▇▇▇▇▇▇▇▇ CHANCE LIMITED LIABILITY PARTNERSHIP
CONFORMED COPY
EXHIBIT 2.5
DATED 19 MAY 2003
MARCONI CORPORATION plc
AND OTHERS
AS COMPANIES
IN FAVOUR OF
THE LAW DEBENTURE TRUST CORPORATION p.l.c
AS SECURITY TRUSTEE
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COMPOSITE DEBENTURE
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CONTENTS
CLAUSE PAGE
1. Definitions And Interpretation.............................................. 1
2. Payment Of Secured Obligations.............................................. 6
3. Fixed Charges, Assignments And Floating Charge.............................. 7
4. Crystallisation Of Floating Charge.......................................... 8
5. Perfection Of Security...................................................... 9
6. Further Assurance........................................................... 12
7. Negative Pledge And Disposals............................................... 13
8. Shares...................................................................... 14
9. Accounts.................................................................... 15
10. Monetary Claims............................................................. 16
11. Real Property............................................................... 17
12. Intragroup Loan Contracts................................................... 17
13. Investments: Delivery Of Documents Of Title................................. 17
14. Enforcement Of Security..................................................... 17
15. Extension And Variation Of The Law Of Property Act 1925..................... 18
16. Appointment Of Receiver..................................................... 18
17. Powers Of Receiver.......................................................... 19
18. Application Of Moneys....................................................... 20
19. Protection Of Purchasers.................................................... 20
20. Power Of Attorney........................................................... 20
21. Effectiveness Of Security................................................... 21
22. Release Of Security......................................................... 22
23. Set-Off..................................................................... 22
24. Subsequent Security Interests............................................... 22
25. Currency Indemnity.......................................................... 23
26. Assignment.................................................................. 23
27. Notices..................................................................... 23
28. Expenses, Costs And Taxes................................................... 23
29. Payments Free Of Deduction.................................................. 24
30. Discretion And Delegation................................................... 25
31. Perpetuity Period........................................................... 25
32. Governing Law............................................................... 25
33. Jurisdiction................................................................ 25
34. Counterparts................................................................ 25
Schedule 1 THE COMPANIES........................................................... 27
Schedule 2 DETAILS OF REAL PROPERTY................................................ 28
Part A Registered Land...................................................... 28
Part B Unregistered Land.................................................... 29
Schedule 3 DETAILS OF ASSIGNED ACCOUNTS............................................ 30
Schedule 4 DETAILS OF SHARES....................................................... 31
Part A .............................................................. 31
Part B .............................................................. 34
Schedule 5 .............................................................. 38
Part A Form Of Notice Of Assignment Of Assigned Accounts.................... 38
Part B Form Of Notice Of Assignment Of Intra-Group Loan..................... 42
Schedule 6 .............................................................. 45
Part A Form Of Notice Of Charge To Landlords................................ 45
Part B Form Of Notice Of Charge Over Account................................ 47
Part C Form Of Notice Of Charge Over Monetary Claims........................ 50
Schedule 7 FORM OF LEGAL MORTGAGE.................................................. 53
THIS DEBENTURE is made on 19 May 2003
BY
(1) THE COMPANIES listed in Schedule 1 (The Companies) as companies (the
"COMPANIES" and each a "COMPANY") in favour of
(2) THE LAW DEBENTURE TRUST CORPORATION P.L.C. as security trustee for the
Secured Creditors on the terms and conditions set out in the Security
Trust and Intercreditor Deed (the "SECURITY TRUSTEE" which expression
shall include any person for the time being appointed as trustee or as
an additional trustee for the purpose of, and in accordance with, the
Security Trust and Intercreditor Deed).
IT IS AGREED as follows:
1. DEFINITIONS AND INTERPRETATION
1.1 DEFINITIONS
Terms defined in the Security Trust and Intercreditor Deed shall,
unless otherwise defined in this Debenture, have the same meaning when
used in this Debenture or any Mortgage (as defined below) and in
addition:
"ACCOUNTS" means any credit balance from time to time on any account
opened or maintained by any Company with any financial institution and
all Related Rights and for the avoidance of doubt, includes the
Assigned Accounts.
"ASSIGNED ACCOUNTS" means each Escrow Account listed in Schedule 3
(Details of Assigned Accounts) and all Related Rights.
"AUSTRALIAN SHARES AND ASSETS" means the shares held by, to the order
of or on behalf of Associated Electrical Industries Limited at any time
in Marconi Australia Holdings Pty Limited, a company registered in
Victoria with company number ABN 28 004 344 272 and all undertakings,
assets and rights of any of the Companies (and in each case all Related
Rights) which, as at the date of this Debenture, are located, or taken
for the purposes of any Australian State or Territory stamp duty law to
be located in Australia.
"CHARGED PROPERTY" means all the assets of the Companies which from
time to time are the subject of the security created or expressed to be
created in favour of the Security Trustee by or pursuant to this
Debenture and any Mortgage.
"COLLATERAL RIGHTS" means all rights, powers and remedies of the
Security Trustee provided by or pursuant to this Debenture or any
Mortgage or by law.
"CONSENT PROPERTIES" means:
(a) leasehold property known as Area A, New Century Park, Coventry
more particularly described by the lease dated 24 August 2001
between Marconi Communications Limited (1) and Marconi (NCP)
Limited (2);
(b) leasehold property known as Area B, New Century Park, Coventry
more particularly described by the lease dated 24 August 2001
between Marconi Communications Limited (1) and Marconi (NCP)
Limited (2);
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(c) leasehold property known as Area C, New Century Park, Coventry
more particularly described by the lease dated 24 August 2001
between Marconi Communications Limited (1) and Marconi (NCP)
Limited (2);
(d) leasehold property known as Area D, New Century Park, Coventry
more particularly described by the lease dated 24 August 2001
between Marconi Communications Limited (1) and Marconi (NCP)
Limited (2);
(e) leasehold property known as New Horizon Park, Coventry more
particularly described by the lease dated 14 April 2003 and
made between ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ as trustees of the Kodak Pension Plan (1) and Marconi
Communications Limited (2); and
(f) leasehold property known as 12th Floor, Exchange Tower, 1
Harbour Exchange Square, London Docklands, E1 more
particularly described by the lease dated 16 September 1998
and made between Dockways Limited (1) and Mobile Systems
International plc (2).
"ENFORCEMENT EVENT" has the meaning given to such term in the Security
Trust and Intercreditor Deed.
"GROUP" means Marconi Corporation and its Subsidiaries for the time
being.
"INSOLVENCY EVENT OF DEFAULT" means any Insolvency Event which is also
an Event of Default.
"INSURANCE POLICY" means any policy of insurance in which any Company
may from time to time have an interest and all Related Rights.
"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 (as defined in the
Indentures), 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 and all Related Rights.
"INTERIM BONDING FACILITY DOCUMENTS" means the Bonding Documents
referred to in the Interim Bonding Facility Letter.
"INTERIM BONDING FACILITY LETTER" means the facility letter dated 10
May 2002, as amended on 24 October 2002, between HSBC Bank plc,
Barclays Bank PLC, JPMorgan Chase Bank and Marconi Bonding Limited in
an amount up to L150,000,000 (or the equivalent in other
currencies) for the issuance of bonds, guarantees, letters of credit,
indemnities and similar instruments.
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"INTRA-GROUP LOAN CONTRACTS" means any contracts between any Company
and any other member of the Group pursuant to which that Company makes
available intra-Group loans to such member of the Group and all Related
Rights.
"INVESTMENTS" means:
(a) any stocks, shares, debentures, securities and certificates of
deposit (but not including the Shares);
(b) all interests in collective investment schemes; and
(c) all warrants, options and other rights to subscribe or acquire
any of the investments described in (a) and (b),
in each case whether held directly by or to the order of any Company or
by any trustee, nominee, fiduciary or clearance system on its behalf
and all Related Rights (including all rights against any such trustee,
nominee, fiduciary or clearance system).
"MARCONI CORPORATION" means Marconi Corporation plc (Company number
00067307).
"MONETARY CLAIMS" means any book and other debts and monetary claims
owing to any Company and any proceeds thereof including, without
limitation, any claims or sums of money deriving from or in relation to
any Intellectual Property, the proceeds of any Insurance Policy, any
court order or judgment, any contract or agreement to which that
Company is a party and any other assets, property, rights or
undertaking of that Company and all Related Rights.
"MORTGAGE" means a mortgage or charge in respect of Real Property in
accordance with Clause 6 (Further Assurance) and Clause 11 (Real
Property) substantially in the form of Schedule 7 (Form of Legal
Mortgage).
"NEW BONDING FACILITY AGREEMENT" means the L50 million committed
revolving bonding facility agreement dated 27 March 2003 among Marconi
Corporation, Marconi Bonding Limited, HSBC Bank plc as agent and
security trustee, the lenders described thereunder and certain other
Subsidiaries providing for the issuance of surety bonds, appeal bonds,
bid bonds, performance bonds, letters of credit, bank guarantees or
other obligations of a like nature on behalf of Marconi Corporation
and/or any Subsidiary, as such agreement may be amended, extended,
supplemented or otherwise modified from time to time (including,
without limitation, any successive amendments, extensions, supplements
or other modifications of the foregoing).
"NOTICE OF ASSIGNMENT" means a notice of assignment in substantially
the form set out in Schedule 5.
"NOTICE OF CHARGE" means a notice of charge in substantially the form
set out in Schedule 6.
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"REAL PROPERTY" means:
(d) any freehold, leasehold, heritable or immovable property
(including the freehold and leasehold property in England and
Wales specified in Schedule 2 (Details of Real Property));
(e) any buildings, fixtures, fittings, fixed plant or machinery
from time to time situated on or forming part of such freehold
or leasehold property; and
(f) any present or future freehold, heritable or leasehold
property in which any company has an interest,
and includes all Related Rights.
"RECEIVER" means a receiver or receiver and manager or administrative
receiver of the whole or any part of the Charged Property.
"RELATED RIGHTS" means, in relation to any asset,
(g) the proceeds of sale or assignment of all or any part of that
asset;
(h) all rights under any licence, agreement for sale or agreement
for lease in respect of that asset;
(i) all rights, benefits, claims, contracts, warranties, remedies,
security, indemnities or covenants for title in respect of
that asset; and
(j) any moneys and proceeds paid or payable in respect of that
asset including, but not limited to royalties, licence
payments, awards of damages and payments made pursuant to
settlement agreements in respect of that asset.
"SCHEDULE 2 REAL PROPERTY" means the Real Property specified in
Schedule 2 (Details of Real Property) and all Related Rights.
"SECURED OBLIGATIONS" means, in relation to a Company, all present and
future indebtedness, liabilities and obligations (for the avoidance of
doubt, including any liabilities and obligations which have been
cash-collateralised by the Companies) at any time of the relevant
Company 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:
(k) any refinancing, novation, deferral or extension;
(l) any obligation relating to any increase in the amount of such
obligations;
(m) any claim for damages or restitution; and
(n) any claim as a result of any recovery by a Company 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
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(including interest accruing after the commencement of any insolvency
or other proceedings).
"SECURITY TRUST AND INTERCREDITOR DEED" means the security trust and
intercreditor deed dated on or about the date hereof between, amongst
others, the Security Trustee, Marconi Corporation and other obligors,
Law Debenture Trust Company of New York as senior note trustee and
JPMorgan Chase Bank as junior note trustee.
"SHARES" means all of the shares in the companies set out in Schedule 4
(Details of Shares) held by, to the order or on behalf of the Companies
at any time and all Related Rights.
"SUBSIDIARY" means a subsidiary within the meaning of Section 736 of
the Companies ▇▇▇ ▇▇▇▇, as amended by Section 144 of the Companies ▇▇▇
▇▇▇▇.
"TANGIBLE MOVEABLE PROPERTY" means any plant, machinery, office
equipment, computers, vehicles and other chattels (excluding any for
the time being forming part of the Companies' stock in trade or work in
progress) and all Related Rights.
"TEMPORARY BONDING FACILITY DOCUMENTS" means the Bonding Documents
referred to in the Temporary Bonding Facility Letter.
"TEMPORARY BONDING FACILITY LETTER" means the facility letter dated 8
February 2002 between HSBC Bank plc, Barclays Bank PLC and Marconi
Bonding Limited in an amount up to L50,000,000 (or equivalent in other
currencies) for the issuance of bonds, guarantees, letters of credit,
indemnities and similar instruments.
1.2 INTERPRETATION
In this Debenture:
1.2.1 the rules of interpretation contained in clause 1.2
(Interpretation) of the Security Trust and Intercreditor Deed
shall apply to the construction of this Debenture or any
Mortgage;
1.2.2 "continuing" in relation to an Enforcement Event, shall be
construed as a reference to an acceleration of any Secured
Obligation (other than Secured Obligations arising under the
New Bonding Facility Agreement) where such acceleration has
not been rescinded in writing or a declaration that the
Secured Obligations (other than Secured Obligations arising
under the New Bonding Facility Agreement) are prematurely due
and payable (other than solely as a result of it becoming
unlawful for a Secured Creditor to perform its obligations
under the Relevant Documents) where such declaration has not
been revoked in writing or any failure by an Obligor to pay
any principal amount in respect of any Secured Obligations
(other than Secured Obligations arising under the New Bonding
Facility Agreement) whether on maturity or otherwise which has
not been remedied or waived in writing. For the purposes of
this sub-clause 1.2.2, the definition of "Secured Obligations"
shall have the same meaning as in the Security Trust and
Intercreditor Deed;
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1.2.3 any reference to the "SECURITY TRUSTEE", the "COMPANIES", any
"COMPANY" or the "SECURED CREDITORS" shall be construed so as
to include its or their (and any subsequent) successors in
title and any permitted assignees and transferees in
accordance with their respective interests; and
1.2.4 references in this Debenture to any Clause or Schedule shall
be to a clause or schedule contained in this Debenture.
1.3 THIRD PARTY RIGHTS
A person who is not a party hereto shall have no right under the
Contracts (Rights of Third Parties) ▇▇▇ ▇▇▇▇ to enforce any term of
this Debenture.
1.4 DUPLICATION
To the extent that the provisions of the Debenture duplicate those of
any Mortgage the provisions of that Mortgage shall prevail.
1.5 INCORPORATION OF PROVISIONS INTO ANY MORTGAGE
Clauses 1.2 (Interpretation), 6.1 (Further Assurance: General), 6.3
(Implied Covenants for Title), 14 (Enforcement of Security), 15
(Extension and Variation of the Law of Property Act 1925), 16
(Appointment of Receiver), 17 (Powers of Receiver), 20 (Power of
Attorney), 32 (Governing Law) and 33 (Jurisdiction) of this Debenture
are incorporated into any Mortgage as if expressly incorporated into
that Mortgage, as if references in those clauses to this Debenture were
references to that Mortgage and as if all references in those clauses
to Charged Property were references to the assets of the Company
granting the Mortgage from time to time charged in favour of, or
assigned (whether at law or in equity) to the Security Trustee by or
pursuant to that Mortgage.
1.6 MORTGAGE
It is agreed that each Mortgage is supplemental to this Debenture.
1.7 SECURITY TRUST AND INTERCREDITOR DEED
The parties hereto each acknowledge that the Security Trustee, when
acting hereunder, shall be acting in accordance with and subject to the
terms of the Security Trust and Intercreditor Deed.
1.8 CONFLICT
Notwithstanding any provision to the contrary contained herein, the
parties agree that this Debenture is subject in all respects to the
terms of the Security Trust and Intercreditor Deed and for the
avoidance of doubt, in the event of any inconsistency, the provisions
of the Security Trust and Intercreditor Deed shall prevail.
2. PAYMENT OF SECURED OBLIGATIONS
2.1 COVENANT TO PAY
Each Company hereby covenants with the Security Trustee as trustee for
the Secured Creditors that it shall on demand of the Security Trustee
discharge all the Secured Obligations and each Company shall pay to the
Security Trustee when due and payable every sum at any time owing, due
or incurred by that Company to the Security Trustee (whether for its
own account or as trustee for the Secured Creditors) or any of the
other Secured Creditors in respect of any such liabilities PROVIDED
THAT neither such covenant
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nor the security constituted by this Debenture nor any other provisions
of this Debenture or any Mortgage shall extend to or include any
liability or sum which would, but for this proviso, cause such
covenant, security, or provision to be unlawful or prohibited by any
applicable law (including, for the avoidance of doubt, Section 151 of
the Companies Act 1985).
2.2 INTEREST ON DEMANDS
If any Company fails to pay any sum on the due date for payment of that
sum that Company shall pay interest on such sum (before and after any
judgment and to the extent interest at a default rate is not otherwise
being paid on such sum) from the date of demand until the date of
payment calculated on a daily basis at the rate determined in
accordance with the provisions of Clause 18.4 (Interest on Demands) of
the Security Trust and Intercreditor Deed.
3. FIXED CHARGES, ASSIGNMENTS AND FLOATING CHARGE
3.1 FIXED CHARGES
Each Company hereby charges with full title guarantee in favour of the
Security Trustee as trustee for the Secured Creditors with the payment
and discharge of the Secured Obligations, by way of first fixed charge
(which so far as it relates to land in England and Wales vested in any
Company at the date hereof shall be a charge by way of legal mortgage)
all of its right, title and interest from time to time in and to each
of the following assets:
3.1.1 the Schedule 2 Real Property;
3.1.2 the Tangible Moveable Property;
3.1.3 any goodwill;
3.1.4 all rights in relation to the uncalled capital of that
Company;
3.1.5 the Shares, all dividends, interest and other monies payable
in respect of the Shares and all other Related Rights (whether
derived by way of redemption, bonus, preference, option,
substitution, conversion or otherwise); and
3.1.6 all Monetary Claims deriving from or in relation to any
Intellectual Property or the proceeds of any Insurance Policy
relating to Schedule 2 Real Property.
3.2 ASSIGNMENTS
Each Company hereby assigns with full title guarantee to the Security
Trustee as trustee for the Secured Creditors as security for the
payment and discharge of the Secured Obligations all its right, title
and interest from time to time in and to each of the following assets
(having already obtained any necessary consent to such assignment from
any third party):
3.2.1 all rights and claims in relation to any Assigned Account; and
3.2.2 each of the Intra-Group Loan Contracts.
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3.3 FLOATING CHARGE
Each Company hereby charges with full title guarantee in favour of the
Security Trustee as trustee for the Secured Creditors with the payment
and discharge of the Secured Obligations by way of first floating
charge the whole of its undertaking and assets (including, but not
limited to the Real Property, the Accounts, the Insurance Policies, the
Intellectual Property, the Monetary Claims and the Investments),
present and future, other than any assets validly and effectively
charged or assigned (whether at law or in equity) by way of fixed
security under the laws of England and Wales, or of the jurisdiction in
which that asset is situated, in favour of the Security Trustee as
security for the Secured Obligations but specifically including within
the floating charge hereby created the whole property, assets and
undertaking of each Company situated in Scotland or otherwise governed
by Scots law.
3.4 CASH COLLATERAL
The security created by Clause 3.3 (Floating Charge) over the Accounts
(other than the Mandatory Redemption Escrow Account) shall take effect
subject to, and shall not restrict the ability of any Company to
create, any (a) security or (b) other arrangement under which money or
claims to, or the benefit of, a bank or other account may be applied,
set-off, made subject to a combination of accounts or otherwise subject
to time deposit arrangements or other flawed asset rights (whether or
not such security is or is to be created on, before or after the date
of this Debenture) which secures obligations under and/or in respect
of:
3.4.1 the Interim Bonding Facility Documents;
3.4.2 the Temporary Bonding Facility Documents;
3.4.3 the New Bonding Facility Agreement;
3.4.4 the Existing Performance Bonds; and
3.4.5 any other bonding facility expressly permitted pursuant to
Section 4.07 (Limitations on Indebtedness and Preferred Stock)
of the Senior Note Indenture and Section 4.06 (Limitations on
Indebtedness and Preferred Stock) of the Junior Note
Indenture,
in each case as a result of the provision of cash collateral as
permitted pursuant to the terms of the Indentures or any of them, the
Escrow Agreement or the Security Trust and Intercreditor Deed.
3.5 AUSTRALIAN SHARES AND ASSETS
For the avoidance of doubt, the Australian Shares and Assets shall not
be charged by way of fixed or floating charge under this Debenture.
4. CRYSTALLISATION OF FLOATING CHARGE
4.1 CRYSTALLISATION: BY NOTICE
By notice in writing to Marconi Corporation for and on behalf of the
Companies, the Security Trustee may and shall, if so instructed
pursuant to the Security Trust and Intercreditor Deed, convert the
floating charge created by Clause 3.3 (Floating Charge)
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with immediate effect into a fixed charge as regards any property or
assets specified in the notice if:
4.1.1 an Event of Default has occurred and is continuing; or
4.1.2 any person attempts to levy any distress, execution, diligence
or other similar process against or to appoint a Receiver over
any of the Charged Property; or
4.1.3 the Security Trustee considers that any of the Charged
Property may be in jeopardy or in danger of being seized or
sold pursuant to any form of legal process, other than a
voluntary sale of Charged Property entered into by the
relevant Company and permitted by the Indentures PROVIDED THAT
the Security Trustee shall not be under any duty to monitor
the Charged Property.
4.2 CRYSTALLISATION: AUTOMATIC
Notwithstanding Clause 4.1 (Crystallisation: By Notice) and without
prejudice to any law which may have a similar effect, the floating
charge will automatically be converted (without notice) with immediate
effect into a fixed charge as regards all the assets subject to the
floating charge if:
4.2.1 any person levies any distress, execution, diligence or other
similar process against, or appoints a Receiver over, any of
the Charged Property; or
4.2.2 a resolution is passed or an order is made for the winding-up,
dissolution, administration or re-organisation of any Company
or an administrator is appointed to any Company other than in
connection with a solvent reconstruction of any Company
permitted under the Indentures.
4.3 DE-CRYSTALLISATION
4.3.1 Where an asset has become subject to a fixed charge under
Clause 4.1 (Crystallisation: By Notice) or Clause 4.2
(Crystallisation: Automatic) the Security Trustee shall, if so
requested by the Company and if instructed to do so in
accordance with the Security Trust and Intercreditor Deed,
release the asset from that fixed charge by notice in writing
to Marconi Corporation for and on behalf of the Companies.
4.3.2 When an asset is released from the fixed charge under
sub-clause 4.3.1 above, the asset will again be subject to:
(a) the floating charge under Clause 3.3 (Floating
Charge); and
(b) the further operation of Clause 4.1 (Crystallisation:
By Notice) or Clause 4.2 (Crystallisation:
Automatic).
5. PERFECTION OF SECURITY
5.1 NOTICES OF ASSIGNMENT
5.1.1 Marconi Corporation shall on the date hereof, deliver Notices
of Assignment duly executed by it or on its behalf and in
respect of each Assigned Account, to the Escrow Bank with whom
those Assigned Accounts are maintained and shall
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use reasonable endeavours to procure an acknowledgement from
the Escrow Bank in the form attached thereto.
5.1.2 Pursuant to Clause 20 (Power of Attorney), the Security
Trustee may, upon the occurrence of an Insolvency Event of
Default and shall, if so instructed pursuant to the Security
Trust and Intercreditor Deed upon or at any time after the
occurrence of any Event of Default which is continuing,
deliver to relevant persons Notices of Assignment duly
executed by the Security Trustee on behalf of any Company in
respect of the Intra-Group Loan Contracts.
5.2 NOTICES OF CHARGE
5.2.1 Within 10 Business Days after the date of this Debenture, the
relevant Company or Companies will join the Security Trustee
in giving a Notice of Charge to all landlords and other
persons which are parties under all leases relating to the
Schedule 2 Real Property in existence on the date of this
Debenture and will use all commercially reasonable endeavours
to procure from each of such landlords and persons an
acknowledgment in the form attached thereto.
5.2.2 If so required by the Security Trustee from time to time,
within 10 Business Days after any Company enters into any
fixed Security or any Mortgage in respect of any lease, the
relevant Company or Companies will join the Security Trustee
in giving a Notice of Charge to all such landlords and other
persons of the security constituted under this Debenture or
any Mortgage in respect of any such lease and will use all
commercially reasonable endeavours to procure from each of
such landlords and persons an acknowledgement in the form
attached thereto.
5.2.3 Each Company shall within 10 Business Days after the date of
this Debenture, provide the Security Trustee with details of
all Accounts and Monetary Claims arising from any Insurance
Policy relating to Schedule 2 Real Property and deriving from
or relating to any Intellectual Property and in relation to
all other Accounts and Monetary Claims, immediately upon the
occurrence of an Insolvency Event of Default or upon request
by the Security Trustee if instructed pursuant to the Security
Trust and Intercreditor Deed upon or after the occurrence of
any Event of Default which is continuing, to enable the
Security Trustee to deliver a Notice of Charge in accordance
with sub-clause 5.2.4 and/or sub-clause 5.2.5 below.
5.2.4 Pursuant to Clause 20 (Power of Attorney), the Security
Trustee may, upon the occurrence of an Insolvency Event of
Default and shall, if so instructed pursuant to the Security
Trust and Intercreditor Deed upon or at any time after the
occurrence of any Event of Default which is continuing,
deliver to relevant persons, Notices of Charge duly executed
by the Security Trustee on behalf of the relevant Company or
Companies in respect of any Monetary Claims.
5.2.5 Pursuant to Clause 20 (Power of Attorney), the Security
Trustee may, upon the occurrence of an Insolvency Event of
Default and shall, if so instructed pursuant to the Security
Trust and Intercreditor Deed upon or at any time after the
occurrence of any Event of Default which is continuing,
deliver to relevant
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persons, Notices of Charge duly executed by the Security
Trustee on behalf of the relevant Company or Companies in
respect of any Accounts (other than the Assigned Accounts).
5.3 REAL PROPERTY: DELIVERY OF DOCUMENTS OF TITLE
Each Company shall within 10 Business Days of the date of the execution
of this Debenture in relation to Schedule 2 Real Property, and upon the
acquisition by that Company of any interest in any Real Property to the
extent requested by the Security Trustee, deliver (or procure delivery)
to or to the order of the Security Trustee of, and the Security Trustee
shall be entitled to hold and retain, all deeds, certificates and other
documents of title relating to such property.
5.4 NOTE OF MORTGAGE
In the case of any Real Property, title to which is or will be
registered under the Land Registration Acts 1925 to 1988, acquired by
or on behalf of any Company after the execution of this Debenture, that
Company shall promptly notify the Security Trustee of the title
number(s) and, contemporaneously with the making of an application to
H.M.L and Registry for the registration of that Company as the
Registered Proprietor thereof, apply to H.M. Chief Land Registrar to
enter a notice of any Mortgage on the Charges Register of such
property.
5.5 FURTHER ADVANCES
5.5.1 Subject to the terms of the Relevant Documents certain Secured
Creditors are under an obligation to make further advances to
the Companies and that obligation will be deemed to be
incorporated into this Debenture as if set out in this
Debenture.
5.5.2 Each Company will apply promptly to H.M. Chief Land Registrar
to enter a note of the obligation to make further advances on
the Charges Register of any registered land forming part of
the Charged Property.
5.6 DELIVERY OF SHARE CERTIFICATES
The Companies shall:
5.6.1 within 10 Business Days of the date of this Debenture, deposit
(or procure the deposit of) with or to the order of the
Security Trustee or with such Delegate as the Security Trustee
may appoint for this purpose all certificates or other
documents of title to the Shares listed in Part A of Schedule
4 (Details of Shares), and stock transfer forms in respect
thereof (executed in blank by or on behalf of the relevant
Company);
5.6.2 use their commercially reasonable efforts to (which for the
avoidance of doubt shall include the replacement of lost or
destroyed documents) deposit with the Security Trustee or to
the order of the Security Trustee or with such Delegate as the
Security Trustee may appoint for this purpose (or procure the
deposit of) all certificates or other documents of title to
the Shares listed in Part B of Schedule 4 (Details of Shares)
and stock transfer forms in respect thereof (executed in blank
by or on behalf of the relevant Company) other than where such
shares are in a company which is (i) a dormant company; or
(ii) Stanhope Investment
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Management Ltd company registration number 02209765 and
Stanhope Pension Services Limited company registration number
03268021; or (iii) a company in which the relevant shareholder
Company owns 50% or less of the called up share capital of
such company; and
5.6.3 promptly upon the accrual, offer or issue of any stocks,
shares, warrants or other securities in respect of or derived
from the Shares notify the Security Trustee of that occurrence
and procure the delivery to the Security Trustee or to the
order of the Security Trustee of (a) all certificates or other
documents of title representing such items and (b) such stock
transfer forms or other instruments of transfer (executed in
blank by or on behalf of the relevant Company) in respect
thereof PROVIDED THAT this obligation shall only apply in
respect of stocks, shares, warrants or other securities in
respect of or derived from the Shares, the certificates or
other documents of title of which are required to be deposited
with or to the order of the Security Trustee or such Delegate
as the Security Trustee may appoint for this purpose pursuant
to sub-clauses 5.6.1 and 5.6.2 above.
6. FURTHER ASSURANCE
6.1 FURTHER ASSURANCE: GENERAL
Each Company shall promptly enter into a Mortgage over any Real
Property and do all such acts or execute all such documents (including
assignments, transfers, mortgages, charges, notices and instructions)
as the Security Trustee may specify (and in such form as the Security
Trustee may require in favour of the Security Trustee or its
nominee(s)):
6.1.1 to perfect the Security created or intended to be created in
respect of the Charged Property (which may include the
execution by that Company of a mortgage, charge or assignment
over all or any of the assets constituting, or intended to
constitute, Charged Property) or for the exercise of the
Collateral Rights;
6.1.2 to confer on the Security Trustee Security over any property
and assets of that Company located in any jurisdiction outside
England and Wales equivalent or similar to the Security
intended to be conferred by or pursuant to this Debenture;
6.1.3 to confer on the Security Trustee Security and to create,
perfect, protect or maintain Security (which in so far as it
relates to Real Property in England and Wales shall be a
charge by way of legal mortgage) over all its right, title and
interest from time to time in any Real Property (including
using all reasonable endeavours to obtain any requisite third
party consent); and/or
6.1.4 to facilitate the realisation of the Charged Property.
6.2 NECESSARY ACTION
If so requested by the Security Trustee each Company shall take all
such action as is available to it (including making all filings and
registrations) as may be necessary for the purpose of the creation,
perfection, protection or maintenance of any Security conferred
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or intended to be conferred on the Security Trustee by or pursuant to
this Debenture and any Mortgage.
6.3 IMPLIED COVENANTS FOR TITLE
The obligations of each Company under this Debenture and any Mortgage
shall be in addition to the covenants for title deemed to be included
in this Debenture and any Mortgage by virtue of (insofar as applicable)
Part 1 of the Law of Property (Miscellaneous Provisions) ▇▇▇ ▇▇▇▇.
6.4 CONSENT PROPERTIES
Each Company with an interest in the Consent Properties shall in
relation to the Consent Properties:
6.4.1 use all reasonable endeavours (including payment of reasonable
fees, costs and expenses and compliance with any landlord's
reasonable requests) to obtain the consent of landlords and
the consent of any other third party that is required for the
creation of a first legal mortgage in the form of the Mortgage
or, as appropriate, a first ranking standard security in
respect of the relevant Consent Property as soon as possible
after the date hereof and, in any event, within three months
of the date hereof;
6.4.2 keep the Security Trustee informed on request of the progress
of its negotiations with the landlord or any such third party
and produce to the Security Trustee a copy of each consent
forthwith upon its receipt; and
6.4.3 following receipt of the consent referred to in sub-clause
6.4.1, promptly execute and deliver to the Security Trustee a
first legal mortgage in the form of the Mortgage or, as
appropriate, a first ranking standard security in respect of
the relevant Consent Property.
7. NEGATIVE PLEDGE AND DISPOSALS
7.1 NEGATIVE PLEDGE
Each Company undertakes that it shall not, at any time during the
subsistence of this Debenture or any Mortgage, create or permit to
subsist any Security over all or any part of the Charged Property
except as not expressly prohibited under the terms of the Indentures.
7.2 NO DISPOSAL OF INTERESTS
Each Company undertakes that it shall not (and shall not agree to) at
any time during the subsistence of this Debenture or any Mortgage,
except as not expressly prohibited under the terms of the Indentures:
7.2.1 execute any conveyance, disposition, transfer, lease,
assignment or assignation of, or other right to use or occupy,
all or any part of the Charged Property;
7.2.2 create any legal or equitable estate or heritable interest or
other interest in, or over, or otherwise relating to, all or
any part of the Charged Property; or
7.2.3 (a) grant or vary, or accept any surrender, or cancellation or
renunciation or disposal of, any lease, tenancy, licence,
consent or other right to use or occupy
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in relation to any of the Charged Property or (b) allow any
person any right to use or occupy or to become entitled to
assert any proprietary interest in, or right over, the Charged
Property, which may, in each case, adversely affect the
ability of the Security Trustee to exercise any of the
Collateral Rights.
8. SHARES
8.1 SHARES: REPRESENTATION
The Companies represent and warrant to the Security Trustee that:
8.1.1 they are the sole legal and beneficial owners of the Shares in
Part A of Schedule 4 free from any Security (as such term is
defined in the Security Trust and Intercreditor Deed) except
as created by this deed; and
8.1.2 the Shares in Part A of Schedule 4 are fully paid up (save in
relation to the L1 share that Marconi Corporation owns in
Highrose Limited).
8.2 SHARES: BEFORE ENFORCEMENT EVENT
Prior to the occurrence of an Enforcement Event and at any time when no
Enforcement Event is continuing, each Company shall:
8.2.1 be entitled to retain all dividends, interest and other monies
arising from its Shares; and
8.2.2 exercise all voting rights in relation to its Shares PROVIDED
THAT a Company shall not exercise such voting rights in any
manner which would constitute a Default or an Event of Default
under the Indentures (as such terms are defined in the
Indentures).
8.3 SHARES: AFTER ENFORCEMENT EVENT
The Security Trustee may, upon the occurrence of an Enforcement Event
and at any time thereafter while such Enforcement Event is continuing
(in the name of the relevant Company or otherwise and without any
further consent or authority from the relevant Company):
8.3.1 exercise (or refrain from exercising) any voting rights in
respect of any of the Shares;
8.3.2 apply all dividends, interest and other monies arising from
any of the Shares in accordance with Clause 18 (Application of
Moneys);
8.3.3 transfer any of the Shares into the name of such nominee(s) of
the Security Trustee as it shall require; and
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8.3.4 exercise (or refrain from exercising) the powers and rights
conferred on or exercisable by the legal or beneficial owner
of any of the Shares, including the right, in relation to any
company whose shares or other securities are included in the
Charged Property, to concur or participate in:
(a) the reconstruction, amalgamation, sale or other
disposal of such company or any of its assets or
undertaking (including the exchange, conversion or
reissue of any shares or securities as a consequence
thereof),
(b) the release, modification or variation of any rights
or liabilities attaching to such shares or
securities, and
(c) the exercise, renunciation or assignment of any right
to subscribe for any shares or securities
in each case in such manner and on such terms as the Security
Trustee may think fit, and the proceeds of any such action
shall form part of the Charged Property.
9. ACCOUNTS
9.1 ACCOUNTS: OPERATION BEFORE ENFORCEMENT EVENT
Each Company shall, prior to the delivery of a Notice of Charge
pursuant to Clause 5.2 (Notices of Charge) or the occurrence of an
Enforcement Event and at any time thereafter when no Enforcement Event
is continuing (provided that at such time no Notice of Charge has been
delivered pursuant to Clause 5.2 (Notices of Charge)), be entitled to
receive, withdraw or otherwise transfer any credit balance from time to
time on any Account (other than an Assigned Account).
9.2 ACCOUNTS: OPERATION AFTER ENFORCEMENT EVENT
After the delivery of a Notice of Charge pursuant to Clause 5.2
(Notices of Charge) or the occurrence of an Enforcement Event and at
any time thereafter while such Enforcement Event is continuing, no
Company shall be entitled to receive, withdraw or otherwise transfer
any credit balance from time to time on any Account except with the
prior consent of the Security Trustee.
9.3 ASSIGNED ACCOUNTS
9.3.1 No Company shall be entitled to receive, withdraw or otherwise
transfer any credit balance from time to time on any Assigned
Account except with the prior consent of the Security Trustee
or as permitted pursuant to the terms of the Escrow Agreement.
9.3.2 The Security Trustee shall, upon the occurrence of an
Enforcement Event and at any time thereafter while such
Enforcement Event is continuing, be entitled without notice to
exercise from time to time all rights, powers and remedies
held by it as assignee of the Assigned Accounts and to:
(a) demand and receive all and any monies due under or
arising out of each Assigned Account; and
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(b) exercise all such rights as any Company might, in
relation to such Assigned Account, exercise but for
the terms of this Debenture.
9.4 ACCOUNTS: APPLICATION OF MONIES
The Security Trustee shall, upon the occurrence of an Enforcement Event
and at any time thereafter while such Enforcement Event is continuing,
be entitled without notice to apply, transfer or set-off any or all of
the credit balances from time to time on any Account in or towards the
payment or other satisfaction of all or part of the Secured Obligations
in accordance with Clause 18 (Application of Moneys).
10. MONETARY CLAIMS
10.1 DEALING WITH MONETARY CLAIMS
No Company shall at any time during the subsistence of the Debenture,
without the prior written consent of the Security Trustee or except as
not expressly prohibited under the terms of the Indentures:
10.1.1 deal with the Monetary Claims referred to in sub-clause 3.1.6
of Clause 3.1 (Fixed Charges) except by getting in and
realising them in a prudent manner (on behalf of the Security
Trustee) and paying the proceeds of those Monetary Claims
referred to in sub-clause 3.1.6 of Clause 3.1 (Fixed Charges)
into the Accounts (other than the Assigned Accounts), the
Assigned Accounts to the extent such proceeds are required to
be deposited in the Assigned Accounts pursuant to the
Indentures or as the Security Trustee may require (and such
proceeds shall be held upon trust by the relevant Company or
Companies for the Security Trustee on behalf of the Secured
Creditors prior to such payment in);
10.1.2 factor or discount any of the Monetary Claims referred to in
sub-clause 3.1.6 of Clause 3.1 (Fixed Charges) or enter into
any agreement for such factoring or discounting; or
10.1.3 other than as provided in Clause 10.2 (Release of Monetary
Claims: Before Enforcement Event) be entitled to withdraw or
otherwise transfer the proceeds of the realisation of any
Monetary Claims standing to the credit of any Account.
10.2 RELEASE OF MONETARY CLAIMS: BEFORE ENFORCEMENT EVENT
Prior to the delivery of a Notice of Charge pursuant to Clause 5.2
(Notices of Charge) or the occurrence of an Enforcement Event and at
any time when no Enforcement Event is continuing (provided that at such
time no Notice of Charge has been delivered pursuant to Clause 5.2
(Notices of Charge)), the proceeds of the realisation of any Monetary
Claims deriving from or in relation to any Intellectual Property or the
proceeds of any Insurance Policy relating to Real Property shall
(subject to any restriction on the application of such proceeds
contained in this Debenture, the Indentures or in the Security Trust
and Intercreditor Deed), upon such proceeds being credited to an
Account, be released from the fixed charge created pursuant to Clause
3.1 (Fixed Charges) and a Company shall be entitled to withdraw such
proceeds from such Account (other than an Assigned Account) provided
that such proceeds shall continue to be subject to the floating charge
created pursuant to Clause 3.3 (Floating Charge) and the terms of this
Debenture.
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11. REAL PROPERTY
11.1 PROPERTY: NOTIFICATION
Each Company shall promptly notify the Security Trustee of any
contract, conveyance, transfer or other disposition for the acquisition
by that Company (or its nominee(s)) of any Real Property and shall
promptly enter into a Mortgage over such Real Property if so required
by the Security Trustee.
11.2 ENTITLEMENT TO REMEDY
If any Company fails to comply with any of the undertakings contained
in this Clause 11, the Security Trustee shall be entitled (with such
agents, contractors and others as it sees fit), to do such things as
may in the opinion of the Security Trustee be required to remedy such
failure and all moneys spent by the Security Trustee in doing so shall
be reimbursed by that Company on demand with interest from the date of
payment by the Security Trustee until reimbursed in accordance with
Clause 2.2 (Interest on Demands).
12. INTRAGROUP LOAN CONTRACTS
Prior to the delivery of a Notice of Assignment pursuant to sub-clause
5.1.2 of Clause 5.1 (Notices of Assignment) or the occurrence of an
Enforcement Event, each Company shall be entitled to deal with the
Intra-Group Loan Contracts except as expressly prohibited under the
Indentures or the Security Trust and Intercreditor Deed.
13. INVESTMENTS: DELIVERY OF DOCUMENTS OF TITLE
After the occurrence of an Enforcement Event, each Company shall
promptly deliver (or procure delivery) to the Security Trustee, and the
Security Trustee shall be entitled to retain, all of the Investments
and any certificates and other documents of title representing the
Investments to which that Company (or its nominee(s)) is or becomes
entitled together with any other document which the Security Trustee
may request (in such form and executed as the Security Trustee may
require) with a view to perfecting or improving its security over the
Investments or to registering any Investment in its name or the name of
any nominee(s).
14. ENFORCEMENT OF SECURITY
14.1 ENFORCEMENT
At any time after the occurrence of an Enforcement Event and the
Security Trustee (acting on instructions received pursuant to the terms
of the Security Trust and Intercreditor Deed) giving notice to Marconi
Corporation thereof, the security created by or pursuant to this
Debenture is immediately enforceable and the Security Trustee may, in
its absolute discretion:
14.1.1 enforce all or any part of that security (at the times, in the
manner and on the terms it thinks fit) and take possession of
and hold or dispose of all or any part of the Charged
Property; and
14.1.2 whether or not it has appointed a Receiver, exercise all or
any of the powers, authorities and discretions conferred by
the Law of Property ▇▇▇ ▇▇▇▇ (as varied or extended by this
Debenture) insofar as applicable on mortgagees and by this
- 17 -
Debenture on any Receiver or otherwise conferred by law on
mortgagees or Receivers.
14.2 NO LIABILITY AS MORTGAGEE IN POSSESSION
Neither the Security Trustee nor any Receiver shall be liable to
account as a mortgagee or heritable creditor in possession in respect
of all or any part of the Charged Property or be liable for any loss
upon realisation or for any neglect, default or omission in connection
with the Charged Property to which a mortgagee in possession or
heritable creditor might otherwise be liable.
15. EXTENSION AND VARIATION OF THE LAW OF PROPERTY ACT 1925
15.1 EXTENSION OF POWERS
Insofar as applicable the power of sale or other disposal conferred on
the Security Trustee and on any Receiver by this Debenture shall
operate as a variation and extension of the statutory power of sale
under Section 101 of the Law of Property ▇▇▇ ▇▇▇▇ and such power shall
arise (and the Secured Obligations shall be deemed due and payable for
that purpose) on execution of this Debenture.
15.2 RESTRICTIONS
The restrictions contained in Sections 93 and 103 of the Law of
Property Act 1925 shall not apply to this Debenture or to the exercise
by the Security Trustee of its right to consolidate all or any of the
security created by or pursuant to this Debenture with any other
security in existence at any time or to its power of sale, which powers
may be exercised by the Security Trustee without notice to any Company
on or at any time after the occurrence of an Enforcement Event.
15.3 POWER OF LEASING
The statutory powers of leasing may be exercised by the Security
Trustee at any time on or after the occurrence of an Enforcement Event
and the Security Trustee and any Receiver may make any lease or
agreement for lease, accept surrenders of leases and grant options on
such terms as it shall think fit, without the need to comply with any
restrictions imposed by Sections 99 and 100 of the Law of Property ▇▇▇
▇▇▇▇.
16. APPOINTMENT OF RECEIVER
16.1 APPOINTMENT AND REMOVAL
After the occurrence of an Enforcement Event or if a petition or
application is presented for the making of an administration order in
relation to any Company or if any Company or any other person gives
written notice of its intention to appoint an administrator to any
Company or if requested to do so by any Company, the Security Trustee
may by deed or otherwise (acting through an authorised officer of the
Security Trustee), without prior notice to any Company:
16.1.1 appoint one or more persons to be a Receiver of the whole or
any part of the Charged Property;
16.1.2 remove (so far as it is lawfully able) any Receiver so
appointed; and
16.1.3 appoint another person(s) as an additional or replacement
Receiver(s).
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16.2 CAPACITY OF RECEIVERS
Each person appointed to be a Receiver pursuant to Clause 16.1
(Appointment and Removal) shall be:
16.2.1 entitled to act individually or together with any other person
appointed or substituted as Receiver;
16.2.2 for all purposes shall be deemed to be the agent of the
relevant Company which shall be solely responsible for his
acts, defaults and liabilities and for the payment of his
remuneration and no Receiver shall at any time act as agent
for the Security Trustee; and
16.2.3 entitled to remuneration for his services at a rate to be
fixed by the Security Trustee from time to time (without being
limited to the maximum rate specified by the Law of Property
Act 1925).
16.3 STATUTORY POWERS OF APPOINTMENT
The powers of appointment of a Receiver shall be in addition to all
statutory and other powers of appointment of the Security Trustee under
the Law of Property ▇▇▇ ▇▇▇▇ (as extended by this Debenture) or
otherwise and such powers shall remain exercisable from time to time by
the Security Trustee in respect of any part of the Charged Property.
16.4 ENTERPRISE ▇▇▇ ▇▇▇▇
For the avoidance of doubt, paragraph 2 of Section 14 of Schedule 16 to
the Enterprise ▇▇▇ ▇▇▇▇ shall apply to the floating charge created
pursuant to Clause 3.3 (Floating Charge).
17. POWERS OF RECEIVER
Every Receiver shall (subject to any restrictions in the instrument
appointing him but notwithstanding any winding-up or dissolution of any
Company) have and be entitled to exercise, in relation to the Charged
Property (and any assets of any Company which, when got in, would be
Charged Property) in respect of which he was appointed, and as varied
and extended by the provisions of this Debenture (in the name of or on
behalf of any Company or in his own name and, in each case, at the cost
of the Companies):
17.1.1 insofar as applicable all the powers conferred by the Law of
Property ▇▇▇ ▇▇▇▇ on mortgagors and on mortgagees in
possession and on receivers appointed under that Act;
17.1.2 all the powers of an administrative receiver set out in
Schedule 1 to the Insolvency ▇▇▇ ▇▇▇▇ (whether or not the
Receiver is an administrative receiver);
17.1.3 all the powers and rights of an absolute owner and power to do
or omit to do anything which any Company itself could do or
omit to do; and
17.1.4 the power to do all things (including bringing or defending
proceedings in the name or on behalf of any Company) which
seem to the Receiver to be incidental or conducive to (a) any
of the functions, powers, authorities or discretions conferred
on or vested in him or (b) the exercise of the Collateral
Rights (including realisation of all or any part of the
Charged Property) or (c) bringing
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to his hands any assets of the Companies forming part of, or
which when got in would be, Charged Property.
18. APPLICATION OF MONEYS
All moneys received or recovered by the Security Trustee or any
Receiver pursuant to this Debenture or the powers conferred by it shall
(subject to the claims of any person having prior rights thereto and by
way of variation of the provisions of the Law of Property Act 1925) be
applied first in the payment of the costs, charges and expenses
incurred and payments made by the Receiver, the payment of his
remuneration and the discharge of any liabilities incurred by the
Receiver in, or incidental to, the exercise of any of his powers, and
thereafter shall be applied by the Security Trustee (notwithstanding
any purported appropriation by any Company) in accordance with the
Security Trust and Intercreditor Deed.
19. PROTECTION OF PURCHASERS
19.1 CONSIDERATION
The receipt of the Security Trustee or any Receiver shall be conclusive
discharge to a purchaser and, in making any sale or disposal of any of
the Charged Property or making any acquisition, the Security Trustee or
any Receiver may do so for such consideration, in such manner and on
such terms as it thinks fit.
19.2 PROTECTION OF PURCHASERS
No purchaser or other person dealing with the Security Trustee or any
Receiver shall be bound to inquire whether the right of the Security
Trustee or such Receiver to exercise any of its powers has arisen or
become exercisable or be concerned with any propriety or regularity on
the part of the Security Trustee or such Receiver in such dealings.
20. POWER OF ATTORNEY
20.1 APPOINTMENT AND POWERS
Each Company by way of security irrevocably appoints the Security
Trustee, each Delegate and any Receiver severally to be its attorney
(the "ATTORNEY") and in its name, on its behalf and as its act and deed
to execute, deliver and perfect all documents and do all things which
the Attorney may consider to be required or desirable for:
20.1.1 carrying out any obligation imposed on that Company by this
Debenture (including the execution and delivery of any
notices, deeds, charges, assignments or other security and any
transfers of the Charged Property); and
20.1.2 enabling the Security Trustee, each Delegate and any Receiver
to exercise, or delegate the exercise of, any of the rights,
powers and authorities conferred on them by or pursuant to
this Debenture or any Mortgage or by law (including, after the
occurrence of an Enforcement Event, the exercise of any right
of a legal or beneficial owner of the Charged Property).
20.2 RATIFICATION
Each Company shall ratify and confirm all things done and all documents
executed by any Attorney in the exercise or purported exercise of all
or any of his powers.
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20.3 INDEMNITY
Each Company shall indemnify the Attorney and keep the Attorney
indemnified against any and all costs, claims and liabilities which the
Attorney may incur as a result of anything done by the Attorney in the
proper exercise of any of the powers conferred, or purported to be
conferred, on him or her by this Debenture unless such cost, claim or
liability arises as a result of the negligence or wilful misconduct of
the Attorney.
21. EFFECTIVENESS OF SECURITY
21.1 CONTINUING SECURITY
The security created by or pursuant to this Debenture and any Mortgage
shall remain in full force and effect as a continuing security for the
Secured Obligations unless and until discharged by the Security
Trustee.
21.2 CUMULATIVE RIGHTS
The security created by or pursuant to this Debenture and any Mortgage
and the Collateral Rights shall be cumulative, in addition to and
independent of every other security which the Security Trustee or any
Secured Creditor may at any time hold for the Secured Obligations or
any other obligations or any rights, powers and remedies provided by
law. No prior security held by the Security Trustee (whether in its
capacity as trustee or otherwise) or any of the other Secured Creditors
over the whole or any part of the Charged Property shall merge into the
security constituted by this Debenture and any Mortgage.
21.3 NO PREJUDICE
The security created by or pursuant to this Debenture and any Mortgage
and the Collateral Rights shall not be prejudiced by any
unenforceability or invalidity of any other agreement or document or by
any time or indulgence granted to any Company or any other person, or
the Security Trustee (whether in its capacity as trustee or otherwise)
or any of the other Secured Creditors or by any variation of the terms
of the trust upon which the Security Trustee holds the security or by
any other thing which might otherwise prejudice that security or any
Collateral Right.
21.4 REMEDIES AND WAIVERS
No failure on the part of the Security Trustee to exercise, or any
delay on its part in exercising, any Collateral Right shall operate as
a waiver thereof, nor shall any single or partial exercise of any
Collateral Right preclude any further or other exercise of that or any
other Collateral Right.
21.5 NO LIABILITY
None of the Security Trustee, each Delegate, any Attorney or any
Receiver shall be liable by reason of (a) taking any action permitted
by this Debenture or any Mortgage or (b) any neglect or default in
connection with the Charged Property or (c) taking possession of or
realising all or any part of the Charged Property, except in the case
of negligence or wilful misconduct upon its part.
21.6 PARTIAL INVALIDITY
If, at any time, any provision of this Debenture or any Mortgage is or
becomes illegal, invalid or unenforceable in any respect under the law
of any jurisdiction, neither the
- 21 -
legality, validity or enforceability of the remaining provisions of
this Debenture or any Mortgage nor of such provision under the laws of
any other jurisdiction shall in any way be affected or impaired thereby
and, if any part of the security intended to be created by or pursuant
to this Debenture or any Mortgage is invalid, unenforceable or
ineffective for any reason, that shall not affect or impair any other
part of the security.
21.7 COMPANIES' OBLIGATIONS
The obligations of each Company and the Collateral Rights shall not be
discharged, impaired or otherwise affected by:
21.7.1 any winding-up, dissolution, administration or re-organisation
of or other change in any Obligor or any other person;
21.7.2 any of the Secured Obligations being at any time illegal,
invalid, unenforceable or ineffective;
21.7.3 any time or other indulgence being granted to any Obligor or
any other person;
21.7.4 any amendment, variation, waiver or release of any of the
Secured Obligations;
21.7.5 any failure to take or failure to realise the value of any
other collateral in respect of the Secured Obligations or any
release, discharge, exchange or substitution of any such
collateral;
21.7.6 any other act, event or omission which but for this provision
would or might operate to impair, discharge or otherwise
affect the obligations of any Company hereunder.
22. RELEASE OF SECURITY
The Security Trustee shall, at the cost of the Companies, release and
cancel the security constituted by this Debenture and procure the
reassignment to the relevant Company of the property and assets
assigned to the Security Trustee pursuant to this Debenture in
accordance with the terms and subject to the conditions and
circumstances set out in the Security Trust and Intercreditor Deed and
without recourse to, or any representation or warranty by, the Security
Trustee or any of its nominees.
23. SET-OFF
Each Company authorises the Security Trustee (but the Security Trustee
shall not be obliged to exercise such right), after the occurrence of
an Enforcement Event which is continuing, to set off against the
Secured Obligations any amount or other obligation (contingent or
otherwise) owing by the Security Trustee to that Company.
24. SUBSEQUENT SECURITY INTERESTS
If the Security Trustee (acting in its capacity as trustee or
otherwise) or any of the other Secured Creditors at any time receives
or is deemed to have received notice of any subsequent Security
affecting all or any part of the Charged Property or any assignment or
transfer of the Charged Property which is prohibited by the terms of
this Debenture or any Mortgage or the Indentures, all payments
thereafter by or on behalf of any Company
- 22 -
to (or on behalf of) the Security Trustee (whether in its capacity as
trustee or otherwise) or any of the other Secured Creditors shall be
treated as having been credited to a new account of that Company and
not as having been applied in reduction of the Secured Obligations as
at the time when the Security Trustee received such notice.
25. CURRENCY INDEMNITY
If any sum (a "SUM") owing by any Company under this Debenture or any
Mortgage or any order or judgment given or made in relation to this
Debenture or any Mortgage has to be converted from the currency (the
"FIRST CURRENCY") in which such Sum is payable into another currency
(the "SECOND CURRENCY") for the purpose of:
25.1.1 making or filing a claim or proof against that Company;
25.1.2 obtaining an order or judgment in any court or other tribunal;
25.1.3 enforcing any order or judgment given or made in relation to
this Debenture or any Mortgage; or
25.1.4 applying the Sum in satisfaction of any of the Secured
Obligations,
the Companies shall indemnify the Security Trustee from and against any
loss suffered or incurred as a result of any discrepancy between (a)
the rate of exchange used for such purpose to convert such Sum from the
First Currency into the Second Currency and (b) the rate or rates of
exchange available to the Security Trustee at the time of such receipt
of such Sum.
26. ASSIGNMENT
The Security Trustee may assign and transfer all or any of its rights
and obligations under this Debenture or any Mortgage in accordance with
the Security Trust and Intercreditor Deed. The Security Trustee shall
be entitled to disclose such information concerning the Companies and
this Debenture or any Mortgage as the Security Trustee considers
appropriate to any actual or proposed direct or indirect successor or
to any person to whom information may be required to be disclosed by
any applicable law.
27. NOTICES
Each communication to be made under this Debenture or any Mortgage
shall be made and delivered in accordance with the provisions of the
Security Trust and Intercreditor Deed.
28. EXPENSES, COSTS AND TAXES
28.1 EXPENSES
Each Company shall, from time to time and promptly on demand by the
Security Trustee, reimburse to the Security Trustee all costs and
expenses (including legal fees) incurred in relation to such Company on
a full indemnity basis together with any applicable VAT incurred by the
Security Trustee and any Delegate (PROVIDED THAT in relation to
sub-clause 28.1.1 of this Clause 28.1, such costs and expenses must be
properly incurred) in connection with:
- 23 -
28.1.1 the execution, release and discharge of this Debenture or any
Mortgage and the Security created or intended to be created in
respect of the Charged Property and perfection of the Security
contemplated in this Debenture or any Mortgage or in any such
documents or forming part of the Security created or intended
to be created in respect of the Charged Property;
28.1.2 the actual or contemplated exercise, preservation and/or
enforcement of any of the rights, powers and remedies of, or
the performance of the duties and obligations of, the Security
Trustee or any Delegate, or any amendment or waiver in respect
of this Debenture or any Mortgage;
28.1.3 the foreclosure of any Charged Property; and
28.1.4 the preservation and/or enforcement of the Security created or
intended to be created in respect of the Charged Property,
which shall carry interest from the date of such demand until so
reimbursed at the rate and on the basis as mentioned in Clause 2.2
(Interest on Demands).
In the event that such costs and expenses cannot be attributed to a
specific Company, then such costs and expenses shall be borne by
Marconi Corporation.
28.2 TAXES
Each Company shall pay, promptly on demand of the Security Trustee all
stamp, registration, notarial and other similar Taxes or fees paid or
payable by the Security Trustee in connection with any action taken or
contemplated by or on behalf of the Security Trustee for perfecting,
enforcing, releasing, cancelling, reassigning or resolving any doubt
concerning, or for any other purpose in relation to this Debenture or
any Mortgage, any amendment thereto, any transfer and/or assignment of
the rights and/or obligations under the same or the Security created or
intended to be created in respect of the Charged Property and shall,
from time to time, indemnify the Security Trustee promptly on demand
against any liabilities, costs, claims and expenses resulting from any
failure to pay by any Company or any delay by any Company in paying any
such Taxes or fees.
29. PAYMENTS FREE OF DEDUCTION
All payments to be made to the Security Trustee, any Delegate and/or
any Receiver under this Debenture or any Mortgage shall be made free
and clear of and without set-off or deduction for or on account of tax
unless a Company is required to make such payment subject to the
deduction or withholding of tax, in which case the sum payable by that
Company in respect of which such deduction or withholding is required
to be made shall be increased to the extent necessary to ensure that,
after the making of such deduction or withholding, the person on
account of whose liability to tax such deduction or withholding has
been made receives and retains (free from any liability in respect of
any such deduction or withholding) a net sum equal to the sum which it
would have received and so retained had no such deduction or
withholding been made or required to be made.
- 24 -
30. DISCRETION AND DELEGATION
30.1 DISCRETION
Any liberty or power which may be exercised or any determination which
may be made hereunder or under any Mortgage by the Security Trustee or
any Receiver may, subject to the terms and conditions of this Debenture
and the Security Trust and Intercreditor Deed, be exercised or made in
its absolute and unfettered discretion without any obligation to give
reasons.
30.2 DELEGATION
Each of the Security Trustee and any Receiver shall have full power to
delegate (either generally or specifically) the powers, authorities and
discretions conferred on it by this Debenture (including the power of
attorney) or any Mortgage on such terms and conditions as it shall see
fit which delegation shall not preclude either the subsequent exercise
of such power, authority or discretion by the Security Trustee or the
Receiver itself or any subsequent delegation or revocation thereof.
31. PERPETUITY PERIOD
The perpetuity period under the rule against perpetuities, if
applicable to this Debenture, shall be the period of eighty years from
the date of the Security Trust and Intercreditor Deed.
32. GOVERNING LAW
This Debenture and all matters arising from or connected with it are
governed by English law.
33. JURISDICTION
33.1 ENGLISH COURTS
The courts of England have exclusive jurisdiction to settle any
disputes (a "DISPUTE") arising out of, or connected with this Debenture
or any Mortgage (including a dispute regarding the existence, validity
or termination of this Debenture or any Mortgage or the consequences of
its nullity).
33.2 CONVENIENT FORUM
The parties agree that the courts of England are the most appropriate
and convenient courts to settle Disputes between them and, accordingly,
that they will not argue to the contrary.
33.3 EXCLUSIVE JURISDICTION
This Clause 33 is for the benefit of the Security Trustee only. As a
result and notwithstanding Clause 33.1 (English Courts), it does not
prevent the Security Trustee from taking proceedings relating to a
Dispute in any other courts with jurisdiction. To the extent allowed by
law the Security Trustee may take concurrent proceedings in any number
of jurisdictions.
34. COUNTERPARTS
This Deed may be executed in any number of counterparts, each of which
shall be deemed an original and this has the same effect as if the
signatures on the counterparts
- 25 -
were on a single copy of this Deed. Any party may enter into this Deed
by signing any such counterpart.
THIS DEBENTURE has been signed on behalf of the Security Trustee and executed as
a deed by the Companies and is delivered by each of them on the date specified
above.
- 26 -
SCHEDULE 1
THE COMPANIES
Company name Company number
Associated Electrical Industries Limited 00062919
▇▇▇▇▇▇▇-Automation Holdings Limited 00559725
English Electric Company Limited 00152250
GPT Special Projects Management Limited 02984211
Highrose Limited 04410334
Marconi (▇▇▇▇▇▇ Street) Limited 04129430
Marconi (DGP1) Limited 03545378
Marconi (DGP2) Limited 03545363
Marconi (▇▇▇▇▇▇▇ Automation) Limited 00487190
Marconi (NCP) Limited 03739989
Marconi Aerospace Unlimited 00516425
Marconi Bonding Limited 03818628
Marconi Communications China Limited 02956293
Marconi Communications Holdings Limited 00319092
Marconi Communications International Holdings Limited 02204070
Marconi Communications International Investments Limited 02203912
Marconi Communications International Limited 00464439
Marconi Communications Investments Limited 02353798
Marconi Communications Limited 00703317
Marconi Corporation plc 00067307
Marconi Optical Components Limited 03694360
Marconi UK Intellectual Property Limited 04573518
Metapath Software International Limited ▇▇▇▇▇▇▇▇
Mobile Systems International Holdings Limited 03179118
- 27 -
SCHEDULE 2
DETAILS OF REAL PROPERTY
PART A
Registered Land
(Freehold or leasehold property (if any) in England and Wales of
which the relevant Company is registered as the
proprietor at H.M. Land Registry)
TITLE NUMBER, DISTRICT AND
REGISTERED PROPRIETOR DESCRIPTION OF PROPERTY COUNTY
Marconi Communications Leasehold property known as LA114301
International Holdings Limited land and buildings on the
South East side of ▇▇▇▇ ▇▇▇▇, Chorley, Lancashire
Chorley
Marconi Communications Leasehold property known as MS49631
Limited land and buildings on the
North East side of ▇▇▇▇▇▇ Knowsley, Merseyside
Road, Huyton, Liverpool
Marconi Corporation plc Leasehold property known as EGL398383
Maryland House, ▇▇▇-▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ Borough of
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Marconi Communications Freehold property at 18/20 NN5272
Limited ▇▇▇▇▇▇▇▇▇▇ Road,
Wellingborough, Wellingborough,
Northamptonshire Northamptonshire
- 28 -
Part B
Unregistered Land
(Freehold or leasehold property (if any) in England and Wales title to which is
not registered at H.M. Land Registry of which the relevant Company is the owner)
Property-owning Company Description of Property Details of Lease/Root of
Title
Marconi Communications Limited Leasehold property known as Lease dated 28 June 2002 and
▇▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇ ▇▇▇▇, made between Marconi
Liverpool Communications International
Holdings Limited (1) and Marconi
Communications Limited (2)
Marconi Communications Limited Leasehold property known as Lease dated 28 June 2002 and
Building ▇▇, ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇ made between Marconi
Communications International
Holdings Limited (1) and Marconi
Communications Limited (2)
Marconi Communications Limited Leasehold property known as Lease dated 28 June 2002 and
▇▇▇▇▇▇▇▇▇ ▇▇/▇▇, ▇▇▇▇ ▇▇▇▇, made between Marconi
Liverpool Communications International
Holdings Limited (1) and Marconi
Communications Limited (2)
Marconi Communications Limited Leasehold property known as Lease dated 28 June 2002 and
Ground Floor, Building 2, made between Marconi
Edge Lane, Liverpool Communications International
Holdings Limited (1) and Marconi
Communications Limited (2)
Marconi Communications Limited Leasehold property known as Lease dated 28 June 2002 and
Building ▇▇, ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇ made between Marconi
Communications International
Holdings Limited (1) and Marconi
Communications Limited (2)
- 29 -
SCHEDULE 3
DETAILS OF ASSIGNED ACCOUNTS
Bank Currency Swift/ Account Account Name/Reference
Sort Code Number
HSBC Bank plc GBP 40 05 30 73666654 Marconi Corporation plc
Mandatory Redemption Escrow
Account - Deposit Account
EUR 40 05 15 57850201 Marconi Corporation plc
Mandatory Redemption Escrow
Account - Call Account
USD 40 05 15 57850236 Marconi Corporation plc
Mandatory Redemption Escrow
Account - Call Account
HSBC Bank plc GBP 40 05 30 73666662 Marconi Corporation plc Existing
Performance Bond Escrow
Account - Client Deposit Account
EUR 40 05 15 57850228 Marconi Corporation plc Existing
Performance Bond Escrow
Account - Call Account
USD 40 05 15 57850244 Marconi Corporation plc Existing
Performance Bond Escrow
Account - Call Account
- 30 -
SCHEDULE 4
DETAILS OF SHARES
Part A
Description and Percentage
Issued Capital Number of of Shares
Name of Company Share Shares Held Held Share Certificate Numbers(s)
Associated Electrical L43,428,595 Ord.L1.00 x 100 30624 - 1 share
Industries Limited 43,428,595 30623 - 3,000 shares
30477 - 27,501,392 shares
30478 - 9,764,898 shares
30580 - 3,392,068 shares
30588 - 706,153 shares
30593 - 1,068,933 shares
30594 - 750,306 shares
30597 - 237,845 shares
30619 - 3,499 shares
30620 - 500 shares
Bookham L892,864 Ord. 0.03p x 9 0024380
Technology plc (UK) 12,891,000
Easynet Group plc L4,436,990 Ord. 0.04p x 49.8% A07095 - 28,954,516 shares
30,111,162 A07362 - 1,156,646 shares
Convertible A00001 - 48,553,661 shares
Ord.0.04.p x A00002 - 2,153,489 shares
50,707,150
▇▇▇▇▇▇▇ Automation L1,000 Ord.L1.00 x 100 6 - 998 shares
Holdings Limited 1,000 26 - 1 share
26 - 1 share (Same number
used on different certificate)
The English Electric L88,142,081 Ord.L1.00 x 100 085843 - 1 share
Company Ltd 88,142,081 085832 - 80,612,496 shares
085833 - 7,529,579 shares
085840 - 1 share
085841 - 1 share
085842 - 3 shares
GPT Special Projects L2 Ord.L1.00 x 2 100 1- 1 share
Management Limited 2 - 1 share
Highrose Limited L1 Ord.L1.00 x 1 100 1 - 1 share
- 31 -
Description And Percentage
Name of Company Issued Capital Number of of Shares
Share Shares Held Held Share Certificate Numbers(s)
Marconi (▇▇▇▇▇▇ Street) L780,001 Ord.L1.00 x 100 2 - 1 share
Limited 780,001 3 - 780,000 shares
Marconi (DGP1) Limited L845,000 Ord.L1.00 x 100 11 - 600,000 shares
845,000 10 - 40,000 shares
9 - 102,500 shares
8 - 2,500 shares
7 - 99,996 shares
6 - 2 shares
5 - 1 share
3 - 1 share
Marconi (DGP2) Limited L845,000 Ord.L1.00 x 100 11 - 600,000 shares
845,000 10 - 40,000 shares
9 - 102,500 shares
8 - 2,500 shares
7 - 99,996 shares
6 - 2 shares
5 - 1 share
3 - 1 share
Marconi (Elliot L18,582,153 Ord.L0.25 x 100 531 - 2,091,876 shares
Automation) Limited 74,328,612 532 - 141,612 shares
533 - 808 shares
534 - 5,704 shares
5776 - 15,149,064 shares
5777 - 1,025,616 shares
5778 - 228,120 shares
178562 - 2,892,614 shares
178572 - 50,164,610 shares
178581 - 2,624,588 shares
178582 - 1,600 shares
178602 - 400 shares
178604 - 1,599 shares
178598 - 400 shares and
178603 - 1 share
Marconi (NCP) Limited L1 Ord.L1.00 x 1 100 2 - 1 share
Marconi Bonding Limited L1 Ord.L1.00 x 1 100 2 - 1 share
- 32 -
Description and Percentage
Issued Capital Number of of Shares
Name of Company Share Shares Held Held Share Certificate Numbers(s)
Marconi L2 Ord.L1.00 x 2 100 1 - 1 share
Communications 2 - 1 share
China Limited
Marconi L200,000,000 Ord.L1.00 x 100 4 - 50 shares
Communications 200,000,000 8 - 19,999,950 shares
Holdings Limited 10 - 100,000,000 shares
13 - 79,999,999 shares
14 - 1 share
Marconi L100 Ord.L1.00 x 1 100 1 - 1 share
Communications 100 4 - 99 shares
International
Holdings Limited
Marconi L200,000,000 Ord.L1.00 x 100 1 - 199,999,999 shares
Communications 200,000,000 2 - 1 ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇▇
Investments Limited
Marconi L100 Ord.L1.00 x 1 100 1 - 99 shares
Communications 100 3 - 1 ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇▇ Limited
Marconi L2 Ord.L1.00 x 2 100 2 - 1 share
Communications 3 - 1 share
Investments Limited
Marconi L1,500,000 Ord.L1.00 x 100 1 - 1 share
Communications 1,500,000 2 - 1,499,999 shares
Limited
Marconi Optical L2 Ord.L1.00 x 2 100 2 - 2 shares
Components Limited
Marconi UK L1 Ord.L1.00 x 2 100 1 - 1 share
Intellectual Property
Limited
Metapath Software L292,500 Ord.L0.025 x 100 1 - 11,700,000 shares
International Limited 11,700,000
- 33 -
PART B
-------------------------------------------------------------------------------------------------------------------------------
Issued Share Description And Number of Shares Held
Name of Company Capital (ordinary L1.00 shares unless otherwise stated) % Owned
-------------------------------------------------------------------------------------------------------------------------------
Arrow Ltd L50,000 Associated Electrical Industries Limited - 49,000 100
Associated Electrical Industries Holdings Limited - 1,000
-------------------------------------------------------------------------------------------------------------------------------
Associated Electrical L2,500 Associated Electrical Industries Limited - 2,499 100
Industries International Associated Electrical Industries Holdings Limited - 1
Ltd
-------------------------------------------------------------------------------------------------------------------------------
FF Chrestien & Co Ltd L25,000 Associated Electrical Industries Limited - 24,999 100
Associated Electrical Industries Holdings Limited - 1
-------------------------------------------------------------------------------------------------------------------------------
Marconi Projects L3 Associated Electrical Industries Limited - 2 100
Hong Kong Ltd Associated Electrical Industries Holdings Limited - 1
-------------------------------------------------------------------------------------------------------------------------------
Associated L1,400,000 ▇▇▇▇▇▇▇-Automation Holdings Limited - 2,799,998 ordinary 50p 100
Automation Ltd ord 50p shares
Associated Electrical Industries
Holdings Limited - 1 ordinary 50p
share The English Electric Company,
Limited - 1 ordinary 50p share
-------------------------------------------------------------------------------------------------------------------------------
Marconi (Holdings) Ltd L996,094 ▇▇▇▇▇▇▇-Automation Holdings Limited - 3,983,975 ordinary 25p 100
ord 25p shares
L500,000 5% Associated Electrical Industries Holdings Limited - 400
Cum Pref L1 ordinary 25p shares
Associated Electrical Industries Limited - 1 ordinary 25p
share
▇▇▇▇▇▇▇-Automation Holdings Limited - 500,000 5% Cumulative
Preference shares of L1
-------------------------------------------------------------------------------------------------------------------------------
Combined Electrical L2,332,000 The English Electric Company, Limited - 11,659,498 ordinary 100
Manufacturers Ltd 20p ord 20p shares
Associated Electrical Industries Holdings Limited - 501
L350,000 ordinary 20p shares
4.25% Cum Pref Associated Electrical Industries Limited - 1 ordinary 20p
L1 share
The English Electric Company, Limited - 350,000 4.25%
Cumulative Preference shares of L1
-------------------------------------------------------------------------------------------------------------------------------
The Kingsway Housing L500,000 The English Electric Company, Limited - 499,999 100
Association Ltd Associated Electrical Industries Holdings Limited - 1
-------------------------------------------------------------------------------------------------------------------------------
Zipbond Ltd L10 ord L1 The English Electric Company, Limited - 9 ordinary L1 shares 100
90 10% Associated Electrical Industries Holdings Limited - 1
non-cum ordinary L1 share
pref L1 The English Electric Company, Limited - 90 10%
non-cumulative preference shares of L1
-------------------------------------------------------------------------------------------------------------------------------
Mobile Systems Services L10,000 Metapath Software International Limited - 5,001 100
Limited ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Metapath Software International Ltd - 4,999
-------------------------------------------------------------------------------------------------------------------------------
GPT Middle East Ltd L100,000 Marconi Communications International Investments - 99,999 100
Marconi Communications Optical Fibres Limited - 1
-------------------------------------------------------------------------------------------------------------------------------
- 34 -
------------------------------------------------------------------------------------------------------------------------------
Issued Share Description And Number of Shares Held % Owned
Name of Company Capital (ordinary L1.00 shares unless otherwise stated)
------------------------------------------------------------------------------------------------------------------------------
Oxus Mining plc L1,810,493.16 Marconi Communications International Holdings Limited - <1
2,188,320 ordinary lp shares
-------------------------------------------------------------------------------------------------------------------------------
Telephone Cables Ltd L2,500,000 Marconi Communications International Investments Limited - 100
1,676,250
Marconi Communications International Limited - 573,750
------------------------------------------------------------------------------------------------------------------------------
Marconi Communications L100 GPT Middle East Limited (held on behalf of Marconi 100
C.I.S. Ltd Communications Limited) - 99
Marconi Communications Optical Fibres Limited - 1
------------------------------------------------------------------------------------------------------------------------------
Marconi Defence Overseas L2 Marconi Communications Limited - 2 100
Ltd
------------------------------------------------------------------------------------------------------------------------------
Rural Radio Systems Ltd L6,219 Marconi Communications Ltd - 622 10
------------------------------------------------------------------------------------------------------------------------------
Tetrel Ltd 24,348,35 Marconi Communications Limited - 485,987 "A" Ordinary 0.05p 100
"A" Ord 0.05p shares
------------------------------------------------------------------------------------------------------------------------------
Albany Partnership Ltd L1,260,000 Marconi Corporation plc - 1,260,000 100
------------------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇ Street L1,000,000 Marconi Corporation plc - 999,999 100
Investments Ltd Associated Electrical Industries Holdings Limited - 1
------------------------------------------------------------------------------------------------------------------------------
Confirmant Ltd 30,000,000 Marconi Corporation plc - 15,000,000 50
------------------------------------------------------------------------------------------------------------------------------
Highspeed Office Ltd L197.89 ord 0.1p Marconi Corporation plc - 10,416 "A" preferred shares of 0.lp 15
L10.42 "A" pref Marconi Corporation plc - 130,198 "B" preferred ordinary
ord 0.1p shares of 0.1p
L398.41 "B"
pref ord 0.1p
L312.47
convertible 0.1p
------------------------------------------------------------------------------------------------------------------------------
Layana Ltd L1 Marconi Corporation plc - 1 100
------------------------------------------------------------------------------------------------------------------------------
Marconi (Sixty-Nine) Ltd L325,000 Marconi Corporation plc - 324,999 100
Associated Electrical Industries Holdings Limited - 1
------------------------------------------------------------------------------------------------------------------------------
Marconi (Fifteen) Ltd L2 Marconi Corporation plc - 1 100
Associated Electrical Industries Holdings Limited - 1
------------------------------------------------------------------------------------------------------------------------------
Marconi (Forty-Six) Ltd L102 Marconi Corporation plc - 100 100
Associated Electrical Industries Holdings Limited - 2
------------------------------------------------------------------------------------------------------------------------------
Marconi (Forty-Three) L1 Marconi Corporation plc- 1 100
Limited
------------------------------------------------------------------------------------------------------------------------------
Marconi (Sixteen) Ltd L1,250,000 Marconi Corporation plc - 1,249,999 100
Associated Electrical Industries Holdings Limited - 1
------------------------------------------------------------------------------------------------------------------------------
Marconi (Thirty-Two) Ltd L2 Marconi Corporation plc - 2 100
------------------------------------------------------------------------------------------------------------------------------
- 35 -
------------------------------------------------------------------------------------------------------------------------------
Issued Share Description and Number of Shares Held
Name of Company Capital (ordinary L1.00 shares unless otherwise stated) % Owned
------------------------------------------------------------------------------------------------------------------------------
Marconi (Twenty-Seven) L450,000 ord Marconi Corporation plc - 1,799,199 ordinary 25p shares 100
Ltd 25p 800,000 conv Associated Electrical Industries Holdings Limited - 1
ord 25p ordinary 25p share
▇ ▇ ▇▇▇▇▇▇▇▇▇ - 400 ordinary 25p shares
292,500 6% cum ▇ ▇ ▇▇▇▇▇ - 400 ordinary 25p shares
pref L1 Marconi Corporation plc - 3,200,000 convertible
ordinary 25p shares
Marconi Corporation plc - 292,500 6% cumulative preference
shares of L1
------------------------------------------------------------------------------------------------------------------------------
Marconi (WCGL) Ltd L2,300,000 ord Marconi Corporation plc - 11,499,999 ordinary 20p shares 100
20p Associated Electrical Industries Holdings Limited - 1
ordinary 20p share
------------------------------------------------------------------------------------------------------------------------------
Marconi Capital Ltd L2 Marconi Corporation plc - 2 100
------------------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ L1 Marconi Corporation plc - 1 100
Developments Ltd
------------------------------------------------------------------------------------------------------------------------------
Marconi Finance plc L10,050,000 Marconi Corporation plc - 10,049,999 100
Clanville Limited - 1
------------------------------------------------------------------------------------------------------------------------------
Marconi Fleet Management L100 Marconi Corporation plc - 99 100
Ltd Associated Electrical Industries Holdings Limited - 1
------------------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇ ▇.▇. Ltd L2 Marconi Corporation plc - 2 100
------------------------------------------------------------------------------------------------------------------------------
Marconi India Ltd L50,000 Marconi Corporation plc - 49,999 100
Associated Electrical Industries Holdings Limited - 1
------------------------------------------------------------------------------------------------------------------------------
Marconi Information L78,852 Marconi Corporation plc - 78,852 100
Systems Ltd
------------------------------------------------------------------------------------------------------------------------------
Marconi Mobile Systems L100 Marconi Corporation plc - 99 100
Ltd Associated Electrical Industries Holdings Limited - 1
------------------------------------------------------------------------------------------------------------------------------
Marconi (Nine) Ltd L100 Marconi Corporation plc - 99 100
Associated Electrical Industries Holdings Limited - 1
------------------------------------------------------------------------------------------------------------------------------
Marconi Quest Ltd L1 Marconi Corporation plc#- 1 100
(Trustee Co.)
------------------------------------------------------------------------------------------------------------------------------
Marconi Rolls-Royce L2,000,000 Marconi Corporation plc - 1,000,000 50
(Power Generation) Ltd
------------------------------------------------------------------------------------------------------------------------------
Netdecisions Holdings Ltd L128,571 Marconi Corporation plc - 17,128,381 deferred 0.25p shares 1
ord L1 Marconi Corporation plc - 1,200,000 ordinary 0.25p shares
L42,820,95
deferred 0.25p
L226,643,14 ord
0.25p
------------------------------------------------------------------------------------------------------------------------------
Netscient Ltd 128,571 Marconi Corporation plc - 128,571 ordinary L1 100
ord L1 Marconi Corporation plc - 35,065 'A' ordinary L1
35,065 'A' ord Marconi Corporation p1c - 115,200,000 lp preference shares
L1
115,200,000 1p
pref
------------------------------------------------------------------------------------------------------------------------------
Oxford G1ycoSciences plc L2,800,133.75 Marconi Corporation plc - 645,162 1.1
ord 5p
------------------------------------------------------------------------------------------------------------------------------
Plessey Holdings Ltd L265,000,500 Marconi Corporation plc - 300,500,000 'G' ordinary L1 50
'G' ord L1
L265,000,500
'S' ord L1
------------------------------------------------------------------------------------------------------------------------------
Regent Escrow Ltd L100 Marconi Corporation plc - 1 100
------------------------------------------------------------------------------------------------------------------------------
Salplex Ltd L150,000 Marconi Corporation plc - 90,000 60
------------------------------------------------------------------------------------------------------------------------------
Streamvpn Ltd 54,788.80 ord Marconi Corporation plc - 88,888 ordinary 10p shares 16.2
10p
------------------------------------------------------------------------------------------------------------------------------
The M-O Valve Co L50,000 ord Marconi Corporation plc - 99,999 ordinary 50p shares 100
- 36 -
------------------------------------------------------------------------------------------------------------------------------
Issued Share Description And Number of Shares Held % Owned
Name of Company Capital (ordinary L1.00 shares unless otherwise stated)
------------------------------------------------------------------------------------------------------------------------------
Ltd 50p Associated Electrical Industries Holdings Limited- 1
ordinary 50p share
------------------------------------------------------------------------------------------------------------------------------
The Rotary Engineering L7,500 Marconi Corporation plc - 7,499 100
Company Ltd Associated Electrical Industries Holdings Limited - 1
------------------------------------------------------------------------------------------------------------------------------
Ultramast Ltd L126 deferred L1 Marconi Corporation plc - 63 deferred L1 shares 50
L133 ordinary L1 deferred
24 total
issued
------------------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇ of Colchester L200 Marconi Corporation plc - 196 100
Housing Society Ltd Marconi Corporation plc Account MAS - 1
Marconi Corporation plc Account CGD - 1
Marconi Corporation plc Account KDS - 1
Associated Electrical Industries Holdings Limited - 1
------------------------------------------------------------------------------------------------------------------------------
- 37 -
SCHEDULE 5
PART C
FORM OF NOTICE OF ASSIGNMENT OF ASSIGNED ACCOUNTS
To: [Escrow Bank]
From: Marconi Corporation plc
Copied to: The Law Debenture Trust Corporation p.l.c. (the "SECURITY TRUSTEE")
Date: [ ]
Dear Sirs,
DEBENTURE DATED [ ] BETWEEN MARCONI CORPORATION PLC AND OTHERS AND
THE LAW DEBENTURE TRUST CORPORATION P.L.C. (THE "DEBENTURE")
We give you notice that we have assigned and charged to the Security Trustee for
and on behalf of the Secured Creditors all of our right, title and interest in
and to account numbers [ ] (account names [ ]) (the
"ASSIGNED ACCOUNTS") (including any renewal or redesignation thereof) and all
monies standing to the credit of that account from time to time pursuant to the
terms of the Debenture.
We confirm that operation of the Assigned Accounts are subject to an Escrow
Agreement dated [ ] between Marconi Corporation plc and The Law
Debenture Trust Corporation p.l.c. as Security Trustee. We further confirm that
with effect from the date of your receipt of this notice, withdrawals (as far as
you, as the Escrow Bank, are concerned) from any of the Assigned Accounts shall
be governed by the terms of this notice and the Escrow Agreement.
We hereby instruct and authorise you:
(a) to disclose to the Security Trustee as soon as is reasonably
practicable any information relating to the Assigned Accounts, which
you are in possession of as holder of the Assigned Accounts, at any
time upon their request; and
(b) not to permit withdrawals from the Assigned Accounts unless you receive
a release instruction from the Security Trustee (in the form attached
hereto).
Subject to paragraph (b) above, all rights, interests and benefits whatsoever
accruing to or for the benefit of ourselves arising from the Assigned Accounts
belong to the Security Trustee.
This letter is governed by English law.
- 38 -
Please accept this notice by signing the enclosed acknowledgement and returning
it to the Security Trustee at ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇, for
the attention of Manager Trust Administration.
Yours faithfully
_______________________
MARCONI CORPORATION PLC
- 39 -
FORM OF RELEASE INSTRUCTION
To: [Escrow Bank]
From: The Law Debenture Trust Corporation p.l.c. (the "SECURITY TRUSTEE")
Copy: Marconi Corporation plc (the "COMPANY")
Date: [ ]
Dear Sirs
ASSIGNED ACCOUNT NUMBER [ ] (ACCOUNT NAME [ ])
We refer to the Notice of Assignment dated [ ] sent by the Company to you
(the "NOTICE") in connection with certain security arrangements described
therein.
We wish to withdraw [ - ] from the Assigned Account on [ ] to be credited to
[account details].
This release instruction is governed by English law.
Yours faithfully
__________________________________________
for and on behalf of
THE LAW DEBENTURE TRUST CORPORATION P.L.C.
AS SECURITY TRUSTEE
- 40 -
FORM OF ACKNOWLEDGEMENT OF ESCROW BANK
To: The Law Debenture Trust Corporation p.l.c. (the "SECURITY TRUSTEE") and
Marconi Corporation plc (the "COMPANY")
Date: [ ]
Dear Sirs
DEBENTURE DATED [ ] BETWEEN MARCONI CORPORATION PLC AND OTHERS AND THE
LAW DEBENTURE TRUST CORPORATION P.L.C. (THE "DEBENTURE")
We refer to the Assigned Accounts with account numbers [ ] (account names
[ ]) held with us and a notice of assignment from Marconi Corporation plc
dated [ ] in connection with the Debenture (the "NOTICE").
At the request of the Security Trustee and the Company we acknowledge receipt of
the Notice and confirm that:
(d) we accept the instructions contained in the Notice and agree to comply
with the Notice;
(e) we have not received notice of the interest of any third party in the
Assigned Accounts;
(f) we have:
(i) not claimed or exercised, nor will claim or exercise, any
security interest, set off, counter-claim, combination,
consolidation or other right in respect of any of the Assigned
Accounts; and
(ii) waived all rights and claims of any kind that we may have
against the Company in respect of the Assigned Accounts;
(g) we will not amend or vary any rights attaching to the Assigned
Accounts; and
(h) we will act only in accordance with the instructions of the Security
Trustee and we shall send all statements and other notices given by us
relating to the Assigned Accounts to the Security Trustee.
This letter is governed by English law.
Yours faithfully
____________________
for and on behalf of
[ESCROW BANK]
- 41 -
PART D
FORM OF NOTICE OF ASSIGNMENT OF INTRA-GROUP LOAN
To: [ ]
Date: [ ]
Dear Sirs,
DEBENTURE DATED [ ] BY [ ] (THE "COMPANY") AND OTHERS
AND THE LAW DEBENTURE TRUST CORPORATION P.L.C. (THE "SECURITY TRUSTEE") (THE
"DEBENTURE")
We hereby give you notice, as attorney for and on behalf of the Company, that
the Company has, pursuant to the Debenture, assigned to us as Security Trustee
all their right, title and interest in and to [details of contract] (the
"CONTRACT") including all moneys which may be payable in respect of the
Contract.
With effect from your receipt of this notice:
1. all payments by you to the Company under or arising from the Contract
should be made to us or to our order as we may specify in writing from
time to time [details of the account into which sums are to be paid may
be included];
2. all remedies provided for in the Contract or available at law or in
equity are exercisable by us;
3. all rights to compel performance of the Contract are exercisable by us
although the Company shall remain liable to perform all the obligations
assumed by it under the Contract;
4. all rights, interests and benefits whatsoever accruing to or for the
benefit of the Company arising from the Contract belong to us and no
changes may be made to the terms of the Contract nor may the Contract
be terminated without our consent; and
5. you are authorised and instructed, without requiring further approval
from the Company, to provide us with such information relating to the
Contract as we may from time to time request and to send us copies of
all notices issued by you under the Contract to us as well as to the
Company.
These instructions may not be revoked, nor may the terms of the Contract be
amended, varied or waived without our prior written consent.
We confirm that pursuant to Clause 5.1 (Notices of Assignment) and Clause 20
(Power of Attorney) of the Debenture, we are empowered and authorised to deliver
this Notice of Assignment for and on behalf of the Company.
This letter is governed by English law.
- 42 -
Please acknowledge receipt of this notice by signing the acknowledgement on the
enclosed copy letter and returning it to us at ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ marked for the attention of Manager Trust Administration.
Yours faithfully,
________________________
THE LAW DEBENTURE TRUST CORPORATION P.L.C.
as attorney for and on behalf
[ ] (the "COMPANY")
- 43 -
[On copy only:
To: THE LAW DEBENTURE TRUST CORPORATION P.L.C. AS SECURITY TRUSTEE
We acknowledge receipt of a notice in the terms set out above and confirm that
we have not received notice of any previous assignments or charges of or over
any of the rights, interests and benefits in and to the Contract and that we
will comply with the terms of that notice.
We further confirm that:
(i) no amendment, waiver or release of any of such rights, interests and
benefits shall be effective without your prior written consent;
(j) no termination of such rights, interests or benefits shall be effective
unless we have given you thirty days written notice of the proposed
termination, specifying the action necessary to avoid such termination;
and
(k) no breach or default on the part of the Company of any of the terms of
the Contract shall be deemed to have occurred unless we have given you
notice of such breach specifying how to make good such breach.
For and on behalf of [ ]
By: ________________________
Dated:
- 44 -
SCHEDULE 6
PART E
FORM OF NOTICE OF CHARGE TO LANDLORDS
To: [Landlord]
Date: [ ]
Dear Sirs,
We give you notice that, by a Debenture dated [ ] (the "DEBENTURE") and by a
Mortgage dated [ ] (the "MORTGAGE") we charged to The Law Debenture Trust
Corporation p.l.c. (the "SECURITY TRUSTEE") as security trustee for the Secured
Creditors referred to in the Debenture all our right, interests and benefits in,
to and under the [describe Lease] dated [ ] between [ ]
relating to [ ] (including all monies payable thereunder and the
proceeds of all claims and judgments for breach of covenant) (the "LEASE").
We will remain liable to perform all our obligations under the Lease and the
Security Trustee is under no obligation of any kind whatsoever under the Lease
nor under any liability whatsoever in the event of any failure by us to perform
our obligations under the Lease.
Please note that:
1. all remedies provided for under the Lease or available at law or in
equity are exercisable by the Security Trustee;
2. all rights to compel performance of the Lease are exercisable by the
Security Trustee; and
3. all rights, interests and benefits whatsoever accruing to or for the
benefit of ourselves arising under the Lease belong to the Security
Trustee.
This letter is governed by and will be construed in accordance with the laws of
England and Wales. Would you acknowledge receipt of this notice by sending the
enclosed acknowledgement to the Security Trustee with a copy to ourselves.
Yours faithfully
[ ]
- 45 -
ACKNOWLEDGEMENT OF CHARGE
To: The Law Debenture Trust Corporation p.l.c.
as Security Trustee
Date: [ ]
Dear Sirs
We confirm receipt from [Chargor] (the "COMPANY") of a notice dated [ ]
of a charge upon the terms of a Debenture dated [ ] (the "DEBENTURE")
and a Mortgage dated [ ] (the "MORTGAGE") to The Law Debenture Trust
Corporation p.l.c. (the "SECURITY TRUSTEE") as security trustee for the Secured
Creditors of all the Company's right, interest and benefit in, to and under the
Lease (as specified in that notice) to which we are a party.
We confirm that we have not received notice of any assignment or charge of or
over any of the rights, interests and benefits specified in such notice.
We further confirm that:
1. no amendment, waiver or release of any such rights, interests and
benefits will be effective without the prior written consent of the
Security Trustee;
2. no termination of such rights, interests or benefits will be effective
unless we have given the Security Trustee at least 21 days' written
notice of the proposed termination and specifying the action necessary
to avoid such termination;
3. the Company will remain liable to perform all its obligations under the
Lease and the Security Trustee is under no obligation of any kind
whatsoever under the Lease nor under any liability whatsoever in the
event of any failure by the Company to perform our obligations under
the Lease; and
4. no breach or default on the part of the Company of any of the terms of
such Lease will be deemed to have occurred unless we have given notice
of such breach to the Security Trustee specifying how to make good such
breach.
We unconditionally and irrevocably waive all rights of set-off, lien,
combination of accounts and similar rights (however described) which we may have
now or in the future to the extent that such rights relate to amounts owed to us
by the Company (and the proceeds thereof) and we will send you copies of all
statements, orders and notices given by us relating to such debt.
This letter is governed by and will be construed in accordance with the laws of
England and Wales.
Yours faithfully
[Landlord]
- 46 -
SCHEDULE 6
PART F
FORM OF NOTICE OF CHARGE OVER ACCOUNT
To: [Account Bank]
Dear Sirs,
We hereby give you notice, as attorney for and on behalf of the Company, that
the Company has, pursuant to a debenture dated [ ] (the "DEBENTURE"),
charged to us as Security Trustee for and on behalf of the Secured Creditors
referred to therein, all their rights, title and interest in and to all sums of
money which may now or in the future be held by the Company with you in any
accounts at any of your branches (the "ACCOUNTS"), together with all interest
from time to time earned thereon and the debts represented by such sums and
interest, as well as all book and other debts owed to the Company.
We hereby irrevocably authorise and instruct you:
(l) to disclose to us without any reference to or further authority from
the Company and without any enquiry by you as to the justification of
such disclosure, such information relating to the Accounts and the sums
therein as we may at any time and from time to time request;
(m) to hold all sums from time to time standing to the credit of the
Accounts to our order;
(n) to pay or release all or any part of the sums from time to time
standing to the credit of the Accounts in accordance with our written
instructions at any time or times;
(o) to comply with the terms of any written notice or instructions in any
way relating to, or purporting to relate to, the Debenture, the sums
standing to the credit of the Accounts from time to time or the debts
represented thereby which you receive at any time from us without any
reference to or further authority from the Company and without any
enquiry by you as to the justification for or validity of such notice
or instruction; and
(p) to pay all monies received by you for the Accounts to (and only to) the
credit of those Accounts.
Please note that the Company is not permitted to withdraw any amount from any of
the Accounts without our prior written consent.
Please also note that these instructions are not to be revoked or varied without
our prior written consent.
We confirm that pursuant to Clause 5.2 (Notices of Charge) and Clause 20 (Power
of Attorney) of the Debenture, we are empowered and authorised to deliver this
Notice of Charge for and on behalf of the Company.
This letter is governed by English law.
- 47 -
Please acknowledge receipt of this notice by sending the attached
acknowledgement to us with a copy to the Company.
Yours faithfully,
______________________
by The Law Debenture Trust Corporation p.l.c.
as attorney for and on behalf of [ ] (the "COMPANY")
- 48 -
FORM OF ACKNOWLEDGEMENT
To: The Law Debenture Trust Corporation p.l.c.
Dear Sirs,
We confirm receipt from The Law Debenture Trust Corporation p.l.c. as attorney
for and on behalf of [ ] (the "COMPANY") of a notice dated [ ]
relating to certain accounts (the "ACCOUNTS") of the Company with the Bank.
We confirm that:
(i) we accept the instructions and authorisations contained in that notice
and we undertake to act in accordance with the terms of that notice;
(ii) we have not received notice of the interest of any third party in the
Accounts;
(iii) we have neither claimed or exercised nor will claim or exercise any
security interest, set-off, counter-claim or other rights in respect of
the Accounts, the sums therein or the debts represented thereby without
your prior written consent;
(iv) we shall pay all monies received by us for the account of the Company
to (and only to) the credit of the Account(s) in the name of the
Company unless otherwise consented to by you; and
(v) we shall not permit any amount to be withdrawn from any of the Accounts
without your prior written consent.
Nothing contained in any of our arrangements with you shall commit us to
providing any facilities or making advances available to the Company.
This letter is governed by English Law.
Yours faithfully,
___________________
On behalf of [Bank]
- 49 -
PART G
FORM OF NOTICE OF CHARGE OVER MONETARY CLAIMS
To: [ ]
Date: [ ]
Dear Sirs,
DEBENTURE DATED [ ] BY [ ] (THE "COMPANY") AND OTHERS
AND THE LAW DEBENTURE TRUST CORPORATION P.L.C. (THE "SECURITY TRUSTEE") (THE
"DEBENTURE")
We hereby give you notice, as attorney for and on behalf of the Company, that
the Company has, pursuant to the Debenture, charged to us as Security Trustee
for and on behalf of the Secured Creditors referred to therein all their right,
title and interest in and to [details of Monetary Claim] (the "MONETARY CLAIM")
including all moneys which may be payable in respect of the Claim.
With effect from your receipt of this notice:
5. all payments by you to the Company under or arising from the Monetary
Claim should be made to us or to our order as we may specify in writing
from time to time [details of the account into which sums are to be
paid may be included];
6. all remedies available at law or in equity in relation to the Monetary
Claim are exercisable by us;
7. all rights to compel performance of the underlying contract in respect
of the Monetary Claim (the "UNDERLYING CONTRACT") between you and the
Company are exercisable by us although the Company shall remain liable
to perform all the obligations assumed by it thereunder;
8. all rights, interests and benefits whatsoever accruing to or for the
benefit of the Company arising from the Monetary Claim belong to us and
no changes may be made to the terms of the Underlying Contract nor may
the Underlying Contract be terminated without our consent; and
9. you are authorised and instructed, without requiring further approval
from the Company, to provide us with such information relating to the
Monetary Claim as we may from time to time request and to send copies
of all notices issued by you under the Underlying Contract to us as
well as to the Company.
These instructions may not be revoked, nor amended, varied or waived without our
prior written consent.
- 50 -
We confirm that pursuant to Clause 5.2 (Notices of Charge) and Clause 20 (Power
of Attorney) of the Debenture, we are empowered and authorised to deliver this
Notice of Charge for and on behalf of the Company.
This letter is governed by English law.
Please acknowledge receipt of this notice by signing the acknowledgement on the
enclosed copy letter and returning it to us at ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ marked for the attention of Manager Trust Administration.
Yours faithfully,
______________________
by
THE LAW DEBENTURE TRUST CORPORATION P.L.C.
as attorney for and on behalf of
[ ] (the "COMPANY")
- 51 -
[On copy only:
To: THE LAW DEBENTURE TRUST CORPORATION P.L.C. AS SECURITY TRUSTEE
We acknowledge receipt of a notice in the terms set out above and confirm that
we have not received notice of any previous charges of or over any of the
rights, interests and benefits in and to the Monetary Claim and that we will
comply with the terms of that notice.
We further confirm that:
(q) no amendment, waiver or release of any of such rights, interests and
benefits shall be effective without your prior written consent;
(r) no termination of such rights, interests or benefits shall be effective
unless we have given you thirty days written notice of the proposed
termination, specifying the action necessary to avoid such termination.
For and on behalf of [ ]
By: _________________________
Dated:
- 52 -
SCHEDULE 7
FORM OF LEGAL MORTGAGE
DATED [ ]
[ ]
AND
THE LAW DEBENTURE TRUST CORPORATION P.L.C.
--------------------------------------------------------------------------------
MORTGAGE
--------------------------------------------------------------------------------
To: H.M. Chief Land Registrar. Note: This deed contains (in Clause 3 (Request to
H.M. Chief Land Registrar)) an application to enter a restriction on the
Proprietorship Register) and (in Clause 4 (Further Advances)) an application to
enter a notice on the Charges Register
- 53 -
THIS DEED is dated [ ] between:
(1) [ ] registered in England and Wales with company number [ ]
(the "COMPANY"); and
(2) THE LAW DEBENTURE TRUST CORPORATION P.L.C. of ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ as security trustee (the "SECURITY TRUSTEE").
BACKGROUND:
It is intended that this document takes effect as a deed notwithstanding the
fact that a party may only execute this document under hand.
IT IS AGREED as follows:
10. DEFINITIONS
In this Deed:
"MORTGAGED PROPERTY" means:
(a) the property specified in Schedule 1 (Details of Mortgaged
Property); and
(b) any buildings, fixtures, fittings, fixed plant or machinery
from time to time situated on or forming part of such
property,
and includes all Related Rights.
"RELATED RIGHTS" means, in relation to any asset,
(a) the proceeds of sale of any part of that asset;
(b) all rights under any licence, agreement for sale or agreement
for lease in respect of that asset;
(c) all rights, benefits, claims, contracts, warranties, remedies,
security, indemnities or covenants for title in respect of
that asset; and
(d) any moneys and proceeds paid or payable in respect of that
asset.
"SECURED OBLIGATIONS" means all obligations which the Company may at
any time have to the Security Trustee (whether for its own account or
as trustee for the Secured Creditors) or any of the other secured
creditors including any liability in respect of further advances made,
whether actual or contingent, present or future (and whether incurred
solely or jointly and whether as principal or as surety or in some
other capacity).
11. FIXED SECURITY
The Company hereby charges with full title guarantee in favour of the
Security Trustee with the payment and discharge of the Secured
Obligations, by way of legal mortgage all the Company's right, title
and interest from time to time in the Mortgaged Property.
- 54 -
12. REQUEST TO H.M. CHIEF LAND REGISTRAR
The Company hereby applies to H.M. Chief Land Registrar to enter the
following restriction in the Proprietorship register of any property
which is, or is required to be, registered forming part of the
Mortgaged Property:
"Except under an Order of the Registrar, no transfer,
disposition, dealing, charge or mortgage by the proprietor of
the land or any transfer made in the exercise of the power of
sale possessed by the holder of any subsequent charge is to be
registered or noted without the consent of the proprietor for
the time being of Charge No. [-]".
13. FURTHER ADVANCES
13.1 Certain Secured Creditors are under an obligation to make further
advances to the Company and that obligation will be deemed to be
incorporated into this Mortgage as if set out in this Mortgage.
13.2 The Company hereby applies to H.M. Chief Land Registrar to enter a note
of the obligation to make further advances on the Charges register of
any registered land forming part of the Mortgaged Property.
14. RELEASE OF SECURITY
14.1 REDEMPTION OF SECURITY
Upon the Security Trustee receiving confirmation from the Secured
Creditors that the Secured Obligations have been discharged in full and
none of the Secured Creditors being under any further actual or
contingent obligation to make advances or provide other financial
accommodation to the Company or any other person under any agreement
between the Security Trustee and the Company, the Security Trustee
shall, at the request and cost of the Company, release and cancel the
security constituted by this Mortgage and procure the reassignment to
the Company of the property and assets assigned to the Security Trustee
pursuant to this Mortgage, in each case subject to Clause 5.2
(Avoidance of Payments) and without recourse to, or any representation
or warranty by, the Security Trustee or any of its nominees.
14.2 AVOIDANCE OF PAYMENTS
If the Security Trustee (on the basis of legal advice received by it
for this purpose) considers that an amount paid to the Security Trustee
or any Secured Creditor for application in or towards repayment of the
Secured Obligations is (having regard to circumstances then existing)
capable of being avoided or otherwise set aside on the liquidation or
administration of any Company or otherwise, then such amount shall not
be considered to have been irrevocably paid and such Secured
Obligations shall not be considered to have been discharged in full for
the purposes of this Debenture or any Mortgage PROVIDED THAT the
Security Trustee shall be entitled but not obliged, independently and
in the absence of a request by a Secured Creditor, to investigate,
enquire or consider whether a payment can be avoided or set aside on
the liquidation or administration of a Company or otherwise.
15. THIRD PARTY RIGHTS
A person who is not a party to this Deed shall have no rights under the
Contract (Rights of Third Parties) ▇▇▇ ▇▇▇▇ to enforce any term of this
Deed.
- 55 -
16. GOVERNING LAW
This Deed is governed by English law.
17. COUNTERPARTS
This Deed may be executed in any number of counterparts, each of which
shall be deemed an original and this has the same effect as if the
signatures on the counterparts were on a single copy of this Deed. Any
party may enter into this Deed by signing any such counterpart.
THIS DEED has been entered into as a deed on the date stated at the beginning of
this Deed.
- 56 -
SCHEDULE 1
DETAILS OF MORTGAGED PROPERTY
County and District/
London Borough Description of Property Title Number
[ ] [ ] [ ]
[Execution page]
- 57 -
EXECUTION PAGES
THE COMPANIES
EXECUTED as a DEED )
by ▇. ▇▇▇▇▇▇▇ ) ▇. ▇▇▇▇▇▇▇
acting as attorney-in-fact )
for and on behalf of )
ASSOCIATED ELECTRICAL )
INDUSTRIES LIMITED )
in the presence of: )
Signature of witness: S LEVY
Name of witness: ▇▇▇▇▇ ▇▇▇▇
Address: ▇▇▇▇▇ and Overy, ▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Occupation: TRAINEE SOLICITOR
EXECUTED as a DEED )
By ▇. ▇▇▇▇▇▇▇ ) ▇. ▇▇▇▇▇▇▇
acting as attorney-in-fact )
for and on behalf of )
▇▇▇▇▇▇▇-AUTOMATION )
HOLDINGS LIMITED )
in the presence of: )
Signature of witness: S LEVY
Name of witness: ▇▇▇▇▇ ▇▇▇▇
Address: ▇▇▇▇▇ and Overy, ▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Occupation: TRAINEE SOLICITOR
- 58 -
EXECUTED as a DEED )
by T.C.R. SHEPHERD ) T.C.R. SHEPHERD
acting as attorney-in-fact )
for and on behalf of )
ENGLISH ELECTRIC )
COMPANY LIMITED )
in the presence of: )
Signature of witness: ▇. ▇▇▇▇▇▇
Name of witness: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Address: ▇▇▇▇▇ and ▇▇▇▇▇, ▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Occupation: TRAINEE SOLICITOR
EXECUTED as a DEED )
By T.C.R. SHEPHERD ) T.C.R. SHEPHERD
acting as attorney-in-fact )
for and on behalf of )
GPT SPECIAL PROJECTS )
MANAGEMENT LIMITED )
in the presence of: )
Signature of witness: ▇. ▇▇▇▇▇▇
Name of witness: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Address: ▇▇▇▇▇ and ▇▇▇▇▇, ▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Occupation: TRAINEE SOLICITOR
- 59 -
EXECUTED as a DEED )
by ▇. ▇▇▇▇▇▇▇ ) ▇. ▇▇▇▇▇▇▇
acting as attorney-in-fact )
for and on behalf of )
HIGHROSE LIMITED )
in the presence of: )
Signature of witness: S LEVY
Name of witness: ▇▇▇▇▇ ▇▇▇▇
Address: ▇▇▇▇▇ and Overy, ▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Occupation: TRAINEE SOLICITOR
EXECUTED as a DEED )
By ▇. ▇▇▇▇▇▇▇ ) ▇. ▇▇▇▇▇▇▇
acting as attorney-in-fact )
for and on behalf of )
MARCONI (▇▇▇▇▇▇ )
STREET) LIMITED )
in the presence of: )
Signature of witness: S LEVY
Name of witness: ▇▇▇▇▇ ▇▇▇▇
Address: ▇▇▇▇▇ and Overy, ▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Occupation: TRAINEE SOLICITOR
- 60 -
EXECUTED as a DEED )
by ▇. ▇▇▇▇▇▇▇ ) ▇. ▇▇▇▇▇▇▇
acting as attorney-in-fact )
for and on behalf of )
MARCONI (DGP1) LIMITED )
in the presence of: )
Signature of witness: S LEVY
Name of witness: ▇▇▇▇▇ ▇▇▇▇
Address: ▇▇▇▇▇ and Overy, ▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Occupation: TRAINEE SOLICITOR
EXECUTED as a DEED )
by ▇. ▇▇▇▇▇▇▇ ) ▇. ▇▇▇▇▇▇▇
acting as attorney-in-fact )
for and on behalf of )
MARCONI (DGP2) LIMITED )
in the presence of: )
Signature of witness: S LEVY
Name of witness: ▇▇▇▇▇ ▇▇▇▇
Address: ▇▇▇▇▇ and Overy, ▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Occupation: TRAINEE SOLICITOR
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EXECUTED as a DEED )
by ▇. ▇▇▇▇▇▇▇ ) ▇. ▇▇▇▇▇▇▇
acting as attorney-in-fact )
for and on behalf of )
MARCONI (▇▇▇▇▇▇▇ )
AUTOMATION) LIMITED )
in the presence of: )
Signature of witness: S LEVY
Name of witness: ▇▇▇▇▇ ▇▇▇▇
Address: ▇▇▇▇▇ and Overy, ▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Occupation: TRAINEE SOLICITOR
EXECUTED as a DEED )
by ▇. ▇▇▇▇▇▇▇ ) ▇. ▇▇▇▇▇▇▇
acting as attorney-in-fact )
for and on behalf of )
MARCONI (NCP) LIMITED )
in the presence of: )
Signature of witness: S LEVY
Name of witness: ▇▇▇▇▇ ▇▇▇▇
Address: ▇▇▇▇▇ and Overy, ▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Occupation: TRAINEE SOLICITOR
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EXECUTED as a DEED )
by ▇. ▇▇▇▇▇▇▇ ) ▇. ▇▇▇▇▇▇▇
acting as attorney-in-fact )
for and on behalf of )
MARCONI AEROSPACE )
UNLIMITED )
in the presence of: )
Signature of witness: S LEVY
Name of witness: ▇▇▇▇▇ ▇▇▇▇
Address: ▇▇▇▇▇ and Overy, ▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Occupation: TRAINEE SOLICITOR
EXECUTED as a DEED )
by ▇. ▇▇▇▇▇▇▇ ) ▇. ▇▇▇▇▇▇▇
acting as attorney-in-fact )
for and on behalf of )
MARCONI BONDING LIMITED )
in the presence of: )
Signature of witness: S LEVY
Name of witness: ▇▇▇▇▇ ▇▇▇▇
Address: ▇▇▇▇▇ and Overy, ▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Occupation: TRAINEE SOLICITOR
- 63 -
EXECUTED as a DEED )
by ▇. ▇▇▇▇▇▇▇ ) ▇. ▇▇▇▇▇▇▇
acting as attorney-in-fact )
for and on behalf of )
MARCONI COMMUNICATIONS )
CHINA LIMITED )
in the presence of: )
Signature of witness: S LEVY
Name of witness: ▇▇▇▇▇ ▇▇▇▇
Address: ▇▇▇▇▇ and Overy, ▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Occupation: TRAINEE SOLICITOR
EXECUTED as a DEED )
By ▇. ▇▇▇▇▇▇▇ ) ▇. ▇▇▇▇▇▇▇
acting as attorney-in-fact )
for and on behalf of )
MARCONI COMMUNICATIONS )
HOLDINGS LIMITED )
in the presence of: )
Signature of witness: S LEVY
Name of witness: ▇▇▇▇▇ ▇▇▇▇
Address: ▇▇▇▇▇ and Overy, ▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Occupation: TRAINEE SOLICITOR
- 64 -
EXECUTED as a DEED )
by ▇. ▇▇▇▇▇▇▇ ) ▇. ▇▇▇▇▇▇▇
acting as attorney-in-fact )
for and on behalf of )
MARCONI COMMUNICATIONS )
INTERNATIONAL HOLDINGS )
LIMITED )
in the presence of: )
Signature of witness: S LEVY
Name of witness: ▇▇▇▇▇ ▇▇▇▇
Address: ▇▇▇▇▇ and Overy, ▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Occupation: TRAINEE SOLICITOR
EXECUTED as a DEED )
by ▇. ▇▇▇▇▇▇▇ ) ▇. ▇▇▇▇▇▇▇
acting as attorney-in-fact )
for and on behalf of )
MARCONI COMMUNICATIONS )
INTERNATIONAL )
INVESTMENTS LIMITED )
in the presence of: )
Signature of witness: S LEVY
Name of witness: ▇▇▇▇▇ ▇▇▇▇
Address: ▇▇▇▇▇ and Overy, ▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Occupation: TRAINEE SOLICITOR
- 65 -
EXECUTED as a DEED )
by ▇. ▇▇▇▇▇▇▇ ) ▇. ▇▇▇▇▇▇▇
acting as attorney-in-fact )
for and on behalf of )
MARCONI COMMUNICATIONS )
INTERNATIONAL LIMITED )
in the presence of: )
Signature of witness: S LEVY
Name of witness: ▇▇▇▇▇ ▇▇▇▇
Address: ▇▇▇▇▇ and Overy, ▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Occupation: TRAINEE SOLICITOR
EXECUTED as a DEED )
by ▇. ▇▇▇▇▇▇▇ ) ▇. ▇▇▇▇▇▇▇
acting as attorney-in-fact )
for and on behalf of )
MARCONI COMMUNICATIONS )
INVESTMENTS LIMITED )
in the presence of: )
Signature of witness: S LEVY
Name of witness: ▇▇▇▇▇ ▇▇▇▇
Address: ▇▇▇▇▇ and Overy, ▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Occupation: TRAINEE SOLICITOR
- 66 -
EXECUTED as a DEED )
By ▇. ▇▇▇▇▇▇▇ ) ▇. ▇▇▇▇▇▇▇
acting as attorney-in-fact )
for and on behalf of )
MARCONI COMMUNICATIONS )
LIMITED )
in the presence of: )
Signature of witness: S LEVY
Name of witness: ▇▇▇▇▇ ▇▇▇▇
Address: ▇▇▇▇▇ and Overy, ▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Occupation: TRAINEE SOLICITOR
EXECUTED as a DEED )
by ▇▇▇▇ ▇▇▇▇▇▇ ) ▇. ▇▇▇▇▇▇
acting as attorney-in-fact )
for and on behalf of )
MARCONI CORPORATION PLC )
in the presence of: )
Signature of witness: ▇. ▇▇▇▇▇▇
Name of witness: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Address: ▇▇▇▇▇ and ▇▇▇▇▇, ▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Occupation: TRAINEE SOLICITOR
- 67 -
EXECUTED as a DEED )
by ▇. ▇▇▇▇▇▇▇ ) ▇. ▇▇▇▇▇▇▇
acting as attorney-in-fact )
for and on behalf of )
MARCONI OPTICAL )
COMPONENTS LIMITED )
in the presence of: )
Signature of witness: S LEVY
Name of witness: ▇▇▇▇▇ ▇▇▇▇
Address: ▇▇▇▇▇ and Overy, ▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Occupation: TRAINEE SOLICITOR
EXECUTED as a DEED )
By ▇. ▇▇▇▇▇▇▇ ) ▇. ▇▇▇▇▇▇▇
acting as attorney-in-fact )
for and on behalf of )
MARCONI UK INTELLECTUAL )
PROPERTY LIMITED )
in the presence of: )
Signature of witness: S LEVY
Name of witness: ▇▇▇▇▇ ▇▇▇▇
Address: ▇▇▇▇▇ and Overy, ▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Occupation: TRAINEE SOLICITOR
- 68 -
EXECUTED as a DEED )
By ▇. ▇▇▇▇▇▇▇ ) ▇. ▇▇▇▇▇▇▇
acting as attorney-in-fact )
for and on behalf of )
METAPATH SOFTWARE )
INTERNATIONAL LIMITED )
in the presence of: )
Signature of witness: S LEVY
Name of witness: ▇▇▇▇▇ ▇▇▇▇
Address: ▇▇▇▇▇ and Overy, ▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Occupation: TRAINEE SOLICITOR
EXECUTED as a DEED )
By ▇. ▇▇▇▇▇▇▇ ) ▇. ▇▇▇▇▇▇▇
acting as attorney-in-fact )
for and on behalf of )
MOBILE SYSTEMS )
INTERNATIONAL )
HOLDINGS LIMITED )
in the presence of: )
Signature of witness: S LEVY
Name of witness: ▇▇▇▇▇ ▇▇▇▇
Address: ▇▇▇▇▇ and Overy, ▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Occupation: TRAINEE SOLICITOR
- 69 -
The Security Trustee
THE LAW DEBENTURE TRUST CORPORATION P.L.C.
By: ▇.▇. ▇▇▇▇▇ ▇. ▇. ▇▇▇▇
Address: THE LAW DEBENTURE TRUST CORPORATION p.l.c, ▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Fax:
Attention: MANAGER TRUST ADMINISTRATION
Witnessed by: ▇▇▇▇▇▇▇ ▇▇▇▇▇
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