
agents and counsel. The Issuer shall indemnify the Trustee (which for the
purposes of this Section 7.07 shall include its officers, directors, employees
and agents, delegates, attorneys, co-trustee or additional but separate trustee)
and any predecessor Trustee against any and all loss, liability or damage and
the reasonable costs or expenses including any stamp, documentary or other
similar Taxes or duties paid by the Trustee, incurred by it or its officers,
directors, employees, agents, delegates, attorneys, co-trustee or additional but
separate trustee in connection with the administration of this trust and the
performance of its duties hereunder. The Trustee shall notify
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the Issuer promptly of any claim for which it may seek indemnity. Failure by
the Trustee to so notify the Issuer shall not relieve the Issuer of its
obligations hereunder. The Issuer shall defend the claim and the Trustee may
have separate counsel and the Issuer shall pay the fees and expenses of such
counsel. The Issuer need not reimburse any expense or indemnify against any
loss, liability or expense incurred by the Trustee through the Trustee's own
willful misconduct, negligence or bad faith.
To secure the Issuer's payment obligations in this Section 7.07, the
Trustee shall have a Lien prior to the Junior Notes on all money or property
held or collected by the Trustee other than money or property held in trust to
pay principal of and interest on particular Junior Notes.
The Issuer's payment obligations pursuant to this Section 7.07 and Sections
7.03 (Certain Rights and Discretions of Trustee) and 7.04 (Individual Rights of
Trustee) shall survive the discharge of this Indenture or the resignation or
removal of the Trustee. When the Trustee incurs expenses after the occurrence of
a Default specified in either clause (8) or (9) of Section 6.01 (Events of
Default) with respect to the Issuer, the expenses are intended to constitute
expenses of administration under Bankruptcy Law.
In no event shall the Trustee be liable for any failure or delay in the
performance of its obligations hereunder because of circumstances beyond its
control, including but not limited to, acts of God, war (whether declared or
undeclared), terrorism, fire, riot, embargo, government action, including any
laws, ordinances, regulations, governmental action or the like which delay,
restrict or prohibit the providing of the services contemplated by this
Agreement.
In no event shall the Trustee be liable for any indirect, special, punitive
or consequential loss or damage of any kind whatsoever, including but not
limited to, lost profits, even if the Trustee has been advised of the likelihood
of such loss or damage and regardless of the form of action.
SECTION 7.08. Disqualification; Conflicting Interests.
If the Trustee has or shall acquire a conflicting interest within the
meaning of the Trust Indenture Act, the Trustee shall either eliminate such
interest or resign within 90 days, to the extent and in the manner provided by,
and subject to the provisions of, the Trust Indenture Act and this Indenture.
SECTION 7.09. Corporation Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which shall at all times
satisfy the requirements of Section 310(a) of the Trust Indenture Act and shall
have a combined capital and surplus of at least US$50,000,000 and have its
Corporate Trust Office in the Borough of Manhattan, The City of New York. If
such Person publishes reports of condition at least annually, pursuant to law or
to the requirements of a Federal, State or District of Columbia supervising or
examining authority within the United States of America, then for the purposes
of this Section 7.09, the combined capital and surplus of such Person shall be
deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published. If at any time the Trustee shall cease to be
eligible in accordance with the provisions of this Section 7.09, it shall resign
immediately in the manner and with the effect hereinafter specified in this
Article 7.
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SECTION 7.10. Resignation and Removal; Appointment of Successor.
(1) No resignation or removal of the Trustee and no appointment of a
Successor Trustee pursuant to this Article 7 shall become effective
until the acceptance of appointment by the successor Trustee in
accordance with the applicable requirements of Section 7.11
(Acceptance of Appointment by Successor).
(2) The Trustee may resign at any time with respect to the Junior Notes by
giving written notice thereof to the Issuer. If the instrument of
acceptance by a successor Trustee required by Section 7.11 (Acceptance
of Appointment by Successor) shall not have been delivered to the
Trustee within 30 days after the giving of such notice of resignation,
the resigning Trustee may petition, at the expense of the Issuer, any
court of competent jurisdiction for the appointment of a successor
Trustee with respect to the Junior Notes.
(3) The Trustee may be removed at any time by act of the Required Holders
of a majority in aggregate principal amount of the Outstanding Junior
Notes delivered to the Trustee and to the Issuer. If the instrument of
acceptance by the successor Trustee required by Section 7.11
(Acceptance of Appointment by Successor) shall not have been delivered
to the Trustee within 30 days after such act of the Required Holders
of the Junior Notes, the resigning Trustee may petition, at the
expense of the Issuer, any court of competent jurisdiction for the
appointment of a successor Trustee with respect to the Junior Notes.
(4) If at any time:
(a) the Trustee shall fail to comply with Section 7.08
(Disqualification; Conflicting Interests) after written request
therefor by the Issuer or by any Holder of the Junior Notes who
has been a bona fide Holder of the Junior Notes for at least six
months; or
(b) the Trustee shall cease to be eligible under Section 7.09
(Corporation Trustee Required; Eligibility) and shall fail to
resign after written request therefor by the Issuer or by any
Holder of the Junior Notes who has been a bona fide Holder of a
Junior Note for at least six months; or
(c) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or an order for relief shall be
entered or a receiver of the Trustee or of its property shall be
appointed or any public officer shall take charge or control of
the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (x) the Issuer by a Board Resolution may
remove the Trustee or (y) subject to Section 6.17 (Undertaking for
Costs), any Holder of the Junior Notes who has been a bona fide Holder
of a Junior Note for at least six months may, on behalf of himself and
all others similarly situated, petition any court of competent
jurisdiction for the removal of the Trustee with respect to all Junior
Notes and the appointment of a successor Trustee or Trustees.
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(5) If the Trustee shall resign, be removed or become incapable of acting
(the "Retiring Trustee"), or if a vacancy shall occur in the office of
Trustee for any cause, the Issuer, by a Board Resolution, shall
promptly appoint a successor Trustee or Trustees with respect to the
Junior Notes (it being understood that at any time there shall be only
one Trustee with respect to the Junior Notes), and shall comply with
the applicable requirements of Section 7.11 (Acceptance of Appointment
by Successor). If, within one year after such resignation, removal or
incapability, or the occurrence of such vacancy, a successor Trustee
with respect to the Junior Notes shall be appointed by act of the
Required Holders of a majority in aggregate principal amount of the
Outstanding Junior Notes delivered to the Issuer and the retiring
Trustee, the successor Trustee so appointed shall, forthwith upon its
acceptance of such appointment in accordance with the applicable
requirements of Section 7.11 (Acceptance of Appointment by Successor),
become a successor Trustee with respect to the securities and to that
extent supersede the successor Trustee appointed by the Issuer. If no
successor Trustee with respect to the Junior Notes shall have been so
appointed by the Issuer or the Holders of Junior Notes and accepted
appointment in the manner hereinafter required by Section 7.11
(Acceptance of Appointment by Successor), any Holder of the Junior
Notes who has been a bona fide Holder of a Junior Note for at least
six months may, on behalf of himself and all others similarly
situated, petition any court of competent jurisdiction for the
appointment of a successor Trustee.
(6) The Issuer shall give notice of each resignation and each removal of
the Trustee and each appointment of a successor Trustee to all Holders
of Junior Notes in the manner and to the extent provided in Section
13.02 (Notices). Each notice shall include the name of the successor
Trustee and the address of its Corporate Trust Office.
SECTION 7.11. Acceptance of Appointment by Successor.
(1) In case of the appointment hereunder of a successor Trustee, every
such successor Trustee so appointed shall execute, acknowledge and
deliver to the Issuer and to the retiring Trustee an instrument
accepting such appointment, and thereupon the resignation or removal
of the retiring Trustee shall become effective and such successor
Trustee, without any further act, deed or conveyance, shall become
vested with all the rights, powers, trusts and duties of the retiring
Trustee; but, on request of the Issuer or the successor Trustee, such
retiring Trustee shall, upon payment of its charges, execute and
deliver an instrument transferring to such successor Trustee, all the
rights, powers and trusts of the retiring Trustee and shall duly
assign, transfer and deliver to such successor Trustee all property
and money held by such retiring Trustee hereunder.
(2) Upon request of any such successor Trustee, the Issuer shall execute
any and all instruments for more fully and certainly vesting in and
confirming to such successor Trustee all such rights, powers and
trusts referred to in clauses (1) or (2) of this Section 7.11, as the
case may be.
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(3) No successor Trustee shall accept its appointment unless at the time
of such acceptance such successor Trustee shall be qualified and
eligible under this Article 7.
SECTION 7.12. Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Trustee may be merged or converted or with
which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all the corporate trust business
of the Trustee, shall be the successor of the Trustee hereunder, provided such
corporation shall be otherwise qualified and eligible under this Article 7,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto.
SECTION 7.13. Preferential Collection of Claims Against Issuer.
The Trustee shall comply with Section 311(a) of the Trust Indenture Act,
excluding any creditor relationship listed in Section 311(b) of the Trust
Indenture Act. A Trustee who has resigned or been removed shall be subject to
Section 311(a) of the Trust Indenture Act to the extent indicated.
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ARTICLE 8
HOLDERS LISTS AND REPORTS BY TRUSTEE AND ISSUER
SECTION 8.01. Issuer to Furnish Trustee Names and Addresses of Holders.
The Issuer will furnish or cause to be furnished to the Trustee:
(1) not more than 15 days after each Regular Record Date, a list, in such
form as the Trustee may reasonably require, of the names and addresses
of the Holders of Definitive Registered Junior Notes as of such
Regular Record Date or such specified date, and
(2) at such other times as the Trustee may request in writing, within 30
days after the receipt by the Issuer of any such request, a list of
similar form and content as of a date not more than 15 days prior to
the time such list is furnished.
The Issuer need not furnish or cause to be furnished to the Trustee
pursuant to this Section 8.01 the names and address of Holders of Definitive
Registered Junior Notes if the Trustee acts as Registrar with respect to such
Junior Notes or if no Junior Notes are held in the form of Definitive Registered
Junior Notes.
SECTION 8.02. Preservation of Information; Communications to Holders.
(1) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders (i) contained in the
most recent list furnished to the Trustee as provided in Section 8.01
(Issuer to Furnish Trustee Names and Addresses of Holders) and (ii)
received by the Trustee in its capacity as Paying Agent or Registrar
(if so acting). The Trustee may destroy any list furnished to it as
provided in Section 8.01 (Issuer to Furnish Trustee Names and
Addresses of Holders) upon receipt of a new list so furnished.
(2) The rights of the Holders of Junior Notes to communicate with other
Holders with respect to their rights under this Indenture or under the
Junior Notes, and the corresponding rights and privileges of the
Trustee, shall be as provided by the Trust Indenture Act.
(3) Every Holder, by receiving and holding a Junior Note, agrees with the
Issuer and the Trustee that neither the Issuer nor the Trustee nor any
agent of any of them shall be held accountable by reason of the
disclosure of any such information as to the names and addresses of
the Holders in accordance with clause (2) of this Section 8.02.
SECTION 8.03. Reports by Trustee.
(1) Not later than 60 days after May 15 in each year following the date
hereof, so long as the Trust Indenture Act shall so require and any
Junior Notes are Outstanding hereunder, the Trustee shall transmit to
Holders (and to such other Persons as the Trust Indenture Act may
require) such reports as may be required pursuant to and in compliance
with the Trust Indenture Act, which reports shall be dated as of
May 15.
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(2) So long as the Trust Indenture Act shall so require, a copy of each
such report shall, at the time of such transmission to Holders, be
filed by the Trustee with each securities exchange upon which the
Trustee has been notified that the Junior Notes are listed, with the
SEC and with the Issuer. The Issuer shall promptly notify the Trustee
when Junior Notes are listed on any securities exchange or of any
delisting thereof.
SECTION 8.04. Reports by Issuer.
The Issuer shall file with the Trustee and the SEC, and transmit to
Holders, such information, documents and other reports, and such summaries
thereof, as may be required pursuant to the Trust Indenture Act at the times and
in the manner provided pursuant to the Trust Indenture Act; provided that any
such information, document or report required to be filed with the SEC pursuant
to Section 13 or Section 15(d) of the US Exchange Act shall be filed with the
Trustee within 15 days after the same is required to be filed with the SEC.
Delivery of such reports, information and documents to the Trustee is for
informational purposes only and the Trustee's receipt of such shall not
constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Issuer's
compliance with any of its covenants hereunder (as to which the Trustee is
entitled to conclusively rely exclusively on Officer's Certificates).
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ARTICLE 9
SATISFACTION AND DISCHARGE
SECTION 9.01. Satisfaction and Discharge.
This Indenture shall upon Issuer Request be discharged and cease to be of
further effect as to all Junior Notes issued hereunder (except as to rights of
registration of transfer and exchange of Junior Notes), and the Trustee, at the
expense of the Issuer, shall execute proper instruments acknowledging
satisfaction and discharge of this Indenture with respect to the Junior Notes
when:
(1) either:
(a) all Junior Notes that have been theretofore authenticated and
delivered, except (i) lost, stolen or destroyed Junior Notes that
have been replaced or paid as provided in Section 2.07
(Mutilated, Destroyed, Lost and Stolen Junior Notes) and (ii)
Junior Notes for whose payment money has theretofore been
deposited in trust and thereafter repaid to the Issuer or
discharged from such trust as provided in Section 4.28 (Money for
Payments to be Held in Trust), have been delivered to the Trustee
for cancellation; or
(b) all Junior Notes described in (a) above that have not theretofore
been delivered to the Trustee for cancellation:
(i) have become due and payable by reason of the giving or
delivery of a notice of redemption or otherwise;
(ii) will become due and payable at their Stated Maturity within
one year; or
(iii) are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of
notice of redemption by the Trustee in the name, and at the
expense, of the Issuer,
and in the case of (i), (ii) or (iii) above the Issuer has
irrevocably deposited or caused to be deposited with the Trustee,
as trust funds in trust solely for the benefit of the Holders,
cash denominated in the Relevant Currency, in such amounts as
will be sufficient without consideration of any reinvestment of
interest, to pay and discharge the entire indebtedness on the
Junior Notes not theretofore delivered to the Trustee for
cancellation, including principal and premium, if any, and
accrued interest and Additional Amounts, if any, to the Stated
Maturity or the Repayment Date, as the case may be;
(2) in the case of clause (1)(b)(ii) or (iii) above, no Default or Event
of Default with respect to the Junior Notes has occurred and is
continuing on the date of the deposit or will occur as a result of the
deposit and the deposit will not result in a breach or violation of,
or constitute a default under, any other instrument to
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which the Issuer or any Subsidiary of the Issuer is a party or by
which the Issuer or any Subsidiary of the Issuer is bound;
(3) the Issuer has paid or caused to be paid all sums then payable by it
under this Indenture; and
(4) if applicable, the Issuer has delivered irrevocable instructions to
the Trustee under this Indenture to apply the deposited money toward
the payment of the Junior Notes at Stated Maturity or the Repayment
Date, as the case may be.
In addition, the Issuer shall deliver an Officers' Certificate and an
Opinion of Counsel to the Trustee, each stating that all conditions precedent
herein provided for relating to the satisfaction and discharge of this Indenture
have been satisfied.
Upon the satisfaction of the conditions set forth in this Section 9.01 with
respect to all the Junior Notes, the terms and conditions of the Junior Notes,
including the terms and conditions with respect thereto set forth in this
Indenture, shall no longer be binding upon, or applicable to, the Issuer.
Notwithstanding any satisfaction and discharge of this Indenture, any
obligations under Sections 7.07 (Compensation and Indemnity), 7.03 (Certain
Rights and Discretions of Trustee), 7.04 (Individual Rights of Trustee) and 7.10
(Resignation and Removal; Appointment of Successor) and, if cash shall have been
deposited with the Trustee pursuant to subclause (b) of clause (1) of this
Section 9.01, the obligations of the Trustee under Section 9.02 (Application of
Trust Money) and the last paragraph of Section 4.28 (Money for Payments to be
Held in Trust) shall survive any such satisfaction and discharge.
SECTION 9.02. Application of Trust Money.
Subject to the provisions of the last paragraph of Section 4.28 (Money for
Payments to be Held in Trust), all money deposited with the Trustee pursuant to
Section 9.01 (Satisfaction and Discharge) shall be held in trust and applied by
it, in accordance with the provisions of this Indenture and the Junior Notes, to
the payment, either directly or through any Paying Agent, as the Trustee may
determine, to the Persons entitled thereto, of the principal of, premium, if
any, and interest and Additional Amounts, if any, on the Junior Notes for whose
payment such money has been deposited with the Trustee.
SECTION 9.03. Reinstatement.
If the Trustee or the Paying Agent is unable to apply any money in
accordance with this Article 9 by reason of any legal proceeding or by reason of
any order or judgment of any court or governmental authority enjoining,
restraining or otherwise prohibiting such application, the Issuer's obligations
under this Indenture and the Junior Notes shall be revived and reinstated as
though no deposit had occurred pursuant to this Article 9 until such time as the
Trustee or the Paying Agent is permitted to apply all such money in accordance
with this Article 9; provided, however, that if the Issuer has made any payment
of interest on or principal, of or premium, if any, on any Junior Notes because
of the reinstatement of its obligations, the Issuer shall be subrogated to the
rights of the Holders of such Junior Notes to receive such payment from the
money held by the Trustee or the Paying Agent.
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ARTICLE 10
SUPPLEMENTAL INDENTURES, CONSENTS AND WAIVERS
SECTION 10.01. Supplemental Indentures With Consent of Holders.
Except as permitted by Section 10.02 (Supplemental Indentures Without
Consent of Holders) and subject to the provisions of the Security Trust and
Intercreditor Deed, with the consent of the Required Holders of not less than a
majority in aggregate principal amount of the Outstanding Junior Notes, voting
as a class (including, without limitation, consents obtained in connection with
a purchase of, or tender offer or exchange offer for, the Junior Notes), the
Issuer, when authorized by a Board Resolution, the Guarantors and the Trustee
may enter into an indenture or indentures supplemental hereto for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of this Indenture, any other indenture supplemental hereto, the
Junior Notes or the Guarantee of the Junior Notes, or of modifying in any manner
the rights of the Holders of Junior Notes under this Indenture, the Junior
Notes, the Security Trust and Intercreditor Deed or the Guarantee of the Junior
Notes; provided, however, that notwithstanding any other provision of this
Indenture to the contrary, no such supplemental indenture may, without the
consent of the Holder of each Outstanding Junior Note affected thereby:
(1) reduce the percentage of the aggregate principal amount of Outstanding
Junior Notes, the consent of whose Required Holders is required for
any such supplemental indenture, or the consent of whose Required
Holders is required for any waiver (of compliance with provisions of
this Indenture or of Defaults hereunder and their consequences)
provided for in this Indenture or the consent of whose Required
Holders is necessary to rescind or annul any declaration of the
principal of, premium, if any, accrued interest or Additional Amounts,
if any, to be due and payable;
(2) reduce the principal of or change the Stated Maturity of such Junior
Note or alter the provisions with respect to the mandatory or optional
redemption of such Junior Note, including the provisions with respect
to the amount payable upon the optional or mandatory redemption of
such Junior Note or the time at which such Junior Note may or must be
redeemed, but excluding the definitions of "Asset Sale" and "Cash
Collateral Releases" and Section 4.02 (Asset Sales);
(3) reduce the rate of, or change the time for payment of, interest on
such Junior Note;
(4) waive a Default or Event of Default in the payment of principal of, or
interest, premium or Additional Amounts, if any, on, such Junior Note
(except a rescission of acceleration of the maturity of the Junior
Notes by the Required Holders of at least a majority in aggregate
principal amount of such Outstanding Junior Notes and a waiver of the
payment default on such Junior Notes solely to the extent that it
resulted from such acceleration);
(5) make such Junior Note payable in money other than that stated in such
Junior Note;
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(6) make any change in the provisions of this Indenture relating to
waivers of past Defaults or Events of Default or the rights of Holders
of the Junior Notes to receive payments of principal of, or interest,
premium or Additional Amounts, if any, on, the Junior Notes when due
or to bring suits to enforce those payments;
(7) waive a redemption payment with respect to such Junior Note;
(8) release any Guarantor from any of its obligations under the Guarantee
of the Junior Notes or this Indenture, except in accordance with the
terms of this Indenture;
(9) modify the provisions described under Section 3.10 (Redemption Upon
Changes in Withholding Taxes) or Section 4.36 (Additional Amounts) or
amend the terms of the Junior Notes or this Indenture in a way that
would result in the loss of an exemption from any of the Taxes
described thereunder;
(10) modify the provisions set forth in Section 4.35 (Currency Indemnity);
(11) modify the provisions set forth in Section 6.02 (Payment Blockage
Provisions);
(12) make any change in the Guarantee of the Junior Notes that would
adversely affect the Holders of the Junior Notes;
(13) make any change in any Security Document or the provisions of this
Indenture relating to the Security Documents that would adversely
affect the Holders of the Junior Notes; or
(14) modify any of the provisions of this Section 10.01 or Section 6.04
(Rescission and Annulment).
It shall not be necessary for any act of the Holders under this Section
10.01 to approve the particular form of any proposed supplemental indenture, but
it shall be sufficient if such act shall approve the substance thereof.
After an amendment pursuant to this Section 10.01 becomes effective, the
Issuer shall provide notice to Holders of Junior Notes briefly describing such
amendment in the manner provided in Section 13.02 (Notices). The failure to give
such notice to all Holders of Junior Notes, or any defect therein, shall not
impair or affect the validity of an amendment under this Section 10.01.
SECTION 10.02. Supplemental Indentures Without Consent of Holders.
Notwithstanding Section 10.01 (Supplemental Indentures With Consent of
Holders) but subject to the provisions of the Security Trust and Intercreditor
Deed, without the consent of any Holders, the Issuer, when authorized by a Board
Resolution, the Guarantors and the Trustee, at any time and from time to time,
may enter into one or more indentures supplemental hereto, in form satisfactory
to the Trustee, or otherwise amend or supplement this Indenture, any other
indenture supplemental hereto, the Junior Notes or the Guarantee of the Junior
Notes for any of the following purposes:
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(1) to add to the covenants of the Issuer or any Guarantor for the benefit
of the Holders of the Junior Notes or to surrender any right or power
conferred upon the Issuer or any Guarantor in the Indenture, the
Junior Notes or the Guarantee of the Junior Notes;
(2) to cure any ambiguity, or to correct or supplement any provision in
this Indenture or any other supplemental indenture hereto, the Junior
Notes or the Guarantee of the Junior Notes which may be defective or
inconsistent with any other provision in the Indenture, any other
supplemental indenture hereto, the Junior Notes or the Guarantee of
the Junior Notes or to make any other provisions with respect to
matters or questions arising under this Indenture that shall not be
inconsistent with the provisions of this Indenture, provided that such
provisions shall not adversely affect the interests of the Holders of
the Junior Notes;
(3) to provide for uncertificated Junior Notes in place of certificated
Junior Notes, provided that such provisions shall not adversely affect
the interests of the Holders of the Junior Notes and such
uncertificated Junior Notes are issued in registered form;
(4) to add a Guarantor under this Indenture and to provide for the grant
of New Security for the benefit of the Holders of the Junior Notes, or
to mortgage, pledge, hypothecate or grant a security interest in favor
of the Security Trustee for the benefit of the Trustee for the benefit
of the Holders of the Junior Notes as additional security for the
payment and performance of the Issuer's and any Guarantor's
obligations under this Indenture, in any property or assets, including
any which are required to be mortgaged, pledged or hypothecated, or in
which a security interest is required to be granted to the Security
Trustee for the benefit of the Trustee for the benefit of the Holders
of the Junior Notes pursuant to this Indenture, the Security Trust and
Intercreditor Deed or otherwise;
(5) to evidence and provide for the acceptance of the appointment of a
successor Trustee under this Indenture; or
(6) to comply with any requirements of the SEC under the Trust Indenture
Act in order to maintain the qualification of this Indenture under the
Trust Indenture Act.
After an amendment pursuant to this Section 10.02 becomes effective, the
Issuer shall provide notice to Holders of Junior Notes briefly describing such
amendment in the manner provided in Section 13.02 (Notices). The failure to give
such notice to all Holders of Junior Notes, or any defect therein, shall not
impair or affect the validity of an amendment under this Section 10.02.
SECTION 10.03. Compliance with Trust Indenture Act.
Every supplemental indenture to this Indenture shall comply with the Trust
Indenture Act as then in effect.
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SECTION 10.04. Revocation and Effect of Consents and Waivers.
A consent to an amendment or a waiver by a Holder of a Junior Note shall
bind the Holder and every subsequent Holder of that Junior Note or portion of
the Junior Note that evidences the same debt as the consenting Holder's Junior
Note, even if notation of the consent or waiver is not made on the Junior Note.
However, any such Holder or subsequent Holder may revoke the consent or waiver
as to such Holder's Junior Note or portion of the Junior Note if such consent or
waiver is irrevocable by its terms and the Trustee receives the notice of
revocation before the date the amendment or waiver becomes effective. After an
amendment or waiver becomes effective, it shall bind every Holder of Junior
Notes. An amendment or waiver shall become effective upon the execution of such
amendment or waiver by the Trustee.
SECTION 10.05. Notation on or Exchange of Junior Notes.
If an amendment changes the terms of a Junior Note, the Trustee may require
the Holder of the Junior Note to deliver it to the Trustee. The Trustee may
place an appropriate notation on the Junior Note regarding the changed terms and
return it to the Holder. Alternatively, if the Issuer or the Trustee so
determines, the Issuer in exchange for the Junior Note shall issue and the
Paying Agent shall authenticate a new Junior Note that reflects the changed
terms. Failure to make the appropriate notation or to issue a new Junior Note
shall not affect the validity of such amendment.
SECTION 10.06. Payment for Consents.
The Issuer shall not, and shall not permit any of its Subsidiaries to,
directly or indirectly, pay or cause to be paid any consideration to or for the
benefit of any Holder of Junior Notes for or as an inducement to any consent,
waiver or amendment of any of the terms or provisions of this Indenture, the
Junior Notes or the Guarantee of the Junior Notes unless such consideration is
offered to be paid and is paid to all Holders of such Junior Notes that consent,
waive or agree to amend in the time frame set forth in the solicitation
documents relating to such consent, waiver or agreement.
SECTION 10.07. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article 10 or the modifications thereby
of the trusts created by this Indenture, the Trustee shall be entitled to
receive, and (subject to Section 7.01 (Certain Duties and Responsibilities of
Trustee)) shall be fully protected in relying upon, an Officers' Certificate
and/or an Opinion of Counsel stating that the execution of such supplemental
indenture is authorized or permitted by this Indenture. The Trustee may, but
shall not be obliged to, enter into any such supplemental indenture which
affects the Trustee's own rights, duties or immunities under this Indenture or
otherwise.
SECTION 10.08. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article 10,
this Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and any
modifications, amendments or waivers to this Indenture or to the terms and
conditions of the Junior Notes will be conclusive and binding on all Holders of
the Junior Notes, whether or not they have given consent, and on all future
Holders of Junior
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Notes, whether or not notation of such modifications, amendments or waivers is
made upon the Junior Notes.
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ARTICLE 11
GUARANTEE OF THE JUNIOR NOTES
SECTION 11.01. Guarantee of the Junior Notes.
Each Initial Guarantor shall execute and deliver the Guarantee of the
Junior Notes set forth in Exhibit C (Form of Guarantee for Junior Notes) hereto
no later than the Issue Date.
Notwithstanding any other provision of this Indenture to the contrary,
Marconi Communications Telemulti Ltda shall not be required to execute a
Guarantee of the Senior Notes, a Guarantee of the Junior Notes or a Composite
Guarantee of any but shall for all other purposes of this Indenture and the
Junior Notes constitute a Non-US Guarantor.
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ARTICLE 12
TRANSACTION SECURITY
SECTION 12.01. Security Documents.
The due and punctual payment of the principal, premium, if any, and
Additional Amounts, if any, of, and interest on, the Junior Notes when and as
the same shall be due and payable, whether on a Junior Note Interest Payment
Date, at Stated Maturity, by acceleration, repurchase, redemption or otherwise,
interest on the overdue principal and premium, if any, of and interest (to the
extent permitted by law), if any, on the Junior Notes and performance of all
other Obligations under this Indenture and the Junior Notes, and the payment and
performance of the Obligations of the Guarantors under the Guarantee of the
Junior Notes shall be secured as provided in the Security Documents.
The Issuer shall, and shall cause each of its applicable Subsidiaries to,
execute and deliver the Initial Security Documents no later than the Issue Date.
The Issuer shall, and shall cause each UK IP Opco to, assign all of their legal
and beneficial title to Patents to the UK IPR Co no later than the Issue Date.
The Issuer shall cause each US IP Opco to assign all of their legal and
beneficial title to Patents to (1) in the case of Patents used or useful in the
US Core Businesses, the Ringfenced IPR Co and (2) in the case of other Patents
owned by the US IP Opcos, the US IPR Co, in each case no later than the Issue
Date. Notwithstanding the foregoing, in the event that any consent or agreement
of any Person (other than the Issuer and its Subsidiaries) is required for the
assignment of any Patent by a UK IP Opco to the UK IPR Co or by a US IP Opco to
Ringfenced IPR Co or US IPR Co (and the subsequent licensing of that Patent by
the IPR Co), as the case may be, and such consent or agreement has not been
obtained on or before the Issue Date, the Issuer and the UK IP Opco or the US IP
Opco, as the case may be, will use their respective reasonable best efforts to
obtain such consent or agreement as soon as possible.
The Issuer shall, and shall cause each of its Subsidiaries to, do or cause
to be done all such acts and things as may be necessary or proper, or as may be
required by the provisions of the Security Documents, to assure and confirm to
the Trustee and the Security Trustee the Lien in the Transaction Security
purported to be created by the Security Documents, as from time to time
constituted, so as to render the same available for the security and benefit of
this Indenture and of the Junior Notes and the Guarantee of the Junior Notes
secured thereby, according to the intent and purposes herein and therein
expressed. The Issuer shall, and shall cause each of its Subsidiaries to, take,
upon request of the Trustee or the Security Trustee (acting in accordance with
instructions received under the Security Trust and Intercreditor Deed), any and
all actions required to cause the Security Documents to create and maintain, as
security for the Obligations of the Issuer and the Guarantor under this
Indenture, the Security Documents, the Junior Notes and the Guarantee of the
Junior Notes, valid and enforceable, perfected (except as expressly provided
herein or therein), Liens in and on all the Transaction Security purported to be
created by the Security Documents, in favor of the Security Trustee and superior
to and prior to the rights of all third Persons not a party to the Security
Trust and Intercreditor Deed (except as expressly provided herein, therein or in
the Security Documents), and subject to no other Liens other than Permitted
Liens.
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The Issuer shall, and shall cause each of its applicable Subsidiaries to,
comply with all covenants and agreements contained in the Security Documents and
the Security Trust and Intercreditor Deed.
Each Holder of a Junior Note, by its acceptance thereof, consents and
agrees to the terms of the Security Documents and the Security Trust and
Intercreditor Deed (including, without limitation, the provisions providing for
enforcement, foreclosure and release of the Transaction Security), as the same
may be in effect or may be amended from time to time in accordance with their
terms, and authorizes and directs (1) the Trustee, who shall in turn be
authorized to instruct the Security Trustee, with respect to each of the
Security Documents to which it is a party and the Security Trust and
Intercreditor Deed, and (2) the Trustee, with respect to the Security Trust and
Intercreditor Deed, to perform their respective obligations and exercise their
respective rights thereunder in accordance therewith.
SECTION 12.02. Opinions.
The Issuer shall furnish to the Trustee promptly after the execution and
delivery of the Indenture and thereafter within one month after each anniversary
of the Issue Date, one or more Opinions of Counsel, dated as of such date,
stating either that (1) in the opinion of such counsel, all action has been
taken with respect to the recording, registering, filing, re-recording,
re-registering and re-filing of all supplemental indentures, financing
statements, continuation statements or other instruments of further assurance as
is necessary to maintain the Liens of the Security Documents and reciting the
details of such action or referring to prior Opinions of Counsel in which such
details are given or (2) in the opinion of such counsel, no such action is
necessary to maintain such Liens.
SECTION 12.03. Impairment of Security Interests.
(1) The Issuer and the Guarantors shall not, and shall not permit any of
their Subsidiaries to, take or omit to take any action which action or
omission could reasonably be expected to have the result of adversely
affecting or impairing (i) the security granted over the Transaction
Security pursuant to the Security Documents (but not the assets
constituting the Transaction Security, unless otherwise required under
the terms of this Indenture) in favor of the Security Trustee, for the
benefit of the Trustee, for the benefit of the Holders of the Junior
Notes, in any of the Transaction Security, other than as expressly
contemplated by this Indenture or the Security Documents (ii) the
ability of the Security Trustee to foreclose upon, sell or otherwise
enforce its Lien over any of the Transaction Security.
(2) The Issuer and the Guarantors shall not effect the release of the Lien
of any of the Transaction Security in favor of the Security Trustee,
for the benefit of the Trustee, for the benefit of the Holders of the
Junior Notes, except in accordance with the provisions of the Security
Trust and Intercreditor Deed.
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SECTION 12.04. Authorization of Receipt of Funds by the Trustee Under the
Security Documents.
The Trustee is authorized to receive any funds for the benefit of the
Holders distributed under the Security Documents and the Security Trust and
Intercreditor Deed, and to make further distributions of such funds to the
Holders according to the provisions of this Indenture and the Security Trust and
Intercreditor Deed.
SECTION 12.05. Release of Security.
To the extent applicable, the Issuer shall comply with Trust Indenture Act
Section 314(d), relating to the release of property or securities from the Lien
and security interest of the Security Documents and relating to the substitution
therefor of any property or securities to be subjected to the Lien and security
interest of the Security Documents. Any certificate or opinion required by Trust
Indenture Act Section 314(d) may be made by an Officer of the Issuer except in
cases where Trust Indenture Act Section 314(d) requires that such certificate or
opinion be made by an independent person, which person shall be an independent
engineer, appraiser or other expert selected or approved by the Issuer in the
exercise of reasonable care.
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ARTICLE 13
MISCELLANEOUS
SECTION 13.01. Trust Indenture Act Controls.
This Indenture is subject to the provisions of the Trust Indenture Act that
are required to be part of and govern indentures qualified under the Trust
Indenture Act. If any provision hereof limits, qualifies or conflicts with
another provision hereof which is required to be included in this Indenture by
any of the provisions of the Trust Indenture Act, such required provision shall
control. If any provision of this Indenture modifies or excludes any provision
of the Trust Indenture Act that may be so modified or excluded, the latter
provision shall be deemed to apply to this Indenture as so modified or excluded,
as the case may be.
SECTION 13.02. Notices.
Any request, demand, authorization, direction, notice, consent, waiver,
vote or act of Holders or other document provided or permitted by this Indenture
to be made upon, given or furnished to, or filed with,
(a) the Trustee by any Holder, the Issuer, any Paying Agent, the
Depositary, the Registrar or any Guarantor shall be sufficient for
every purpose hereunder (unless otherwise herein expressly provided)
if made, given, furnished or filed in writing (which may be made via
facsimile) to the Trustee at its Corporate Trust Office, or
(b) the Issuer by the Trustee or by any Holder shall be sufficient for
every purpose hereunder (unless otherwise herein expressly provided)
if in writing and mailed, in the case of the Issuer, first-class
postage prepaid, addressed to it at ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇ or by facsimile ▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇ (unless
another address and/or facsimile number has been previously furnished
in writing to the Trustee and the Paying Agent by the Issuer, in which
case at the last such address) marked "Attention: Company Secretary";
or
(c) any Guarantor by the Trustee or by any Holder shall be sufficient for
every purpose hereunder (unless otherwise herein expressly provided)
if in writing and mailed, in the case of such Guarantor, first-class
postage prepaid, addressed to it, in the care of the Issuer, at
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇ or by
facsimile ▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇ (unless another address and/or facsimile
number has been previously furnished in writing to the Trustee and the
Paying Agent by such Guarantor, in which case at the last such
address) marked "Attention: Company Secretary"; or
(d) the Paying Agent by any Holder, the Issuer, any Guarantor or the
Trustee shall be sufficient for every purpose hereunder if made,
given, furnished or filed in writing to the Paying Agent at One Canada
Square, London E14 5AL, England, or by facsimile at ▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇
attention: Corporate Trust Office (unless another address has been
previously furnished in writing to the Trustee, the Issuer and the
Guarantors by the Paying Agent, in which case at the last such
address).
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Subject to the other provisions of this paragraph, all notices to the
Holders of Junior Notes will be valid if published (at the expense of the
Issuer) in a leading English language daily newspaper published in London and a
leading English language daily newspaper published in New York City or such
other English language daily newspaper with general circulation in Europe or the
United States, as the case may be, as the Trustee may approve. Any notice will
be deemed to have been given on the date of publication or, if so published more
than once on different dates, on the date of first publication. If publication
as provided above is not practicable, notice will be given in such other manner,
and shall be deemed to have been given on such date, as the Trustee may approve.
If any Junior Notes are represented by Global Junior Notes held by the
Depositary, all notices with respect to such Junior Notes shall be sent to such
Depositary, or its nominee, and such Depositary shall communicate such notices
to DTC, Euroclear and/or Clearstream, Luxembourg, or their respective nominees,
in accordance with the Deposit Agreement. Such notices to the Depositary shall
be in lieu of and in substitution for the notices otherwise required by this
paragraph in the event the Junior Notes are solely represented by Global Junior
Notes.
SECTION 13.03. Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Issuer to the Trustee to take or
refrain from taking any action under this Indenture, the Issuer and any
Guarantor (if applicable) and any other obligor on the Junior Notes shall
furnish to the Trustee:
(1) an Officers' Certificate in form and substance reasonably satisfactory
to the Trustee stating that, in the opinion of the signers, all
conditions precedent, if any, provided for in this Indenture
(including any covenant compliance with which constitutes a condition
precedent) relating to the proposed action have been complied with;
and/or
(2) if requested by the Trustee, an Opinion of Counsel in form and
substance reasonably satisfactory to the Trustee stating that, in the
opinion of such counsel, all such conditions precedent have been
complied with,
except that, in the case of any such application or request as to
which the furnishing of such certificates or opinions is specifically
required by any provision of this Indenture relating to such
particular application or request, no additional certificate or
opinion need be furnished.
SECTION 13.04. Statements Required in Certificate or Opinion.
Every certificate or Opinion of Counsel with respect to compliance with a
covenant or condition provided for in this Indenture shall include:
(1) a statement that each individual signing such certificate or
individual or firm signing such opinion has read and understands such
covenant or condition and the definitions herein relating thereto;
(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
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(3) a statement that, in the opinion of each such individual or such firm,
he or it has made such examination or investigation as is necessary to
enable him or it to express an informed opinion as to whether or not
such covenant or condition has been complied with; and
(4) a statement as to whether, in the opinion of each such individual or
such firm, such condition or covenant has been complied with.
SECTION 13.05. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Issuer or a Guarantor may
be based, insofar as it relates to legal matters, upon a certificate or opinion
of, or representations by, legal advisors, unless such officer knows, or in the
exercise of reasonable care should know, that the certificate or opinion or
representations with respect to the matters upon which his certificate or
opinion is based are erroneous. Any such certificate or opinion of, or
representations by, legal advisors may be based, insofar as it relates to
factual matters, upon a certificate or opinion of, or representations by, an
officer or officers of the Issuer or a Guarantor stating that the information
with respect to such factual matters is in the possession of the Issuer or such
Guarantor unless such legal advisors know, or in the exercise of reasonable care
should know, that the certificate or opinion or representation with respect to
such matters is erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 13.06. Acts of Holders.
(1) Any request, demand, authorization, direction, notice, consent,
waiver, vote or other action provided by this Indenture to be given or
taken by Holders may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such Holders or
by an agent duly appointed in writing; and, except as herein otherwise
expressly provided, such action shall become effective when such
instrument or instruments are delivered to the Trustee and, when it is
hereby expressly required, to the Issuer. Proof of execution of any
such instrument or of a writing appointing any such agent shall be
sufficient for any purpose of this Indenture and (subject to Section
7.01 (Certain Duties of Trustee)) conclusive in favor of the Trustee
and the Issuer, if made in the manner provided in this Section 13.06.
(2) If the Issuer shall solicit from the Holders of Definitive Registered
Junior Notes any request, demand, authorization, direction, notice,
consent, waiver, vote or other act, the Issuer may, at its option, fix
in advance a record date for purposes
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of determining the identity of Holders of Definitive Registered Junior
Notes entitled to give such request, demand, authorization, direction,
notice, consent, waiver, vote or other act, but the Issuer shall have
no obligation to do so. Any such record date shall be fixed at the
Issuer's discretion. If such a record date is fixed, such request,
demand, authorization, direction, notice, consent, waiver, vote or
other act may be sought or given before or after the record date, but
only the Holders of Definitive Registered Junior Notes of record at
the close of business on such record date shall be deemed to be
Holders of Definitive Registered Junior Notes for the purpose of
determining whether the Required Holders of the requisite proportion
of Junior Notes Outstanding have authorized or agreed or consented to
such request, demand, authorization, direction, notice, consent,
waiver, vote or other act, and for that purpose the Definitive
Registered Junior Notes Outstanding shall be computed as of such
record date. If the record date is not set by the Issuer prior to the
first solicitation of Holders of Definitive Registered Junior Notes
made by the Issuer in respect of any such action, or, in the case of
any such vote, prior to such vote, the record date for any such action
or vote shall be the 30th day prior to the first solicitation of such
action or vote. Upon the fixing of such a record date, those Persons
who were Holders of Definitive Registered Junior Notes at such record
date (or their duly designated proxies), and only those Persons, shall
be entitled with respect to such Definitive Registered Junior Notes to
take such action by vote or to revoke any vote previously given,
whether or not such persons continue to be Holders after such record
date.
(3) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of
such execution or by a certificate of a notary public or other officer
authorized by law to take acknowledgements of deeds, certifying that
the individual signing such instrument or writing acknowledged to him
the execution thereof. When such execution is by a signatory acting in
a capacity other than his individual capacity, such certificate or
affidavit shall also constitute sufficient proof of his authority. The
fact and date of the execution of any such instrument or writing, or
the authority of the Person executing the same, may also be proved in
any other manner which the Trustee deems sufficient.
(4) The ownership, principal amount and serial numbers of Definitive
Registered Junior Notes held by any Person, and the date of holding
the same, shall be proved by the Register.
(5) The ownership of a Global Junior Note, and the principal amount and
serial number of such Global Junior Note and the date of holding the
same, may be proved by the production of such Global Junior Note.
SECTION 13.07. Rules by Trustee, Paying Agent and Registrar.
Subject to the provisions of Article 14 (Meetings of Holders of the Junior
Notes), the Trustee may make reasonable rules for action by or a meeting of
Holders of Junior Notes. The Registrar and the Paying Agent may make reasonable
rules for their functions.
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SECTION 13.08. Governing Law.
This Indenture and the Junior Notes shall be governed by and construed in
accordance with English law, except to the extent provisions of the Trust
Indenture Act are included or deemed to be included herein, as to which the
Trust Indenture Act shall govern.
SECTION 13.09. English Courts and New York Courts.
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 nonexclusive
jurisdiction to settle any dispute (a "Dispute"), arising from or connected with
this Indenture or the Junior Notes (including a dispute regarding the existence,
validity or termination of this Indenture or the Junior Notes) or the
consequences of their nullity.
SECTION 13.10. Appropriate Forum.
Each party hereto agrees that the courts referred to in Section 13.09
(English Courts and New York Courts) are the most appropriate and convenient
courts to settle any Dispute.
SECTION 13.11. Rights of the Trustee and Holders to Take Proceedings
Outside England and the State of New York.
Section 13.09 (English Courts and New York Courts) is for the benefit of
the Trustee and the Holders only. As a result, nothing in this Indenture
prevents the Trustee or any of the Holders from taking proceedings relating to a
Dispute ("PROCEEDINGS") in any other courts with jurisdiction. To the extent
allowed by law, the Trustee or any of the Holders may take concurrent
Proceedings in any number of jurisdictions.
SECTION 13.12. Service of Process.
Each of the Issuer and 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 ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇ or, if different, its 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 it in accordance with Part XXIII of the Companies ▇▇▇
▇▇▇▇ and (b) in connection with any Proceedings in the Borough of Manhattan, New
York, to CT Corporation System at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇
▇▇▇▇▇ or, if different, its principal place of business in the United States of
America for the time being. If either such Person is not or ceases to be
effectively appointed to accept service of process on behalf of the Issuer and
the Guarantors, the Issuer and the Guarantors (acting together) shall, on the
written demand of the Trustee addressed to the Issuer and the Guarantors and
delivered to the Issuer and the Guarantors, appoint a further person in England
or (as the case may be) the County of New York to accept service of process on
its behalf and, failing such appointment within 15 days, the Trustee shall be
entitled to appoint such a person by written notice addressed to the Issuer and
the Guarantors and delivered to the Issuer and the Guarantors. Nothing in this
paragraph shall affect the right of the Trustee or any of the Holders to serve
process in any other manner permitted by law. This Section 13.12 applies to
Proceedings in England and in the County of New York.
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SECTION 13.13. Consent to Enforcement.
Each of the Issuer and 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.
To the extent permitted by law, the Issuer and each Guarantor hereby waive
any objections to the enforcement by any court referred to in Section 13.09
(English Courts and New York Courts) of any judgment validly obtained in any
such court on the basis of any such legal suit, action or proceeding.
SECTION 13.14. Waiver of Immunity.
To the extent that the Issuer or 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 the Issuer, any Guarantor or their
respective assets or revenues, each of the Issuer and 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 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.
SECTION 13.15. No Recourse Against Others.
Other than the Guarantors with respect to the Guarantee of the Junior
Notes, no past, present or future director, officer, employee, incorporator or
stockholder, as such, of the Issuer or any Guarantor shall have any liability
for any obligations of the Issuer or such Guarantor under the Junior Notes or
this Indenture, or for any claim based on, in respect of, or by reason of, such
obligations or their creation. Each Holder of Junior Notes by accepting a Junior
Note waives and releases all such liability. The waiver and release are part of
the consideration for issuance of the Junior Notes.
SECTION 13.16. Successors.
All covenants and agreements of the Issuer and the Guarantors in this
Indenture and the Junior Notes shall bind their respective successors and
assigns, whether so expressed or not. All agreements of the Trustee in this
Indenture shall bind its successors and assigns, whether so expressed or not.
SECTION 13.17. Multiple Originals.
The parties hereto may sign any number of copies of this Indenture. Each
signed copy shall be an original, but all of them together represent the same
agreement. One signed copy is enough to prove this Indenture.
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SECTION 13.18. Table of Contents; Headings.
The table of contents, cross-reference sheet and headings of the Articles,
Sections, Schedules and Exhibits of this Indenture have been inserted for
convenience of reference only, are not intended to be considered a part hereof
and shall not modify or restrict any of the terms or provisions hereof or affect
the construction hereof.
SECTION 13.19. Severability.
In case any one or more of the provisions in this Indenture or in the
Junior Notes shall be held invalid, illegal or unenforceable, in any respect for
any reason, the validity, legality and enforceability of any such provision in
every other respect and of the remaining provisions shall not in any way be
affected or impaired thereby, it being intended that all of the provisions
hereof shall be enforceable to the full extent permitted by law.
SECTION 13.20. Parallel Debt Obligations.
Each Obligor hereby agrees and covenants with the Trustee by way of an
abstract acknowledgement of debt that, notwithstanding anything to the contrary
in this Indenture, the Junior Notes or the Guarantee of the Junior Notes (but,
for the avoidance of doubt, subject to the limitation set forth in clause [o] of
the Guarantee of the Junior Notes with respect to the Guarantors, it shall pay
to the Trustee sums equal to, and in the currency or currencies of, the amounts
owed by such Obligor from time to time to the Holders under this Indenture, the
Junior Notes and the Guarantee of the Junior Notes (the "PRINCIPAL
OBLIGATIONS"), as and when the same fall due for payment under this Indenture,
the Junior Notes and the Guarantee of the Junior Notes (the "PARALLEL
OBLIGATIONS").
The Trustee shall have its own independent right to demand and require
payment to it of the Parallel Obligations by the Obligors (such demand to be
made in accordance with, and only in the circumstances permitted under, this
Indenture, the Junior Notes and the Guarantee of the Junior Notes and only if
permitted by the Security Trust and Intercreditor Deed). The rights of the
Holders to receive payment of the Principal Obligations are several from the
rights of the Trustee to receive the Parallel Obligations, provided that the
payment by an Obligor of its Parallel Obligations to the Trustee in accordance
with this Section 13.20 shall be a good discharge of the corresponding Principal
Obligations owed by it and the payment by an Obligor of its Principal
Obligations in accordance with the provisions of this Indenture, the Junior
Notes and the Guarantee of the Junior Notes shall be a good discharge of the
corresponding Parallel Obligations owed to the Trustee under this Section 13.20.
In the event of a good discharge of any Principal Obligations the Trustee shall
not be entitled to demand payment of the corresponding Parallel Obligations and
such Parallel Obligations shall be discharged to the same extent. Subject to
Section 9.03 (Reinstatement), in the event of a good discharge of any Parallel
Obligations, the Holders shall not be entitled to demand payment of the
corresponding Principal Obligations and such Principal Obligations shall be
discharged to the same extent.
SECTION 13.21. Benefits of Indenture.
Except as provided in Section 11.01 (Guarantee of the Junior Notes) with
respect to the Security Trustee, nothing in this Indenture or in the Junior
Notes, express or implied, shall give to any Person, other than the parties
hereto and their successors hereunder, and the Holders of
- 149 -
Junior Notes, any benefit or any legal or equitable right, remedy or claim
under this Indenture under the Contracts (Rights of Third Parties) ▇▇▇ ▇▇▇▇.
- 150 -
ARTICLE 14
MEETINGS OF HOLDERS OF THE JUNIOR NOTES
SECTION 14.01. Purposes of Meetings.
A meeting of the Holders, in each case with respect to Junior Notes held by
such Holders, may be called at any time from time to time pursuant to this
Article 14 for any of the following purposes:
(1) to give any notice to the Issuer or to the Trustee, or to give any
directions to the Trustee, or to consent to the waiving of any Default
hereunder and its consequences, or to take any other action authorized
to be taken by Holders pursuant to Article 6 (Defaults and Remedies)
hereof;
(2) to remove the Trustee and appoint a successor trustee pursuant to
Article 7 (The Trustee) hereof;
(3) to consent to the execution of a supplemental indenture; or
(4) to consent to the waiving of certain covenants pursuant to Section
10.01 (Supplemental Indentures With Consent of Holders).
SECTION 14.02. Place of Meetings.
Meetings of Holders may be held at such place or places as the Trustee or,
in case of its failure to act, the Issuer or the Holders calling the meeting,
shall from time to time determine.
SECTION 14.03. Call and Notice of Meetings.
(1) The Trustee may at any time (upon not less than 21 days' notice) call
a meeting of Holders to be held at such time and at such place in the
location determined by the Trustee pursuant to Section 14.02 (Place of
Meetings). Notice of every meeting of Holders, setting forth the time
and the place of such meeting and in general terms the action proposed
to be taken at such meeting, shall be published in the manner
contemplated by Section 13.02 (Notices) hereof.
(2) In case at any time the Issuer, or the Required Holders of at least
25% in aggregate principal amount of the Junior Notes then
Outstanding, shall have requested the Trustee to call a meeting of the
Holders, by written request setting forth in reasonable detail the
action proposed to be taken at the meeting, and the Trustee shall not
have made the first giving of the notice of such meeting within 20
days after receipt of such request, then the Issuer or the Required
Holders of the amount above specified may determine the time (not less
than 21 days after notice is given) and the place determined by the
Issuer or the Holders pursuant to Section 14.02 (Place of Meetings)
for such meeting and may call such meeting to take any action
authorized in Section 14.01 (Purposes of Meetings) by giving notice
thereof as provided in clause (1) of this Section 14.03.
- 151 -
SECTION 14.04. Voting at Meetings.
To be entitled to vote at any meeting of Holders, a Person shall be (i) a
Holder or (ii) a Person appointed by an instrument in writing as proxy for a
Holder or Holders by such Holder or Holders. The only Persons who shall be
entitled to be present or to speak at any meeting of Holders shall be the
Persons so entitled to vote at such meeting and their counsel, any
representatives of the Trustee and its counsel, any representatives of the
Issuer and its counsel and any representatives of any Guarantor and its counsel.
SECTION 14.05. Voting Rights, Conduct and Adjournment.
(1) Notwithstanding any other provisions of this Indenture, the Trustee
may make such reasonable regulations as it may deem advisable for any
meeting of Holders in regard to proof of holding of Junior Notes and
of the appointment of proxies and in regard to the appointment and
duties of inspectors of votes, the submission and examination of
proxies, certificates and other evidence of the right to vote, and
such other matters concerning the conduct of the meeting as it shall
deem appropriate. Except as otherwise permitted or required by any
such regulations, the holding of Junior Notes shall be proved in the
manner specified in Article 2 (The Securities) hereof and the
appointment of any proxy shall be proved in such manner as is deemed
appropriate by the Trustee or by having the signature of the person
executing the proxy witnessed or guaranteed by any bank, banker,
notary or trust company customarily authorized to certify to the
holding of a security such as a global security.
(2) At any meeting of Holders, the presence of Persons holding or
representing Junior Notes in an aggregate principal amount sufficient
under the appropriate provision of this Indenture to take action upon
the business for the transaction of which such meeting was called
shall constitute a quorum. Any meetings of Holders duly called
pursuant to Section 14.03 (Call and Notice of Meetings) hereof may be
adjourned from time to time by vote of the Required Holders (or
proxies for the Required Holders) of a majority in aggregate principal
amount of the Junior Notes represented at the meeting and entitled to
vote, whether or not a quorum shall be present; and the meeting may be
held as so adjourned without further notice. No action at a meeting of
Holders shall be effective unless approved by the Required Holders of
the aggregate principal amount of Junior Notes required by the
provision of this Indenture pursuant to which such action is being
taken.
(3) At any meeting of Holders, each Holder or proxy shall be entitled to
one vote for each US$1.00 principal amount of Outstanding Junior Notes
held or represented.
In determining whether the Required Holders of the requisite principal
amount of the Junior Notes have given or taken any direction, notice, consent,
waiver or other action under this Indenture as of any date, only the principal
amount (determined as above) of Junior Notes that are Outstanding under this
Indenture can be considered.
----------------------
-152-
This Instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
-153-
IN WITNESS WHEREOF, the Issuer, the Guarantors and the Trustee have caused this
Indenture to be duly executed as a deed as of the date first written above.
[A&O to advise how each Marconi entity will execute this indenture as a deed,
and confirm names of all Marconi Signatories.]
MARCONI CORPORATION PLC, as Issuer
By: _________________________________
Name:
Title:
MARCONI COMMUNICATIONS, INC., as Guarantor
By: _________________________________
Name:
Title:
MARCONI NETWORKS WORLDWIDE, INC., as Guarantor
By: _________________________________
Name:
Title:
MARCONI COMMUNICATIONS TECHNOLOGY, INC., as Guarantor
By: _________________________________
Name:
Title:
MARCONI COMMUNICATIONS FEDERAL, INC., as Guarantor
By: _________________________________
Name:
Title:
MARCONI ACQUISITION CORP., as Guarantor
By: _________________________________
Name:
Title:
- 154 -
MARCONI INTELLECTUAL PROPERTY (RINGFENCE) INC., as Guarantor
By: _________________________________
Name:
Title:
MARCONI COMMUNICATIONS LIMITED, a private limited company incorporated under the
laws of the Republic of Ireland, as Guarantor By:
By: _________________________________
Name:
Title:
MARCONI COMMUNICATIONS OPTICAL NETWORKS LIMITED, as Guarantor
By: _________________________________
Name:
Title:
MARCONI COMMUNICATIONS, S.A. DE C.V., as Guarantor
By: _________________________________
Name:
Title:
MARCONI COMMUNICATIONS DE MEXICO, S.A. DE C.V., as Guarantor
By: _________________________________
Name:
Title:
MARCONI COMMUNICATIONS EXPORTEL, S.A. DE C.V., as Guarantor
By: _________________________________
Name:
Title:
ADMINISTRATIVA MARCONI COMMUNICATIONS, S.A. DE C.V., as Guarantor
By: _________________________________
Name:
Title:
- 155 -
MARCONI COMMUNICATIONS BV, as Guarantor
By: _________________________________
Name:
Title:
MARCONI COMMUNICATIONS GMBH, a private company incorporated under the laws of
Switzerland, as Guarantor By:
By: _________________________________
Name:
Title:
METAPATH SOFTWARE INTERNATIONAL LIMITED, as Guarantor
By: _________________________________
Name:
Title:
MOBILE SYSTEMS INTERNATIONAL HOLDINGS LIMITED, as Guarantor
By: _________________________________
Name:
Title:
GPT SPECIAL PROJECT MANAGEMENT LIMITED, as Guarantor
By: _________________________________
Name:
Title:
MARCONI COMMUNICATIONS LIMITED, a private limited company incorporated under the
laws of
England and Wales, as Guarantor By:
By: _________________________________
Name:
Title:
MARCONI COMMUNICATIONS INTERNATIONAL LIMITED, as Guarantor
By: _________________________________
Name:
Title:
- 156 -
MARCONI COMMUNICATIONS CHINA LIMITED, as Guarantor
By: _________________________________
Name:
Title:
MARCONI COMMUNICATIONS INTERNATIONAL INVESTMENTS LIMITED, as Guarantor
By: _________________________________
Name:
Title:
MARCONI COMMUNICATIONS INTERNATIONAL HOLDINGS LIMITED, as Guarantor
By: _________________________________
Name:
Title:
MARCONI COMMUNICATIONS INVESTMENTS LIMITED, as Guarantor
By: _________________________________
Name:
Title:
MARCONI COMMUNICATIONS HOLDINGS LIMITED, as Guarantor
By: _________________________________
Name:
Title:
MARCONI (▇▇▇▇▇▇ STREET) LIMITED, as Guarantor
By: _________________________________
Name:
Title:
MARCONI (DGP1) LIMITED, as Guarantor
By: _________________________________
Name:
Title:
- 157 -
MARCONI (DGP2) LIMITED, as Guarantor
By: _________________________________
Name:
Title:
MARCONI BONDING LIMITED, as Guarantor
By: _________________________________
Name:
Title:
MARCONI OPTICAL COMPONENTS LIMITED, as Guarantor
By: _________________________________
Name:
Title:
ASSOCIATED ELECTRICAL INDUSTRIES LIMITED, as Guarantor
By: _________________________________
Name:
Title:
ENGLISH ELECTRIC COMPANY LTD, as Guarantor
By: _________________________________
Name:
Title:
MARCONI (▇▇▇▇▇▇▇ AUTOMATION) LIMITED, as Guarantor
By: _________________________________
Name:
Title:
▇▇▇▇▇▇▇ AUTOMATION HOLDINGS LIMITED, as Guarantor
By: _________________________________
Name:
Title:
- 158 -
MARCONI AEROSPACE UNLIMITED, as Guarantor
By: _________________________________
Name:
Title:
MARCONI UK INTELLECTUAL PROPERTY LIMITED, as Guarantor
By: _________________________________
Name:
Title:
MARCONI (NCP) LIMITED, as Guarantor
By: _________________________________
Name:
Title:
HIGHROSE LIMITED, as Guarantor
By: _________________________________
Name:
Title:
MARCONI INC., as Guarantor
By: _________________________________
Name:
Title:
MARCONI HOLDINGS, LLC, as Guarantor
By: _________________________________
Name:
Title:
MARCONI COMMUNICATIONS NORTH AMERICA INC., as Guarantor
By: _________________________________
Name:
Title:
- 159 -
FS HOLDINGS CORP., as Guarantor
By: _________________________________
Name:
Title:
FS FINANCE CORP., as Guarantor
By: _________________________________
Name:
Title:
MARCONI SOFTWARE INTERNATIONAL, INC., as Guarantor
By: _________________________________
Name:
Title:
METAPATH SOFTWARE INTERNATIONAL (US), INC., as Guarantor
By: _________________________________
Name:
Title:
METAPATH SOFTWARE INTERNATIONAL, INC., as Guarantor
By: _________________________________
Name:
Title:
MARCONI INTELLECTUAL PROPERTY (US), INC., as Guarantor
By: _________________________________
Name:
Title:
MARCONI COMMUNICATIONS HOLDINGS GMBH, as Guarantor
By: _________________________________
Name:
Title:
- 160 -
MARCONI COMMUNICATIONS GMBH, a private company incorporated under the laws of
the Federal Republic of Germany, as Guarantor
By: _________________________________
Name:
Title:
MARCONI COMMUNICATIONS REAL ESTATE GMBH, as Guarantor
By: _________________________________
Name:
Title:
MARCONI HOLDINGS S.P.A., as Guarantor
By: _________________________________
Name:
Title:
MARCONI COMMUNICATIONS S.P.A., as Guarantor
By: _________________________________
Name:
Title:
MARCONI SUD S.P.A., as Guarantor
By: _________________________________
Name:
Title:
MARCONI COMMUNICATIONS TELEMULTI LTDA, as Guarantor
By: _________________________________
Name:
Title:
MARCONI AUSTRALIA HOLDINGS PTY LIMITED, as Guarantor
By: _________________________________
Name:
Title:
- 161 -
MARCONI AUSTRALIA PTY LIMITED, as Guarantor
By: _________________________________
Name:
Title:
MARCONI COMMUNICATIONS ASIA LIMITED, as Guarantor
By: _________________________________
Name:
Title:
G.E.C. (HONG KONG) LIMITED, as Guarantor
By: _________________________________
Name:
Title:
▇▇▇▇▇▇ STREET OVERSEAS INVESTMENTS LIMITED, as Guarantor
By: _________________________________
Name:
Title:
Regents Place, Inc., as Guarantor
By: _________________________________
Name:
Title:
JPMORGAN CHASE BANK, as Trustee
By: _________________________________
Name:
Title:
- 162 -
EXHIBIT A
[FORM OF GLOBAL JUNIOR NOTE]
THIS BEARER GLOBAL JUNIOR NOTE IS A GLOBAL JUNIOR NOTE WITHIN THE MEANING OF THE
INDENTURE REFERRED TO ON THE REVERSE HEREOF AND IS ISSUED TO THE BANK OF NEW
YORK AS DEPOSITARY PURSUANT TO THE DEPOSIT AGREEMENT REFERRED TO IN THE
INDENTURE REFERRED TO ON THE REVERSE HEREOF. TRANSFERS OF THIS GLOBAL JUNIOR
NOTE SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO A SUCCESSOR OF
THE DEPOSITARY AND ANY SUCH TRANSFERS SHALL BE LIMITED TO TRANSFERS MADE IN
ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE INDENTURE REFERRED TO ON THE
REVERSE HEREOF.
MARCONI CORPORATION plc
Guaranteed Junior Secured Notes due 2008
CUSIP No.: ▇▇▇▇▇▇▇▇▇
ISIN Number: XS0166109768
Serial Number: 1
Marconi Corporation plc, a public limited company organized under the laws
of
England and Wales, for value received, hereby promises to pay to the bearer
upon surrender hereof the principal sum specified on Schedule A hereto on
October 31, 2008.
Junior Note Interest Payment Dates: January 31, April 30, July 31 and
October 31, commencing July 31, 2003.
Reference is hereby made to the further provisions of this Global Junior
Note set forth on the reverse of this Global Junior Note, which further
provisions shall for all purpose have the same effect as if set forth at this
place.
Unless the certificate of authentication hereon has been executed by the
Paying Agent referred to on the reverse hereof by manual signature, this Global
Junior Note shall not be entitled to any benefit under the Indenture or be valid
or obligatory for any purpose.
IN WITNESS WHEREOF, Marconi Corporation plc has caused this instrument to
be signed manually or by facsimile by one of its duly authorized officers.
MARCONI CORPORATION PLC
By:______________________________
A-1
CERTIFICATE OF AUTHENTICATION
This is one of the Global Junior Notes referred to in the within-mentioned
Indenture.
THE BANK OF NEW YORK
as Paying Agent
By:_____________________________________
Authorized Signatory
Dated: _____________________________
A-2
[REVERSE SIDE OF GLOBAL JUNIOR NOTE]
MARCONI CORPORATION plc
Guaranteed Junior Secured Notes due 2008
1. Interest
Marconi Corporation plc, a public limited company organized under the laws
of England and Wales (herein called the "ISSUER", which term includes any
successor under the Indenture hereinafter referred to), for value received,
hereby promises to pay to the bearer interest on the principal amount of this
Global Junior Note in cash from the Issue Date (or if interest has already been
paid or duly provided for, from the most recent Junior Note Interest Payment
Date to which interest has been paid or duly provided for), quarterly in
arrears, on January 31, April 30, July 31 and October 31 of each year (each such
date a "Junior Note Interest Payment Date"), commencing July 31, 2003, at the
applicable Junior Note Interest Rate, plus Additional Amounts, if any, until the
principal hereof is paid or made available for payment.
With respect to any Junior Note Interest Period, if the Issuer elects to
pay and actually pays interest on the Junior Notes on the relevant Junior Note
Interest Payment Date in cash, the Junior Notes will accrue interest at the rate
of 10% per annum, otherwise the Junior Notes will accrue interest at the rate of
12% per annum.
Any amount of principal, premium, if any, interest and Additional Amounts,
if any, on this Global Junior Note that is not paid when due shall, to the
fullest extent lawful, accrue interest at a rate per annum equal to the Default
Rate. Interest shall be computed on the basis of a 360-day year of twelve 30-day
months.
On the first Junior Note Interest Payment Date, the Issuer shall pay, in
addition to accrued interest on the outstanding principal amount of this Global
Junior Note, an amount equal to the amount of interest that would have accrued
on this Global Junior Note if this Global Junior Note had been Outstanding for
the period from and including May 1, 2003 to but excluding the Issue Date,
calculated using the Junior Note Interest Rate applicable to the first Junior
Note Interest Period and computed on the basis of a 360-day year of twelve
30-day months.
2. Currency and Method of Payment
All payments of principal, premium, if any, interest, Additional Amounts,
if any, and any other amounts due on this Global Junior Note shall be made in
the Relevant Currency.
The Issuer through the Paying Agent shall pay interest on this Global
Junior Note to the Holder of this Global Junior Note or as instructed in writing
by the Holder of this Global Junior Note. The Holder of this Global Junior Note
must surrender this Global Junior Note to the Paying Agent to collect principal
payments.
3. Paying Agent
Initially, The Bank of New York, a New York banking corporation (the
"PAYING AGENT"), will act as Paying Agent with respect to this Global Junior
Note. The Issuer may appoint and change any Paying Agent without prior notice.
A-3
4. Indenture
The Issuer issued this Global Junior Note under the Indenture, dated as of
May 19, 2003 (the "INDENTURE"), among the Issuer, the Initial Guarantors named
therein and JPMorgan Chase Bank, as Trustee (the "TRUSTEE"), to which Indenture
and all indentures supplemental thereto reference is hereby made for a statement
of the respective rights, limitations of rights, duties and immunities
thereunder of the Trustee, the Issuer, the Guarantors and the Holder of this
Global Junior Note, and of the terms upon which this Global Junior Note is, and
is to be, authenticated and delivered. The terms of this Global Junior Note
include those stated in the Indenture and those made part of the Indenture by
reference to the Trust Indenture Act of 1939 (15 USC. ▇▇.▇▇. 77aaa-77bbbb) as in
force at the date as of which this instrument was executed (the "Trust Indenture
Act", which term shall, in the event the Trust Indenture Act of 1939 is amended
after such date, mean, to the extent required by any such amendment, the US
Trust Indenture Act of 1939 as so amended). This Global Junior Note is subject
to, and qualified by, all such terms, certain of which are summarized hereon,
and the Holder of this Global Junior Note is referred to the Indenture and the
Trust Indenture Act for a more complete statement of those terms. Terms defined
in the Indenture and not defined herein have the meanings ascribed thereto in
the Indenture.
This Global Junior Note is a direct, secured and unsubordinated obligation
of the Issuer and is one of a duly authorized issue of securities of the Issuer
limited in aggregate principal amount to US$486,881,472 (four hundred eighty-six
million, eight hundred eighty-one thousand, four hundred seventy-two United
States dollars) (without taking into account any increase in principal amount of
this Global Junior Note as a result of the payment of interest or Additional
Amounts, if any, in the form of Junior PIK Notes). No reference herein to the
Indenture and no provision of this Global Junior Note or of the Indenture shall
alter or impair the obligation of the Issuer, which is absolute and
unconditional, to pay the principal of, premium, if any, and interest and
Additional Amounts, if any, on this Global Junior Note when due at the times,
place and rate, and in the coin or currency, herein prescribed.
5. Redemption
The Junior Notes are redeemable, in whole but not in part, at the option of
the Issuer at any time upon not less than 30 days' but not more than 60 days'
notice at a redemption price in cash equal to the Optional Redemption Price,
provided that the Issuer may only redeem the Junior Notes if the Issuer
simultaneously redeems all outstanding Junior Notes and all outstanding Senior
Notes in accordance with the provisions of the Indenture and the Senior Note
Indenture, respectively.
The Junior Notes are redeemable, in whole but not in part, at the option of
the Issuer and at any time upon not less than 30 days' but not more than 60
days' notice at a redemption price in cash equal to the Optional Redemption
Price, if at any time (other than during a Standstill Period or at a time when a
Payment Stop Event has occurred and is continuing) the aggregate principal
amount of the then Outstanding Junior Notes is less than 10% of the aggregate
principal amount of the Junior Notes issued on the Issue Date.
The Junior Notes must be redeemed in whole or in part out of funds
available therefor in the Mandatory Redemption Escrow Account, in the
circumstances set forth in the Indenture, in each case at a redemption price in
cash of 110% of their outstanding principal amount, plus
A-4
accrued and unpaid interest thereon and Additional Amounts in respect thereof,
if any, to the date of redemption and upon notice of not less than ten (10) but
not more than fifteen (15) London Business Days.
The Junior Notes also must be redeemed upon the Issuer becoming aware of
the occurrence of a Change of Control or upon any merger, consolidation or
reorganization of the Issuer with any Person, or any sale, assignment, transfer,
conveyance, lease or other disposition of all or substantially all of the
properties or assets of the Issuer and its Subsidiaries, taken as a whole, in
each case at a redemption price in cash equal to the Optional Redemption Price
and in accordance with the applicable provisions of the Indenture and upon
notice as provided in the Indenture.
The Issuer at its option may at any time redeem all, but not less than all,
of the Global Junior Notes in cash at 100% of the principal amount of such
Global Junior Notes, plus any accrued and unpaid interest thereon and Additional
Amounts, if any, to the Repayment Date, upon not less than 30 nor more than 60
days' notice, if, as a result of any amendment to, or change in, the laws
(including any regulations or rulings thereunder) of the United Kingdom
(including any European Union law or directive that has the effect of law in the
United Kingdom) or any other Taxing Jurisdiction, or any amendment to or change
in any official position concerning the administration, application or
interpretations of such laws or regulations (including a judgment by a court of
competent jurisdiction), which amendment or change is announced and effective on
or after the Issue Date, the Issuer satisfies the Trustee that it has become or
will become obligated to pay Additional Amounts which are more than a de minimis
amount (as determined by the Issuer in its reasonable judgment) on the next date
on which any amount would be payable with respect to such Global Junior Notes
and the Issuer determines in good faith that such obligation cannot be avoided
by the use of reasonable measures available to the Issuer (including, without
limitation, by changing the jurisdiction from which or through which payments on
such Global Junior Notes are made).
In the event of mandatory or optional redemption of the Junior Notes, other
than at Stated Maturity, the redemption price to be paid by the Issuer on the
applicable Repayment Date shall be payable in United States dollars, unless the
Issuer elects to make payment in British pounds sterling, which election shall
be irrevocable and shall be set forth in the applicable notice of redemption. If
the Issuer elects to make payment in British pounds sterling, the amount payable
in respect of this Global Junior Note shall be the Sterling Equivalent of the
principal amount of this Global Junior Note in United States dollars, multiplied
by the applicable redemption price, multiplied by 1.005 and rounded (if
necessary) to the nearest ▇▇▇▇▇ (with (pound)0.005 being rounded upwards).
6. Guarantee
The obligations of the Issuer under the Indenture and the Junior Notes have
been unconditionally and irrevocably guaranteed by the Guarantors pursuant to
the Guarantee of the Junior Notes.
A-5
7. Transfer; Exchange
This Global Junior Note is in bearer form without coupons. The bearer of
this Global Junior Note may only transfer or exchange this Global Junior Note in
accordance with the Indenture.
8. Persons Deemed Owners
The bearer of this Global Junior Note will be treated as the owner of it
for all purposes.
9. Amendment, Waiver
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Issuer, the Guarantors and the Trustee with the consent of the Required Holders
of a majority in aggregate principal amount of the Junior Notes Outstanding at
the time of amendment or modification. The Indenture also contains provisions
permitting the Required Holders of a majority in aggregate principal amount of
the Junior Notes at any time Outstanding, on behalf of the Holders of all the
Junior Notes, to waive compliance by the Issuer with certain provisions of the
Indenture and certain past Defaults under the Indenture and their consequences.
Any such consent or waiver by or on behalf of the Holder of this Global Junior
Note shall be conclusive and binding upon such Holder and upon all future
Holders of this Global Junior Note and of any Global Junior Note issued in
exchange herefor or in lieu hereof whether or not notation of such consent or
waiver is made upon this Global Junior Note.
10. Defaults and Remedies
This Global Junior Note has the Events of Default as set forth in Section
6.01 (Events of Default) of the Indenture. If certain Events of Default occur
and are continuing, the Required Holders of at least 25% (or, in certain cases,
at least 35%) in aggregate principal amount of the Junior Notes then
Outstanding, subject to certain limitations, may declare all the Junior Notes to
be due and payable immediately. Certain events of bankruptcy or insolvency with
respect to the Issuer are Events of Default and shall result in the Junior Notes
being due and payable immediately upon the occurrence of such Events of Default.
Holders of Global Junior Notes may not enforce the Indenture or such Global
Junior Notes except as provided in the Indenture. The Trustee may refuse to
enforce the Indenture or the Global Junior Notes unless it receives indemnity or
security reasonably satisfactory to it. Subject to certain limitations, the
Required Holders of a majority in aggregate principal amount of the Junior Notes
then Outstanding may direct the Trustee in its exercise of any trust or power.
The Required Holders of a majority in aggregate principal amount of the Junior
Notes then Outstanding by written notice to the Trustee may rescind a
declaration of acceleration if the rescission is prior to a judgment or decree
for payment and if all Events of Default have been cured or waived except
nonpayment of principal and interest that have become due solely because of the
acceleration. The above description of Events of Default and remedies is
qualified by reference, and subject in its entirety, to the more complete
description thereof contained in the Indenture.
A-6
11. Payment Blockage
Neither the Issuer nor any Subsidiary of the Issuer may pay any principal
of, premium (if any) or interest or Additional Amounts (if any) on any Junior
Notes, other than interest or Additional Amounts paid in the form of Junior PIK
Notes, and none of them 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.
If at any time a Standstill Event has occurred, neither the Issuer nor any
Subsidiary of the Issuer may Pay the Junior Notes (other than, for the avoidance
of doubt, the payment of interest and Additional Amounts, if any, on the Junior
Notes in the form of Junior PIK Notes) during the applicable Standstill Period;
provided, however, that any balance in the Mandatory Redemption Escrow Account
on the first day of any Standstill Period, provided that on the preceding day no
Standstill Period was in effect, shall be applied by the Issuer to redeem
Outstanding Junior Notes pursuant to the Indenture.
Notwithstanding the provisions described in the immediately preceding
paragraph (but subject to the provisions contained in the second preceding and
in the immediately succeeding paragraph), unless the holders of the Senior Notes
or the Senior Note Trustee have accelerated the maturity of the Senior Notes,
the Issuer and the Guarantors 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.
No Default (as such term is defined in the Senior Note Indenture) that
existed or was continuing on the date of the commencement of any Standstill
Period shall be, or be made, the basis of the commencement of a subsequent
Standstill Period by the Senior Note Trustee, unless such Default shall have
been cured or waived for a period of not less than 90 consecutive days. Except
as provided in the preceding sentence, there shall be no limit on the number or
frequency of Standstill Periods that may arise.
12. Trustee Dealings with the Issuer
Subject to certain limitations imposed by the Trust Indenture Act, the
Trustee under the Indenture, in its individual or any other capacity, may become
the owner or pledgee of this Global Junior Note and may otherwise deal with and
collect obligations owed to it by the Issuer or its Affiliates and may otherwise
deal with the Issuer or its Affiliates with the same rights it would have if it
were not Trustee. Any Paying Agent or other agent may do the same with like
rights.
13. No Recourse Against Others
No director, officer, employee or stockholder, as such, of the Issuer shall
have any liability for any obligations of the Issuer under the Junior Notes or
the Indenture or for any claims based on, or in respect of or by reason of such
obligations or their creation.
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14. Authentication
This Global Junior Note shall not be valid until an authorized officer of
the Paying Agent (or an authenticating agent) manually signs the certificate of
authentication on the other side of this Global Junior Note.
15. Governing Law
The Indenture and this Global Junior Note shall be governed by and
construed in accordance with English law, except to the extent provisions of the
Trust Indenture Act are included or deemed to be included herein, as to which
the Trust Indenture Act shall govern.
A-8
SCHEDULE A
The initial principal amount of this Global Junior Note shall be U.S.$ o (o
United States dollars).
The following increases and decreases in the principal amount of this
Global Junior Note have been made:
Amount of
increase in
Principal Amount of
Amount of this decrease in
Amount of Global Junior Principal Amount
decrease in Note upon of this Global Aggregate
Principal Amount payment of Junior Note upon Principal
of this Global interest or exchange of an Principal Amount Amount of this
Junior Note as a Additional interest herein of this Global Global Junior Signature of
result of Amounts in the for Definitive Junior Note Note following authorized
payment of form of Junior Registered purchased and such increase officer of the
Date made principal hereon PIK Notes Junior Note(s) cancelled or decrease Paying Agent
------------- ----------------- ---------------- ------------------ ------------------ ---------------- --------------
U.S.$ U.S.$ U.S.$ U.S.$ U.S.$
A-9
PAYMENTS OF PRINCIPAL, PREMIUM AND INTEREST
The following payments on this Global Junior Note have been made:
Interest or
Interest or Additional Signature
Additional Amounts paid of authorized
Amounts paid in the form of officer of the
Date made in cash Junior PIK Notes Premium paid Principal paid Paying Agent
-------------------- ------------------ ------------------- ------------------- ------------------- ------------------
U.S.$ U.S.$ U.S.$ U.S.$
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EXHIBIT B
[FORM OF DEFINITIVE REGISTERED JUNIOR NOTE]
THIS NOTE IS A DEFINITIVE REGISTERED JUNIOR NOTE WITHIN THE MEANING OF THE
INDENTURE REFERRED TO ON THE REVERSE HEREOF.
MARCONI CORPORATION plc
Guaranteed Junior Secured Notes due 2008
CUSIP No.: ▇▇▇▇▇▇▇▇▇
ISIN Number: XS0166109768
Serial Number: 1
Marconi Corporation plc, a public limited company organized under the laws
of England and Wales, for value received, hereby promises to pay to
_______________, or registered assigns, the principal sum of U.S.$ o (o United
States dollars) October 31, 2008.
Junior Note Interest Payment Dates: January 31, April 30, July 31 and
October 31, commencing July 31, 2003.
Reference is hereby made to the further provisions of this Definitive
Registered Junior Note set forth on the reverse of this Definitive Registered
Junior Note, which further provisions shall for all purposes have the same
effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by the
Paying Agent referred to on the reverse hereof by manual signature, this
Definitive Registered Junior Note shall not be entitled to any benefit under the
Indenture or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, Marconi Corporation plc has caused this instrument to
be signed manually or by facsimile by one of its duly authorized officers.
MARCONI CORPORATION PLC
By: _____________________________
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CERTIFICATE OF AUTHENTICATION
This is one of the Definitive Registered Junior Notes referred to in the
within-mentioned Indenture.
THE BANK OF NEW YORK
as Paying Agent
By: _____________________________
Authorized Signatory
Dated: _____________________________
B-2
[REVERSE SIDE OF DEFINITIVE REGISTERED JUNIOR NOTE]
MARCONI CORPORATION plc
Guaranteed Junior Secured Notes due 2008
1. Interest
Marconi Corporation plc, a public limited company organized under the laws
of England and Wales (herein called the "ISSUER", which term includes any
successor under the Indenture hereinafter referred to), for value received,
hereby promises to pay interest on the principal amount of this Definitive
Registered Junior Note in cash from the Issue Date (or if interest has already
been paid or duly provided for, from the most recent Junior Note Interest
Payment Date to which interest has been paid or duly provided for), quarterly in
arrears, on January 31, April 30, July 31 and October 31 of each year (each such
date a "Junior Note Interest Payment Date"), commencing July 31, 2003, at the
applicable Junior Note Interest Rate, plus Additional Amounts, if any, until the
principal hereof is paid or made available for payment.
With respect to any Junior Note Interest Period, if the Issuer elects to
pay and actually pays interest on the Junior Notes on the relevant Junior Note
Interest Payment Date in cash, the Junior Notes will accrue interest at the rate
of 10% per annum, otherwise the Junior Notes will accrue interest at the rate of
12% per annum.
Any amount of principal, premium, if any, interest and Additional Amounts,
if any, on this Definitive Registered Junior Note that is not paid when due
shall, to the fullest extent lawful, accrue interest at a rate per annum equal
to the Default Rate. Interest shall be computed on the basis of a 360-day year
of twelve 30-day months.
On the first Junior Note Interest Payment Date, the Issuer shall pay, in
addition to accrued interest on the outstanding principal amount of this
Definitive Registered Junior Note, an amount equal to the amount of interest
that would have accrued on this Definitive Registered Junior Note if this
Definitive Registered Junior Note had been Outstanding for the period from and
including May 1, 2003 to but excluding the Issue Date, calculated using the
Junior Note Interest Rate applicable to the first Junior Note Interest Period
and computed on the basis of a 360-day year of twelve 30-day months.
2. Currency and Method of Payment
All payments of principal, premium, if any, interest, Additional Amounts,
if any, and any other amounts due on this Definitive Registered Junior Note
shall be made in the Relevant Currency.
The Issuer through the Paying Agent shall pay interest on this Definitive
Registered Junior Note to the Holder of this Definitive Registered Junior Note
at the close of business on the Regular Record Date next preceding the Junior
Note Interest Payment Date even if this Definitive Registered Junior Note is
cancelled after the Regular Record Date and on or before the Junior Note
Interest Payment Date. The Holder of this Definitive Registered Junior Note must
surrender this Definitive Registered Junior Note to the Paying Agent to collect
principal payments.
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3. Paying Agent and Registrar
Initially, The Bank of New York, a New York banking corporation, will act
as Paying Agent (the "Paying Agent") and Registrar (the "Registrar") with
respect to this Definitive Registered Junior Note. The Issuer may appoint and
change any Paying Agent, Registrar, co-registrar or transfer agent without prior
notice.
4. Indenture
The Issuer issued the Definitive Registered Junior Notes under an
Indenture, dated as of May 19, 2003 (the "INDENTURE"), among the Issuer, the
Initial Guarantors named therein and JPMorgan Chase Bank, as Trustee (the
"TRUSTEE"), to which Indenture and all indentures supplemental thereto reference
is hereby made for a statement of the respective rights, limitations of rights,
duties and immunities thereunder of the Trustee, the Issuer, the Guarantors and
the Holder of this Definitive Registered Junior Note, and of the terms upon
which this Definitive Registered Junior Note is, and is to be, authenticated and
delivered. The terms of the Definitive Registered Junior Notes include those
stated in the Indenture and those made part of the Indenture by reference to the
Trust Indenture Act of 1939 (15 USC. ▇▇.▇▇. 77aaa-77bbbb) as in force at the
date as of which this instrument was executed (the "Trust Indenture Act" which
term shall, in the event the Trust Indenture Act of 1939 is amended after such
date, mean, to the extent required by any such amendment, the US Trust Indenture
Act of 1939 as so amended). The Definitive Registered Junior Notes are subject
to, and qualified by, all such terms, certain of which are summarized below, and
the Holder of this Definitive Registered Junior Note is referred to the
Indenture and the Trust Indenture Act for a more complete statement of those
terms. Terms defined in the Indenture and not defined herein have the meanings
ascribed thereto in the Indenture.
This Definitive Registered Junior Note is a direct, secured and
unsubordinated obligation of the Issuer and is one of a duly authorized issue of
securities of the Issuer limited in aggregate principal amount to U.S.$o (o
United States dollars) aggregate principal amount (without taking into account
any increase in principal amount of this Definitive Registered Junior Note as a
result of the payment of interest or Additional Amounts, if any, in the form of
Junior PIK Notes. No reference herein to the Indenture and no provision of this
Definitive Registered Junior Note or of the Indenture shall alter or impair the
obligation of the Issuer, which is absolute and unconditional, to pay the
principal of, premium, if any, and interest and Additional Amounts, if any, on
this Definitive Registered Junior Note when due at the times, place and rate,
and in the coin or currency, herein prescribed.
5. Redemption
The Junior Notes are redeemable, in whole but not in part, at the option of
the Issuer at any time upon not less than 30 days' but not more than 60 days'
notice at a redemption price in cash equal to the Optional Redemption Price,
provided that the Issuer may only redeem the Junior Notes if the Issuer
simultaneously redeems all outstanding Junior Notes and all outstanding Senior
Notes in accordance with the provisions of the Indenture and the Senior Note
Indenture, respectively.
The Junior Notes are redeemable, in whole but not in part, at the option of
the Issuer and at any time upon not less than 30 days' but not more than 60
days' notice at a redemption price
B-4
in cash equal to the Optional Redemption Price, if at any time (other than
during a Standstill Period or at a time when a Payment Stop Event has occurred
and is continuing) the aggregate principal amount of the then Outstanding Junior
Notes is less than 10% of the aggregate principal amount of the Junior Notes
issued on the Issue Date.
The Junior Notes must be redeemed in whole or in part out of funds
available therefor in the Mandatory Redemption Escrow Account, in the
circumstances set forth in the Indenture, in each case at a redemption price in
cash of 110% of their outstanding principal amount, plus accrued and unpaid
interest thereon and Additional Amounts in respect thereof, if any, to the date
of redemption and upon notice of not less than ten (10) but not more than
fifteen (15) London Business Days.
The Junior Notes also must be redeemed upon the Issuer becoming aware of
the occurrence of a Change of Control or upon any merger, consolidation or
reorganization of the Issuer with any Person, or any sale, assignment, transfer,
conveyance, lease or other disposition of all or substantially all of the
properties or assets of the Issuer and its Subsidiaries, taken as a whole, in
each case at a redemption price in cash equal to the Optional Redemption Price
and in accordance with the applicable provisions of the Indenture and upon
notice as provided in the Indenture.
The Issuer at its option may at any time redeem all, but not less than all,
of the affected Definitive Registered Junior Notes in cash at 100% of the
principal amount of such Definitive Registered Junior Notes, plus any accrued
and unpaid interest thereon and Additional Amounts, if any, to the Repayment
Date, upon not less than 30 nor more than 60 days' notice, if, as a result of
any amendment to, or change in, the laws (including any regulations or rulings
thereunder) of the United Kingdom (including any European Union law or directive
that has the effect of law in the United Kingdom) or any other Taxing
Jurisdiction, or any amendment to or change in any official position concerning
the administration, application or interpretations of such laws or regulations
(including a judgment by a court of competent jurisdiction), which amendment or
change is announced and effective on or after the Issue Date, the Issuer
satisfies the Trustee that it has become or will become obligated to pay
Additional Amounts which are more than a de minimis amount (as determined by the
Issuer in its reasonable judgment) on the next date on which any amount would be
payable with respect to such Definitive Registered Junior Notes and the Issuer
determines in good faith that such obligation cannot be avoided by the use of
reasonable measures available to the Issuer (including, without limitation, by
changing the jurisdiction from which or through which payments on such
Definitive Registered Junior Notes are made).
In the event of mandatory or optional redemption of the Junior Notes, other
than at Stated Maturity, the redemption price to be paid by the Issuer on the
applicable Repayment Date shall be payable in United States dollars, unless the
Issuer elects to make payment in British pounds sterling, which election shall
be irrevocable and shall be set forth in the applicable notice of redemption. If
the Issuer elects to make payment in British pounds sterling, the amount payable
in respect of this Definitive Registered Junior Note shall be the Sterling
Equivalent of the principal amount of this Definitive Registered Junior Note in
United States dollars, multiplied by the applicable redemption price, multiplied
by 1.005 and rounded (if necessary) to the nearest ▇▇▇▇▇ (with (pound)0.005
being rounded upwards).
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6. Guarantee
The obligations of the Issuer under the Indenture and the Junior Notes have
been unconditionally and irrevocably guaranteed by the Guarantors pursuant to
the Guarantee of the Junior Notes.
7. Exchange
This Definitive Registered Junior Note is in registered form. The
Definitive Registered Junior Notes are in denominations of US$1.00 and whole
multiples of US$1.00 of principal. A Holder may only transfer or exchange this
Definitive Registered Junior Note in accordance with the Indenture. The
Registrar may require a Holder, among other things, to furnish appropriate
endorsements or transfer documents and to pay any Taxes and fees required by law
or permitted by the Indenture. The Registrar need not register the transfer of
or exchange any Definitive Registered Junior Notes during the 15-day period
preceding (i) the due date for any payment of principal of, premium, if any,
interest or Additional Amounts if any, on the Junior Notes, or (ii) the day on
which Junior Notes are scheduled for redemption, except the unredeemed portion
of Junior Notes being redeemed in part.
8. Persons Deemed Owners
The Holder of this Definitive Registered Junior Note shall be treated as
the owner of it for all purposes.
9. Amendment, Waiver
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Issuer, the Guarantors and the Trustee with the consent of the Required Holders
of a majority in aggregate principal amount of the Junior Notes Outstanding at
the time of amendment or modification. This Indenture also contains provisions
permitting the Required Holders of a majority in aggregate principal amount of
the Junior Notes at any time Outstanding, on behalf of the Holders of all the
Junior Notes, to waive compliance by the Issuer with certain provisions of the
Indenture and certain past Defaults under the Indenture and their consequences.
Any such consent or waiver by or on behalf of the Holder of this Definitive
Registered Junior Note shall be conclusive and binding upon such Holder and upon
all future Holders of this Definitive Registered Junior Note and of any
Definitive Registered Junior Note issued in exchange herefor or in lieu hereof
whether or not notation of such consent or waiver is made upon this Definitive
Registered Junior Note.
10. Defaults and Remedies
The Definitive Registered Junior Notes have the Events of Default as set
forth in Section 6.01 (Events of Default) of the Indenture. If certain Events of
Default occur and are continuing, the Required Holders of at least 25% (or, in
certain cases, at least 35%) in aggregate principal amount of the Junior Notes
then Outstanding, subject to certain limitations, may declare all the Junior
Notes to be due and payable immediately. Certain events of bankruptcy or
insolvency with respect to the Issuer are Events of Default and shall result in
the Junior Notes being due and payable immediately upon the occurrence of such
Events of Default.
B-6
Holders of Definitive Registered Junior Notes may not enforce the Indenture
or such Definitive Registered Junior Notes except as provided in the Indenture.
The Trustee may refuse to enforce the Indenture or the Definitive Registered
Junior Notes unless it receives indemnity or security reasonably satisfactory to
it. Subject to certain limitations, the Required Holders of a majority in
aggregate principal amount of the Junior Notes then Outstanding may direct the
Trustee in its exercise of any trust or power. The Required Holders of a
majority in aggregate principal amount of the Junior Notes then Outstanding by
written notice to the Trustee may rescind a declaration of acceleration if the
rescission is prior to a judgment or decree for payment and if all Events of
Default have been cured or waived except nonpayment of principal and interest
that have become due solely because of the acceleration. The above description
of Events of Default and remedies is qualified by reference, and subject in its
entirety, to the more complete description thereof contained in the Indenture.
11. Payment Blockage
Neither the Issuer nor any Subsidiary of the Issuer may pay any principal
of, premium (if any) or interest or Additional Amounts (if any) on any Junior
Notes, other than interest or Additional Amounts paid in the form of Junior PIK
Notes, and none of them 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.
If at any time a Standstill Event has occurred, neither the Issuer nor any
Subsidiary of the Issuer may Pay the Junior Notes (other than, for the avoidance
of doubt, the payment of interest and Additional Amounts, if any, on the Junior
Notes in the form of Junior PIK Notes) during the applicable Standstill Period;
provided, however, that any balance in the Mandatory Redemption Escrow Account
on the first day of any Standstill Period, provided that on the preceding day no
Standstill Period was in effect, shall be applied by the Issuer to redeem
Outstanding Junior Notes pursuant to the Indenture.
Notwithstanding the provisions described in the immediately preceding
paragraph (but subject to the provisions contained in the second preceding and
in the immediately succeeding paragraph), unless the holders of the Senior Notes
or the Senior Note Trustee have accelerated the maturity of the Senior Notes,
the Issuer and the Guarantors 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.
No Default (as such term is defined in the Senior Note Indenture) that
existed or was continuing on the date of the commencement of any Standstill
Period shall be, or be made, the basis of the commencement of a subsequent
Standstill Period by the Senior Note Trustee, unless such Default shall have
been cured or waived for a period of not less than 90 consecutive days. Except
as provided in the preceding sentence, there shall be no limit on the number or
frequency of Standstill Periods that may arise.
12. Trustee Dealings with the Issuer
Subject to certain limitations imposed by the Trust Indenture Act, the
Trustee under the Indenture, in its individual or any other capacity, may become
the owner or pledgee of this
B-7
Definitive Registered Junior Note and may otherwise deal with and collect
obligations owed to it by the Issuer or its Affiliates and may otherwise deal
with the Issuer or its Affiliates with the same rights it would have it if were
not Trustee. Any Paying Agent, Registrar or other agent may do the same with
like rights.
13. No Recourse Against Others
No director, officer, employee or stockholder, as such, of the Issuer shall
have any liability for any obligations of the Issuer under the Junior Notes or
the Indenture or for any claims based on, or in respect of or by reason of such
obligations or their creation.
14. Authentication
This Definitive Registered Junior Note shall not be valid until an
authorized officer of the Paying Agent (or an authenticating agent) manually
signs the certificate of authentication on the other side of this Definitive
Registered Junior Note.
15. Governing Law
The Indenture and this Definitive Registered Junior Note shall be governed
by and construed in accordance with English law, except to the extent provisions
of the Trust Indenture Act are included or deemed to be included herein, as to
which the Trust Indenture Act shall govern.
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EXHIBIT C
Form of Guarantee of the Junior Notes
C-1
EXHIBIT C
[FORM OF GUARANTEE OF THE JUNIOR NOTES]
[▇▇▇▇▇▇▇▇ CHANCE LOGO] LIMITED LIABILITY PARTNERSHIP
Draft: 15 May 2003
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
---------------------------------------------------------------------------
GUARANTEE OF THE JUNIOR NOTES
---------------------------------------------------------------------------
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 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.
"RELEVANT DOCUMENTS" means the STID, any Agent/Trustee/New Bonding
Facility Bank Accession Letter, any Guarantor Accession Letter, the
Indentures, the Escrow Agreement, the Notes, the New Bonding Facility
Agreement, the Security Documents, the Fee Letter and any Additional
Remuneration Fee Letter (each term as defined in the STID) and any
notices issued and any other documents or agreements entered into in
connection with or relating to such documents.
"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.
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"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.
"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 set forth 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
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 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 Schedule 9 of the
STID, and all the provisions hereof shall be construed accordingly.
2.3 The rights of the Security Trustee and the Junior Note Trustee under
this Guarantee are subject to the provisions of the STID.
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
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(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 a legal opinion (subject to customary assumptions and
reservations) from a law firm or law firms, as the case may
require, of international repute as to the due incorporation,
capacity and due authorisation of such Person and the legality,
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 Clause 5.3, Clause 5.4.2
or Clause 5.7 of the STID and Section 4.15 of 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.
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
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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.
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
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
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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 obligations as may be preferred by
provisions of law that are both mandatory and of general application.
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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 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
C-7
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
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇
▇▇▇▇▇▇▇
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 Junior Note Trustee at:
▇-▇
▇▇▇▇▇▇▇ ▇▇▇▇▇
▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇
▇▇▇▇▇▇▇
Fax: ▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇
Attention: Manager, Trust Administration
with a mandatory copy to the Security Trustee at:
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Fax: ▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇
Attention: Treasury 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 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
C-9
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 ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇ or, if different, the Issuer's
registered office for the time being or at any address of the Issuer or
such 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 CT Corporation System at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇. 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 any such court 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
C-10
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
[SIGNATUR EBLOCKS FOR ALL GUARANTORS FROM THE JUNIOR NOTE INDENTURE TO BE
INSERTED ONCE FINALISED.]
[A&O TO ADVISE ON CORRECT METHOD FOR EACH GUARANTOR TO EXECUTE THIS GUARANTEE.]
C-12
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
C-13
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 Communications Holdings, Inc.
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
C-14
Marconi Australia Pty Limited
Marconi Communications Asia Limited
G.E.C. (Hong Kong) Limited
▇▇▇▇▇▇ Street Overseas Investments Limited
Regents Place, Inc.
C-15
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]
C-16
SCHEDULE 3
SECTION 1.01 of the Senior Note Indenture. Definitions
C-17
SCHEDULE 4
SECTION 1.01 of the Junior Note Indenture. Definitions
C-18
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 BV
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
Schedule 1-1
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 Communications Telemulti Ltda.
Schedule 1-2
Marconi Australia Holdings Pty Limited
Marconi Australia Pty Limited
Marconi Communications Asia Limited
G.E.C. (Hong Kong) Limited
▇▇▇▇▇▇ Street Overseas Investments Limited
Regents Place, Inc.
Schedule 1-3
SCHEDULE 2
INITIAL SECURITY DOCUMENTS
(A) Australian Security Documents
(1) the fixed and floating charge to be entered into by Marconi
Australia Pty Limited in favor of the Security Trustee with respect
to all assets of Marconi Australia Pty Limited located in ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ and Western
Australia;
(2) the fixed and floating charge to be entered into by Marconi
Australia Pty Limited in favor of the Security Trustee with respect
to all assets of Marconi Australia located in the Australian Capital
Territory, the Northern Territory and outside Australia;
(3) the fixed and floating charge to be entered into by Marconi
Australia Holdings Pty Limited in favor of the Security Trustee with
respect to all assets of Marconi Australia Holdings Pty Limited
located in ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ and Western Australia;
(4) the fixed and floating charge to be entered into by Marconi
Australia Holdings Pty Limited in favour of the Security Trustee
with respect to all assets of Marconi Australia Holdings Pty Limited
located in the Australian Capital Territory, the Northern Territory
and outside Australia;
(5) [the share mortgage relating to shares in Marconi Australia Holdings
Pty Limited between Associated Electrical Industries Limited, as
Mortgagor, and the Security Trustee, as Mortgagee;]
(B) Brazilian Security Documents
(6) the quota pledge agreement between Marconi Communications
International Holdings Ltd as the pledgor, Marconi Communications do
Brasil Ltda. as quotaholder and consenting party, Marconi
Communications Telemulti Ltda. as acknowledging party and the
Security Trustee, the Senior Note Trustee, the Junior Note Trustee,
the New Bonding Facility Agent, the Escrow Agent, the Depositary,
the Principal Paying Agent and the Registrar as pledgee in respect
of its shareholding in Marconi Communications Telemulti Ltda.;
(C) Dutch Security Document
(7) the notarial deed of pledge of shares between Marconi
Communications, Inc., as pledgor, and the Security Trustee as
pledgee relating to shares in Marconi Communications B.V.;
Schedule 2-1
(D) English Security Documents(1)
(8) the composite debenture between the English Obligors [(other than
Associated Electrical Industries Limited)] and the Security Trustee;
(9) [the debenture between Associated Electrical Industries Limited and
the Security Trustee with respect to the shares in Marconi Australia
Holdings Limited;]
(E) German Security Documents
(10) the share pledge agreement relating to shares in Marconi
Communications Real Estate GmbH between Marconi Communications
Holdings GmbH, as pledgor and the Security Trustee, as pledgee;
(11) the share pledge agreement relating to shares in Marconi
Communications GmbH between Marconi Communications Holdings GmbH, as
pledgor and the Security Trustee, as pledgee;
(12) the share pledge agreement relating to shares in Marconi
Communications Holdings GmbH between Marconi Communications
International Holdings Ltd., as pledgor and the Security Trustee, as
pledgee;
(13) the share pledge agreement relating to shares in Marconi
Communications ONDATA GmbH between Marconi Communications Holdings
GmbH, as pledgor and the Security Trustee, as pledgee;
(14) the share pledge agreement relating to shares in Marconi
Communications Software Systems Verwaltungsgesellschaft GmbH between
Marconi Communications GmbH, as pledgor and the Security Trustee, as
pledgee;
(15) the account pledge agreement (Kontoverpfandung) between Marconi
Communications Real Estate GmbH, as pledgor and the Security
Trustee, as pledgee;
(16) the account pledge agreement (Kontoverpfandung) between Marconi
Communications Holdings GmbH, as pledgor and the Security Trustee,
as pledgee;
(17) the account pledge agreement (Kontoverpfandung) between Marconi
Communications GmbH, as pledgor and the Security Trustee, as
pledgee;
_____________
(1) The need to have two Debentures will depend upon the resolution of the
Australia law issue in respect of the security to be granted by Associated
Electrical Industries Limited over the shares in Marconi Australia Holdings
Limited.
Schedule 2-2
(18) the limited partner's interest pledge agreement relating to the
interest in Marconi Communications Software Systems GmbH & Co. KG
between Marconi Communications GmbH as pledgor and the Security
Trustee, as pledgee;
(19) the security transfer agreement (Sicherungsubereignung) regarding
fixed and current assets between Marconi Communications GmbH as
transferor and the Security Trustee, as transferee;
(20) the global assignment agreement (Globalabtretung) between Marconi
Communications GmbH as assignor and the Security Trustee, as
assignee;
(21) the security transfer and assignment agreement
(Sicherungsubereignung und-abtretung) regarding intellectual
property rights between Marconi Communications GmbH, as transferor,
and the Security Trustee, as transferee;
(22) the shareholder loan assignment agreement between Marconi
Communications Holdings GmbH and the Security Trustee relating to
any shareholder loans exceeding(pound)20,000,000;
(23) the shareholder loan assignment agreement between Marconi
Communications GmbH and the Security Trustee relating to any
shareholder loans exceeding(pound)20,000,000;
(24) the shareholder loan assignment agreement between Marconi
Communications Real Estate GmbH and the Security Trustee relating to
any shareholder loans exceeding(pound)20,000,000;
(25) [the global assignment agreement between Marconi Communications
GmbH, as assignor, and the Security Trustee, as assignee relating to
all receivables and insurance contracts;]
(F) Guernsey Security Document
(26) security interest agreement relating to shares in ▇▇▇▇▇▇ Street
Overseas Investments Limited between FS Finance Corporation and the
Security Trustee.
(27) [the shares charge between Marconi Communications international
Holdings Limited, as chargor, and the Security Trustee, relating to
shares in Marconi Communications Asia Limited;
(28) the shares charge between Marconi Corporation Plc, as chargor, and
the Security Trustee, relating to shares in G.E.C. (Hong Kong)
Limited;]
(G) Hong Kong Security Documents
(29) debenture between Marconi Communications Asia Limited and the
Security Trustee;
(30) debenture between G.E.C. (Hong Kong) Limited and the Security
Trustee;
Schedule 2-3
(31) [the shares charge between Marconi Communications International
Holdings Limited, as chargor, and the Security Trustee, relating to
shares in Marconi Communications Asia Limited;
(32) the shares charge between Marconi Corporation Plc, as chargor, and
the Security Trustee, relating to shares in G.E.C. (Hong Kong)
Limited;]
(H) Irish Security Documents
(33) the composite mortgage debenture to be entered into by Marconi
Communications Limited and Marconi Communications Optical Networks
Limited in favour of the Security Trustee;
(34) the Memorandum of Deposit of Shares as Security to be executed by
Marconi Communications Inc. in respect of its shareholding in
Marconi Communications Optical Networks Limited;
(35) the Memorandum of Deposit of Shares as Security to be executed by
Marconi Networks Worldwide, Inc in respect of its shareholding in
Marconi Communications Optical Networks Limited;
(36) the Memorandum of Deposit of Shares as Security to be executed by
Marconi Communications GmbH in respect of its shareholding in
Marconi Communications Limited;
(I) Italian Security Documents
(37) pledge over shares of Marconi Communications S.p.A. between Marconi
Holdings S.p.A., as pledgor and the Security Trustee as pledgee;
(38) pledge over shares of Marconi Holdings S.p.A. between Marconi ▇▇▇▇▇▇
Street Limited as pledgor and the Security Trustee as pledgee;
(39) pledge over shares of Marconi Mobile Access S.p.A., between Marconi
Holding S.p.A., as pledgor and the Security Trustee, as pledgee;
(40) pledge over shares of Marconi International S.p.A., between Marconi
Communications S.p.A. and Marconi Sud S.p.A., as pledgors and the
Security Trustee, as pledgee;
(41) pledge over shares of Marconi Sud S.p.A., between Marconi
Communication S.p.A., as pledgor and the Security Trustee, as
pledgee;
(42) undertaking for the creation of a pledge over the future claims of
Marconi Holdings S.p.A. between Marconi Holdings S.p.A., as pledgor
and the Security Trustee, as pledgee;
(43) the pledge over claims of Marconi Sud S.p.A. between Marconi Sud
S.p.A., as pledgor and the Security Trustee, as pledgee;]
(44) the pledge over claims of Marconi Communications S.p.A. between
Marconi Communications S.p.A., as pledgor and the Security Trustee,
as pledgee;
Schedule 2-4
(45) the pledge over the bank accounts of Marconi Communications S.p.A.
between Marconi Communications S.p.A., as pledgor and the Security
Trustee, as pledgee;
(46) the pledge over the bank accounts of Marconi Holdings S.p.A. between
Marconi Holdings S.p.A., as pledgor and the Security Trustee, as
pledgee;
(47) the pledge over the bank accounts of Marconi Sud S.p.A. between
Marconi Sud S.p.A., as pledgor and the Security Trustee, as pledgee;
(48) [the mortgage over real property located in Marcianise (Casenta)
granted by Marconi Sud S.p.A. in favour, inter alios, of the
Holders;]
(49) [the mortgage over real property located in Genova granted by
Marconi Communications S.p.A. in favour, inter alios, of the
Holders;]
(50) [preliminary mortgage over real property located in Rome granted by
Marconi Communications S.p.A. in favour, inter alios, of the
Holders;]
(J) Mexican Security Document
(51) the share pledge agreement between Marconi Communications Inc.,
Marconi Communications, S.A. de C.V. and Marconi Networks Worldwide,
Inc. as pledgors, and the Security Trustee relating to shares in
each of Marconi Communications, S.A. de C.V., Marconi Communications
de Mexico, S.A. de C.V., Marconi Communications Exportel, S.A. de
C.V. and Administrativa Marconi Communications, S.A. de C.V.;
(K) Swiss Security Document
(52) the share pledge agreement between Marconi Communications B.V., as
the pledgor, and the Security Trustee as pledgee relating to shares
in Marconi Communications GmbH;
(L) U.S. Security Documents
The companies referred to below are Delaware corporations unless otherwise
indicated:
(53) the share pledge agreement relating to shares in Marconi
Communications, Inc. between FS Holdings Corp. as pledgor and the
Security Trustee as pledgee;
(54) share pledge agreement between Marconi Communications Inc. as
pledgor and the Security Trustee as pledgee, relating to the shares
in:
Marconi Communications Technology, Inc.;
Marconi Communications Federal, Inc.;
Marconi Acquisition, Corp;
Marconi Communications C.A., Inc.;
Gnome Inc.;
Nemesys Holding Company;
ALANTEC International Inc. (California);
Schedule 2-5
Custom Telecom Contractors, Inc. (Missouri);
Marconi Networks Worldwide, Inc.; and
Marconi Intellectual Property (Ringfence) Inc;
(55) the deposit account control agreement between Marconi
Communications, Inc. as pledgor, the Security Trustee as pledgee and
JPMorgan Chase & Co as Depositary;
(56) the deposit account control agreement between Marconi Communications
Technology, Inc. as pledgor, the Security Trustee as pledgee and
JPMorgan Chase & Co as Depositary;
(57) the deposit account control agreement between Marconi Communications
Federal, Inc. as pledgor, the Security Trustee as pledgee and
JPMorgan Chase & Co as Depositary;
(58) security agreement to be entered into by ringfenced Marconi
Intellectual Property (Ringfence) Inc.;
(59) mortgage over property located at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇, owned by Marconi Communications, Inc., to be governed by the
law of the State of Georgia;
(60) mortgage over property located at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, owned by Marconi Communications, Inc., to be
governed by the law of the State of Mississippi;
(61) mortgage over property located at Evergood, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇., ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, owned by Marconi
Communications, Inc., to be governed by the law of the State of
North Carolina;
(62) mortgage over property located at ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, owned by Marconi Communications, Inc., governed
by Pennsylvania law;
(63) mortgage over property located at ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇,
▇▇▇▇▇, owned by Marconi Communications, Inc., to be governed by the
law of the State of Texas;
(64) mortgage over property located at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇ leased by Marconi Communications, Inc., to be
governed by the law of the State of Illinois;
(65) mortgage over property located at ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ leased by Marconi Communications, Inc., to be
governed by the law of the State of Ohio;
(66) the security agreement between Marconi Communications, Inc. Marconi
Networks Worldwide, Inc., Marconi Communications Technology, Inc.,
Marconi Communications Federal, Inc. and Marconi Acquisition Corp.,
as
Schedule 2-6
grantors and the Security Trustee, as secured party (general
security agreement under UCC Article 9);
(67) the share pledge agreement relating to shares in Marconi Inc.
between Regents Place, Inc. as pledgor and the Security Trustee as
pledgee;
(68) the share pledge agreement relating to shares in Marconi Online
Systems Inc., between Marconi Holdings, LLC as pledgor and the
Security Trustee as pledgee;
(69) the share pledge agreement relating to shares in Marconi Holdings,
LLC, between Marconi Communications North America, Inc. as pledgor
and the Security Trustee as pledgee;
(70) the share pledge agreement between Marconi Inc. as pledgor and the
Security Trustee as pledgee relating to shares in the following
companies:
Marconi HCIS, Inc.;
Marconi Systems, Inc.;
Marconi Capital, Inc.;
Marconi Electronic Systems Holdings, Inc.;
Greensboro Associates, Inc.;
Refac Marketing Services, Inc. (Pennsylvania);
LMF Holdings Incorporated;
Marconi Communications Radio Systems, Inc.;
NI Holdings Incorporated;
Marconi Communications North America, Inc.; and
Marconi Intellectual Property (US) Inc.;
(71) the share pledge agreement relating to shares in FS Holdings Corp.
between FS Finance Corp. as pledgor and the Security Trustee as
pledgee;
(72) the share pledge agreement relating to shares in Marconi Software
International Inc., between Marconi Corporation plc (UK) as pledgor
and the Security Trustee as pledgee;
(73) the share pledge agreement relating to shares in Metapath Software
International (US), Inc. between Metapath Software International,
Inc. as pledgor and the Security Trustee as pledgee;
(74) the share pledge agreement relating to shares in Metapath Software
International, Inc. between Marconi Software International, Inc. as
pledgor and the Security Trustee as pledgee;
(75) the share pledge agreement relating to shares in FS Finance Corp.
between Marconi Communications North America Inc. as pledgor and the
Security Trustee as pledgee;
(76) the deposit account control agreement between FS Finance Corp. as
pledgor, the Security Trustee as pledgee and JPMorgan Chase & Co as
Depositary;
Schedule 2-7
(77) the deposit account control agreement between FS Holdings Corp. as
pledgor, the Security Trustee as pledgee and JPMorgan Chase & Co as
Depositary;
(78) the deposit account control agreement between Marconi Communications
North America, Inc. as pledgor, the Security Trustee, as pledgee and
JPMorgan Chase & Co as Depositary;
(79) the deposit account control agreement between Marconi Software
International, Inc. as pledgor, the Security Trustee as pledgee and
JPMorgan Chase & Co as Depositary;
(80) the deposit account control agreement between Metapath Software
International (US) Inc. as pledgor, the Security Trustee as pledgee
and ▇▇▇▇▇ Fargo as Depositary;
(81) the deposit account control agreement between Marconi Inc. as
pledgor, the Security Trustee as pledgee and JPMorgan Chase & Co as
Depositary;
(82) the security agreement between FS Holdings Corp, Marconi Inc.,
Marconi Holdings, LLC, Marconi Communications North America Inc., FS
Finance Corp., Marconi Software International, Inc., Metapath
Software International (US) Inc., Metapath Software International,
Inc., as pledgors, and the Security Trustee as secured party
(general security agreement under UCC Article 9); and
(83) security agreement to be entered into by Marconi Intellectual
Property (US) Inc, as pledgor, and the Security Trustee, as secured
party;
(84) [the share pledge agreement between ▇▇▇▇▇▇ Street Overseas
Investment Limited, as pledgor, and the Security Trustee, as
pledgee, relating to share in FS Holdings Corp.;
(85) the security agreement between FS Holdings Corp., Marconi
Communications, Inc., Marconi Networks Worldwide, Inc., Marconi
Communications Technology, Inc., Marconi Communications Federal,
Inc., Marconi Acquisition Corp., Regents Place, Inc., as pledgors,
and the Security trustee, as secured party.]
For the purposes of this Schedule 2, "English Obligors" means each of the
following:
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;
Schedule 2-8
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 Corporation plc;
Marconi Bonding Limited;
Marconi Optical Components Limited;
Associated Electrical Industries Limited;
Highrose Limited;
Marconi (▇▇▇▇▇▇▇ Automation) Limited;
▇▇▇▇▇▇▇ - Automation Holdings Limited;
English Electric Company Ltd.;
Marconi Aerospace Unlimited;
Marconi (NCP) Limited;
Marconi (NCP) Limited; and
Marconi UK Intellectual Property Limited.
Schedule 2-9
SCHEDULE 3
EXISTING INDEBTEDNESS INCURRED AFTER THE SCHEME LAUNCH DATE
none
Schedule 3-1
SCHEDULE 4
PERMITTED INVESTMENTS - CONTRACTUAL COMMITMENTS IN EFFECT ON THE ISSUE DATE
none
Schedule 4-1
SCHEDULE 5
PERMITTED LIENS - LIENS EXISTING ON THE ISSUE DATE
none
Schedule 5-1
SCHEDULE 6
CERTAIN AFFILIATE TRANSACTIONS
none
Schedule 6-1
SCHEDULE 7
FORM OF DEPOSIT AGREEMENT
Schedule 7-1
[LETTERHEAD LOGO]
MARCONI CORPORATION plc
as Issuer
and
THE BANK OF NEW YORK
as Depositary
----------------------------------------
DEPOSIT AGREEMENT
Dated as of May 19, 2003
----------------------------------------
CONTENTS
SECTION PAGE
----
ARTICLE 1.
DEFINITIONS AND OTHER GENERAL PROVISIONS
SECTION 1.1 DEFINITIONS.......................................................................1
SECTION 1.2 RULES OF CONSTRUCTION.............................................................4
ARTICLE 2.
BOOK-ENTRY INTERESTS
SECTION 2.1 DEPOSIT OF THE GLOBAL NOTES; ISSUANCE OF CDIS.....................................4
SECTION 2.2 BOOK-ENTRY SYSTEM.................................................................5
SECTION 2.3 TRANSFER OF CDIS..................................................................5
SECTION 2.4 TRANSFER OF THE GLOBAL NOTES......................................................6
SECTION 2.5 PAYMENT IN RESPECT OF A CDI AND GLOBAL NOTE.......................................6
SECTION 2.6 REDEMPTION OF NOTES AND BOOK-ENTRY INTERESTS; JUNIOR PIK NOTES....................7
SECTION 2.7 RECORD DATE.......................................................................7
SECTION 2.8 ACTION IN RESPECT OF A CDI........................................................8
SECTION 2.9 REPORTS...........................................................................9
SECTION 2.10 ADDITIONAL AMOUNTS................................................................9
ARTICLE 3.
THE DEPOSITARY
SECTION 3.1 CERTAIN DUTIES AND RESPONSIBILITY.................................................9
SECTION 3.2 NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF NOTES................................10
SECTION 3.3 MONEY HELD IN TRUST..............................................................10
SECTION 3.4 COMPENSATION AND REIMBURSEMENT...................................................10
SECTION 3.5 DEPOSITARY REQUIRED; ELIGIBILITY.................................................11
SECTION 3.6 RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR................................12
SECTION 3.7 ACCEPTANCE OF APPOINTMENT BY SUCCESSOR...........................................13
SECTION 3.8 MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS......................14
SECTION 3.9 MAY HOLD SECURITIES; OTHER DEALINGS..............................................14
SECTION 3.10 NOTICE OF DEFAULT................................................................14
ARTICLE 4.
MISCELLANEOUS PROVISIONS
SECTION 4.1 NOTICES TO DEPOSITARY OR ISSUER..................................................14
SECTION 4.2 NOTICE TO CLEARING SYSTEMS AND OWNERS; WAIVER....................................15
SECTION 4.3 COMPLIANCE OBLIGATIONS OF THE ISSUER.............................................15
SECTION 4.4 EFFECT OF HEADING AND TABLE OF CONTENTS..........................................15
i
SECTION PAGE
----
SECTION 4.5 SUCCESSORS AND ASSIGNS...........................................................15
SECTION 4.6 SEPARABILITY CLAUSE..............................................................15
SECTION 4.7 BENEFITS OF AGREEMENT............................................................16
SECTION 4.8 GOVERNING LAW....................................................................16
SECTION 4.9 JURISDICTION.....................................................................16
SECTION 4.10 COUNTERPARTS.....................................................................16
SECTION 4.11 INSPECTION OF AGREEMENT..........................................................17
SECTION 4.12 SATISFACTION AND DISCHARGE.......................................................17
SECTION 4.13 AMENDMENTS.......................................................................17
SECTION 4.14 DEPOSITARY TO EXECUTE AMENDMENTS.................................................17
EXHIBIT A............................................................................................A-1
EXHIBIT B............................................................................................B-1
ii
DEPOSIT AGREEMENT
THIS DEPOSIT AGREEMENT (this "Agreement") is made as of May 19, 2003 by
and between Marconi Corporation plc, a public limited company incorporated under
the laws of England and Wales (the "Issuer"), and The Bank of New York, a New
York banking corporation, as depositary (the "Depositary").
DEFINITIONS AND OTHER GENERAL PROVISIONS
Section 1.1 Definitions.
The following terms, as used herein, have the following meanings:
"Additional Amounts", when used with respect to the Senior Notes, shall
have the meaning ascribed to it in Section 4.37 of the Senior Note Indenture,
and when used with respect to the Junior Notes, shall have the meaning ascribed
to it in Section 4.36 of the Junior Note Indenture.
"Beneficial Owner" means, with respect to any CDI, any Person owning any
beneficial interest in such CDI but who is not the holder of such CDI and may
include any "Direct Participant" (as hereinafter defined); it being understood
that the term "Beneficial Owner" shall not include any agent or financial
intermediary holding an interest in such CDI solely to the extent such interest
is held for or on behalf of any Beneficial Owner.
"Board Resolution" means a resolution of the Board of Directors.
"Board of Directors" means the board of directors or other equivalent
body (or any duly authorized committee thereof) of the Issuer.
"Book-Entry Interests" means, with respect to any Tranche of Notes, an
interest or interests in any CDI representing such Tranche of Notes issued
pursuant to this Agreement that are eligible for trading through the book-entry
system of DTC, Euroclear and/or Clearstream.
"Business Day" means a day (other than a Saturday or Sunday) on which
commercial banks in London and New York are open for general business.
"CDI" means, with respect to any Tranche of Notes, the Certificated
Depositary Interests and/or Certificateless Depositary Interests in respect of
such Tranche of Notes, as the context may require.
"Certificated Depositary Interests" means, with respect to any Tranche
of Notes, the beneficial interests that shall, at all times prior to the
issuance of Definitive Registered Notes in respect of such Tranche, represent
the right to receive 100% of the principal of, premium (if any) and interest and
Additional Amounts (if any) on the underlying Global Note of such Tranche and
that in each case are issued to the Beneficial Owners or their respective
nominees by the Depositary, substantially in the form of Exhibit B.
"Certificateless Depositary Interests" means, with respect to any
Tranche of Notes, the beneficial interests that shall, at all times prior to the
issuance of Definitive Registered Notes in respect of such Tranche, represent
the right to receive 100% of the principal of, premium (if
- 1 -
any) and interest and Additional Amounts (if any) on the underlying Global Note
of such Tranche and that in each case are issued to the Beneficial Owners or
their respective nominees by the Depositary.
"Clearing System" means DTC, Euroclear and/or Clearstream, as
applicable, in whose name CDIs are recorded pursuant to Section 2.3 hereof.
"Clearstream" means Clearstream Banking, societe anonyme, or its
nominee, or any successor securities clearing agency.
"Corporate Trust Office" means the office of the Depositary in The
Borough of Manhattan, The City of New York, at which at any particular time its
corporate trust business shall be principally administered, which at the date
hereof is located at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇ ▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇.
"Definitive Registered Notes" means, with respect to any Tranche of
Notes, Notes of such Tranche in definitive registered form issued pursuant to
the applicable Indenture.
"Depositary" means the party named as such in this Agreement until a
successor shall have become such pursuant to Section 3.7 hereof, and thereafter
"Depositary" shall mean such successor or its nominee or the custodian of
either. Unless the context otherwise requires, "Depositary" means the party or
parties with respect to each Tranche of Notes.
"Direct Participants" means institutions that have accounts with DTC,
Euroclear and/or Clearstream.
"DTC" means The Depository Trust Company or its nominee, or any
successor securities clearing agency.
"Euroclear" means Euroclear Bank S.A./N.V., or its nominee, or any
successor securities clearing agency.
"Event of Default" with respect to any Tranche of Notes, shall have the
meaning ascribed to it in the Indenture pursuant to which such Tranche of Notes
was issued.
"Exchange Act" means the United States Securities Exchange Act of 1934,
as amended.
"Global Notes" means, with respect to any Tranche of Notes, a global
security in bearer form representing 100% of any such Tranche issued pursuant to
the applicable Indenture.
"Guarantee of the Junior Notes" has the meaning given such term in the
Junior Note Indenture.
"Guarantee of the Senior Notes" has the meaning given such term in the
Senior Note Indenture.
"Guarantor" means, with respect to the Senior Notes, any Person that
executes a Guarantee of the Senior Notes pursuant to the Senior Note Indenture,
and, with respect to the Junior Notes, any Person that executes a Guarantee of
the Junior Notes pursuant to the Junior Note Indenture; and in each case each of
their respective successors and assigns.
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"Holder" has the meaning, with respect to any Tranche of Notes, given to
such term under the Indenture pursuant to which such Notes were issued.
"Indenture" means either the Senior Note Indenture or the Junior Note
Indenture, as the context may require.
"Issuer" means the party named as such in this Agreement and its
successors and assigns pursuant to the applicable provisions of the applicable
Indenture.
"Issuer Request" when used with respect to any Tranche of Notes, shall
have the meaning ascribed to it in the Indenture pursuant to which such Notes
were issued.
"Junior Note Indenture" means the indenture dated as of May 19, 2003
among the Issuer, the Initial Guarantors of the Junior Notes listed Schedule 1
thereto and JPMorgan Chase Bank, as trustee, as originally executed, including
for all purposes the provisions of the Trust Indenture Act that are deemed to be
a part of and govern such instrument.
"Letter of Representations" means a Letter of Representations to DTC
from the Depositary pertaining to any or all Tranche of Notes.
"Notes" means:
(i) the Issuer's Guaranteed Junior Secured Notes due 2008 issued
pursuant to the Junior Note Indenture and any Junior PIK Notes
(as that term is defined in the Junior Note Indenture) (the
"Junior Notes"), and
(ii) the Issuer's Guaranteed Senior Secured Notes due 2008 issued
pursuant to the Senior Note Indenture (the "Senior Notes"),
as issued, authenticated and delivered under the applicable Indenture.
"Officers' Certificate" when used with respect to any Tranche of Notes,
shall have the meaning ascribed to it in the Indenture pursuant to which such
Notes were issued.
"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 Depositary.
"Paying Agent" means, with respect to any Tranche of Notes, the Person
appointed as such under or with respect to the Indenture pursuant to which such
Notes were issued.
"Person" means any individual, corporation, partnership, limited
liability company, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof or any other entity.
"Responsible Officer" means, with respect to the Depositary, any officer
assigned to or working in the Depositary's corporate trust department or, with
respect to a particular corporate trust or agency matter, any other officer to
whom such matter is referred because of his or her knowledge and familiarity
with the particular subject.
"Senior Note Indenture" means the indenture dated as of May 19, 2003
among the Issuer, the Initial Guarantors of the Senior Notes listed Schedule 1
thereto and Law Debenture Trust
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Company of New York, as trustee, as originally executed, including for all
purposes the provisions of the Trust Indenture Act that are deemed to be a part
of and govern such instrument.
"Tranche" means either (1) the Senior Notes or (2) the Junior Notes, as
the case may be.
"Trust Indenture Act" means the United States Trust Indenture Act of
1939 (15 U.S. ss. 77aaa-77bbbb) as in effect on the date of the applicable
Indenture provided, however, that in the event the United States Trust Indenture
Act of 1939 is amended after such date, "Trust Indenture Act" means, to the
extent required by such amendment, the United States Trust Indenture Act of
1939, as so amended.
"Trustee" when used with respect to any Tranche of Notes, means the
Person acting as trustee under the applicable Indenture pursuant to which such
Notes were issued until a successor trustee shall have become such pursuant to
the applicable provisions of such Indenture, and "Trustee" shall thereafter mean
such successor trustee.
Section 1.2 Rules of Construction.
Unless the context otherwise requires, (1) a term has the meaning
assigned to it herein; (2) any capitalized term used herein and not otherwise
defined herein shall, with respect to any Tranche of Notes, have the meaning
ascribed to it in the applicable Indenture pursuant to which such Notes were
issued; (3) "or" is not exclusive; (4) "including" means including without
limitation; (5) words in the singular include the plural and words in the plural
include the singular; (6) the words "herein", "hereof" and "hereunder" and other
words of similar import refer to this Agreement as a whole and not to any
particular Article, Section or other subdivision; and (7) all references herein
to Articles, Sections or Exhibits refer to Articles or Sections of, or Exhibits
to, this Agreement, unless otherwise indicated.
ARTICLE 2.
BOOK-ENTRY INTERESTS
Section 2.1 Deposit of the Global Notes; Issuance of CDIs.
The Depositary hereby agrees to accept from time to time custody of the
Global Note of each Tranche and shall act as Depositary in accordance with the
terms of this Agreement. The Depositary shall hold such Global Note at its
Corporate Trust Office in The Borough of Manhattan, The City of New York, or at
such place or places as it may determine with the consent of the Issuer for the
purposes of Section 2.3 below in respect of the Global Note of each Tranche. The
Depositary shall issue to DTC Certificateless Depositary Interests and shall
issue to Euroclear and/or Clearstream Certificated Depositary Interests, which
together shall represent a 100 per cent. interest in each underlying Global
Note. The CDIs will be registered in the name of Cede & Co., as nominee of DTC
(with respect to Certificateless Depositary Interests issued to DTC) or the
nominee of a common depositary for Euroclear and Clearstream (with respect to
Certificated Depositary Interests issued to Euroclear and/or Clearstream).
Nothing in this Agreement shall affect the legal rights of the holder of any
Global Note of a Tranche or the obligations of the Issuer or the applicable
Trustee to such holder.
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Section 2.2 Book-Entry System.
(a) Upon acceptance by DTC, Euroclear and/or Clearstream of a CDI for
entry into its book-entry settlement system (in the case of DTC,
in accordance with the terms of the Letter of Representations),
Book-Entry Interests will be issued by DTC, Euroclear and/or
Clearstream and traded through their respective book-entry
systems, and ownership of such Book-Entry Interests shall be shown
in, and the transfer of such ownership shall be effected through,
records maintained by DTC, Euroclear and/or Clearstream or Direct
Participants. Book-Entry Interests shall be transferable only as
units in the same authorized denominations as the Notes to which
they correspond.
(b) Except as provided in Section 2.4, no owner of Book-Entry
Interests shall be entitled to receive a Definitive Registered
Note on account of such ownership, and such owner's interest
therein shall be shown only in accordance with the procedures of
DTC, Euroclear and/or Clearstream.
Section 2.3 Transfer of CDIs.
The Issuer appoints the Depositary as its agent for the sole purpose of
maintaining at the Corporate Trust Office records in which the Depositary shall
(i) record DTC, Euroclear and/or Clearstream as the initial owner of the CDIs,
(ii) record the transfer of ownership of the CDIs in each Global Note, and (iii)
record the increases and decreases in the principal amount represented by the
CDIs. The Depositary shall not recognize any transfer or exchange of ownership
of any CDI that is not registered in the records of the Depositary in accordance
with the provisions of this Section 2.3. The Depositary shall treat the Person
in whose name a CDI is recorded in the records of the Depositary as the owner
thereof for all purposes whatsoever and shall not be bound or affected by any
notice to the contrary, other than an order of a court having jurisdiction over
the Depositary.
The foregoing paragraph shall not (i) impose an obligation on the
Depositary to record the interests in or transfers of Book-Entry Interests held
by Direct Participants, or Persons that may hold Book-Entry Interests through
Direct Participants or (ii) restrict transfers of such Book-Entry Interests held
by Direct Participants or such Persons.
In connection with the Depositary's appointment as the Issuer's agent
under this Section 2.3, the Issuer shall have such rights and obligations as
regards removal of the Depositary and appointment of a successor as are
specified in Section 3.6 hereof.
Section 2.4 Transfer of the Global Notes.
The Depositary shall hold the Global Note of each Tranche of Notes in
custody for the benefit of the Clearing Systems. The Depositary shall not
transfer or lend any Global Note of a Tranche or any interest therein except
that (i) a Global Note of a Tranche may be exchanged in whole or in part,
pursuant to Section 2.06 of the applicable Indenture, (ii) a Global Note of a
Tranche may be exchanged or replaced pursuant to Section 2.07 of the applicable
Indenture, (iii) any Global Note of a Tranche may be delivered to the applicable
Trustee for cancellation pursuant to Section 2.12 of the applicable Indenture
and (iv) any Global Note may be transferred to a successor Depositary appointed
in accordance with Section 3.6 hereof.
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Notwithstanding the foregoing, the Depositary shall not under any circumstances
surrender or deliver any Global Note to any Clearing System.
If (i) DTC, Euroclear or Clearstream notifies the Depositary that it is
unwilling or unable to continue as a Clearing System with respect to CDIs issued
by the Depositary with respect of any Tranche of Notes, or if at any time DTC is
unable to or ceases to be a clearing agency registered under the Exchange Act
and in either case a successor Clearing System with respect to such CDIs is not
appointed by the Depositary at the written request of the Issuer within 120
days, (ii) the Depositary notifies the Issuer and the applicable Trustee in
writing under Section 3.6 hereof that it is unwilling or unable to continue to
act as Depositary and a successor Depositary is not appointed by the Issuer
within 120 days of such notification, (iii) so requested by DTC, Euroclear,
Clearstream, the Issuer or the applicable Trustee, in the event of a winding-up
of the Issuer or an Event of Default (as defined in the applicable Indenture) on
the Notes of a Tranche has occurred and is continuing, or (iv) Euroclear or
Clearstream is closed for business for a continuous period of 14 days (other
than by reason of legal holidays) or announces an intention permanently to cease
business, then the Depositary shall upon written direction from the Issuer
promptly notify the Clearing System in which the applicable CDIs are held that
the corresponding Global Note or Global Notes will be exchanged in whole or in
part for Definitive Registered Notes of the applicable Tranche pursuant to
Section 2.06 of the applicable Indenture. Definitive Registered Notes of the
applicable Tranche of Notes shall be issued in such names and amounts as the
applicable Clearing System shall specify upon cancellation of the corresponding
CDIs and all Book-Entry Interests with respect thereto. The Depositary agrees,
for the benefit of the applicable Trustee and holders of the applicable
Book-Entry Interests, that it will promptly surrender the corresponding Global
Note or Global Notes held by it to the applicable Trustee in connection with
such exchange for cancellation pursuant to Section 2.06 of the applicable
Indenture.
Delivery of Definitive Registered Notes of a Series pursuant to this
Section 2.4 shall be made free of any fees of the Depositary to the applicable
Clearing System or Beneficial Owner with respect thereto.
Section 2.5 Payment in Respect of a CDI and Global Note.
(a) Whenever the Depositary shall receive from the Paying Agent any
payment on a Global Note of a Tranche, including any payments of
Additional Amounts, the amount so received shall be distributed
promptly to the Clearing System entitled thereto, on the
corresponding payment date for such Global Note. In instances in
which DTC is the Clearing System, such payments shall be made in
accordance with the Letter of Representations.
(b) The Depositary shall forward to the Issuer and the applicable
Trustee or their agents such information from its records as the
Issuer may reasonably request to enable the Issuer or its agents
to file necessary reports with governmental agencies, and the
Depositary, the Issuer and the applicable Trustee or their agents
may (but shall not be required to) file any such reports necessary
to obtain benefits under any applicable tax treaties for the
applicable Clearing System or Beneficial Owners.
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(c) None of the Issuer, the Guarantors, the applicable Trustee, the
Depositary or any agent of the Issuer or the applicable Trustee or
the Depositary will have any responsibility or liability for any
aspect of the records relating to payments made by any Clearing
System (or its direct or indirect participants) on account of
Book-Entry Interests with respect to a Tranche of Notes or for
maintaining, supervising or reviewing any records relating to such
Book-Entry Interests.
(d) Notwithstanding any other provision of this Agreement, the
Depositary shall be required to pay to any Clearing System only
amounts (including Additional Amounts) received by the Depositary
under the Global Note of any Tranche of Notes in respect of which
CDIs are recorded in the name of such Clearing System.
Section 2.6 Redemption of Notes and Book-Entry Interests; Junior PIK
Notes.
In the event that the Issuer redeems all or any part of a Global Note of
a Tranche under the applicable Indenture, the Depositary shall promptly upon
receipt of the redemption price deliver such Global Note to the applicable
Trustee and request the applicable Trustee to make a record to reflect the
reduction in the principal amount of such Global Note as a result of such
redemption. In addition, the Depositary shall notify each applicable Clearing
System of the principal amount redeemed and of a corresponding reduction of the
same principal amount of the corresponding CDI. The Depositary shall, without
delay, pay all such amounts received by it in connection with such redemption to
the applicable Clearing System.
In the event that the Issuer chooses to pay interest or Additional
Amounts in the form of Junior PIK Notes pursuant to the Junior Note Indenture,
the Depositary shall request that the Paying Agent for the Junior Notes make a
record to reflect the increase in the principal amount of the Global Note
representing the Junior Notes as a result of such payment in the form of Junior
PIK Notes. In addition, the Depositary shall notify the applicable Clearing
System of the amount paid and of a corresponding increase of the same principal
amount of the corresponding CDI.
Section 2.7 Record Date.
Whenever (i) any payment is to be made in respect of any Global Note of
a Tranche, (ii) the Depositary shall receive notice of any action to be taken by
the Holder (as such term is defined in the applicable Indenture) of the Global
Note of any Tranche or (iii) it is appropriate in respect of any other matter,
the Depositary shall fix a record date for the determination of the holders of
the CDIs who shall be entitled to receive payment in respect thereof, to take
any such action or to act in respect of any such matter, which record date shall
be the same date as that fixed with respect to the corresponding Holder of the
Global Note under the applicable Indenture. Subject to the provisions of this
Agreement, only the Clearing System in whose name a CDI is recorded in the
records of the Depositary at the close of business on such record date shall be
entitled to receive any such payment, to give instructions as to such action or
to act in respect of any such matter.
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Section 2.8 Action in Respect of a CDI.
(a) As soon as practicable, but in any event not later than five (5)
Business Days, after receipt by the Depositary of notice of any
solicitation of consents or request for a waiver or other action
by the Holder of the Global Note of any Tranche of Notes under the
applicable Indenture or under this Agreement, the Depositary shall
deliver to the applicable Clearing System or Clearing Systems a
notice containing (i) such information as is contained in the
notice received, (ii) a statement that the applicable Clearing
System or Clearing Systems at the close of business on a specified
record date (established in accordance with Section 2.7 hereof)
will be entitled, subject to the provisions of or governing the
applicable CDI or such Global Note, to instruct the Depositary as
to the consent, waiver or other action, if any, pertaining to this
Agreement or the applicable Indenture and (iii) a statement as to
the manner in which such instructions may be given. Upon the
written request of the applicable Clearing System or Clearing
Systems received on or before the date established by the
Depositary for such purpose, the Depositary shall endeavor insofar
as practicable and permitted under the provisions of this
Agreement or the applicable Indenture, as the case may be, to take
such action regarding the requested consent, waiver or other
action in respect of all or only a portion of the principal amount
of such CDI or Global Note, as the case may be, with respect to
which instructions in accordance with any instructions set forth
in such request have been received. In addition, the Depositary
will forward to each applicable Clearing System or, based upon
instructions received from each applicable Clearing System to
owners of Book-Entry Interests, all materials received by the
Depositary pertaining to any such solicitation, request, offer or
other action. The Depositary agrees that each applicable Clearing
System may grant proxies or otherwise authorize Direct
Participants (or Persons owning Book-Entry Interests through such
Direct Participants) to provide such instructions to the
Depositary so that it may exercise any rights of a Holder or take
any other action which a Holder is entitled to take under the
applicable Indenture. The Depositary shall not itself exercise any
discretion in the granting of consents or waivers or the taking of
any other action in respect of a Global Note. Without prejudice to
Section 2.5(c), the records of the Clearing Systems shall, absent
manifest error, be conclusive evidence of the owners of the
Book-Entry Interests and the principal amount represented by such
Book-Entry Interests.
(b) As soon as practicable, but in any event not later than the
Business Day, after receipt by the Depositary of any notice of
redemption with respect to Notes of a Tranche pursuant to Section
3.02 of the applicable Indenture, the Depositary shall deliver to
each applicable Clearing System a notice containing (i) the
information contained in such notice of redemption and (ii) if
applicable, a statement that the Notes of such Tranche called for
redemption must be surrendered pursuant to the terms of the
applicable Indenture, in order to collect the redemption price. In
instances in which DTC is the Clearing System, such notice shall
also comply with the Letter of Representations.
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Section 2.9 Reports.
The Depositary shall promptly send to each applicable Clearing System a
copy of any notices, reports and other communications received relating to the
Issuer or any Tranche of Notes in respect of which CDIs are recorded in the name
of such Clearing System.
Section 2.10 Additional Amounts.
At least 30 days prior to the first date on which withholding from any
payment on any Global Note of a Tranche on account of taxes would be required
under applicable law or payment of Additional Amounts would be required to be
made pursuant to Section 4.27 of the Senior Note Indenture or Section 4.26 of
the Junior Note Indenture, as the case may be, and at least 30 days prior to any
subsequent such date if there has been any change with respect to such matters,
the Issuer will furnish the Depositary with an Officers' Certificate that shall
specify the amount, if any, required to be withheld on such payments and the
amount of Additional Amounts payable, net of amounts to which any Clearing
System or any owner of such Book-Entry Interest is not entitled. The Depositary
shall have no responsibility for determining whether any Clearing System or any
owner of a Book-Entry Interest is entitled to the payment of Additional Amounts,
but shall be entitled to rely conclusively for this purpose on the Officers'
Certificate or on certifications from each applicable Clearing System.
Notwithstanding anything to the contrary provided above, the Depositary shall
pay or cause to be paid Additional Amounts only out of funds that shall be
received by it from the Issuer for that purpose.
ARTICLE 3.
THE DEPOSITARY
Section 3.1 Certain Duties and Responsibility.
The rights, powers, duties and privileges of the Depositary shall be as
set forth in Exhibit A attached hereto. The Depositary undertakes to perform
such duties and only such duties as are specifically set forth in this
Agreement.
Section 3.2 Not Responsible for Recitals or Issuance of Notes.
The recitals contained in the Indentures shall be taken as the
statements of the Issuer, and the Depositary assumes no responsibility for their
correctness. The Depositary makes no representations as to the validity or
sufficiency of any Global Note or of any offering materials and the performance
and observance by the Issuer or any Guarantor of their respective obligations
under any Global Note or the recoverability of any sum of interest, principal,
premium if any or Additional Amounts, if any, due or to become due from the
Issuer or any Guarantor in respect of any Global Note. The Depositary shall at
no time be liable for any act, default or omission of the Issuer under or in
respect of any Note. The Depositary shall not be accountable for the use or
application by the Issuer of any proceeds with respect to any Note. The
Depositary shall at no time have any responsibility for, or obligation or
liability in respect of, the financial condition, creditworthiness, affairs,
status or nature of the Issuer or any Guarantor.
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Section 3.3 Money Held in Trust.
Money held by the Depositary in trust hereunder need not be segregated
from other funds held by the Depositary, except to the extent required by law,
and except that if the Depositary acts as paying agent with respect to any
Notes, money held in such capacity shall be segregated from the money held in
its capacity as Depositary. The Depositary shall be under no obligation to
invest or pay interest on any money received by it hereunder, except as
otherwise agreed in writing with the Issuer.
Section 3.4 Compensation and Reimbursement.
The Issuer agrees:
(a) to pay to the Depositary from time to time such compensation as
agreed between them in writing for all services rendered by it
hereunder (which compensation shall not be limited by any
provision of law with regard to the compensation of a trustee of
an express trust);
(b) to reimburse the Depositary and any predecessor Depositary
promptly upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Depositary in
accordance with any provision of this Agreement (including the
reasonable compensation and the expenses and disbursements of its
agents and counsel), except any such expense, disbursement or
advance as may be attributable to its negligence, willful
misconduct or bad faith; and
(c) to fully indemnify each of the Depositary and any predecessor
Depositary for, and to hold it harmless against, any and all loss,
liability, claim, damage or expense incurred without negligence,
willful misconduct or bad faith on its part, arising out of or in
connection with the acceptance or administration of this Agreement
and its duties hereunder, including the costs and expenses of
defending itself against or investigating any claim of liability
in connection with the exercise or performance of any of its
powers or duties hereunder.
The Depositary shall notify the Issuer in writing of the commencement of
any action or claim in respect of which indemnification may be sought promptly
after the Depositary becomes aware of such commencement (provided that the
failure to make such notification shall not affect the Depositary's rights
hereunder unless such failure adversely affects the Issuer's ability to
adequately oppose or defend against such action or claim) and the Issuer shall
be entitled to participate in, and to the extent it shall wish, to assume the
defense thereof, including the employment of counsel reasonably satisfactory to
the Depositary; provided that the Depositary may employ, at the Issuer's
expense, separate counsel; provided, however, that it is understood that the
Issuer shall not, under any circumstances, be liable for the reasonable fees and
expenses, as incurred, of more than one counsel at any one time to the
Depositary (except in the case where local counsel may also be required). The
Depositary shall not compromise or settle any such action or claim without the
written consent of the Issuer, which consent shall not be unreasonably withheld.
The obligations of the Issuer under this Section to compensate and
indemnify the Depositary and any
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predecessor Depositary and to pay or reimburse the Depositary and any
predecessor Depositary for expenses, including reasonable attorney's fees,
disbursements and advances, shall survive the repayment of any Note, resignation
or removal of the Depositary and satisfaction, discharge or other termination of
this Agreement.
In no event shall the Depositary be liable for any indirect, special,
punitive or consequential loss or damage of any kind whatsoever, including, but
not limited to, lost profits, even if the Depositary has been advised of the
likelihood of such loss or damage and regardless of the form of action.
In no event shall the Depositary be liable for any failure or delay in
the performance of its obligations hereunder because of the circumstances beyond
its control, including, but not limited to, acts of God, flood, war (whether
declared or undeclared), terrorism, fire, riot, embargo, government action,
including any laws, ordinances, regulations, governmental action, or the like,
which delay restrict or prohibit the provision of services contemplated by this
Agreement.
Section 3.5 Depositary Required; Eligibility.
At all times when there is a Depositary hereunder, such Depositary shall
be a corporation organized and doing business under the laws of the United
States of America, any State thereof or the District of Columbia, having,
together with its parent, a combined capital and surplus of at least
$50,000,000, subject to supervision or examination by federal, State or District
of Columbia authority, willing to act on reasonable terms. Such corporation
shall have its principal place of business in the Borough of Manhattan, The City
of New York, if there be such a corporation in such location willing to act upon
reasonable and customary terms and conditions. If such corporation, or its
parent, publishes reports of condition at least annually, pursuant to law or to
the requirements of the aforesaid supervising or examining authority, then for
the purposes of this Section, the combined capital and surplus of such
corporation shall be deemed to be its combined capital and surplus as set forth
in its most recent report of condition so published. The Depositary shall have
executed a Letter of Representations to DTC acceptable in form and substance to
DTC with respect to the Certificateless Depositary Interests issued to DTC. If
at any time the Depositary shall cease to be eligible in accordance with the
provisions of this Section, it shall resign immediately in the manner and with
the effect hereinafter specified in this Article.
Section 3.6 Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Depositary and, in the case of
(i) below, no appointment of a successor Depositary pursuant to
this Article shall become effective until (i) the acceptance of
appointment by the successor Depositary in accordance with the
applicable requirements of Section 3.7 hereof or (ii) the issuance
of Definitive Registered Notes with respect to all outstanding
Global Notes in accordance with Section 2.4 hereof.
(b) The Depositary may resign by giving written notice thereof to the
Issuer and the Clearing Systems in accordance with Section 4.1 and
Section 4.2 hereof, not less than 60 days prior to the effective
date of such resignation. The Depositary may be removed at any
time upon not less than 90 days' notice (except as otherwise
permitted in Section 3.6(c)) by the filing with it of an
instrument in
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writing signed on behalf of the Issuer and specifying such
removal and the date when it is intended to become effective.
(c) If at any time
(1) the Depositary shall cease to be eligible under Section
3.5 hereof and shall fail to resign after written
request therefor by the Issuer or by a Clearing System,
or
(2) the Depositary shall become incapable of acting with
respect to any CDI or shall be adjudged a bankrupt or
insolvent, or a receiver or liquidator of the Depositary
or of its property shall be appointed or any public
officer shall take charge or control of the Depositary
or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (i) the Issuer may immediately remove
the Depositary and appoint a successor Depositary or (ii) a
Clearing System or the Depositary may, on behalf of itself and
all others similarly situated, petition any court of competent
jurisdiction for the removal of the Depositary and the
appointment of a successor Depositary or Depositaries unless
Definitive Registered Notes have been issued with respect to
all outstanding Global Notes in accordance with each
applicable Indenture. Such court may thereupon, after such
notice, if any, as it may deem proper and prescribe, remove
the Depositary and appoint a successor Depositary.
(d) If the Depositary shall resign, be removed or become incapable
of acting, or if a vacancy shall occur in the office of
Depositary for any cause, the Issuer shall promptly appoint a
successor Depositary (other than the Issuer) and shall comply
with the applicable requirements of Section 3.7 hereof. If no
successor Depositary with respect to all Global Notes shall
have been so appointed by the Issuer and accepted appointment
in the manner required by Section 3.7, a Clearing System or
the Depositary may, on behalf of itself, and all others
similarly situated, at the expense of the Issuer, petition any
court of competent jurisdiction for the appointment of a
successor Depositary unless Definitive Registered Notes have
been issued with respect to all outstanding Global Notes in
accordance with each applicable Indenture.
(e) The Issuer shall give, or shall cause such successor
Depositary to give, notice of each resignation and each
removal of a Depositary and each appointment of a successor
Depositary to the Clearing Systems in accordance with Section
4.2 hereof. Each notice shall include the name of the
successor Depositary and the address of its Corporate Trust
Office. If the Issuer fails to give notice within ten days
after acceptance of appointment by the successor Depositary,
the successor Depositary shall cause such notice to be given
at the expense of the Issuer.
Section 3.7 Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a successor
Depositary, every such successor Depositary so appointed shall
execute, acknowledge and deliver to
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the Issuer and to the retiring Depositary an instrument
accepting such appointment, and thereupon the resignation or
removal of the retiring Depositary shall become effective and
such successor Depositary, without any further act, deed or
conveyance, shall become vested with all the rights, powers,
agencies and duties of the retiring Depositary, with like
effect as if originally named as Depositary hereunder;
provided, however, on the request of the Issuer or the
successor Depositary, such retiring Depositary shall, upon
payment of all amounts due and payable to it pursuant to
Section 3.4 hereof, execute and deliver an instrument
transferring to such successor Depositary all the rights and
powers under this Deposit Agreement of the retiring Depositary
and shall duly assign, transfer and deliver to such successor
Depositary all property, records and money held by such
retiring Depositary hereunder and shall deliver each Global
Note to the successor.
(b) Upon request of any such successor Depositary, the Issuer
shall execute any and all instruments necessary for more fully
and certainly vesting in and confirming to such successor
Depositary all such rights, powers and agencies referred to in
paragraph (a) of this Section.
(c) No successor Depositary shall accept its appointment unless at
the time of such acceptance such successor Depositary shall be
eligible under this Article.
(d) Upon acceptance of appointment by any successor Depositary as
provided in this Section, the Issuer shall give notice thereof
to the Clearing Systems in accordance with Section 4.2 hereof.
If the acceptance of appointment is substantially
contemporaneous with the resignation of the Depositary, the
notice called for by the preceding sentence may be combined
with the notice called for by Section 3.6 hereof. If the
Issuer fails to give such notice within 15 days after
acceptance of appointment by the successor Depositary, the
successor Depositary shall promptly cause such notice to be
given at the expense of the Issuer.
Section 3.8 Merger, Conversion, Consolidation or Succession to
Business.
Any corporation into which the Depositary may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Depositary shall be a party, or any
corporation succeeding to all or substantially all the corporate trust or agency
business of the Depositary, shall be the successor of the Depositary hereunder,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto, provided that such corporation shall be otherwise
eligible under this Article. Written notice of any merger, conversion,
consolidation or sale shall forthwith be given to the Issuer and the Clearing
Systems.
Section 3.9 May Hold Securities; Other Dealings.
The Depositary may own and deal in any class of securities of the Issuer
and its affiliates and in the Notes and Book-Entry Interests. The Depositary may
enter into other dealings with the Issuer of any nature whatsoever.
- 13 -
Section 3.10 Notice of Default.
Within 10 days after the Depositary has been notified by the applicable
Trustee, pursuant to the applicable Indenture, of the occurrence of an Event of
Default, the Depositary shall transmit by mail to the Clearing Systems in the
manner provided in Section 4.2 hereof, notice of such Event of Default, unless
the Depositary shall, prior to such transmission by it, have been notified by
the applicable Trustee that such Event of Default has been cured or waived.
ARTICLE 4.
MISCELLANEOUS PROVISIONS
Section 4.1 Notices to Depositary or Issuer.
Any request, demand, authorization, direction, notice, consent, or
waiver or other document provided or permitted by this Agreement to be made
upon, given or furnished to, or filed with,
(a) the Depositary by any Clearing System or the Issuer shall be
sufficient for every purpose hereunder (unless otherwise
herein expressly provided) if made, given, furnished or filed
in writing (which may be via facsimile) and delivered or
mailed and received, first-class postage prepaid, to the
Depositary at its Corporate Trust Office, facsimile ▇▇ ▇▇▇ ▇▇▇
5802, Attention: Corporate Trust Administration, or at any
other address or facsimile number previously furnished in
writing by the Depositary to the Clearing Systems and the
Issuer, or
(b) the Issuer by the Depositary shall be sufficient for every
purpose hereunder (unless otherwise herein expressly provided)
if made, given, furnished or filed in writing (which may be
via facsimile) and delivered or mailed and received,
first-class postage prepaid, to the Issuer at Regents Place,
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, facsimile at +44
▇▇▇ ▇▇▇ ▇▇▇▇, Attention: Company Secretary, or at any other
address or facsimile number previously furnished in writing to
the Depositary by the Issuer.
Section 4.2 Notice to Clearing Systems and Owners; Waiver.
Where this Agreement provides for notice to the Clearing Systems or
owners of Book-Entry Interests of any event, such notice shall be sufficiently
given (unless otherwise herein expressly provided or as provided in the Letter
of Representations) if in writing and delivered to each applicable Clearing
System at its respective addresses notified to the Depositary, in each case not
later than the latest date, and not earlier than the earliest date, prescribed
for the giving of such notice. Where this Agreement provides for notice in any
manner, such notice may be waived in writing by the Person entitled to receive
such notice, either before or after the event, and such waiver shall be the
equivalent of such notice. Waivers of notice by any Clearing System shall be
filed with the Depositary, but such filing shall not be a condition precedent to
the validity of any action taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service or by reason
of any other cause it shall be impracticable to give notice by mail, then such
notification as shall be made
- 14 -
with the approval of the Depositary shall constitute a sufficient notification
for every purpose hereunder.
Section 4.3 Compliance Obligations of the Issuer.
The Issuer covenants in favor of the Depositary that it will provide the
Depositary with one copy of the Senior Note Indenture and any supplements or
amendments thereto and one copy of the Junior Note Indenture and any supplements
or amendments thereto. The Depositary shall be entitled to rely on the documents
provided to it under this Clause 4.3 in the absence of receipt of any further
documents as provided hereunder.
Section 4.4 Effect of Heading and Table of Contents.
The Article and Section headings herein are for convenience only and
shall not affect the construction hereof.
Section 4.5 Successors and Assigns.
All covenants and agreements in this Agreement by the Issuer shall bind
its successors and assigns, whether so expressed or not.
Section 4.6 Separability Clause.
In case any provision in this Agreement shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions hereof and thereof shall not in any way be affected or impaired
thereby.
Section 4.7 Benefits of Agreement.
Nothing in this Agreement, any Tranche of Notes, or the Indentures,
express or implied, shall give to any Person, other than the parties hereto and
their successors hereunder, any benefits or any legal or equitable right, remedy
or claim under this Agreement. The owners from time to time of the Book-Entry
Interests shall be parties to this Agreement and shall be bound by all of the
terms and conditions hereof and of the applicable Indenture and the
corresponding Tranche of Notes, by their acceptance of delivery of the
Book-Entry Interests.
Section 4.8 Governing Law.
This agreement shall be governed by, and construed in accordance with,
the laws of the State of New York.
Section 4.9 Jurisdiction.
By the execution and delivery of this Agreement, the Issuer (i)
acknowledges that it has, by separate written instrument, irrevocably designated
and appointed Marconi Electronic Systems Holdings Inc., Attn: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇,
c/▇ ▇▇▇▇▇▇▇ Communications, Inc., ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇, as its authorized agent upon which process may be served in any suit
or proceeding arising out of this Agreement that may be instituted in any
federal or state court in the Borough of Manhattan, The City of New York, and
acknowledges that Marconi Electronic Systems Holdings Inc. has accepted such
designation, (ii) submits to the jurisdiction of any such court in any such suit
or proceeding, and waives any objection which it
- 15 -
may now or hereafter have to the laying of venue of any such proceeding or any
claim of inconvenient forum and (iii) agrees that service of process upon
Marconi Inc. and written notice of said service to the Issuer (mailed or
delivered to the Issuer's Company Secretary at the Issuer's principal office)
shall be deemed in every respect effective service of process upon it in any
such suit or proceeding. The Issuer further agrees to take any and all action,
including the execution and filing of any and all such documents and
instruments, as may be necessary to continue such designation and appointment of
Marconi Inc. in full force and effect so long as this Agreement shall be in full
force and effect. To the extent that the Issuer has or hereinafter may acquire
any immunity from jurisdiction of any court or from any legal process (whether
through service of notice, attachment prior to judgment, attachment in aid of
execution or otherwise) with respect to itself or its property, the Issuer
hereby irrevocably waives such immunity in respect of its obligations under this
Agreement to the fullest extent permitted by law.
Section 4.10 Counterparts.
This Agreement may be executed in any number of counterparts by the
parties hereto on separate counterparts, each of which, when so executed and
delivered, shall be deemed an original, but all such counterparts shall together
constitute one and the same instrument.
Section 4.11 Inspection of Agreement.
A copy of this Agreement shall be available upon reasonable prior
written notice at all reasonable times during normal business hours at the
Corporate Trust Office for inspection by any Clearing System or by any Clearing
System as by any owner of Book-Entry Interests.
Section 4.12 Satisfaction and Discharge.
This Agreement upon an Issuer Request shall cease to be of further
effect with respect to Notes of any Tranche, and the Depositary, at the expense
of the Issuer, shall execute proper instruments provided to it acknowledging
satisfaction and discharge of this Agreement, when (i) with respect to the Notes
of such Tranche the applicable Indenture has been satisfied and discharged
pursuant to the provisions thereof or Definitive Registered Notes of such
Tranche have been issued and the corresponding Global Notes of such Tranche have
been cancelled in accordance with the provisions of Section 2.4 or Section 2.5
hereof, (ii) the Issuer has paid or caused to be paid all sums payable hereunder
by the Issuer with respect to the Notes of such Tranche and (iii) the Issuer has
delivered to the Depositary an Officers' Certificate and an Opinion of Counsel,
stating that all conditions precedent herein provided relating to the
satisfaction and discharge of this Agreement with respect to the Notes of such
Tranche have been complied with.
Section 4.13 Amendments.
The Issuer and the Depositary may amend this Agreement without the
consent of any Clearing System or the owner of any Book-Entry Interests:
(a) to cure any ambiguity, omission, defect or inconsistency;
(b) to add to the covenants and agreements of the Depositary or
the Issuer;
- 16 -
(c) to evidence or effectuate the assignment of the Depositary's
rights and duties to a qualified successor, as provided
herein;
(d) to comply with any requirements of the U.S. Securities Act of
1933, as amended, the Exchange Act, the U.S. Investment
Company Act of 1940, as amended, the Trust Indenture Act or
any other applicable law, rule or regulation; or
(e) to modify, alter, amend or supplement this Agreement in any
other manner that is not adverse to any Clearing System or the
owner of any Book-Entry Interests.
No amendment that adversely affects any Clearing System may be made to
this Agreement without the written consent of such Clearing System.
Section 4.14 Depositary to Execute Amendments.
The Depositary shall duly execute and deliver any amendment authorized
pursuant to Section 4.13, if the amendment does not adversely affect the rights,
duties, liabilities or immunities of the Depositary. If it does, the Depositary
may but need not execute and deliver such amendment. In executing and delivering
such amendment the Depositary shall be entitled to receive, and shall be fully
protected in reasonably relying upon, an Officers' Certificate (which need only
cover the matters set forth in clause (a) below) and an Opinion of Counsel
stating that:
(a) such amendment is authorized or permitted by this Agreement;
(b) the Issuer has all necessary corporate power and authority to
execute and deliver the amendment and that the execution,
delivery and performance of such amendment has been duly
authorized by all necessary corporate action;
(c) the execution, delivery and performance of the amendment do
not conflict with, or result in the breach of or constitute a
default under any of the terms, conditions or provisions of
(i) this Agreement, (ii) the Memorandum and Articles of
Association of the Issuer or (iii) any law or regulation
applicable to the Issuer; and
(d) such amendment has been duly and validly executed and
delivered by the Issuer, and this Agreement together with such
amendment constitutes a legal, valid and binding obligation of
the Issuer enforceable against the Issuer in accordance with
its terms, subject to applicable bankruptcy, insolvency or
similar laws affecting creditors' rights generally and general
equitable principles.
- 17 -
IN WITNESS WHEREOF the parties have caused this Agreement to be duly executed as
of the date first written above.
MARCONI CORPORATION PLC
By: _____________________________________
Name:
Title:
THE BANK OF NEW YORK
as Depositary
By: _____________________________________
Name:
Title:
- 18 -
EXHIBIT A
Section 1. Prevention or delay in performance by the Depositary.
The Depositary shall not incur any liability to any Clearing System, any
holder of Book-Entry Interests or any other Person hereunder or in connection
herewith if, by reason of any provision of any future law or regulation of any
governmental or regulatory authority or securities exchange, or by reason of any
act of God or war or other circumstance beyond the control of the Depositary,
the Depositary shall be prevented or forbidden from doing or performing any act
or thing that the terms of this Agreement provide shall be done or performed;
and the Depositary shall not incur any liability to any Clearing System, any
holder of Book-Entry Interests or any other Person hereunder or in connection
herewith by reason of any non-performance or delay, caused as aforesaid, in the
performance of any act or thing that the terms of this Agreement provide shall
or may be done or performed.
Section 2. Compliance with letter of representations.
The Depositary agrees to comply with all of the provisions set forth in
the Letter of Representations in instances in which DTC is the Clearing System.
Section 3. Duties and liabilities of Depositary.
The Depositary shall not be liable under this Agreement other than by
reason of its own bad faith, willful misconduct or negligence in the performance
of such duties as are specifically set forth in this Agreement. The Depositary
shall not be liable for any damages resulting from the transfer or delivery of
the Global Notes in accordance with the terms of this Agreement. In the absence
of bad faith on its part, the Depositary may conclusively rely, as to the truth
of the statements and the correctness of the opinions expressed therein, upon
any statements, certificates or opinions furnished to the Depositary and
conforming to the requirements of this Agreement, but in the case of any such
statements, certificates or opinions that by any provision hereof are required
to be furnished to the Depositary, the Depositary shall be under a duty to
examine the same to determine whether or not they conform to the requirements of
this Agreement. The Depositary may request and rely and shall be protected in
acting in reliance upon any written notice, request or direction believed by it
in good faith to be genuine and to have been signed or presented by the proper
party or parties.
Section 4. Obligations of the Depositary.
The Depositary assumes no obligation nor shall it be subject to any
liability under this Agreement to any Clearing System or any holder of
Book-Entry Interests (including, without limitation, liability with respect to
the validity or worth of the Global Notes), other than that it agrees to perform
such duties as are specifically set forth in this Agreement. In no event shall
the Depositary be deemed to owe any fiduciary relationship to any Person as a
result of its administering this Agreement.
The Depositary makes no representation or warranty and shall at no time
have any responsibility for, or liability or obligation in respect of, the
legality, validity, binding effect, adequacy or enforceability of the Global
Notes, the performance and observance by the Issuer or any Guarantor of their
respective obligations under or in respect of the Global Notes or the
A-1
recoverability of any sum of interest, principal, premium, if any, or Additional
Amounts, if any, due or to become due from the Issuer or any Guarantor in
respect of the Global Notes.
The Depositary shall at no time have any responsibility for, or
obligation or liability in respect of, the financial condition,
creditworthiness, affairs, status or nature of the Issuer or any Guarantor.
The Depositary shall at no time be liable for any act, default or
omission of the Issuer or any Guarantor under or in respect of the Global Notes.
Payments in respect of the CDIs with respect to a Tranche of Notes will
only be made to the extent of any amounts actually received by or on behalf of
the Depositary in respect of the corresponding Global Notes of such Tranche.
The Depositary shall not be required to give notice to the Issuer or any
Clearing System that any Global Note of a Tranche is repayable or that any Event
of Default in relation to any Global Note of a Tranche has occurred pursuant to
the applicable Indenture or take any proceedings to enforce payment under the
applicable Indenture, except as expressly provided otherwise in this Agreement.
The Depositary shall not be under any obligation to exercise in favor of
any Clearing System any rights of set-off or of bankers' lien or of
counterclaims that may arise out of any other transaction between the Issuer or
the Depositary.
The Depositary shall not be under any obligation to appear in, prosecute
or defend any action, suit or other proceeding in respect of any Global Note or
in respect of any CDIs, or take any other action or omit to take any action
under this Agreement, which in its opinion may involve it in expense or
liability, unless indemnity satisfactory to it against all expenses and
liability be furnished as often as may be required.
The Depositary shall not be liable for any acts or omissions made by a
successor Depositary whether in connection with a previous act or omission of
the Depositary or in connection with a matter arising wholly after the removal
or resignation of the Depositary, provided that the Depositary complied with its
obligations in Section 3 of this Exhibit A when it acted as Depositary.
The Depositary shall have no liability for the calculation, timing or
appropriateness of any interest, principal, premium, if any, Additional Amounts,
if any, or other payment or distribution to be made in connection with any
Global Note, and the Issuer shall have sole responsibility therefor, provided
that the Depositary shall be liable for its own bad faith, willful misconduct or
negligence in connection with the foregoing.
The Depositary shall not be under any liability for interest on, or any
obligation to invest or segregate, any monies at any time received by it
pursuant to the terms and conditions of this Agreement except as required by law
or as expressly provided in this Agreement.
The Depositary may own and deal in any class of securities of the Issuer
and its affiliates and in Book-Entry Interests.
A-2
EXHIBIT B
FORM OF CERTIFICATED DEPOSITARY INTEREST
FOR THE CERTIFICATED DEPOSITARY INTERESTS IN THE [GLOBAL SENIOR NOTES] [GLOBAL
JUNIOR NOTES].
Reference is hereby made to the Deposit Agreement dated as of May 19, 2003 (the
"DEPOSIT AGREEMENT") between Marconi Corporation plc (the "ISSUER") and The Bank
of New York. Unless otherwise specified herein, capitalised terms used but not
defined herein shall have the meanings given to them in the Deposit Agreement.
This Certificated Depositary Interest is issued in respect of US$[o] ([o] United
States dollars) aggregate principal amount of the [Guaranteed Senior Secured
Notes due 2008] [Guaranteed Junior Secured Notes due 2008] (the "NOTES") of the
Issuer. The Notes are issued in accordance with the indenture dated as of May
19, 2003 among the Issuer, the Initial Guarantors listed on Schedule 1 thereto
and [Law Debenture Trust Company of New York] [JPMorgan Chase Bank], as trustee,
as originally executed, including for all purposes the provisions of the Trust
Indenture Act that are deemed to be a part of and govern such instrument (the
"[SENIOR] [JUNIOR] NOTE INDENTURE"). This Certificated Depositary Interest is
issued under the deposit agreement dated as of May 19, 2003 (the "DEPOSIT
AGREEMENT") among the Issuer and The Bank of New York, as Depositary (the
"DEPOSITARY"). In this Certificated Depositary Interest, the Depositary shall
include any successors thereto appointed from time to time in accordance with
the provisions of the Deposit Agreement.
This is to certify that:
The Bank of New York, as common depositary for Euroclear and Clearstream, is the
person registered in the register (the "BOOK-ENTRY REGISTER") maintained by the
Depositary in relation to the Certificated Depositary Interests as the duly
registered holder of this Certificated Depositary Interest or, if more than one
person is so registered, the first-named of such persons (the "CDI HOLDER"). The
CDI Holder is entitled to receive the principal amount outstanding as indicated
in the Schedule hereto at the Stated Maturity (as defined in the Indenture) or
on such earlier date or dates as the same may become repayable in accordance
with the terms of the Deposit Agreement (subject to such adjustments [(i)]
downwards by any amounts of principal already paid to the CDI Holder in
accordance with the terms of the Deposit Agreement and noted by the Depositary
on the Schedule hereto evidencing such adjustments as may be necessary to ensure
that no greater principal sum is repaid in respect of this Certificated
Depositary Interest than the actual principal amount received by the Depositary
in respect thereof [and (ii) upwards to reflect Junior PIK Notes issued in
respect of Junior Notes], together with premium, if any, interest and Additional
Amounts payable in accordance with the terms of the Deposit Agreement, all
subject to and in accordance with the terms of the Deposit Agreement.
This Certificated Depositary Interest is evidence of entitlement only. Title to
the Certificated Depositary Interest passes only on due registration in the
Book-Entry Registrar and only the CDI Holder is entitled to payment in respect
of this Certificated Depositary Interest.
This Certificated Depositary Interest shall not be valid for any purpose until
it has been executed for and on behalf of The Bank of New York as Depositary.
B-1
AS WITNESS the manual signature of the Depositary.
As Depositary, without recourse, warranty or liability,
By: ________________________
Name:
Title:
ISSUED on
B-2
INCREASE IN VALUE AND DECREASE IN VALUE
The aggregate principal amount outstanding of this Certificated Depositary
Interest is shown by the latest entry made by or on behalf of the Depositary in
the fourth column below.
The following increases and decreases in principal amount outstanding of this
Certificated Depositary Interest have been made.
AMOUNT OF PRINCIPAL AMOUNT
DECREASE IN AMOUNT OF INCREASE OUTSTANDING OF
PRINCIPAL AMOUNT IN PRINCIPAL THE CERTIFICATED
OUTSTANDING OF AMOUNT OUTSTANDING DEPOSITARY
THIS CERTIFICATED OF THIS INTEREST NOTATION MADE BY
DATE OF INCOME/ DEPOSITARY CERTIFICATED FOLLOWING SUCH OR ON BEHALF OF
DECREASE INTEREST DEPOSITARY INTEREST DECREASE/INCREASE THE DEPOSITARY
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C-1
SCHEDULE 8
FORM OF AGENCY AGREEMENT
Schedule 8-1
[▇▇▇▇▇▇▇▇ CHANCE LOGO] LIMITED LIABILITY PARTNERSHIP
Draft Date: 16 May 2003
Dated 19 May 2003
MARCONI CORPORATION PLC
as Issuer,
THE INITIAL GUARANTORS NAMED HEREIN
as Guarantors,
LAW DEBENTURE TRUST COMPANY OF NEW YORK
as Trustee for the Guaranteed Senior Secured Notes due 2008
JPMORGAN CHASE BANK
as Trustee for the Guaranteed Junior Secured Notes due 2008
- and -
THE BANK OF NEW YORK
as Paying Agent and Registrar
---------------------------------------------------------------------------
AGENCY AGREEMENT
relating to
Guaranteed Senior Secured Notes due 2008 and
Guaranteed Junior Secured Notes due 2008
---------------------------------------------------------------------------
Draft Date: 16 May 2003
CONTENTS
CLAUSE PAGE
------ ----
1. Definitions and Interpretation...................................... 2
2. Appointment......................................................... 3
3. Authentication and Exchange of the Notes............................ 4
4. Payment to the Paying Agent......................................... 5
5. Notification of Non-Payment by the Issuer........................... 5
6. Duties of the Paying Agent.......................................... 6
7. Paying Agent to Act for Trustee..................................... 7
8. Reimbursements of the Paying Agent.................................. 7
9. Notice of any Withholding or Deduction.............................. 8
10. Duties of the Registrar............................................. 8
11. Regulations for Transfer of Definitive Registered Notes............. 10
12. Redemptions......................................................... 10
13. Publication of Notices.............................................. 10
14. Cancellation, Destruction and Records............................... 11
15. Issue of Replacement Notes.......................................... 11
16. Copies of the Documents available for Inspection.................... 12
17. Commissions and Expenses............................................ 12
18. Indemnity........................................................... 12
19. Repayment by Paying Agent........................................... 13
20. Conditions of Appointment........................................... 13
21. Resignation and Removal; Appointment of Successors.................. 17
22. Additional Guarantors party to this agreement....................... 19
23. Meetings of Junior or Senior Noteholders............................ 19
24. Notices............................................................. 20
25. Taxes............................................................... 21
26. Effect of Headings.................................................. 21
27. Successors and Assigns.............................................. 21
28. Severability Clause................................................. 21
29. Governing Law and Jurisdiction...................................... 22
30. Counterparts........................................................ 23
SCHEDULE 1 INITIAL GUARANTORS............................................. 25
SCHEDULE 2 FORM OF GUARANTOR ACCESSION LETTER............................. 28
Draft Date: 16 May 2003
THIS AGREEMENT is made on 19 May 2003
AMONG:
(1) MARCONI CORPORATION PLC, a public limited company incorporated under the
laws of England and Wales (the "ISSUER");
(2) THE INITIAL GUARANTORS listed in Schedule 1 hereto (the "INITIAL
GUARANTORS") and their respective successors and such other persons as
may from time to time become party hereto as Guarantors and their
respective successors (each a "GUARANTOR" and together the
"GUARANTORS");
(3) LAW DEBENTURE TRUST COMPANY OF NEW YORK as trustee of the Senior Notes
defined below (the "SENIOR NOTE TRUSTEE"); and
(4) JPMORGAN CHASE BANK as trustee of the Junior Notes defined below (the
"JUNIOR NOTE TRUSTEE" and, together with the Senior Note Trustee, the
"TRUSTEES"); and
(5) THE BANK OF NEW YORK as Paying Agent and Registrar.
RECITALS
(A) The Issuer, the Initial Guarantors and the Senior Note Trustee have, on
or about the date of this Agreement, executed an indenture (the "SENIOR
NOTE INDENTURE") relating to the Guaranteed Senior Secured Notes due
2008 of the Issuer (the "SENIOR NOTES"), and the Issuer, the Guarantors
and the Junior Note Trustee have, on or about the date of this
Agreement, executed an indenture (the "JUNIOR NOTE INDENTURE" and,
together with the Senior Note Indenture, the "INDENTURES") relating to
the Guaranteed Junior Secured Notes due 2008 of the Issuer (the "JUNIOR
NOTES" and, together with the Senior Notes, the "NOTES").
(B) The Issuer and the Guarantors desire to appoint the Bank of New York as
Paying Agent and Registrar with respect to the Senior Notes and the
Junior Notes.
(C) On issue, the Senior Notes will be represented by one or more Global
Senior Notes and the Junior Notes will be represented by one or more
Global Junior Notes, in each case in bearer form. The Notes will be
issued pursuant to exemptions from, or in transactions not subject to,
the registration requirements of the United States Securities Act of
1933, as amended (the "SECURITIES ACT"), including the exemption
provided by Section 3(a)(10) thereof, and the Notes have not been and
will not be registered under the Securities Act or the securities laws
of any state of the United States.
(D) On issue, the Global Notes will be deposited with The Bank of New York,
as depositary (the "DEPOSITARY") under the Deposit Agreement (the
"DEPOSIT AGREEMENT") dated as of May 19, 2003 between the Issuer and the
Depositary. Pursuant to the Deposit Agreement, the Depositary will issue
CDIs, as defined below, to DTC and to Euroclear and/or Clearstream,
Luxembourg, which together represent a 100 per cent. interest in each
underlying Global Note. Upon acceptance by DTC, Euroclear and/or
Clearstream, Luxembourg of the relevant CDIs for entry into their
respective book-entry settlement systems, beneficial interests in such
CDIs (the "BOOK-ENTRY INTERESTS") will be issued by
- ▇ -
▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇/▇▇ ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ and traded through their
respective book-entry systems.
(E) Book-Entry Interests will be transferable only as units in the same
authorized denominations as the Notes of the Tranche to which they
correspond. Unless any Tranche of Notes is exchanged in whole or in part
for other securities of the Issuer, or the Global Note of such Tranche
is exchanged for Notes of such Tranche in definitive registered form
("DEFINITIVE REGISTERED SENIOR NOTES" or "DEFINITIVE REGISTERED JUNIOR
NOTES", as the case may be), the CDIs representing any Notes of a
Tranche held by DTC, Euroclear and/or Clearstream, Luxembourg may not be
transferred except as a whole between DTC, Euroclear and/or Clearstream,
Luxembourg, a nominee of DTC, the nominee of a common depositary for
Euroclear and Clearstream, Luxembourg or their respective successors.
THE PARTIES AGREE AS FOLLOWS:
1. DEFINITIONS AND INTERPRETATION
1.1 Terms defined in the Senior Note Indenture and not otherwise defined in
this Agreement shall have the same meanings when used in this Agreement
as regards to the Senior Notes, the Definitive Registered Senior Notes
or the Senior Note Trustee. Terms defined in the Junior Note Indenture
and not otherwise defined in this Agreement shall have the same meanings
when used in this Agreement as regards to the Junior Notes, the
Definitive Registered Junior Notes or the Junior Note Trustee. The
following terms, as used in this Agreement, shall have the following
meanings:
"BUSINESS DAY" means a day (other than Sunday or Saturday) on which
commercial banks in the locations specified (or if no locations are
specified, in London and New York) are open for general business.
"CDI" means, in respect of DTC, certificateless depositary interests,
and in respect of Euroclear and Clearstream, Luxembourg, certificated
depositary interests, in each case representing interests in a Global
Note.
"DEFINITIVE REGISTERED JUNIOR NOTES" means Junior Notes in definitive
registered form.
"DEFINITIVE REGISTERED NOTES" means the Definitive Registered Senior
Notes and the Definitive Registered Junior Notes.
"DEFINITIVE REGISTERED SENIOR NOTES" means Senior Notes in definitive
registered form.
"GLOBAL NOTES" means, in the case of the Senior Notes, Global Senior
Notes, and in the case of the Junior Notes, Global Junior Notes.
"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 my be, by any two Officers of the Issuer or such
Guarantor, as the case may be, complying with the requirements of the
applicable Indenture as provided therein.
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"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 Paying Agent and Registrar.
"PAYING AGENT" means, with respect to the Senior Notes or the Junior
Notes, as the case may be, 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
pay the principal of, premium, if any, and interest and Additional
Amounts, if any, on the Senior Notes or the Junior Notes, as the case
may be, on behalf of the Issuer pursuant to Clause 21 of this Agreement.
"REGISTRAR" means, with respect to the Senior Notes or the Junior Notes,
as the case may be, any office or agency maintained by the Issuer, which
initially shall be The Bank of New York, where Definitive Registered
Senior Notes or Definitive Registered Junior Notes, as the case may be,
may be presented for transfer, exchange or payment under the applicable
Indenture.
"SPECIFIED OFFICE" means, with respect to the Paying Agent and the
Registrar, the office of the Paying Agent and the Registrar, as the case
may be, specified in Clause 24 or any other specified offices as may
from time to time be duly notified in accordance with Clause 24.
"TRANCHE" means either (1) the Senior Notes or (2) the Junior Notes, as
the case may be.
1.2 Unless the context otherwise requires:
(a) all references herein to Clauses or Schedules refer to Clauses
of, or Schedules to, this Agreement, unless otherwise indicated;
(b) "OR" is not exclusive;
(c) "INCLUDING" means including without limitation; and
(d) words in the singular include the plural and words in the plural
include the singular.
1.3 References in this Agreement to principal, premium or interest on any
Tranche of Notes shall include any Additional Amounts, as such term is
defined in the applicable Indenture, payable pursuant to the Notes of
such Tranche and the applicable Indenture.
2. APPOINTMENT
The Issuer, the Guarantors and, for the purposes of Clause 7 only, the
Trustees hereby appoint, on the terms and subject to the conditions of
this Agreement, The Bank of New York at its specified office as paying
agent for each of the Senior Notes and the Junior Notes (in that
capacity, the "PAYING AGENT", which expression shall include any
replacement of or successor to the Paying Agent appointed by the Issuer
and the Guarantors in relation to the Senior Notes and/or the Junior
Notes, as the case may be, pursuant to Clause 21) and, in the event
Definitive Registered Senior Notes or Definitive Registered Junior Notes
are issued in respect of the Senior Notes or the Junior Notes, as the
case may be, as registrar (in that capacity, the "REGISTRAR", which
expression shall
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include any replacement of or successor to the Registrar appointed by
the Issuer in relation to the Definitive Registered Senior Notes or
Definitive Registered Junior Notes, as the case may be, pursuant to
Clause 21).
3. AUTHENTICATION AND EXCHANGE OF THE NOTES
3.1 Immediately upon issue, the Issuer shall deliver the duly executed and
completed Global Notes to or to the order of the Paying Agent. The
Paying Agent is authorised, upon receiving written instructions from the
Issuer to do so, to authenticate the Global Notes and deliver them to
the Depositary to be held upon the terms of the Deposit Agreement.
3.2 If, in accordance with the applicable Indenture, Definitive Registered
Notes of a Tranche are to be issued, the Issuer shall, at least 30 days
before the date on which a Global Note may be exchanged for Definitive
Registered Notes of such Tranche, cause sufficient Definitive Registered
Notes of such Tranche to be executed and delivered to the Paying Agent,
together with a written order for the authentication of such Definitive
Registered Notes.
3.3 In order to receive the Definitive Registered Notes of a Tranche, the
bearer of the Global Note of such Tranche must provide the Paying Agent
with a written order containing the instructions and such other
information as the Issuer and the Paying Agent may require to complete,
execute and deliver the Definitive Registered Notes of such Tranche
including the name and address of each person in whose name such
Definitive Registered Notes are to be registered. The Paying Agent will
provide the Registrar with full details of any Definitive Registered
Senior Notes or Definitive Registered Junior Notes, as the case may be,
issued so that the Registrar may make the appropriate entries in the
Senior Note Register or Junior Note Register, as the case may be, as
provided in Clause 10.
3.4 Upon receipt of the documents referred to in Clause 3.2 and Clause 3.3,
presentation of the Global Note of a Tranche to the Paying Agent and
receipt of the written order of the Issuer, the Paying Agent shall
arrange for the authentication and delivery to, or to the order of, the
person or persons named in the order referred to in Clause 3.3 of
Definitive Registered Notes, of such Tranche, registered in the name or
names requested by those person or persons and the Paying Agent shall
procure the corresponding reduction of the principal amount of the
Global Note of such Tranche in exchange for which the Definitive
Registered Notes are issued, by annotation in the relevant Schedule to
such Global Note of such Tranche accordingly.
3.5 Definitive Registered Senior Notes and Definitive Registered Junior
Notes will be issued substantially in the forms set out in Exhibit B to
the Senior Note Indenture and Exhibit B of the Junior Note Indenture, as
the case may be. Exchange of Definitive Registered Senior Notes and
Definitive Registered Junior Notes shall be made only in accordance with
the applicable Indenture.
4. PAYMENT TO THE PAYING AGENT
4.1 The Issuer, failing whom, the Guarantors shall, not later than 5:00 p.m.
(London time) on the Business Day preceding each date on which any
payment of:
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(a) principal;
(b) premium;
(c) interest;
(d) Additional Amounts, if any; or
(e) any other amount,
in respect of the Senior Notes or the Junior Notes, as the case may be,
becomes due and payable, transfer to an account or accounts specified by
the Paying Agent the amount or amounts in the Relevant Currency for such
Notes for the purposes of the payment in immediately available funds.
4.2 The Issuer, failing whom, the Guarantors shall ensure that, not later
than 5:00 p.m. (London time) on the second Business Day immediately
preceding the date on which any payment is to be made to the Paying
Agent pursuant to Clause 4.1, the Paying Agent receives a copy of an
irrevocable payment instruction to the bank through which the payment is
to be made that the money referred to in Clause 4.1 will be transferred
in accordance with that Clause.
5. NOTIFICATION OF NON-PAYMENT BY THE ISSUER
5.1 The Paying Agent shall, as soon as reasonably practicable, notify the
applicable Trustee and, if Definitive Registered Senior Notes or
Definitive Registered Junior Notes have been issued, the Registrar if:
(a) either (i) the Paying Agent has not by the relevant date and
time specified in Clause 4.1 received unconditionally the full
amount required for the payment specified in Clause 4.1 or (ii)
the Paying Agent has not by the relevant date and time specified
in Clause 4.2 received a copy of the irrevocable payment
instruction referred to in Clause 4.2; and
(b) the Paying Agent receives unconditionally the full amount of any
sum payable in respect of the Senior Notes or Junior Notes, as
the case may be, after that date.
5.2 If the Paying Agent receives an instruction from the Issuer or any
Guarantor, as the case may be, to do so, the Paying Agent shall, at the
expense of the Issuer or such Guarantor, as the case may be, as soon as
reasonably practicable, upon receipt of any amount as described in
Clause 5.1(b), cause notice of that receipt to be published in
accordance with the instruction under the applicable Indenture.
6. DUTIES OF THE PAYING AGENT
6.1 The Paying Agent shall act as paying agent of the Issuer and the
Guarantors in respect of the Global Senior Notes and the Global Junior
Notes, and pay or cause to be paid on behalf of the Issuer and the
Guarantors, on and after each date on which any payment becomes due and
payable, the amounts of principal, premium (if any), interest,
Additional Amounts, if any, or any other amount then payable in respect
of the Global
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Senior Notes and the Global Junior Notes, as the case may be, against,
in the case of final payment in full, surrender, at the office of the
Paying Agent, to or to the order of the bearer of the Global Note of the
applicable Tranche, by transfer to an account maintained by the payee as
prescribed by Section 2.09 of the Senior Note Indenture or Section 2.09
of the Junior Note Indenture, as the case may be.
6.2 The Paying Agent shall act as paying agent of the Issuer and the
Guarantors in respect of the Definitive Registered Senior Notes and the
Definitive Registered Junior Notes, and pay or cause to be paid on
behalf of the Issuer and the Guarantors, on and after each date on which
any payment becomes due and payable, the amounts of principal, premium
(if any), interest, Additional Amounts, if any, or any other amount then
payable in respect of the Definitive Registered Senior Notes and the
Definitive Registered Junior Notes, as the case may be, against, in the
case of final payment in full, surrender, of the Definitive Registered
Notes of the applicable Tranche at the office of the Paying Agent, or to
the order of the Holder of the Applicable Definitive Registered Note by
transfer to an account maintained by the payee as prescribed by Section
2.09 of the Senior Note Indenture or Section 2.09 of the Junior Note
Indenture, as the case may be. Payments of interest in respect of the
Definitive Registered Notes of a Tranche will be made by transfer on the
due date to an account maintained by the Holder of the applicable
Definitive Registered Notes (the account details of which appear on the
Register for the applicable Tranche) on the applicable Regular Record
Date or Special Record Date or if requested by the Holder of the
applicable Definitive Registered Notes, by cheque payable to the Holder
mailed on the relevant due date (or if that is not a Business Day, the
immediately succeeding Business Day) to the Holder (or to the first
named of joint Holders) of the applicable Definitive Registered Notes at
his address shown on the applicable Register on the applicable Regular
Record Date or Special Record Date.
6.3 If default is made by the Issuer and the Guarantors in respect of any
payment, unless and until the full amount of the payment has been made
under the terms of this Agreement (except as to the time of making the
same) or other arrangements satisfactory to the Paying Agent have been
made, the Paying Agent shall not be bound to make any payments out of
its own funds.
6.4 If on presentation of a Definitive Registered Note the amount payable in
respect of such Definitive Registered Note is not paid in full
(otherwise than as a result of withholding or deduction required by law
for or on account of any taxes, duties, assessments or governmental
charges of whatever nature) the Paying Agent to whom such Definitive
Registered Note is presented shall procure that such Definitive
Registered Note is enfaced with a memorandum of the amount, if any, paid
and the date of any payment.
6.5 The Issuer shall deliver to the Paying Agent for the performance of its
duties under this Agreement from time to time so long as any Senior Note
or Junior Note, as the case may be, is outstanding sufficient duly
executed Definitive Registered Senior Notes or Definitive Registered
Junior Notes, as the case may be, as may be required for the performance
of the Paying Agent's duties. The Paying Agent will authenticate those
duly executed Definitive Registered Senior Notes or Definitive
Registered Junior Notes, as the case may be, upon a written order
supplied by the Issuer.
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7. PAYING AGENT TO ACT FOR TRUSTEE
If any Event of Default under an Indenture occurs, the Paying Agent
shall, if so required by notice given by the applicable Trustee to the
Issuer, the Guarantors and the Paying Agent (or such of them as are
specified by the applicable Trustee):
(a) act thereafter, until otherwise instructed by the applicable
Trustee, as the agent of the applicable Trustee in relation to
payments to be made by or on behalf of the applicable Trustee
under the applicable Indenture (save that the applicable
Trustee's liability for the indemnification of the Paying Agent
shall be limited to the amounts for the time being held by the
applicable Trustee on the trusts of the applicable Indenture and
available to the applicable Trustee for such purpose) and
thereafter to hold all Definitive Registered Senior Notes or
Definitive Registered Junior Notes, as the case may be, and all
sums, documents and records held by them in respect of the Notes
of the applicable Tranche on behalf of the applicable Trustee;
and/or
(b) deliver up the Definitive Registered Senior Notes or the
Definitive Registered Junior Notes, as the case may be, and all
sums, documents and records held by it in respect of the Notes
of such Tranche to the applicable Trustee or as the applicable
Trustee shall direct in such notice; provided, however, that
such notice shall not be deemed to apply to any document or
record which the Paying Agent is obliged not to release by any
law or regulation.
8. REIMBURSEMENTS OF THE PAYING AGENT
If the Paying Agent makes a payment in respect of Notes of a Tranche on
or after the due date for such payment under the applicable Indenture at
a time at which the Paying Agent has not received the full amount of the
relevant payment due to it under Clause 4.1, the Issuer, failing which,
the Guarantors shall from time to time on demand pay to the Paying Agent
for the account of such Paying Agent the amount so paid out by such
Paying Agent and not so reimbursed to it provided, however, that any
payment made hereunder shall satisfy pro tanto the obligations of the
Issuer or, as the case may be, the Guarantors under Clause 4.
9. NOTICE OF ANY WITHHOLDING OR DEDUCTION
If the Issuer or any Guarantors are, in respect of any payment in
respect of the Senior Notes or the Junior Notes, as the case may be,
compelled to withhold or deduct any amount for or on account of any
taxes as contemplated by the applicable Indenture, the Issuer or such
Guarantors shall give notice to the Paying Agent and the applicable
Trustee as soon as the Issuer or, as the case may be, such Guarantors
become aware of the requirement to make the withholding or deduction and
shall give to the Paying Agent and the applicable Trustee the
information that the Paying Agent shall require to enable each to comply
with the requirement on behalf of the Issuer.
10. DUTIES OF THE REGISTRAR
10.1 The Registrar shall, subject to Clause 10.2, so long as any Definitive
Registered Senior Note or Definitive Registered Junior Note, as the case
may be, is Outstanding:
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(a) maintain at its specified office a register in respect of the
Holders of the Definitive Registered Senior Notes (the "SENIOR
NOTE REGISTER") and a register in respect of the Holders of the
Definitive Registered Junior Notes (the "JUNIOR NOTE REGISTER"),
as the case may be, which shall show (i) the nominal amounts and
the serial numbers of the Definitive Registered Senior Notes and
the Definitive Registered Junior Notes, as the case may be, (ii)
the dates of issue of all Definitive Registered Senior Notes and
all Definitive Registered Junior Notes, as the case may be,
(iii) all subsequent transfers and changes of ownership of the
Definitive Registered Senior Notes and the Definitive Registered
Junior Notes, as the case may be, (iv) the names and addresses
of the Holders of the Definitive Registered Senior Notes and the
Definitive Registered Junior Notes, as the case may be, (v) all
cancellations of the Definitive Registered Senior Notes and the
Definitive Registered Junior Notes, as the case may be, whether
because of their purchase by the Issuer or any of its
Subsidiaries, their replacement or otherwise and (vi) all
replacements of the Definitive Registered Senior Notes and the
Definitive Registered Junior Notes, as the case may be (subject,
where appropriate, in the case of (v), to the Registrar having
been notified as provided in this Agreement);
(b) register all transfers of the Definitive Registered Senior Notes
and the Definitive Registered Junior Notes, as the case may be,
provided that the Registrar shall register the transfer as
requested only if such Definitive Registered Notes are presented
or surrendered for registration of transfer and are endorsed or
accompanied by a written instrument of transfer in a form
satisfactory to the Registrar duly executed by the applicable
Holder or by his authority;
(c) receive any document in relation to or affecting the title to
any of the Definitive Registered Senior Notes or Definitive
Registered Junior Notes, as the case may be, including all forms
of transfer, forms of exchange, probates, letters of
administration and powers of attorney;
(d) prepare all lists of Holders of the Definitive Registered Senior
Notes and the Definitive Registered Junior Notes, as the case
may be, as are from time to time reasonably requested in writing
by the Issuer, the applicable Trustee or the Paying Agent or any
person authorised by any of them;
(e) subject to applicable laws and regulations, at all reasonable
times during the Registrar's regular office hours make the
Senior Note Register or Junior Note Register, as the case may
be, available to the Issuer, the applicable Trustee and the
Paying Agent or any person authorised by any of them or the
Holder of any Definitive Registered Senior Notes or Definitive
Registered Junior Notes, as the case may be, for inspection and
for the taking of copies or extracts; and
(f) comply with the proper and reasonable written requests of the
Issuer with respect to the maintenance of the Senior Note
Register or Junior Note Register, as the case may be, and give
to the Paying Agent the information that it reasonably requires
for the proper performance of its duties.
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10.2 Notwithstanding anything to the contrary in this Agreement, the
Registrar shall not be required, unless so directed by the Issuer, (a)
to issue, to register the transfer of, or to exchange Definitive
Registered Senior Notes or Definitive Registered Junior Notes, as the
case may be, during a period beginning at the opening of business on the
day falling 15 days before the day of any selection of the Definitive
Registered Senior Notes or the Junior Notes, as the case may be, for
redemption under Section 3.03 of the Senior Note Indenture or Section
3.03 of the Junior Note Indenture, as the case may be, and ending at the
close of business on the day of selection, (b) to register the transfer
of or to exchange any Definitive Registered Senior Notes or the
Definitive Registered Junior Notes, as the case may be, so selected for
redemption in whole or in part, except the unredeemed portion of any
Definitive Registered Senior Note or Definitive Registered Junior Note,
as the case may be, Notes being redeemed in part or (c) to register the
transfer of or to exchange a Definitive Registered Senior Note or
Definitive Registered Junior Note, as the case may be, between a Regular
Record Date for the Senior Notes or the Junior Notes, as the case may
be, and the next succeeding Senior Note Interest Payment Date or Junior
Note Interest Payment Date, as the case may be.
10.3 The Registrar shall:
(a) accept each Definitive Registered Senior Note or Definitive
Registered Junior Note, as the case may be, delivered to it with
(i) a written instrument of transfer in a form satisfactory to
it duly executed by the relevant Holder or by his attorney, duly
authorised in writing and (ii) all relevant details to enable it
to issue the relevant Definitive Registered Notes in accordance
with each request; and
(b) charge to the Holder of any Definitive Registered Notes
presented for transfer a sum sufficient to cover any stamp duty
reserve tax, stamp duty, court or documentary taxes, or any
other excise or property taxes, charges or similar levies or
taxes in connection therewith.
11. REGULATIONS FOR TRANSFER OF DEFINITIVE REGISTERED NOTES
The Issuer may from time to time agree with the Registrar reasonable
regulations to govern the transfer and registration of Definitive
Registered Senior Notes or Definitive Registered Junior Notes, as the
case may be. The Registrar agrees to comply with the regulations as
amended from time to time.
12. REDEMPTIONS
12.1 If the Issuer is required to or elects to redeem all or some of the
Senior Notes or the Junior Notes, as the case may be, as permitted or
required by the applicable Indenture, it shall give notice as prescribed
in Section 3.02 of the Senior Note Indenture or Section 3.02 of the
Junior Note Indenture, as the case may be.
12.2 If Definitive Registered Senior Notes or Definitive Registered Junior
Notes, as the case may be, have been issued and partial redemption of
the Senior Notes or the Junior Notes, as the case may be, is to be
effected, selection of such Notes shall be in accordance with Section
3.03 of the Senior Note Indenture or Section 3.03 of the Junior Note
Indenture, as applicable.
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12.3 If any Note of a Tranche is to be redeemed in part only, the notice of
redemption that relates to such Note of such Tranche shall state the
portion of the principal amount of such Note of such Tranche to be
redeemed. In the case of Global Notes of a Tranche the applicable Global
Note of such Tranche will be written down on behalf of the Issuer to
reflect the redemption in whole or in part of the Notes of such Tranche
represented thereby.
13. PUBLICATION OF NOTICES
On behalf of and at the request and expense of the Issuer or any
Guarantor, the Paying Agent shall cause to be published in the manner
reasonably requested in writing by the Issuer or such Guarantor all
notices required to be given by the Issuer or such Guarantor under the
applicable Indenture. If publication as provided above is not
practicable, notice will be given in such other manner, and shall be
deemed to have been given on such date, as the applicable Trustee may
approve. If any Notes of a Tranche are represented by Global Notes of
such Tranche held by the Depositary, all notices with respect to such
Global Notes of such Tranche shall be sent to such Depositary, or its
nominee, and such Depositary shall communicate such notices to DTC,
Euroclear and/or Clearstream, Luxembourg, or their respective nominees,
in accordance with this agreement. Such notices to the Depositary shall
be in lieu of and in substitution for the notices otherwise required by
this paragraph.
14. CANCELLATION, DESTRUCTION AND RECORDS
14.1 All Notes which are redeemed in full shall be cancelled forthwith by (i)
in the case of Definitive Registered Notes, the removal of the relevant
Holder's name from the Senior Note Register or the Junior Note Register,
as the case may be, by the Registrar or (ii) in the case of Notes
represented by a Global Note, notation by or on behalf of the Paying
Agent in the schedule to such Global Note of the reduction in the
principal amount of such Global Note.
14.2 The Paying Agent shall, within four months after the date of any
redemption or any payment in respect of any Notes of a Tranche, send to
the Issuer and the applicable Trustee a certificate stating the
aggregate principal amount of such Notes of such Tranche which have been
redeemed and cancelled or, as the case may be, the aggregate amount paid
in respect of principal, premium (if any) and interest and Additional
Amounts, if any, in respect of such Notes of such Tranche.
14.3 The Paying Agent shall destroy or procure the destruction of all
certificates in its possession relating to cancelled Definitive
Registered Notes and send the Issuer, the applicable Trustee and the
Registrar a certificate of destruction giving the certificate numbers of
such Definitive Registered Notes in numerical sequence.
14.4 The Paying Agent shall keep records of the payment, redemption,
replacement, cancellation and destruction of all Senior Notes and all
Junior Notes, as the case may be. It shall make such records available
at all reasonable times to the Issuer and the applicable Trustee.
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15. ISSUE OF REPLACEMENT NOTES
15.1 The Issuer shall (but only if Definitive Registered Senior Notes or
Definitive Registered Junior Notes, as the case may be, are issued)
cause a sufficient quantity of additional forms of Definitive Registered
Senior Notes or Definitive Registered Junior Notes, as the case may be,
to be made available, upon request, to the Paying Agent, for the purpose
of issuing replacement Definitive Registered Senior Notes or Definitive
Registered Junior Notes, as the case may be. The Paying Agent shall
authenticate any such Definitive Registered Notes which the Issuer
requires for the purpose of issuing replacement Definitive Registered
Notes.
15.2 The Paying Agent shall issue replacement Global Notes, and the Paying
Agent shall issue replacement Definitive Registered Notes, in each case,
in accordance with the reasonable written instructions of the Issuer.
15.3 In accordance with Section 2.07 of the Senior Note Indenture and Section
2.07 of the Junior Note Indenture, as the case may be, the Paying Agent
or, as the case may be, the Registrar shall cancel and, unless otherwise
instructed by the Issuer, destroy any mutilated or defaced Senior Notes
or Junior Notes, as the case may be, replaced by it and shall send the
Issuer, the applicable Trustee and, in the case of the Registrar, the
Paying Agent a certificate giving the information specified in Clause
14.3.
15.4 An indemnity, for an amount sufficient in the judgment of the Issuer,
the Paying Agent and, in the case of a Definitive Registered Note, the
Registrar, to protect the Issuer, the Paying Agent and, in the case of a
Definitive Registered Note, the Registrar, from any loss which any of
them may suffer if any Note is replaced, may be required by the
Registrar, in the case of a Definitive Registered Note, or the Issuer or
the Paying Agent. The Issuer may charge the relevant Holder for the
expenses of the Issuer in replacing such Note.
16. COPIES OF THE DOCUMENTS AVAILABLE FOR INSPECTION
The Paying Agent shall hold copies of the Senior Note Indenture and the
Junior Note Indenture, this Agreement and the Deposit Agreement
available for inspection by the Holders of the applicable Notes at its
specified office. For this purpose, the Issuer shall furnish the Paying
Agent with sufficient copies of each of such documents.
17. COMMISSIONS AND EXPENSES
17.1 The Issuer, failing whom, the Guarantors shall pay to the Paying Agent
the fees and expenses in respect of the services of the Paying Agent
under this Agreement as have been agreed in writing between the Issuer
and the Paying Agent together with all reasonable expenses (including
irrecoverable amounts in respect of value added tax) incurred by the
Paying Agent in connection with the Paying Agent's services under this
Agreement.
17.2 The Issuer, failing whom, the Guarantors shall also pay to the Paying
Agent an amount equal to any value added tax which may be payable in
respect of the amounts mentioned in Clause 17.1 above and which shall be
payable at the same time as such amounts.
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18. INDEMNITY
18.1 Each of the Issuer and the Guarantors indemnifies, jointly and
severally, on an after-tax basis, the Paying Agent, the Registrar and
their respective directors, officers, employees and controlling persons
against all losses, liabilities, costs, claims, actions, damages,
expenses or demands (including, but not limited to, all reasonable
costs, charges and expenses paid or incurred in disputing or defending
the foregoing) which any of them may incur or which may be made against
any of them as a result of or in connection with the appointment or the
exercise of the powers and duties by the Paying Agent or the Registrar,
as the case may be, under this Agreement except as may result from the
wilful default or negligence of the Paying Agent or the Registrar, as
the case may be, or that of their respective directors, officers,
employees or controlling persons.
18.2 The Paying Agent severally indemnifies, on an after-tax basis, the
Issuer and the Guarantors and their respective directors, officers,
employees and controlling persons against all losses, liabilities,
costs, claims, actions, damages, expenses or demands (including, but not
limited to, all reasonable costs, charges and expenses paid or incurred
in disputing or defending the foregoing) which any of them may incur or
which may be made against any of them as a result of the Paying Agent's
wilful default or negligence or that of the Paying Agent's directors,
officers, employees or controlling persons.
18.3 The Registrar severally indemnifies, on an after-tax basis, the Issuer
and the Guarantors and their respective directors, officers, employees
and controlling persons against all losses, liabilities, costs, claims,
actions, damages, expenses or demands (including, but not limited to,
all reasonable costs, charges and expenses paid or incurred in disputing
or defending the foregoing) which any of them may incur or which may be
made against any of them as a result of the Registrar's wilful default
or negligence or that of the Registrar's directors, officers, employees
or controlling persons.
18.4 This Clause 18 survives the termination of this Agreement.
19. REPAYMENT BY PAYING AGENT
Any money deposited with the Senior Note Trustee or the Junior Note
Trustee, as the case may be, or any Paying Agent in trust for the
payment of the principal of (and premium, if any), interest or
Additional Amounts, if any, on any Senior Notes or Junior Notes, as the
case may be, and remaining unclaimed for two years after such principal
(and premium, if any), interest or Additional Amounts, if any, have
become due and payable shall be paid to the Issuer on Issuer Request;
and the Holder of such Senior Notes or Junior Notes, as the case may be,
shall thereafter, as an unsecured general creditor, look only to the
Issuer for payment thereof, and all liability of the relevant Trustee or
such Paying Agent with respect to such trust money, and all liability of
the Issuer as trustee thereof, shall thereupon cease; provided, however,
that the applicable Trustee or such Paying Agent, before being required
to make any such repayment, may at the expense of the Issuer give to
each such Holder in the manner provided in the applicable Indenture,
notice that such money remains unclaimed and that, after a date
specified therein, which shall not be less than 30 days after the date
of such notice, any unclaimed balance of such money then remaining will
promptly be repaid to the Issuer.
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20. CONDITIONS OF APPOINTMENT
20.1 The Paying Agent and Registrar undertake to perform the duties and only
the duties that are specifically set out in this Agreement and any
duties as necessary or incidental to such duties.
20.2 The Paying Agent and Registrar undertake to act severally and not
jointly in the performance of their respective duties as Paying Agent
and Registrar as set forth in this Agreement with respect to the Senior
Notes and the Junior Notes, as the case may be.
20.3 No provision of this Agreement shall be construed to relieve the Paying
Agent or the Registrar from liability for their own negligent action,
their own negligent failure to act, or their own wilful misconduct,
except that:
(a) the duties and obligations of the Paying Agent and the Registrar
with respect to the Senior Notes and the Junior Notes, as the
case may be, shall be determined solely by the express
provisions of this Agreement and the Paying Agent and the
Registrar shall not be liable except for the performance of
those duties and obligations with respect to the Paying Agent
and the Registrar as are specifically set forth in this
Agreement, and no implied covenants or obligations shall be read
into this Agreement against the Paying Agent or the Registrar;
and
(b) in the absence of bad faith on its part, each of the Paying
Agent and the Registrar may conclusively rely, upon any written
statements, certificates or opinions furnished to it and
conforming to the requirements of this Agreement and the
applicable Indenture, but in the case of any such statement,
certificate or opinion that by any provision of this Agreement
is specifically required to be furnished to it shall be under a
duty to examine the same to determine whether or not it conforms
to the requirements of this Agreement and the applicable
Indenture.
20.4 Neither the Paying Agent nor the Registrar shall be liable for any error
of judgment made in good faith by any of their respective officers,
unless it shall be proved that it was negligent in ascertaining the
pertinent facts.
20.5 Neither the Paying Agent nor the Registrar shall be liable with respect
to any action taken or omitted to be taken by it in good faith in
accordance with the direction of the Issuer, the Guarantors or the
applicable Trustee relating to the time, method and place of conducting
any proceeding for any remedy available to them, or exercising any power
conferred upon them, under this Agreement.
20.6 Without prejudice to Clause 6 of this Agreement, no provision of this
Agreement shall require either the Paying Agent or the Registrar to
expend or risk its own funds or otherwise incur any financial liability
in the performance of any of its duties under this Agreement, or in the
exercise of any of its rights or powers, if it shall have reasonable
grounds for believing that repayment of those funds or adequate
indemnity against that risk or liability within a reasonable time is not
reasonably assured to it.
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20.7 The Paying Agent and the Registrar do not owe any fiduciary duties to
any person by virtue of this Agreement except as expressly set forth in
this Agreement and any duties as necessary or incidental to such duties.
20.8 Except as otherwise set forth in this Agreement, neither the Paying
Agent nor the Registrar shall be under any duty to monitor compliance
with the securities or tax laws of the United States of America or any
state of the United States of America, the United Kingdom or any other
jurisdiction.
20.9 Neither the Paying Agent nor the Registrar shall assume any obligation
or liability under this Agreement other than to use good faith and
reasonable care in the performance of its duties under this Agreement.
20.10 Subject to the provisions of Clause 20.3:
(a) the Paying Agent and the Registrar may rely, and shall be
protected in acting or refraining from acting upon, any
resolution, certificate, statement, instrument, opinion, report,
notice, request, direction, consent, order, approval, appraisal,
note, debenture, security or other paper or document believed by
it to be genuine and to have been signed or presented by the
proper party or parties;
(b) any request, direction, order or demand of the Issuer or any
Guarantor mentioned in this Agreement shall be sufficiently
evidenced by an Officers' Certificate or any order or request
signed in the name of the Issuer or, as the case may be, any
Guarantor, by a director or the secretary of the Issuer or, as
the case may be, any Guarantor and any resolution of the Board
of Directors of the Issuer or, as the case may be, any Guarantor
may be sufficiently evidenced by a copy of that resolution
certified as an accurate copy by, and attached to, an Officers'
Certificate;
(c) each of the Paying Agent and the Registrar may consult with
counsel as to any legal matters relevant to the Paying Agent's
or Registrar's performance of its duties under this Agreement
and the advice of that counsel shall be full and complete
authorisation and protection with respect to any action taken,
suffered or omitted by it under this Agreement in good faith and
in reliance on and in accordance with that advice provided that
the Paying Agent or the Registrar, as the case may be, has
provided all facts which, in the opinion of the Paying Agent or
Registrar, as the case may be, are pertinent to the matter in
respect of which counsel's advice is sought;
(d) neither the Paying Agent nor the Registrar shall be bound to
make any investigation into the facts or matters stated in any
resolution, certificate, statement, instrument, opinion, report,
notice, request, direction, consent, order, approval, appraisal,
debenture, note, security, or other paper or document, but each
of the Paying Agent and the Registrar in its discretion, may
make reasonable further inquiry or investigation, into the facts
or matters related to the issuance of the Notes and if either
the Paying Agent or the Registrar shall determine to make
further inquiry or investigation, it shall be entitled to
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examine the books, records and premises of the Issuer, at
reasonable times during normal business hours, personally or by
agent or attorney;
(e) each of the Paying Agent and the Registrar may execute any of
its powers under this Agreement or perform any of its duties
under this Agreement either directly or by or through agents or
attorneys and, provided it has taken reasonable care in the
selection of those agents or attorneys, neither the Paying Agent
nor the Registrar shall be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with
due care by it under this Agreement;
(f) neither the Paying Agent nor the Registrar shall be liable for
any action taken or omitted by it in good faith and believed by
it to be authorised or within the discretion, rights or powers
conferred upon it by this Agreement; and
(g) whenever in the administration of its duties under this
Agreement the Paying Agent or the Registrar shall deem it
necessary or desirable that a matter be proved or established
prior to taking or suffering or omitting any action under this
Agreement, that matter (unless other evidence in respect of that
matter be in this Agreement specifically prescribed) may, in the
absence of negligence or bad faith on the part of the Paying
Agent or the Registrar, as the case may be, be deemed to be
conclusively proved and established by an Officers' Certificate
delivered to the Paying Agent or the Registrar, as the case may
be, and that certificate, in the absence of negligence or bad
faith on the part of the Paying Agent or the Registrar, as the
case may be, shall be full warrant to the Paying Agent or the
Registrar, as the case may be, for any action taken, suffered or
omitted by it under the provisions of this Agreement, upon the
faith of that certificate.
20.11 The recitals contained in the Indentures shall be taken as the
statements of the Issuer and the Guarantors, and the Paying Agent and
the Registrar do not assume any responsibility for their correctness.
The Paying Agent and the Registrar do not make any representations as to
the validity or sufficiency of the Indentures or the Notes.
20.12 Money held by the Paying Agent under this Agreement need not be
segregated from other funds held by the Paying Agent except that (a) the
Paying Agent shall make any such segregation to the extent required by
law and (b) the Paying Agent shall maintain separate accounts for funds
received by it in its capacity as the Depositary and in its capacity as
Paying Agent for the Junior Notes and the Senior Notes, respectively.
The Paying Agent shall not be under any obligation to invest or pay
interest on any money received by it under this Agreement, except as
otherwise agreed with the Issuer.
20.13 The Issuer, the Guarantors, the applicable Trustee, the Paying Agent and
the Registrar may (to the fullest extent permitted by applicable laws)
deem and treat the Holder of any Note or of a particular principal
amount of any Note as the absolute owner of the Note or principal
amount, as the case may be, for all purposes (whether or not such Note
or principal amount is overdue and notwithstanding any notice of
ownership of such Note or of trust or other interest with regard to such
Note, any notice of loss or theft of such Note or any writing on such
Note), and the Issuer, the Guarantors, the applicable Trustee, the
Paying Agent and Registrar shall not be affected by any notice to the
contrary. All
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payments made to any Holder of a Note shall be valid and, to the extent
of the sums so paid, effective to satisfy and discharge the liability
for the moneys payable in respect of such Note or principal amount, as
the case may be.
20.14 In acting under this Agreement, the Paying Agent and Registrar shall act
as agents of the Issuer and the Guarantors, and for the purposes of
Clause 7 only, the applicable Trustee and will not assume any
obligations towards or relationship of agency or trust for or with any
Holder of any Notes except that funds received by the Paying Agent for
the payment of any sums due in respect of any Notes shall be held by the
Paying Agent on trust to the extent required by the Trust Indenture Act
for the Holders of such Notes until the expiration of the applicable
prescription period under the applicable Indenture.
21. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSORS
21.1 The Issuer may, with the prior written approval of the applicable
Trustee but without the consent or approval of any Guarantor, terminate
the appointment of the Paying Agent or the Registrar with respect to the
Senior Notes or the Junior Notes, as the case may be, at any time or
appoint additional or other agents by giving to the Paying Agent or the
Registrar, as the case may be, at least 60 days' prior written notice to
that effect provided that so long as any of the Senior Notes or the
Junior Notes, as the case may be, are Outstanding, (a) no such
termination shall take effect during the period of 30 days preceding any
due date for the payment of interest or principal and (b) notice shall
be given to the Holders of the affected Notes in accordance with the
applicable Indenture but not more than 45 nor less than 30 days before
the removal or appointment of the Paying Agent or Registrar, as the case
may be.
21.2 Notwithstanding the provisions of Clause 21.1, if at any time the Paying
Agent or the Registrar becomes incapable of acting, or is adjudged
bankrupt or insolvent, or files a voluntary petition in bankruptcy or
makes an assignment for the benefit of its creditors or consents to the
appointment of an administrator, liquidator or administrative or other
receiver of all or any substantial part of its property, or if an
administrator, liquidator or administrative or other receiver of it or
of all or a substantial part of its property is appointed, or it admits
in writing its inability to pay or meet its debts as they may mature or
suspends payment of its debts, or if an order of any court is entered
approving any petition filed by or against it under the provisions of
any applicable bankruptcy or insolvency law or if a public officer takes
charge or control of the Paying Agent or the Registrar, as the case may
be, or of its property or affairs for the purpose of rehabilitation,
administration or liquidation, the appointment of the Paying Agent or
the Registrar shall terminate with immediate effect, in which event
notice shall be given to the Holders of the affected Notes in accordance
with the applicable Indenture as soon as is practicable.
21.3 The termination of the appointment of the Paying Agent or the Registrar
with respect to the Senior Notes or the Junior Notes, as the case may
be, under this Agreement shall not entitle the Paying Agent or the
Registrar to any amount by way of compensation but shall be without
prejudice to any amount then accrued and due.
21.4 Each of the Paying Agent and the Registrar may resign their respective
appointments under this Agreement at any time by giving to the Issuer
and the Guarantors at least 60
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days' prior written notice to that effect provided that, so long as any
of the Senior Notes or Junior Notes, as the case may be, are
Outstanding, no such resignation shall take effect during the period of
30 days preceding any due date for the payment of interest or principal
on the Senior Notes or the Junior Notes, as the case may be, nor shall
any such resignation take effect until a successor is appointed by the
Issuer.
Following receipt of a notice of resignation from the Paying Agent or
the Registrar, the Issuer and the Guarantors shall promptly, and in any
event not more than 45 days nor less than 30 days before the resignation
takes effect, give notice to the Holders of the Senior Notes or the
Junior Notes, as applicable, in accordance with the applicable
Indenture.
If the Paying Agent or the Registrar shall resign or be removed pursuant
to Clause 21.1 or 21.2 or in accordance with this Clause 21.4, the
Issuer and the Guarantors shall promptly and, in the case of any removal
pursuant to Clause 21.1 or any resignation pursuant to Clause 21.4, in
any event prior to the effectiveness of such removal or resignation,
appoint a successor Paying Agent or Registrar approved by the applicable
Trustee.
21.5 Any successor Paying Agent or Registrar shall execute and deliver to its
predecessor, the Issuer and the Guarantors and the applicable Trustee an
instrument accepting the appointment under this Agreement, and the
successor Paying Agent or Registrar, as the case may be, without any
further act, deed or conveyance, shall become vested with all the
authority, rights, powers, trusts, immunities, duties and obligations of
the predecessor with like effect as if originally named as Paying Agent
or Registrar to this Agreement and pursuant to the applicable Indenture,
as the case may be.
21.6 If the appointment of the Paying Agent or the Registrar, as the case may
be, under this Agreement is terminated (whether by the Issuer or by the
resignation of the Paying Agent or the Registrar, as the case may be),
the Paying Agent or the Registrar, as the case may be, shall on the date
on which the termination takes effect deliver to its successor Paying
Agent or Registrar, as the case may be, all Senior Notes or Junior
Notes, as the case may be, surrendered to it but not yet destroyed and
all records concerning the Senior Notes or Junior Notes, as the case may
be maintained by the Paying Agent or the Registrar, as the case may be
(except the documents and records as it is obliged by law or regulation
to retain or not to release), and, in the case of the Paying Agent, pay
to the successor Paying Agent the amounts (if any) held by the Paying
Agent in respect of Senior Notes or Junior Notes, as the case may be,
which have become due and payable but which have not been presented for
payment, but shall have no other duties or responsibilities under this
Agreement.
21.7 If the Paying Agent or the Registrar, as the case may be, shall change
its specified office, it shall give to the Issuer, the Guarantors and
the applicable Trustee not less than 45 days' prior written notice to
that effect giving the address of the new specified office. As soon as
practicable thereafter and in any event at least 30 days before the
change, the Paying Agent or the Registrar, as the case may be, shall
give to the relevant Holders on behalf of the Issuer, failing whom, the
Guarantors, notice of the change and the address of the new specified
office.
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21.8 Any corporation into which the Paying Agent or the Registrar, as the
case may be, is merged or converted or with which it is consolidated, or
any corporation resulting from any merger, conversion or consolidation
to which the Paying Agent or the Registrar, as the case may be, shall be
a party, or any corporation succeeding to all or substantially all the
agency business of the Paying Agent or the Registrar, as the case may
be, shall be the successor of the Paying Agent or the Registrar, as the
case may be, under this Agreement, without the execution or filing of
any paper or any further act on the part of any of the parties to this
Agreement. Notice of any such merger, conversion or consolidation shall
as soon as reasonably practicable (but in any event within 30 days of
such merger, conversion or consolidation) be given to the Issuer, the
Guarantors and the applicable Trustee.
22. ADDITIONAL GUARANTORS PARTY TO THIS AGREEMENT
Any Person that, with respect to a Tranche of Notes, is not an Initial
Guarantor (as defined in the Applicable Indenture pursuant to which the
Notes of such Tranche were issued) may become a party to this Agreement
as a Guarantor by executing and delivering to the Senior Note Trustee or
the Junior Note Trustee as the case may be, an accession letter (a
"GUARANTOR ACCESSION LETTER") substantially in the form attached hereto
as Schedule 2.
23. MEETINGS OF JUNIOR OR SENIOR NOTEHOLDERS
23.1 The provisions of Article 14 of the Senior Note Indenture and Article 14
of the Junior Note Indenture, as the case may be, shall apply to
meetings of the Holders of Senior Notes and meetings of the Holders of
Junior Notes, as the case may be, and shall have effect in the same
manner as if set out in this Agreement.
The Paying Agent and the Registrar, as applicable, will not be bound by
any amendment to Article 14 of either the Senior Note Indenture or the
Junior Note Indenture, as the case may be, unless the Paying Agent and
the Registrar, as applicable, have been given at least 30 days' written
notice of the amendment. The Issuer and the Junior Note Trustee and/or
the Senior Note Trustee, as the case may be, will consider in good faith
any objections in writing by the Paying Agent or the Registrar to any
such amendment received by them prior to the expiration of any such
30-day period.
23.2 Without prejudice to Clause 23.1, the Paying Agent shall, on the request
of any Holder of Notes represented by a Global Note, issue the relevant
voting certificates and block voting instructions together, if so
required by the applicable Trustee, with reasonable proof satisfactory
to the applicable Trustee, of their due execution on behalf of the
Paying Agent under the provisions of Article 14 of the Senior Note
Indenture or Article 14 of the Junior Note Indenture, as the case may
be, and shall as soon as reasonably practicable give notice to the
Issuer, the Guarantors and the applicable Trustee under Article 14 of
the applicable Indenture of any revocation or amendment of a voting
certificate or block voting instruction. The Paying Agent shall keep a
full and complete record of all voting certificates and block voting
instructions issued by it and shall, not less than 24 hours before the
time appointed for holding any meeting or adjourned meeting, deposit at
the place that the applicable Trustee shall designate or approve, full
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particulars of all voting certificates and block voting instructions
issued by it in respect of any meeting or adjourned meeting.
24. NOTICES
Any request, demand, authorization, direction, notice, consent, waiver
or vote by the Holders or other document provided or permitted by this
Agreement to be made upon, given or furnished to, or filed with:
(a) the Senior Note Trustee shall be sufficient for every purpose
hereunder (unless otherwise herein expressly provided) if made,
given, furnished or filed in writing (which may be made via
facsimile) to the Senior Note Trustee at Law Debenture Trust
Company of New York, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ - 31st floor, New York,
New York 10017, USA, or by facsimile at ▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇, in each
case marked "Attention: Trust Administrator"; or
(b) the Junior Note Trustee shall be sufficient for every purpose
hereunder (unless otherwise herein expressly provided) if made,
given, furnished or filed in writing (which may be made via
facsimile) to the Junior Note Trustee at JPMorgan Chase Bank,
Trinity Tower, 9 ▇▇▇▇▇▇ ▇▇▇▇ Street, London, E1W 1YT, England,
or by facsimile at ▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇, in each case marked
"Attention: Manager, Trust Administration"; or
(c) the Issuer shall be sufficient for every purpose hereunder
(unless otherwise herein expressly provided) if made, given,
furnished or filed in writing (which may be made via facsimile)
first-class postage prepaid, addressed to the Issuer at Regents
Place, 338 Euston Road, London NW1 3BT, England, or by facsimile
at ▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇, marked in each case "Attention: Company
Secretary"; or
(d) any Guarantor shall be sufficient for every purpose hereunder
(unless otherwise herein expressly provided) if made, given,
furnished or filed in writing (which may be made via facsimile)
to such Guarantor, in the care of the Issuer, at Regents Place,
338 Euston Road, London NW1 3BT, England, or by facsimile at +44
▇▇▇ ▇▇▇ ▇▇▇▇, in each case marked "Attention: Company
Secretary"; or
(e) the Paying Agent shall be sufficient for every purpose hereunder
if made, given, furnished or filed in writing to the Paying
Agent at its specified office at One Canada Square, London E14
5AL, England, or by facsimile at + 44 207 409 7748, in each case
marked "Attention: Corporate Trust Office"; or
(f) the Registrar shall be sufficient for every purpose hereunder if
made, given, furnished or filed in writing to the Registrar at
its specified office at One Canada Square, London E14 5AL,
England, or by facsimile at + 44 207 409 7748, in each case
marked "Attention: Corporate Trust Office".
Any party hereto may change the address or facsimile number to which any
notice or other communication hereunder shall be made upon, given or
furnished to, or filed with it by giving each other party hereto notice
of such change in accordance with the above provisions of this Clause
24.
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Subject to the other provisions of this paragraph, all notices to the
Holders of Senior Notes or Junior Notes, as the case may be, will be
valid if published (at the expense of the Issuer) in a leading English
language daily newspaper published in London and a leading English
language daily newspaper published in New York City or such other
English language daily newspaper with general circulation in Europe or
the United States, as the case may be, as the applicable Trustee may
approve. Any notice will be deemed to have been given on the date of
publication or, if so published more than once on different dates, on
the date of first publication. If publication as provided above is not
practicable, notice will be given in such other manner, and shall be
deemed to have been given on such date, as the applicable Trustee may
approve. If any Senior Notes or Junior Notes, as the case may be, are
represented by Global Senior Notes or Global Junior Notes, as the case
may be, held by the Depositary, all notices with respect to such Senior
Notes or Junior Notes, as the case may be, shall be sent to such
Depositary, or its nominee, and such Depositary shall communicate such
notices to DTC, Euroclear and/or Clearstream, Luxembourg, or their
respective nominees, in accordance with the Deposit Agreement. Such
notices to the Depositary shall be in lieu of and in substitution for
the notices otherwise required by this paragraph in the event the Senior
Notes or Junior Notes, as the case may be, are solely represented by
Global Senior Notes or Global Junior Notes, as the case may be.
25. TAXES
The Issuer, failing whom, the Guarantors agree(s) to pay any and all
stamp and other documentary taxes or duties which may be payable in
connection with the execution, delivery, performance and enforcement of
this Agreement.
26. EFFECT OF HEADINGS
The Clause headings in this Agreement are for convenience only and shall
not affect the construction of this Agreement.
27. SUCCESSORS AND ASSIGNS
All covenants and agreements in this Agreement by each party hereto
shall bind the respective successors and assigns of such party, whether
so expressed or not.
28. SEVERABILITY CLAUSE
If any provision in this Agreement is or shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the
remaining provisions of this Agreement shall not in any way be affected
or impaired by that invalidity, illegality or unenforceability.
29. GOVERNING LAW AND JURISDICTION
29.1 This Agreement and all matters arising from or connected with it shall
be governed by and construed in accordance with English law.
29.2 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"),
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arising from or connected with this Agreement (including a dispute
regarding the existence, validity or termination of this Agreement) or
the consequences of its nullity.
29.3 Each party hereto agrees that the courts referred to in Clause are the
most appropriate and convenient courts to settle any Dispute.
29.4 Nothing in this Agreement prevents the parties from taking proceedings
relating to a Dispute ("PROCEEDINGS") in any other courts with
jurisdiction. To the extent allowed by law, the parties may take
concurrent Proceedings in any number of jurisdictions.
29.5 Each of the Issuer and 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 ▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇ or, if different, the
Issuer's registered office for the time being or at any address of the
Issuer or such Guarantor in Great Britain at which process may be served
on it 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., ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇. If either such person is not or ceases to be
effectively appointed to accept service of process on behalf of the
Issuer and the Guarantors, the Issuer and the Guarantors (acting
together) shall, on the written demand of the Paying Agent and the
Registrar addressed to the Issuer and the Guarantors and delivered to
the Issuer and the Guarantors, 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 Paying
Agent and the Registrar shall be entitled to appoint such a person by
written notice addressed to the Issuer and the Guarantors and delivered
to the Issuer and the Guarantors. Nothing in this paragraph shall affect
the right of the parties hereto to serve process in any other manner
permitted by law. This Clause 29.5 applies to Proceedings in England and
in the County of New York.
29.6 Each party 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.
29.7 To the extent that any party 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 party or
their respective assets or revenues, each party 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 Borough of Manhattan in the City of New York
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.
- 21 -
29.8 To the extent permitted by law, each party hereby waives any objections
to the enforcement by any court referred to in Clause 29.2 of any
judgment validly obtained in any such court on the basis of any such
legal suit, action or proceeding.
30. COUNTERPARTS
This agreement may be executed in any number of counterparts by the
parties to this Agreement on separate counterparts, each of which, when
so executed and delivered, shall be deemed an original, but all
counterparts shall together constitute one and the same instrument.
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[SIGNATURE PAGES]
- 23 -
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 BV
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
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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 Communications Holdings, Inc.
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
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Marconi Australia Pty Limited
Marconi Communications Asia Limited
G.E.C. (Hong Kong) Limited
▇▇▇▇▇▇ Street Overseas Investments Limited
Regents Place, Inc.
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SCHEDULE 2
FORM OF GUARANTOR ACCESSION LETTER
To: [ ] as [SENIOR NOTE TRUSTEE/JUNIOR NOTE TRUSTEE]
[ ] as PAYING AGENT
[ ] as REGISTRAR
From: [Member of the Group] Dated:
Dear Sirs
1. We refer you to the Agency Agreement dated 19 May 2003 by and among
Marconi Corporation PLC, the limited Guarantors named therein, Law
Debenture Trust Company of New York, ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ Bank and The Bank
of New York relating to the Guaranteed Senior Secured Notes due 2008 and
the Guaranteed Junior Secured Notes due 2008, (the "Agency Agreement").
This is a Guarantor Accession Letter Terms defined in the Agency
Agreement have the same meaning in this Guarantor Accession Letter.
[Member of the Group] agrees to a code to the Agency Agreement as a
Guarantor and to be bound by the terms of the Agency Agreement and
undertakes to perform all the obligations expressed in the Agency
Agreement to be assumed by a Guarantor and agrees to be bound by all of
the provisions of the Agency Agreement, as if it were an original party
to the Agency Agreement and that all the obligations assumed by it under
the Agency Agreement are legal, valid and binding.
2. [Member of the Group's] administrative details are as follows:
Address:
Fax No.:
Attention:
3. This Guarantor Accession Letter is governed by English law.
[MEMBER OF THE GROUP]
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