EXHIBIT 4.69
[▇▇▇▇▇▇▇▇ CHANCE LOGO] CONFORMED COPY
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AGREEMENT FOR THE CREATION OF A PLEDGE OVER
THE SHARES OF MARCONI COMMUNICATIONS S.P.A
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CONTENTS
CLAUSE PAGE
1. Recitals And Definitions.................................................. 6
2. Creation Of A Pledge Over Shares Of The Company........................... 8
3. Secured Obligations....................................................... 9
4. Validity Of The Security.................................................. 10
5. Perfection Of The Pledge Over Shares...................................... 10
6. Pledgor's Representations And Warranties.................................. 10
7. Right To Receive Dividends And Voting Rights.............................. 11
8. Share Capital Increases................................................... 12
9. Assignments, Transfers Or Amendments...................................... 12
10. Pledgor's Undertakings.................................................... 14
11. Enforcement Of The Pledge................................................. 15
12. Security Trustee.......................................................... 15
13. Release Of The Pledge..................................................... 16
14. Election Of Domicile And Notices.......................................... 16
15. Miscellaneous............................................................. 18
16. Governing Law And Jurisdiction............................................ 18
17. Expenses, Costs And Taxes................................................. 18
Schedule A1.................................................................... 20
Schedule A2.................................................................... 23
Schedule B..................................................................... 26
Schedule C..................................................................... 27
Schedule D..................................................................... 32
Schedule E..................................................................... 33
Schedule F..................................................................... 34
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By this Agreement
BETWEEN
(1) Marconi Holdings S.p.A. (the "PLEDGOR"), a company incorporated in
Italy, with registered office at Genova, ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇, with
share capital equal to E26,248,560.00, registered under No./Tax Code
00891140154 of the Companies' Register of Genova, represented,
severally, by ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, born in London, UK, on 11 January
1961; ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, born in Birmingham, UK, on 13 July 1962; ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, born in Dunfermline, Scotland, on 30 July 1969;
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, born in Hereford, UK, on 8 August 1967;
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, born in Poole, UK, on 31 July 1969; ▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, born in Leeds, UK, on 12 November 1948, duly authorised
by virtue of a power of attorney executed on 15 May 2003
AND
(2) The Law Debenture Trust Corporation p.l.c. (the "SECURITY TRUSTEE"), a
company incorporated in England and Wales, with registered office at
▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇, England, with share
capital equal to L5,000,000, registered under No. 01675231 oF the
Companies' Register of England and Wales, Tax code 374/1167019320/A,
which participates in the execution of this Agreement on its own behalf
as Secured Creditor and also as common representative (mandatario con
rappresentanza) in the name and on behalf of the other Secured
Creditors (as defined below) pursuant to the power conferred on it
under Clause 6.5 (Declaration of Trust and Appointment as Administrator
(Italy)) of the Security Trust and Intercreditor Deed (as defined
below), represented by ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, born in Amersham on 30
September 1955, duly authorised by virtue of a resolution of the board
of directors of the Security Trustee dated 30 August 2002;
WHEREAS
(A) Law Debenture Trust Company of New York, as "Senior Note Trustee" and,
among others, Marconi Corporation plc as "Issuer" executed on or about
19 May 2003 an indenture denominated "Senior Note Indenture" (this
indenture, as from time to time amended, will be referred to below as
the "SENIOR NOTE INDENTURE"), under which Marconi Corporation plc
issued or will issue US dollar 717,139,584 notes (these notes will be
referred to below as the "SENIOR NOTES"). Schedule A1 to this Agreement
contains a table summarising the main financial terms of the Senior
Note Indenture.
(B) JPMorgan Chase Bank, as "Junior Note Trustee" and, among others,
Marconi Corporation plc as "Issuer" executed on or about 19 May 2003 an
indenture denominated "Junior Note Indenture" (this indenture, as from
time to time amended, will be referred to below as the "JUNIOR NOTE
INDENTURE"), under which Marconi Corporation plc issued or will issue
US dollar 486,881,472 notes (these notes will be referred to below as
the "JUNIOR NOTES"). Schedule A2 to this Agreement contains a table
summarising the main financial terms of the Junior Note Indenture.
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(C) HSBC Bank plc, as "Agent" and "Security Trustee", and certain financial
institutions as "Banks" have made available to Marconi Bonding Limited
as "Applicant" a committed multicurrency revolving facility for the
issue of bonds in an aggregate amount equal to L50,000,000 pursuant to
a facility agreement executed on 27 March 2003 (the "NEW BONDING
FACILITY AGREEMENT") between HSBC Bank plc, the financial institutions
defined in that agreement as "Banks" and as "Issuing Banks" (together,
the "BONDING FINANCE PARTIES"), Marconi Bonding Limited as "Applicant",
Marconi Corporation plc as "Company" and certain other companies of the
Marconi Group (as defined below) as "Indemnifying Companies" (together,
the "BONDING OBLIGORS").
(D) The New Bonding Facility Agreement has been made available for the
purpose of supporting the obligations owed by the Bonding Obligors to
third parties where such obligations are incurred in the ordinary
course of the Marconi Group's trade or business but not for the purpose
of supporting any obligation of the members of the Marconi Group under
the Indentures (as defined below).
(E) Under the New Bonding Facility Agreement, each Indemnifying Company (as
defined therein) undertakes to indemnify the relevant Issuing Bank (as
defined therein) against any cost, loss or liability incurred by that
Issuing Bank in acting as the Issuing Bank under any Bond (as defined
in the New Bonding Facility Agreement) granted in favour of the
Pledgor.
(F) Schedule B, Part I, to this Agreement contains the list of the New
Bonding Facility Banks and the New Bonding Facility Agent to the New
Bonding Facility Agreement. Schedule B, Part II, to this Agreement
contains a table summarising the main financial terms of the New
Bonding Facility Agreement.
(G) The Notes (as defined below) have been issued under the terms of the
Indentures, as described in Schedules A1 and A2 and the New Bonding
Facility Agreement has been granted subject to, among other things, the
granting of the pledge over shares under this Agreement.
(H) Each of the companies listed under Schedule C, Part I, of this
Agreement as "Guarantor" (and among them the Pledgor) have guaranteed,
by executing on or about 19 May 2003 a guarantee denominated "Senior
Note Guarantee" (the "SENIOR GUARANTEE"), the obligations of the Issuer
under the Senior Note Indenture and the Senior Notes.
(I) Each of the companies listed under Schedule C, Part I, of this
Agreement as "Guarantor" (and among them the Pledgor) have guaranteed,
by executing on or about 19 May 2003 a guarantee denominated "Junior
Note Guarantee" (the "JUNIOR GUARANTEE"), the obligations of the Issuer
under the Junior Note Indenture and the Junior Notes.
(J) Each of the companies listed under Schedule C, Part II, of this
Agreement as "Guarantor" (and among them the Pledgor) have guaranteed
by executing on or about 19 May 2003 a guarantee denominated the
Composite Guarantee (the "COMPOSITE GUARANTEE" and, together with the
Senior Guarantee and the Junior Guarantee, collectively, the
"GUARANTEES"), among other things, certain obligations under the New
Bonding Facility Agreement, the Security Trust and Intercreditor Deed,
as defined below, and any Security Documents.
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(K) The aggregate of the obligations of the Pledgor as guarantor under the
Guarantees are limited under the Security Trust and Intercreditor Deed
to the higher of:
(1) an amount corresponding to the Net Worth (as defined below) of
the Pledgor, as resulting from its last approved financial
statements at the time it executes or accedes to the
Guarantees; and
(2) an amount corresponding to the Net Worth (as defined below) of
the Pledgor, as resulting from its most recent approved
financial statements at the time the Guarantees are enforced.
"NET WORTH" means, for the purposes of this clause, the total value of
the "Patrimonio Netto" of the Pledgor pursuant to the definition of
Article 2424 of the Italian Civil Code.
(L) Marconi Corporation plc and, among others, The Law Debenture Trust
Corporation plc, executed on or about 19 May 2003 an agreement
denominated "Escrow Agreement", under which Marconi Corporation plc has
established certain escrow accounts which HSBC Bank plc as "Escrow
Bank" for the deposit of certain amounts in order to fund the mandatory
redemption of some or all of the Notes (as defined below) and to
satisfy certain obligations on the Existing Performance Bond as defined
in the Escrow Agreement
(M) The Law Debenture Trust Corporation p.l.c. as "Security Trustee", Law
Debenture Trust Company of New York as "Senior Note Trustee", JPMorgan
Chase Bank as "Junior Note Trustee", Marconi Corporation plc as
"Issuer" and, among others, the Pledgor as "Guarantor", executed on or
about 19 May 2003 a security trust and intercreditor deed to regulate,
among other things, the ranking of secured liabilities, the powers of
the Security Trustee, and the enforcement of the security interests
(the "SECURITY TRUST AND INTERCREDITOR DEED").
(N) The Security Trust and Intercreditor Deed, the New Bonding Facility
Agreement and the Guarantees will be referred to below as the "SECURED
CONTRACTS".
(O) The Pledgor owns 1,000,000 shares of Marconi Communications S.p.A. (the
"COMPANY"), a company incorporated in Italy, with registered office at
via ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇, ▇▇▇▇▇▇, ▇▇▇▇▇, with share capital fully paid up
equal to Euro 15,000,000.00, registered with the Companies Register
held at Genova C.C.I.A.A. under No. 01168770996, Tax code and VAT No.
01168770996; with an aggregate nominal value equal to Euro
15,000,000.00, representing 100% of the share capital of the Company.
(P) In relation to the above, the Pledgor intends to grant in pledge, and
hereby so grants in pledge, 1,000,000 shares of the Company, equal to
100% of the share capital of the Company (the "PLEDGED SHARES", a term
which includes all newly issued shares of the Company from time to time
following increases in the share capital of the Company, which will be
subject to the pledge created by this Agreement under Article 8 below),
jointly and on a pro-indiviso basis in favour of the Secured Creditors
(as defined below), as security for the Secured Obligations (as defined
below).
THIS BEING AGREED, it is agreed as follows:
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1. RECITALS AND DEFINITIONS
1.1 The Recitals and Schedules are an integral and substantial part of this
Agreement.
1.2 The terms defined in the Security Trust and Intercreditor Deed have the
same meaning where used capitalised in this Agreement, unless otherwise
agreed or specified or the context otherwise requires.
1.3 Headings in this Agreement are for ease of reference only and do not
affect its interpretation.
1.4 Unless the context requires otherwise, every reference in this
Agreement to an Article, Paragraph or Schedule will refer to an
article, paragraph or schedule to or of this Agreement.
1.5 Notwithstanding any provision to the contrary contained herein, the
parties agree that this Agreement 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, subject
however to the application of the mandatory provisions of Italian law.
1.6 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.
1.7 In this Agreements the term:
1.7.1 "BONDING FACILITY ENFORCEMENT EVENT" shall mean the occurrence
of both of the following circumstances:
(a) an acceleration of any Secured Obligations arising
under the New Bonding Facility Agreement or any
declaration that any 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 New Bonding
Facility Agreement) or any failure by any Obligor to
pay any principal amount in respect of any Secured
Obligations arising under the New Bonding Facility
Agreement whether on maturity or otherwise; and
(b) the Security Trustee, in accordance with the terms of
the Security Trust and Intercreditor Deed, having
taken any step or steps to enforce this Agreement
following the occurrence of an Enforcement Event.
1.7.2 "BUSINESS DAY" means a day (other than Saturday or Sunday) on
which commercial banks are open for general business in
London, New York and Milan;
1.7.3 "ENFORCEMENT EVENT" means the acceleration of any Secured
Obligations (other than Secured Obligations arising under the
New Bonding Facility Agreement) or any declaration that any
Secured Obligations (other than Secured Obligations arising
under the New Bonding Facility Agreement) are
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prematurely due and payable (other than solely as a result of
it becoming unlawful for a Secured Creditor to perform its
obligations under the Secured Contracts) or any failure by any
Obligor to pay any principal amount in respect of any Secured
Obligations (other than Secured Obligations arising under the
New Bonding Facility Agreement) whether on maturity or
otherwise;
1.7.4 "EVENT OF DEFAULT" has the meaning given to such term in the
Security Trust and Intercreditor Deed;
1.7.5 "INDENTURES" means the Senior Note Indenture and the Junior
Note Indenture collectively and "INDENTURE" means either of
them;
1.7.6 "ITALIAN CIVIL CODE" means the Italian civil code, as approved
by Royal Decree no. 262 of 16 March 1942, as subsequently
amended and supplemented;
1.7.7 "MARCONI GROUP" means Marconi Corporation plc and all of its
direct or indirect subsidiaries;"
1.7.8 "NOTE TRUSTEES" means the Senior Note Trustee and the Junior
Note Trustee collectively and "NOTE TRUSTEE" means either of
them;
1.7.9 "NOTES" means the Senior Notes and the Junior Notes,
collectively;
1.7.10 "OBLIGOR" means each of the Issuer and the Guarantors as
defined in the Security Trust and Intercreditor Deed;
1.7.11 "SECURED CREDITORS" means The Law Debenture Trust Corporation
p.l.c. with registered office at ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇, England, in its capacity as Security Trustee;
any Receiver or Delegate; The Bank of New York with registered
office at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇, ▇▇▇, in
its capacity as Depositary, as Senior Noteholder (as defined
in the Senior Guarantee) (for such time as it is the holder of
the Global Senior Notes, as such term is defined in the Senior
Note Indenture), as Junior Noteholder (as defined in the
Junior Guarantee) (for such time as it is the holder of the
Global Junior Notes, as such term is defined in the Junior
Note Indenture), as the Paying Agent and as the Registrar; Law
Debenture Trust Company of New York with registered office at
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, 31st Floor, New York, New York, 10017, USA,
in its capacity as the Senior Note Trustee (for itself and as
trustee for the holders of the Senior Notes); JPMorgan Chase
Bank acting through an office at Trinity Tower, 9 ▇▇▇▇▇▇ ▇▇▇▇
Street, London, E1W 1YT, in its capacity as the Junior Note
Trustee (for itself and as trustee for the holders of the
Junior Notes); HSBC Bank plc, with registered office at City
Corporate Banking Centre, ▇▇-▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇▇, in its capacity as Escrow Bank; the New Bonding
Facility Agent and each of the New Bonding Facility Banks (as
defined in the Security Trust and Intercreditor Deed and as
set forth in Schedule B Part 1); and their assignees
("cessionari") and/or successors ("successori") whether
universal ("a titolo universale") or singular ("a titolo
particolare");
1.7.12 "SECURED OBLIGATIONS" has the meaning specified in Article 3;
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1.7.13 "SECURITY TRUSTEE" means The Law Debenture Trust Corporation
p.l.c. (and any Delegate pursuant to Clause 16 (Delegation and
Additional Security Trustee) of the Security Trust and
Intercreditor Deed), appointed by the Secured Creditors
pursuant to the Security Trust and Intercreditor Deed, to act
as common representative ("mandatario con rappresentanza") for
the purpose of entering into this Agreement on their behalf
and undertaking any other actions and exercising any right,
remedy, power and discretion in relation to the creation,
perfection, maintenance, enforcement and release of the
security created by this Agreement;
1.7.14 "SECURITY" means any security granted by the Pledgor, as of
the date of this Agreement, in favour of the Secured Creditors
or some of them in relation to the Secured Contracts; and
1.7.15 "TRANSACTION SECURITY" means any Guarantee guaranteeing the
payment of the Secured Obligations and the security created or
expressed to be created in favour of the Security Trustee or
any Secured Creditor under the Security Documents as defined
in the Security Trust and Intercreditor Deed.
2. CREATION OF A PLEDGE OVER SHARES OF THE COMPANY
2.1 The Pledgor grants in pledge, jointly and on a pro-indiviso basis in
favour of the Secured Creditors as security for the Secured Obligations
(as defined in Article 3), the shares of the Company, described under
Recital (O), i.e. 1,000,000 shares, with a nominal value equal to Euro
15.00 each and an aggregate nominal value equal to Euro 15,000,000.00,
representing in the aggregate 100% of the Company share capital,
represented by the share certificate No. 3.
2.2 The pledge created by this Agreement covers:
2.2.1 the Pledged Shares;
2.2.2 all dividends, monies and other rights, assets or benefits
from time to time ascribed or capable of being ascribed to the
Pledged Shares or otherwise received or receivable in relation
to the Pledged Shares during the period of validity of the
pledge, in relation to or in exchange for the Pledged Shares;
2.2.3 the pre-emptive rights ("diritti di opzione"), conversions,
exchange and other rights, contractual or other, from time to
time arising in relation to the Pledged Shares; as well as
2.2.4 all profits or revenues deriving from the above, including any
revenues or payments deriving from sale.
2.3 The pledge created by this Agreement also covers any increases in the
Pledged Shares, for any reason (including, for example, increases in
the nominal value or new shares deriving from share capital increases
as a result of bonus issues or for consideration, owned by the
Pledgor).
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3. SECURED OBLIGATIONS
3.1 The pledge created by this Agreement jointly secures, for their entire
value, and without there being any requirement to previously request
payment from, or enforce any other security against ("senza beneficio
della preventiva escussione"), the Pledgor as a guarantor under the
Guarantees, all rights and claims, existing and future, of the Secured
Creditors arising vis a vis the Pledgor under the Secured Contracts.
3.2 Notwithstanding Paragraph 3.1 above, it is understood that:
3.2.1 in respect of Secured Obligations owed by the Pledgor in its
capacity as guarantor (i.e. as person guaranteeing third
parties' obligations or committing itself to perform third
parties' obligations or covenanting to pay third parties'
obligations) under any of the Secured Contracts, the aggregate
amount of such Secured Obligations under any and all Security
will be subject to the limitation applied to the Guaranteed
Obligations in the Security Trust and Intercreditor Deed as
indicated in Recital (K) above; and
3.2.2 in respect of any Secured Obligations owed by the Pledgor
other than in its capacity as guarantor (as detailed in
Paragraph 3.2.1 above), the aggregate amount of such Secured
Obligations under any and all Security will not be subject to
any limitation.
3.3 It is understood that any parallel debt obligation, covenant to pay
obligation or commitment to perform obligation of the Pledgor
(including, by the way of example, the obligations under Clauses 3.1,
6.3 and 8.4 of the Security Trust and Intercreditor Deed) are subject
to the same limitations indicated in Paragraph 3.2 above in connection
with the nature of the obligations they refer to; that is,
3.3.1 if the parallel debt obligation, covenant to pay obligation or
commitment to perform obligation refers to Secured Obligations
owed by the Pledgor in its capacity as guarantor as detailed
in Paragraph 3.2.1 above, the limitations indicated in
Paragraph 3.2.1 shall apply; and
3.3.2 if the parallel debt obligation, covenant to pay obligation or
commitment to perform obligation refers to Secured Obligations
owed by the Pledgor other than in its capacity as guarantor as
detailed in Paragraph 3.2.1 above, the limitations indicated
in Paragraph 3.2.1 shall not apply.
3.4 The pledge created by this Agreement also secures, equally ("in ▇▇▇▇
▇▇▇▇▇") with the other claims referred to in this Article, any credit
of the Secured Creditors vis-a-vis the Pledgor arising under the
Secured Contracts as a consequence of the provision of any facilities
to be granted by the Secured Creditors in excess of those already
provided under the Secured Contracts, or after their maturity as
originally provided in the Secured Contracts, or after notice of
termination of these contractual relationships.
3.5 The claims which are secured by the pledge created by this Agreement
are referred to as the "SECURED OBLIGATIONS".
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4. VALIDITY OF THE SECURITY
4.1 The pledge created by this Agreement will remain in force in its
entirety notwithstanding any partial repayment or satisfaction of the
Secured Obligations, until the Secured Obligations are satisfied in
full, and, unless previously released pursuant to Article 13, until the
relative payments made by the Pledgor, if any, are: (i) not capable of
being declared null or voidable, or (ii) no longer subject to being
declared unenforceable, ineffective or reduced as a consequence of
bankruptcy claw-back ("revocatoria fallimentare") as the relevant
hardening periods provided for under Article 65 or 67 of the Italian
Bankruptcy Law (R.D., 16 March 1942, No. 267) have expired.
4.2 The pledge created by this Agreement is in addition to any other
security or guarantee of which the Security Trustee may or will have
the benefit now or in the future in respect of all or some of the
Secured Obligations.
4.3 The pledge created by this Agreement will remain in full force and
effect notwithstanding any subsequent amendments to the Secured
Contracts or to the Secured Obligations, including, for example, any
extension of the terms of repayment, partial or total assignment or
transfer of the Secured Contracts or of the Secured Obligations, or any
other amendments to the terms and conditions applicable under the
Secured Contracts or under the Secured Obligations.
5. PERFECTION OF THE PLEDGE OVER SHARES
5.1 The Pledgor, on the date of this Agreement, must:
5.1.1 endorse the share certificates which represent the Pledged
Shares, by way of security in favour of the Security Trustee;
this endorsement must be certified by a Notary, and must be in
the form set out in Schedule D;
5.1.2 deliver the share certificates which represent the Pledged
Shares to the Security Trustee or a Delegate, as custodian of
the assets granted in pledge;
5.1.3 procure that the Company will annotate the pledge created by
this Agreement in the Shareholders' Register ("Libro dei
Soci") of the Company in the form set out in Schedule E; and
5.1.4 procure that the Company delivers, within 10 (ten) Business
Days from the annotation under Paragraph 5.1.3, to the
Security Trustee a notarised copy or a notarised extract of
the annotated pages of the Shareholders' Register of the
Company.
6. PLEDGOR'S REPRESENTATIONS AND WARRANTIES
6.1 The Pledgor represents and warrants as of the date of this Agreement to
the Security Trustee that:
6.1.1 the Pledgor is the sole legal and beneficial owner of the
Pledged Shares free from any Security (as such term is defined
in the Security Trust and Intercreditor Deed) except as
created by this Agreement; and
6.1.2 the Pledged Shares are fully paid up.
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7. RIGHT TO RECEIVE DIVIDENDS AND VOTING RIGHTS
7.1 Without prejudice to Paragraph 2.2.2, the Security Trustee consents
that the dividends attached to the Pledged Shares are paid to the
Pledgor, but upon the occurrence of an Enforcement Event and at any
time thereafter while such Enforcement Event is continuing and upon
receipt by the Pledgor and the Company of the notice mentioned in
Paragraph 7.5, this consent will be revoked and any dividend payable in
relation to the Pledged Shares (even if already resolved) must be paid
to the Security Trustee on behalf of the Secured Creditors.
7.2 The Secured Creditors and, to the extent necessary, the Security
Trustee waive the right to exercise the voting rights at the
shareholders' meetings of the Company attached to the Pledged Shares.
These voting rights are therefore exercisable by the Pledgor. However,
upon the occurrence and during the continuation of an Enforcement Event
and upon receipt by the Pledgor and the Company of the notice mentioned
in Paragraph 7.5, such waiver will be deemed as revoked and the right
to exercise voting rights may be exercised only by the Security
Trustee.
7.3 As long as the Pledgor is entitled, in accordance with this Agreement,
to exercise the voting rights attaching to the Pledged Shares, the
Security Trustee, upon request of the Pledgor, will issue or provide
for the issuance of the tickets of admission ("biglietti di
ammissione") necessary for the participation of the Pledgor in the
shareholders' meetings of the Company, in the form described in
Schedule F, at least 5 (five) Business Days in advance of the meeting.
The request of the Pledgor must be forwarded to the Security Trustee
together with the copy of the notice convening the shareholders'
meeting at which the Pledgor intends to participate.
7.4 Pursuant to Paragraph 7.2, in the event that a shareholders' meeting
(which has been convened or which will be held as "totalitaria") of the
Company is called to discuss an issue on the agenda that, if approved,
would constitute a Default or an Event of Default under the Indentures
(as such terms are defined in the Indentures), the Secured Creditors'
waiver of the right to exercise voting rights will be automatically
revoked.
7.5 Upon receiving instructions pursuant to the Security Trust and
Intercreditor Deed, the Security Trustee will notify the Pledgor and
the Company of the occurrence and the continuation of an Enforcement
Event which pursuant to the above provisions, gives the Secured
Creditors the right to receive dividends or to exercise the voting
rights.
7.6 The notice from the Security Trustee mentioned in Paragraph 7.5 can no
longer be transmitted if, before it is sent, all Secured Obligations
have been indefeasibly paid in full and in such case the right to
receive dividends and to exercise voting rights at the shareholders'
meetings of the Company will remain with the Pledgor.
7.7 The transfer of voting rights for shareholders' meetings will be valid
and effective for any meeting held after the issuance of the
above-mentioned notice by the Security Trustee, or as of the meeting in
which the notice is delivered, and the transfer of the right to receive
dividends will apply to every dividend actually paid by the Company
after the issuance of the above-mentioned notice, even if the dividends
had been approved by a shareholders' meeting beforehand.
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8. SHARE CAPITAL INCREASES
8.1 In the event of an increase in share capital of the Company, whether as
a result of bonus issues ("aumento gratuito") or for consideration
("aumento a pagamento"), the pledge created by this Agreement over the
Pledged Shares will cover the shares assigned to the Pledgor or
subscribed by the Pledgor as a result of the increase in share capital.
8.2 Without prejudice to the provisions contained in Article 10, in the
event that the Company merges with another company, the pledge created
by this Agreement will also cover any quotas, shares, or other
securities or consideration, which may be assigned to the Pledgor
following the merger by the other company, whether the latter is a
newly created entity or the incorporating company, in exchange for the
Pledged Shares.
8.3 The Pledgor must ensure that:
8.3.1 the pledge over the Pledgor's newly issued shares, to which
the parties to this Agreement hereby expressly agree that the
pledge created by this Agreement extends, is annotated in the
Company's Shareholders' Register, substantially in the form
described in Schedule E;
8.3.2 a notarised copy of the pages of the Shareholders' Register
evidencing the above annotation, is delivered to the Security
Trustee;
8.3.3 the certificates issued in respect of the newly issued shares
are deposited with the Security Trustee (or any appointed
Delegate) as soon as practicable, in its capacity as custodian
of the pledged assets. The share certificates relating to the
newly issued shares, covered by this pledge, must be duly
annotated with the pledge by the Company, in a form
substantially analogous to that contained in Schedule E, at
the same time as issue of the new shares; and
8.3.4 as soon as practicable, in the event mentioned in Paragraph
8.2 above, (i) the pledge is annotated on the share
certificates representing the shares assigned to the Pledgor
following a merger, and these share certificates are delivered
to the Security Trustee, and (ii) the pledge is annotated in
the Shareholders' Register of the company which has issued and
assigned quotas or shares to the Pledgor, and a notarised copy
of the pages of the Shareholders' Register of this company
evidencing this annotation is delivered to the Security
Trustee.
8.4 The pledge of the Pledgor's shares resulting from future increases in
the capital of the Company or mergers in accordance with the provisions
of the above Paragraphs will be construed as forming part of the same
pledge created by this Agreement, with the date of this Agreement and
subject to the same provisions contained in this Agreement.
9. ASSIGNMENTS, TRANSFERS OR AMENDMENTS
9.1 The Security Trustee may assign and transfer all or any of its rights
and obligations under this Agreement in accordance with the Security
Trust and Intercreditor Deed. The Security Trustee shall be entitled to
disclose such information concerning the Pledgor, the Company and this
Agreement as the Security Trustee considers appropriate to any actual
or proposed direct or indirect successor or to any person to whom
information may be required to be disclosed by any applicable law.
- 12 -
9.2 To the extent permitted under the Security Trust and Intercreditor
Deed, any assignment or transfer of the Secured Contracts or of the
Secured Obligations will be, and take effect as, an assignment or
transfer of the contract ("cessione del contratto") and the assignment
or transfer of the rights under the contract ("cessione del credito"),
as the case may be, without novative effect ("efficacia novativa") on
the contracts themselves or on the Secured Obligations existing at the
time the assignment or transfer is perfected.
9.3 The Pledgor shall ensure that, if requested by the Security Trustee,
the Company will annotate the Shareholders' Register with any
assignment or succession of any of the Secured Creditors under the
Secured Contracts or the Secured Obligations upon receipt of evidence
of such assignment or succession. For the avoidance of doubt, when such
assignment takes place on or after the exchange of all or any Global
Senior Notes or Global Junior Notes for Definitive Registered Senior
Notes or Definitive Registered Junior Notes (as the case may be), the
Pledgor shall only be required to annotate the Shareholders Register
using all commercially reasonable and practicable efforts (including
annotating the assignment or succession by reference to a list if
annotation on the Shareholders Register is not commercially
reasonable). For the purposes of this Clause 9.3, the terms "Global
Senior Notes", "Global Junior Notes", and "Definitive Registered Junior
Notes" shall have the meanings given to such terms in the Senior Note
Indenture and the Junior Note Indenture respectively.
9.4 The Pledgor also authorises the Security Trustee, if deemed necessary
by the Security Trustee, to annotate, after the endorsement by way of
security on the share certificates relating to the Pledged Shares, any
assignment or substitution of any of the Secured Creditors under the
Secured Contracts or the Secured Obligations.
9.5 Without prejudice to the Paragraphs above and to Article 10 below, the
Pledgor confirms and accepts that the pledge created by this Agreement
will remain in full force and effect and will be binding on the
Pledgor, its successors and assignees even after any change in all or
any of the Secured Contracts or in all or any of the Secured
Obligations - to the extent such changes are made in compliance with
the provisions of the Secured Contracts (including, without limitation,
the extension of the facilities; the postponement of the terms of
reimbursement of the outstanding amounts; or the accession to any of
the Secured Contracts of any additional obligor), and to this purpose
the Pledgor expressly agrees to the continuation of the pledge created
by this Agreement, in case of changes in all or any of the Secured
Contracts or in all or any of the Secured Obligations (including by way
of novation of all or any of the Secured Contracts under English law).
9.6 The Pledgor undertakes to confirm in writing, if the Security Trustee
so requests, its agreement to the provisions of the above Paragraphs of
this Article 9, doing so either at the same time or before any change
in all or any of the Secured Contracts or in any or all of the Secured
Obligations - to the extent such changes are made in compliance with
the provisions of the Secured Contracts.
9.7 Upon a change in all or any of the Secured Contracts or a change in all
or any of the Secured Obligations, including, without limitation, the
accession to any of the Secured Contracts of any additional obligor,
the Pledgor must, if deemed necessary by the Security Trustee:
- 13 -
9.7.1 execute a deed of confirmation, in a form deemed satisfactory
by the Security Trustee, acting in good faith;
9.7.2 procure that the Company annotates the change in the
Shareholders' Register of the Company; and
9.7.3 deliver to the Security Trustee a notarised copy of the pages
of the Shareholders' Register of the Company showing the above
annotation.
9.8 The Pledgor authorises the Security Trustee, if deemed necessary by the
Security Trustee, to annotate on the share certificates representing
the Pledged Shares the change in any or all of the Secured Contracts
and/or in any or all of the Secured Obligations referred to in
Paragraph 9.5.
9.9 Without prejudice to Paragraph 9.3 above, any cost incurred as a result
of transfer or assignments of the rights arising under this Article 9,
are for the account of the Pledgor.
10. PLEDGOR'S UNDERTAKINGS
10.1 The Pledgor must, with reference to the Pledged Shares:
10.1.1 without prejudice to Paragraph 9.3 above, from time to time
and at any time, promptly and at its own expense enter into
and execute any further documents and deeds and undertake all
further actions (including making all filings and
registrations) which are necessary and requested by the
Security Trustee in order to create, perfect, protect and
maintain the effectiveness of the pledge created by this
Agreement or for the exercise of all rights, powers and
remedies of the Security Trustee provided by or pursuant to
this Agreement or by law and/or to facilitate the realisation
of the Pledged Shares. For the avoidance of doubt, the
undertaking in this Paragraph 10.1.1 shall include an
undertaking by the Pledgor to enter into and execute any deeds
of confirmation under Article 1232 of the Italian Civil Code
which may be requested by the Security Trustee upon a change
in all or any of the Secured Contracts or a change in all or
any of the Secured Obligations;
10.1.2 during the continuance of an Enforcement Event deliver to the
Security Trustee a copy of any notice convening a
shareholders' meeting of the Company, whether ordinary or
extraordinary, at least 10 (ten) Business Days before the date
the meeting is convened, together with all related attachments
and any other notices related to the shareholders' meetings
and sent by the Company to its shareholders;
10.1.3 during the continuance of an Enforcement Event deliver to the
Security Trustee a notice summarising the items on the
proposed agenda of any total shareholders' meeting (assemblea
totalitaria) of the Company, at least 5 (five) Business Days
before the date scheduled for the meeting, which will be
binding on the Pledgor after receipt of such notice by the
Security Trustee;
10.1.4 except as not expressly prohibited under the terms of the
Indentures, not:
- 14 -
(a) create or permit to arise any mortgage, charge or
lien or other security interest on the Pledged Shares
or any interest in or part of the Pledged Shares; or
(b) sell or attempt to sell or otherwise dispose of the
Pledged Shares or any interest in or part of the
Pledged Shares.
10.1.5 without prejudice and in addition to Article 8, grant in
pledge in favour of the Security Trustee, under terms
substantially equivalent to the terms of this Agreement, any
additional shares of the Company which for any reason may be
assigned to the Pledgor; and
10.1.6 deliver to the Security Trustee, within 10 (ten) Business Days
after the execution of this Agreement, a copy of a letter
signed by the Company, in which the Company acknowledges the
obligations created pursuant to this Agreement.
10.2 The costs arising as a result of the above-mentioned obligations will
be borne by the Pledgor.
11. ENFORCEMENT OF THE PLEDGE
11.1 The Pledgor accepts that at any time after the occurrence of an
Enforcement Event or of a Bonding Facility Enforcement Event and the
Security Trustee (acting on instructions received pursuant to the terms
of the Security Trust and Intercreditor Deed) giving notice to the
Issuer thereof and after five days from service of notice to the
Pledgor in accordance with Article 2797, first paragraph, of the
Italian Civil Code, the Security Trustee is authorised, in its absolute
discretion, upon the terms and conditions set out under Clause 10
(Action and Enforcement Action) of the Security Trustee and
Intercreditor Deed, to enforce the Transaction Security and therefore
to sell the Pledged Shares in whole or in part, and in one or more
stages, pursuant to Article 2797, last paragraph, of the Italian Civil
Code. The Security Trustee, on behalf of the Secured Creditors, may
also, in its absolute discretion, appoint a different credit
institution to arrange the sale, or a financial brokerage company or
any other specialised operator in the securities market, or proceed
directly to a sale to third parties. A report of the terms of the sale
effected as per above must however be delivered to the Pledgor.
11.2 The above is without prejudice to any other form of enforcement of the
pledge or sale of shares as provided for by law, including, without
limitation, the ability to request the assignment by way of payment of
the Pledged Shares.
11.3 For the purposes of the above, the Pledgor accepts that the Security
Trustee may represent each of the Secured Creditors with respect to any
formalities relating to the enforcement of the pledge and the transfer
of the Pledged Shares, and/or any related pre-emptive rights.
12. SECURITY TRUSTEE
The Pledgor acknowledges that The Law Debenture Trust Corporation
p.l.c., as Security Trustee, is appointed as "mandatario con
rappresentanza" under Clause 6.5 (Declaration
- 15 -
of Trust and Appointment as Administrator (Italy)) of the Security
Trust and Intercreditor Deed.
13. RELEASE OF THE PLEDGE
Upon full and final satisfaction of the Secured Obligations, upon
expiry of any hardening period which may be applicable to the relevant
payments (as provided above under Paragraph 4.1), or if previously, at
the occurrence of the circumstances as specified in Clause 5.3 (Release
of Transaction Security on Discharge of Secured Obligations) and Clause
5.4 (Release of Transaction Security in Connection with Permitted
Disposals) of the Security Trust and Intercreditor Deed, the pledge
created by, and the obligations under, this Agreement will cease to be
in full force and effect, all of the rights attached to the Pledged
Shares will return to the Pledgor, and, at the request and cost of the
Pledgor, the Security Trustee (in accordance with the terms and subject
to the conditions and circumstances set out in the Security Trust and
Intercrefitor Deed and without recourse to, or any representation or
warranty by, the Security Trustee or any of its nominees) will consent
to annotation of the cancellation of the pledge created by this
Agreement in the Shareholders' Register of the Company by giving
appropriate instructions to the Company, will return the share
certificates relating to the Pledged Shares back to the Pledgor and
will consent to the annotation of the release on the certificate
representing the shares, provided that at the occurrence of the
circumstances specified in Clause 5.4 (Release of Transaction Security
in Connection with Permitted Disposal) of the Security Trust and
Intercreditor Deed, the pledge created by, and the obligations under,
this Agreement will cease to be in full force and effect only in
respect of the Pledged Shares forming part of the Transaction Security
(as defined in the Security Trust and Intercreditor Deed) so released
pursuant to that clause and the Security Trustee's consent to the
release of the pledge created by the Agreement will be limited to the
assets so released.
14. ELECTION OF DOMICILE AND NOTICES
14.1 For the purposes of this Agreement and of the security rights arising
under this Agreement, the Pledgor elects domicile at the address
referred to below. The Pledgor may be sent any communication relating
to this Agreement and to the pledge rights created by this Agreement at
the elected domicile, including notice of any legal proceedings and
records of any judicial proceedings related to this Agreement and to
the pledge created by this Agreement. Unless otherwise agreed upon, any
notice or communication to be sent to any of the parties to this
Agreement shall be made and delivered in accordance with the provisions
of the Security Trust and Intercreditor Deed.
If to the PLEDGOR:
Marconi Holdings S.p.A.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇,
▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇
- ▇▇ -
Telephone: +39/010/▇▇▇▇▇▇▇
Fax: +39/010/▇▇▇▇▇▇▇
With copy to:
▇▇. ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ Erede ▇▇▇▇▇▇▇▇▇▇ - Studio Legale
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇/▇
▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇
Telephone: +39/010/84621
Fax: +39/010/813849
If to the COMPANY:
Marconi Communications S.p.A.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇,
▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇
Attention: Presidente del ▇▇▇▇▇▇▇▇▇ di Amministrazione
Telephone: +39/010/▇▇▇▇▇▇▇
Fax: 010/▇▇▇▇▇▇▇
With a copy to:
▇▇. ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ Erede ▇▇▇▇▇▇▇▇▇▇ - Studio Legale
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇/▇
▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇
Telephone: +39/010/84621
Fax: +39/010/813849
If to the SECURITY TRUSTEE:
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
England
Tel. +44/20/7606/5451
Fax. +44/20/7696/5261
To the attention of: Manager Trust Administration
- 17 -
15. MISCELLANEOUS
15.1 No amendment to the provisions of this Agreement, or to the pledge
created by this Agreement, and no waiver of the rights arising under
this Agreement, will be effective unless the amendment or waiver is in
writing and executed by the Pledgor and by the Security Trustee.
15.2 This Agreement is made in the English language only. However, where an
Italian translation of a word or phrase appears in the text of this
Agreement, the Italian translation of the word or phrase prevails.
16. GOVERNING LAW AND JURISDICTION
16.1 This Agreement and the rights arising under the pledge created by this
Agreement are governed by Italian law.
16.2 Unless otherwise provided for by mandatory law, the Court of Milan has
the exclusive jurisdiction to hear any dispute arising between the
parties out of this Agreement and the pledge created by this Agreement.
Notwithstanding the foregoing, the right of the Secured Creditors to
have recourse to any other competent judge pursuant to any applicable
provision of law remains unprejudiced.
17. EXPENSES, COSTS AND TAXES
17.1 EXPENSES
The Pledgor shall, from time to time and promptly on demand by the
Security Trustee, reimburse to the Security Trustee all costs and
expenses (including legal fees) on a full indemnity basis together with
any applicable VAT incurred by the Security Trustee and any Delegate
(provided that in relation to Paragraph 17.1.1 of this Article 17, such
costs and expenses must be properly incurred) in connection with:
17.1.1 the execution, release and discharge of this Agreement and the
Security created or intended to be created in respect of the
Pledged Shares and the perfection of the Security contemplated
in this Agreement or in any such documents or forming part of
the Security created or intended to be created in respect of
the Pledged Shares;
17.1.2 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 Agreement;
17.1.3 the foreclosure of any Pledged Shares; and
17.1.4 the preservation and/or enforcement of the Security created or
intended to be created in respect of the Pledged Shares,
which shall carry interest from the date of such demand until so
reimbursed at the rate and on the basis as mentioned in Clause 18.4
(Interest on Demands) of the Security Trust and Intercreditor Deed.
- 18 -
17.2 TAXES
The Pledgor 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 Agreement any
amendment thereto, any transfer and/or assignment of the rights and/or
obligations under the same or the Security created or intended to be
created in respect of the Pledged Shares and shall, from time to time,
indemnify the Security Trustee promptly on demand against any
liabilities, costs, claims and expenses resulting from any failure to
pay by the Pledgor or any delay by any Pledgor in paying any such Taxes
or fees.
17.3 This Agreement is subject to registration in "caso d'uso", as provided
in Law No. 131 of April 26, 1986, as subsequently amended, as it is an
agreement executed outside the Republic of Italy.
London, 19 May 2003
▇. ▇▇▇▇▇▇
▇▇▇▇▇▇▇ HOLDINGS S.P.A.
REPRESENTED BY: ▇▇▇▇ ▇▇▇▇▇▇
▇. ▇. ▇▇▇▇▇
THE LAW DEBENTURE TRUST CORPORATION P.L.C.
SECURED CREDITOR AND SECURITY TRUSTEE
REPRESENTED BY: ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
- 19 -
SCHEDULE A1
(Summary of Terms and Conditions of the Senior Note Indenture and the Senior
Notes)
ISSUER: Marconi Corporation plc
CURRENCY: US Dollars
NOTIONAL AMOUNT: US $ 717,139,584
ACCRUED INTEREST: 8 per cent. per annum, payable quarterly in arrears
LEGAL MATURITY DATE: 30 April 2008
DEPOSITORY: The Bank of New York
ISSUE DATE: 19 May 2003
RATING: pending
GOVERNING LAW: English
DESCRIPTION OF THE SENIOR NOTES
Each series of each tranche of the Senior Notes will initially be represented by
one or more global notes in bearer form without interest coupons attached (each
a "Global Senior Note" and together the "Global Senior Notes"). Title to the
Global Senior Notes will pass by delivery. The holder of any certificate
representing any series of any tranche of Senior Notes, including any Global
Senior Note (the "holder"), is the person that has possession of the
certificate, in the case of a bearer certificate, and the person in whose name
the certificate is registered, in the case of a certificate in registered form.
The Global Senior Notes will be deposited on issue with The Bank of New York, as
depositary (the "Depositary") pursuant to a Deposit Agreement. Under the Deposit
Agreement, the Depositary will issue certificateless depositary interests to The
Depositary Trust Company ("DTC") and certificated depositary interests (and,
together with the certificateless depositary interests, "CDI" or "CDIs") to
Euroclear and/or Clearstream, Luxembourg, which together represent a 100 per
cent. interest in each underlying Global Senior Note. The CDIs will be
registered in the name of Cede & Co., as nominee of DTC (with respect to CDIs
issued to DTC) or the nominee of a common depositary for Euroclear and
Clearstream, Luxembourg (with respect to CDIs issued to Euroclear and/or
Clearstream, Luxembourg). Upon acceptance by DTC, Euroclear and/or Clearstream,
Luxembourg of the CDIs for entry into their respective book-entry settlement
systems, beneficial interests in the CDIs (the "Book-Entry Interests") will be
issued by DTC, Euroclear and/or Clearstream, Luxembourg and traded through their
respective book-entry systems.
The Book-Entry Interests will not be held in definitive form. Book-Entry
Interests will be held by or through persons that have accounts with DTC,
Euroclear and/or Clearstream, Luxembourg (the "direct participants") or persons
that hold interests through direct participants (the "indirect participants"
and, together with direct participants, "participants").
- 20 -
Ownership of the Book-Entry Interest will be shown on, and the transfer of
ownership will be effected only through, records maintained in book-entry form
by DTC, Euroclear, Clearstream, Luxembourg and their participants. Book-Entry
Interests will be transferable only as units in the same authorized
denominations as the Senior Notes of the series to which they correspond. Unless
any series of the Senior Notes is exchanged in whole or in part for other
securities of the Issuer, or the applicable Global Senior Note is exchanged for
the Senior Notes in definitive register form (the "Definitive Registered
Notes"), the CDIs representing notes of a series held by DTC, Euroclear and/or
Clearstream, Luxembourg may not be transferred except as a whole between DTC,
Euroclear and/or Clearstream, Luxembourg, a nominee of DTC, the nominee of a
common depositary for Euroclear and Clearstream, or their respective successors.
So long as the Depositary or its nominee is the holder of the Global Senior
Note(s) representing the Senior Notes of a series, the Depositary or its nominee
will be considered the sole holder of the Global Senior Note(s) for all purposes
under the Senior Note Indenture. Except in the limited circumstances when
Definitive Registered Notes can be issued, described below, no participant or
other person will be entitled to have the Senior Notes registered in its name,
receive or be entitled to receive physical delivery of Definitive Registered
Notes or be considered the owner or holder of the Senior Notes under the Senior
Note Indenture or the Deposit Agreement. Accordingly, each person owning a
Book-Entry Interest must rely on the procedures of the Depositary and DTC,
Euroclear and/or Clearstream, Luxembourg and, if the person is not a direct
participant in DTC, Euroclear and/or Clearstream, Luxembourg, such person must
rely on the procedure of the direct participant or other securities intermediary
through which the person owns its interest, to exercise any rights and
obligations of a holder under the Senior Note Indenture, the applicable series
of Senior Notes or the Deposit Agreement.
So long as DTC, Euroclear and/or Clearstream, Luxembourg hold the CDIs
representing the Senior Notes, the Book-Entry Interests (and corresponding
Global Senior Notes) will not be exchangeable for Definitive Registered Notes
except if:
- DTC, Euroclear or Clearstream, Luxembourg notify the Depositary that
it is unwilling or unable to continue to hold the CDI or CDIs, or if
at any time DTC is unable to or ceases to be a clearing agency
registered under the US Exchange Act, and in either case a successor
to DTC is not appointed by the Depositary at the written request of
the Issuer within 120 days;
- The Depositary notifies the Issuer and the Senior Note Trustee that it
is unwilling or unable to continue to act as Depositary, and the
Issuer is unable to appoint a successor depositary within 120 days;
- Upon request of DTC, Euroclear, Clearstream, Luxembourg, the Issuer or
the Trustee, in the event that a winding up of the Issuer or an Event
of Default under the Senior Note Indenture has occurred and is
continuing;
- Euroclear or Clearstream, Luxembourg is closed for business for a
continuous period of 14 days (other than by reason of legal holiday)
or announces an intention permanently to cease business; or
- 21 -
Any Global Senior Note that is exchangeable pursuant to the above shall be
exchangeable for Definitive Registered Notes of the same series bearing interest
at the same rate, having the same date of issuance, the same date or dates from
which such interest shall accrue, the same Interest Payment Dates on which such
interest shall be payable, the same Stated Maturity, redemption provisions,
Relevant Currency and other terms and of different denominations aggregating a
like amount as the Global Senior Note of the series so exchangeable.
- 22 -
SCHEDULE A2
(Summary of Terms and Conditions of the Junior Note
Indenture and the Junior Notes)
ISSUER: Marconi Corporation plc
CURRENCY: US Dollars
NOTIONAL AMOUNT: USD $ 486,881,472
ACCRUED INTEREST: 10 per cent. per annum, or 12 per cent. if the Issuer
elects to pay interest in the form of PIK notes
LEGAL MATURITY DATE: 31 October 2008
DEPOSITORY: The Bank of New York
ISSUE DATE: 19 May 2003
RATING: Pending
GOVERNING LAW: English
DESCRIPTION OF THE JUNIOR NOTES
Each series of each tranche of the Junior Notes will initially be represented by
one or more global notes in bearer form without interest coupons attached (each
a "Global Junior Note" and together the "Global Junior Notes"). Title to the
Global Junior Notes will pass by delivery. The holder of any certificate
representing any series of any tranche of Junior Notes, including any Global
Junior Note (the "holder"), is the person that has possession of the
certificate, in the case of a bearer certificate, and the person in whose name
the certificate is registered, in the case of a certificate in registered form.
The Global Junior Notes will be deposited on issue with The Bank of New York, as
depositary (the "Depositary") pursuant to a Deposit Agreement. Under the Deposit
Agreement, the Depositary will issue to The Depositary Trust Company ("DTC")
certificateless depositary interests and certificated depositary interests (and,
together with the certificateless depositary interests, the "CDI" or "CDIs") to
Euroclear and/or Clearstream, Luxembourg CDIs, which together represent a 100
per cent. interest in each underlying Global Junior Note. The CDIs will be
registered in the name of Cede & Co., as nominee of DTC (with respect to CDIs
issued to DTC) or the nominee of a common depositary for Euroclear and
Clearstream, Luxembourg (with respect to CDIs issued to Euroclear and/or
Clearstream, Luxembourg). Upon acceptance by DTC, Euroclear and/or Clearstream,
Luxembourg of the CDIs for entry into their respective book-entry settlement
systems, beneficial interests in the CDIs (the "Book-Entry Interests") will be
issued by DTC, Euroclear and/or Clearstream, Luxembourg and traded through their
respective book-entry systems.
The Book-Entry Interests will not be held in definitive form. Book-Entry
Interests will be held by or through persons that have accounts with DTC,
Euroclear and/or Clearstream, Luxembourg
- 23 -
(the "direct participants") or persons that hold interests through direct
participants (the "indirect participants" and, together with direct
sparticipants, "participants").
Ownership of the Book-Entry Interest will be shown on, and the transfer of
ownership will be effected only through, records maintained in book-entry form
by DTC, Euroclear, Clearstream, Luxembourg and their participants. Book-Entry
Interests will be transferable only as units in the same authorized
denominations as the Junior Notes of the series to which they correspond. Unless
any series of the Junior Notes is exchanged in whole or in part for other
securities of the Issuer, or the applicable Global Junior Note is exchanged for
the Junior Notes in definitive register form (the "Definitive Registered
Notes"), the CDIs representing notes of a series held by DTC, Euroclear and/or
Clearstream, Luxembourg may not be transferred except as a whole between DTC,
Euroclear and/or Clearstream, Luxembourg, a nominee of DTC, the nominee of a
common depositary for Euroclear and Clearstream, or their respective successors.
So long as the Depositary or its nominee is the holder of the Global Junior
Note(s) representing the Junior Notes of a series, the Depositary or its nominee
will be considered the sole holder of the Global Junior Note(s) for all purposes
under the Junior Note Indenture. Except in the limited circumstances when
Definitive Registered Notes can be issued, described below, no participant or
other person will be entitled to have the Junior Notes registered in its name,
receive or be entitled to receive physical delivery of Definitive Registered
Notes or be considered the owner or holder of the Junior Notes under the Junior
Note Indenture or the Deposit Agreement. Accordingly, each person owning a
Book-Entry Interest must rely on the procedures of the Depositary and DTC,
Euroclear and/or Clearstream, Luxembourg and, if the person is not a direct
participant in DTC, Euroclear and/or Clearstream, Luxembourg, such person must
rely on the procedure of the direct participant or other securities intermediary
through which the person owns its interest, to exercise any rights and
obligations of a holder under the Junior Note Indenture, the applicable series
of Junior Notes or the Deposit Agreement.
So long as DTC, Euroclear and/or Clearstream, Luxembourg hold the CDIs
representing the Junior Notes, the Book-Entry Interests (and corresponding
Global Junior Notes) will not be exchangeable for Definitive Registered Notes
except if:
- DTC, Euroclear or Clearstream, Luxembourg notify the Depositary that it
is unwilling or unable to continue to hold the certificateless
depositary interest or interests, or if at any time DTC is unable to or
ceases to be a clearing agency registered under the US Exchange Act,
and in either case a successor to DTC is not appointed by the
Depositary at the written request of the Issuer within 120 days;
- The Depositary notifies the Issuer and the Junior Note Trustee that it
is unwilling or unable to continue to act as Depositary, and the Issuer
is unable to appoint a successor depositary within 120 days;
- Upon request of DTC, Euroclear, Clearstream, Luxembourg, the Issuer or
the Trustee, in the event that a winding up of the Issuer or an Event
of Default under the Junior Note Indenture has occurred and is
continuing;
- Euroclear or Clearstream, Luxembourg is closed for business for a
continuous period of 14 days (other than by reason of legal holiday) or
announces an intention permanently to cease business; or
- 24 -
Any Global Junior Note that is exchangeable pursuant to the above shall be
exchangeable for Definitive Registered Notes of the same series bearing interest
at the same rate, having the same date of issuance, the same date or dates from
which such interest shall accrue, the same Interest Payment Dates on which such
interest shall be payable, the same Stated Maturity, redemption provisions,
Relevant Currency and other terms and of different denominations aggregating a
like amount as the Global Junior Note of the series so exchangeable.
- 25 -
SCHEDULE B
PART I
(List of the New Bonding Facility Banks and New Bonding Facility Agent)
NEW BONDING FACILITY BANKS
HSBC Bank plc, with registered office at ▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇.
JPMorgan Chase Bank, acting through an office at ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇.
NEW BONDING FACILITY AGENT
HSBC Bank plc, with registered office at ▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇.
PART II
(Summary of Terms and Conditions of the New Bonding Facility Agreement)
FACILITY: Multicurrency revolving facility
MAXIMUM AGGREGATE PRINCIPAL AMOUNTS: E50,000,000
INTEREST RATE: fronting fee of 0.10% per annum plus bonding fee of 0.50% per
annum;
DEFAULT INTEREST: the default interest rate shall be the interest rate equal to
the applicable LIBOR plus 2.0% per annum plus 0.50% per annum plus the
applicable mandatory cost (if any) for successive interest period;
REPAYMENT: the availability period under the New Bonding Facility Agreement will
end on the date which is 18 (eighteen) months after the Effective Date of the
Scheme, provided that such availability period may be extended to a date which
is up to 30 (thirty) months after the Effective Date of the Scheme, but, in each
case, letters of credit which have been made available during such availability
period may continue after the availability period has come to the end. When used
in this Schedule, the terms "Effective Date" and "Scheme" shall have the meaning
given to such terms in the New Bonding Facility Agreement.
- 26 -
SCHEDULE C
(List Of Guarantors)
PART I
Marconi Communications Inc.
Marconi Networks Worldwide, Inc.
Marconi Communications Technology, Inc.
Marconi Communications Federal, Inc.
Marconi Acquisition Corp.
Marconi Intellectual Property (Ringfence) Inc.
Marconi Communications Limited, a private limited company incorporated under the
laws of England and Wales
Marconi Communications Optical Networks Limited
Marconi Communications, S.A. de ▇.▇.
▇▇▇▇▇▇▇ Communications de Mexico, S.A. de ▇.▇.
▇▇▇▇▇▇▇ Communications Exportel, S.A. de C.V.
Administrativa Marconi Communications, S.A. de ▇.▇.
▇▇▇▇▇▇▇ Communications BV
Marconi Communications GmbH, a private company incorporated under the laws of
Germany
Metapath Software International Limited
Mobile Systems International Holdings Limited
GPT Special Project Management Limited
Marconi Communications Limited, a private limited company incorporated under the
laws of the Republic of Ireland
Marconi Communications International Limited
Marconi Communications China Limited
Marconi Communications International Investments Limited
Marconi Communications International Holdings Limited
Marconi Communications Investments Limited
- 27 -
Marconi Communications Holdings Limited
Marconi (▇▇▇▇▇▇ Street) Limited
Marconi (DGP1) Limited
Marconi (DGP2) Limited
Marconi Bonding Limited
Marconi Optical Components Limited
Associated Electrical Industries Limited
English Electric Company Ltd
Marconi (▇▇▇▇▇▇▇ Automation) Limited
▇▇▇▇▇▇▇-Automation Holdings Limited
Marconi Aerospace Unlimited
Marconi UK Intellectual Property Limited
Marconi (NCP) Limited
Highrose Limited
Marconi Inc.
Marconi Holdings, LLC
Marconi Communications North America Inc.
FS Holdings Corp.
FS Finance Corp.
Marconi Software International, Inc.
Metapath Software International (US), Inc.
Metapath Software International, Inc.
Marconi Intellectual Property (US), Inc.
Regents Place, Inc.
Marconi Communications Holdings GmbH
Marconi Communications GmbH, a private company incorporated under the laws of
Switzerland
Marconi Communications Real Estate GmbH
Marconi Holdings S.p.A.
- 28 -
Marconi Communications S.p.A.
Marconi Sud S.p.A.
Marconi Australia Holdings Pty Limited
Marconi Australia Pty Limited
Marconi Communications Asia Limited
G.E.C. (Hong Kong) Limited
▇▇▇▇▇▇ Street Overseas Investments Limited
PART II
Marconi Communications Inc.
Marconi Networks Worldwide, Inc.
Marconi Communications Technology, Inc.
Marconi Communications Federal, Inc.
Marconi Acquisition Corp.
Marconi Intellectual Property (Ringfence) Inc.
Marconi Communications Limited, a private limited company incorporated under the
laws of England and Wales
Marconi Communications Optical Networks Limited
Marconi Communications, S.A. de ▇.▇.
▇▇▇▇▇▇▇ Communications de Mexico, S.A. de ▇.▇.
▇▇▇▇▇▇▇ Communications Exportel, S.A. de C.V.
Administrativa Marconi Communications, S.A. de ▇.▇.
▇▇▇▇▇▇▇ Communications BV
Marconi Communications GmbH, a private company incorporated under the laws of
Germany
Metapath Software International Limited
Mobile Systems International Holdings Limited
GPT Special Project Management Limited
Marconi Communications Limited, a private limited company incorporated under the
laws of the Republic of Ireland
- 29 -
Marconi Communications International Limited
Marconi Communications China Limited
Marconi Communications International Investments Limited
Marconi Communications International Holdings Limited
Marconi Communications Investments Limited
Marconi Communications Holdings Limited
Marconi (▇▇▇▇▇▇ Street) Limited
Marconi (DGP1) Limited
Marconi (DGP2) Limited
Marconi Bonding Limited
Marconi Optical Components Limited
Associated Electrical Industries Limited
English Electric Company Ltd
Marconi (▇▇▇▇▇▇▇ Automation) Limited
▇▇▇▇▇▇▇-Automation Holdings Limited
Marconi Aerospace Unlimited
Marconi UK Intellectual Property Limited
Marconi (NCP) Limited
Highrose Limited
Marconi Inc.
Marconi Holdings, LLC
Marconi Communications North America Inc.
Regents Place Inc.
FS Holdings Corp.
FS Finance Corp.
Marconi Software International, Inc.
Metapath Software International (US), Inc.
Metapath Software International, Inc.
- 30 -
Marconi Intellectual Property (US), Inc.
Regents Place, Inc.
Marconi Communications Holdings GmbH
Marconi Communications GmbH, a private company incorporated under the laws of
Switzerland
Marconi Communications Real Estate GmbH
Marconi Holdings S.p.A.
Marconi Communications S.p.A.
Marconi Sud S.p.A.
Marconi Communications Telemulti Ltda
Marconi Australia Holdings Pty Limited
Marconi Australia Pty Limited
Marconi Communications Asia Limited
G.E.C. (Hong Kong) Limited
▇▇▇▇▇▇ Street Overseas Investments Limited
- 31 -
SCHEDULE D
(Form Of Endorsement By Way Of Security)
Il presente certificato azionario viene girato in pegno a favore di The Law
Debenture Trust Corporation p.l.c., con sede a ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇, Gran Bretagna; ciascun "Receiver"o "Delegate" (come definiti
▇▇▇ ▇▇▇▇▇▇▇▇▇ denominato "Security Trust and Intercreditor Deed", come definito
▇▇▇ ▇▇▇▇▇▇▇▇▇ di Pegno); The Bank of New York, con sede a ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇, ▇▇▇; Law Debenture Trust Company of New York, con sede a
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇, ▇▇▇; JPMorgan Chase
Bank, ufficio di Trinity Tower, 9 ▇▇▇▇▇▇ ▇▇▇▇ Street, Londra, E1W 1YT, Gran
Bretagna; HSBC Bank plc, con sede a City Corporate ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇-▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇, Gran Bretagna; HSBC Bank plc, con sede a ▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇, Gran Bretagna; e loro successori, cessionari ▇▇ ▇▇▇▇▇▇
causa, ai sensi del contratto di pegno sottoscritto in data 19 ▇▇▇▇▇▇ 2003 (il
"CONTRATTO DI PEGNO"), a garanzia delle Obbligazioni Garantite (Secured
Obligations, come ivi definite) di ciascuno dei Creditori Garantiti (Secured
Creditors, come ivi definiti), in base ai contratti descritti in tale scrittura,
ed ivi identificati quali Rapporti Garantiti (Secured Contracts). Il Contratto
di Pegno e depositato agli ▇▇▇▇ ▇▇▇▇▇ societa Marconi Communications S.p.A. Il
presente certificato viene consegnato a The Law Debenture Trust Corporation
p.l.c. in veste di "Security Trustee" e depositario per conto dei Creditori
Garantiti (Secured Creditors) ai sensi dell'art. 2786 codice civile.
- 32 -
SCHEDULE E
(Form Of Annotation On The Shareholders' Ledger)
N. [ - ] - [DATA]
COSTITUZIONE DI PEGNO
Si da atto che in forza del contratto per la costituzione di pegno su azioni
sottoscritto in data 19 ▇▇▇▇▇▇ 2003 in Londra, conservato in ▇▇▇▇ ▇▇▇▇▇ Societa
(il "CONTRATTO DI PEGNO"):
Marconi Holdings S.p.A. (il "COSTITUENTE"), con sede in Genova, titolare di N.
1.000.000 azioni ▇▇▇▇▇ ▇▇▇▇▇▇▇ Communications S.p.A. (la "SOCIETA"), aventi
valore nominale complessivo di Euro 15.000.000,00 e rappresentanti in totale il
100% del capitale sociale della Societa, ha costituito in pegno a favore di The
Law Debenture Trust Corporation p.l.c., con sede a ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇, Gran Bretagna; ciascun "Receiver"o "Delegate" (come definiti
▇▇▇ ▇▇▇▇▇▇▇▇▇ denominato "Security Trust and Intercreditor Deed", come definito
▇▇▇ ▇▇▇▇▇▇▇▇▇ di Pegno); The Bank of New York, con sede a ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇, ▇▇▇; Law Debenture Trust Company of New York, con sede a
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇, ▇▇▇; JPMorgan Chase
Bank, ufficio di Trinity Tower, 9 ▇▇▇▇▇▇ ▇▇▇▇ Street, Londra, E1W 1YT, Gran
Bretagna; HSBC Bank plc, con sede a City Corporate Banking Centre, ▇▇-▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇; HSBC Bank plc, con sede a ▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇ ▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇ e loro successori, cessionari ▇▇ ▇▇▇▇▇▇ causa, N.
1.000.000 azioni di sua proprieta, nel loro insieme costituenti una
partecipazione pari al 100% del capitale sociale della Societa (le "AZIONI
COSTITUITE IN PEGNO"), a garanzia del corretto e puntuale adempimento dei
crediti ivi definiti come Obbligazioni Garantite (Secured Obligations).
Il pegno di ▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ si estendera a tutte le azioni di
spettanza del Costituente o dei suoi aventi causa come risultanti da ogni
aumento di capitale gratuito o a pagamento sottoscritto dal Costituente.
I diritti di ▇▇▇▇ ▇▇ ai dividendi relativi alle Azioni Costituite in Pegno
rimarranno in capo al Costituente, ma verranno trasferiti ai titolari dei
diritti ▇▇ ▇▇▇▇▇, ▇▇▇▇▇ circostanze di cui all'Articolo 7 del Contratto di
Pegno.
____________________
UN AMMINISTRATORE
- 33 -
SCHEDULE F
(Form Of Ticket Of Admission)
[Letterhead of [-]]
To: [-]
[-]
[-]
[-]
ADMISSION TICKET
relating to the [Ordinary]/[Extraordinary] shareholders' meeting of Marconi
Communciations S.p.A. (the "COMPANY") to be held on:
- [-] at [-] [a.m.]/[p.m.] for the first summoning;
- [-] at [-] [a.m.]/[p.m.] for the second summoning,
to take place at [-], in [-]
issued in relation to:
No. 1,000,000 ordinary shares with a nominal value of Euro 15.00 and for a total
nominal value of Euro 15,000,000.00 (the "SHARES"), which have been granted in
pledge pursuant to a pledge agreement entered into on 19 May 2003 by and between
Marconi Holdings S.p.A., as pledgor, The Law Debenture Trust Corporation p.l.c.,
as security trustee of the financial entities indicated in the pledge agreement
as secured creditors, and the Company (the "PLEDGE AGREEMENT").
We hereby confirm that the Shares are kept in custody by [-], with registered
office at [-], in its capacity as custodian of the Shares for the purposes of
Article 2786 of the Civil Code, pursuant to the Pledge Agreement.
Date: ______________
____________________________
for [-]
- 34 -
Spett.le
[-]
[-]
[-]
[-]
BIGLIETTO DI AMMISSIONE
Relativo all'Assemblea [Ordinaria]/[Straordinaria] di [?] (la "SOCIETA"),
convocata per le seguenti date:
- [-], alle ore [-] in prima convocazione;
- [-] alle [-] in seconda convocazione,
da tenersi presso [-],
emesso in relazione a:
No. 1.000.000 azioni ordinarie ▇▇▇ ▇▇▇▇▇▇ nominale pari ad Euro 15,00 e per un
valore nominale complessivo pari ad Euro 15.000.000,00 (le "AZIONI"), le quali
sono state costituite in pegno ai sensi di un contratto per la costituzione di
pegno sottoscritto in data 19 ▇▇▇▇▇▇ 2003 tra Marconi Holdings S.p.A., in
qualita di costituente, The Law Debenture Trust Corporation p.l.c., in qualita
di rappresentante comune degli enti finanziari ivi indicati come creditori
pignoratizi, e la Societa (il "CONTRATTO DI PEGNO").
Con il presente biglietto di ammissione confermiamo che, a far data dal [-], le
Azioni sono tenute in custodia da [-], con sede in [-], in qualita ▇▇ ▇▇▇▇▇▇▇
delle Azioni ai fini dell'Articolo 2786 del Codice Civile, ai sensi del
Contratto di Pegno.
Data: ______________
------------------------------
per [-]
- 35 -