EXHIBIT 4.66
CONFORMED COPY
DATED 19 MAY 2003
(1) MARCONI COMMUNICATIONS, INC.
(2) THE LAW DEBENTURE TRUST CORPORATION p.l.c.
(AS TRUSTEE)
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MEMORANDUM OF DEPOSIT OF SHARES
AS SECURITY
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INDEX
1 Interpretation..................................................................... 1
2 Covenant To Pay.................................................................... 3
3 Interest........................................................................... 3
4 Deposit of Shares and Creation of Charge........................................... 4
5 Derivative Assets.................................................................. 4
6 Dividends and Other Monies......................................................... 4
7 Proviso for Redemption............................................................. 5
8 Voting and Other Rights............................................................ 5
9 Warranties and Undertakings........................................................ 6
10 Negative Pledge.................................................................... 6
11 Registration of Transfers.......................................................... 6
12 Default............................................................................ 6
13 Powers of Receiver................................................................. 7
14 Protection of Third Parties........................................................ 7
15 Trustee Entitled To Exercise Receiver's Powers..................................... 7
16 Continuing Security................................................................ 7
17 Currency Clause.................................................................... 8
18 Security Additional................................................................ 8
19 Consolidation...................................................................... 8
20 Expenses, Costs and Taxes.......................................................... 8
21 Further Assurance.................................................................. 9
22 Power of Attorney.................................................................. 9
23 Set Off............................................................................ 10
24 Severability....................................................................... 10
25 Remedies, Waivers, Indulgence, Consents and Amendments............................. 11
26 The Trustee's Discretion........................................................... 12
27 Notices............................................................................ 12
28 Assignment......................................................................... 12
29 Perpetuity Period.................................................................. 12
30 Counterpart Clause................................................................. 12
31 Governing Law and Jurisdiction..................................................... 12
THIS MEMORANDUM OF DEPOSIT made on the 19th of May 2003 BY:
(1) MARCONI COMMUNICATIONS, INC.
having its principal place of business at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, ▇▇▇
(the "Mortgagor")
IN FAVOUR OF:
(2) THE LAW DEBENTURE TRUST CORPORATION P.L.C.
having its head office at ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇▇ (the "TRUSTEE") as security trustee for itself and the other
Secured Creditors (as herein defined)
WITNESSES AS FOLLOWS:
1 INTERPRETATION
1.1 In this Memorandum unless the context otherwise requires:-
"BENEFICIALLY HELD SHARES" means the 2 shares of EUR1 held by Marconi
Networks Worldwide, Inc on behalf of the Mortgagor in the Company at
the date hereof;
"COMPANY" means Marconi Communications Optical Networks Limited a
company incorporated under the laws of Ireland (Registered Number
154999) having its registered office at West Pier Business Campus, Old
Dunleary Road, Dun Laoire, Co Dublin;
"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 waived in writing. For the
purposes of this definition, the term "Secured Obligations" shall have
the same meaning as in the Security Trust and Intercreditor Deed;
"DELEGATE" means any delegate, agent, attorney, co-trustee or
additional but separate committee, custodian, depository or receiver
appointed by the Trustee in accordance with the terms hereof and/or the
Security Documents;
"DERIVATIVE ASSETS" means all stocks, shares or other securities,
rights, monies or other property accruing, offered or issued at any
time by way of bonus, redemption, exchange, purchase, substitution,
conversion, preference, option or otherwise in respect of the Shares or
in respect of any stocks, shares or other securities, rights, monies or
other property previously accruing, offered or issued as mentioned in
this definition;
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"DIVIDENDS" means all dividends, interest and other income at any time
deriving from the Shares or the Derivative Assets or deriving from any
investment of any such dividends, interest or other income;
"ENFORCEMENT EVENT" has the meaning given to such term in the Security
Trust and Intercreditor Deed;
"MORTGAGOR" includes its successors and permitted assigns (whether
immediate or derivative);
"SECURED ASSETS" means all assets, rights, revenues and other property
of the Mortgagor the subject of any security created or evidenced or
expressed or intended to be created or evidenced by or pursuant to this
Memorandum and any reference to the "Secured Assets" includes a
reference to any of them;
"SECURED OBLIGATIONS" means all present and future indebtedness,
liabilities and obligations (for the avoidance of doubt, including any
liabilities and obligations which have been cash-collateralised by the
Mortgagor) at any time of the Mortgagor under the Relevant Documents,
both actual and contingent and whether incurred solely or jointly or in
any other capacity together with any of the following matters relating
to or arising in respect of those liabilities and obligations:
(a) any refinancing, novation, deferral or extension;
(b) any obligation relating to any increase in the amount of such
obligations;
(c) any claim for damages or restitution; and
(d) any claim as a result of any recovery by the Mortgagor of a
payment or discharge, or non-allowability, on the grounds of
preference,
and any amounts which would be included in any of the above but for any
discharge, non-provability or unenforceability of those amounts in any
insolvency or other proceedings (including interest accruing after the
commencement of any insolvency or other proceedings);
"SECURITY TRUST AND INTERCREDITOR DEED" means the security trust and
intercreditor deed dated on or about the date hereof between, amongst
others, the Trustee, Marconi Corporation plc as Issuer and other
obligors, Law Debenture Trust Company of New York as senior note
trustee, JPMorgan Chase Bank as junior note trustee and HSBC Bank plc
as New Bonding Facility Agent;
"SHARES" means the 451,392 ordinary shares of EUR 1 held by or on
behalf of the Mortgagor in the capital of the Company at the date
hereof together with any and all shares in the capital of the Company
held by the Mortgagor in the future; and
"TRUSTEE" includes 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.
1.2 In this Memorandum:-
1.2.1 any reference to a person shall be construed as a reference to
any person, firm, company, corporation, government, state or
agency of any government or state or any association or
partnership (whether or not having separate legal personality)
of any two or more of the foregoing;
1.2.2 any reference to any statutory provision, order or regulation
shall include reference to that provision, order or regulation
as extended, modified, replaced or re-enacted from time to
time (whether before or after the date hereof) and all
regulations and orders from time to
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time made thereunder or deriving validity therefrom and any
analogous provision or rule under any applicable law for the
time being in force;
1.2.3 any reference to any agreement or other document shall be
construed as a reference to such agreement or document as
amended or replaced from time to time and all agreements and
other documents supplemental thereto;
1.2.4 the singular shall include the plural and vice versa and the
masculine shall include the feminine and neuter and vice
versa;
1.2.5 any reference to a clause is, unless otherwise stated, a
reference to a clause of this Memorandum; and
1.2.6 headings are for reference purposes only and shall not affect
the interpretation of this Memorandum.
1.3 Unless otherwise defined herein, capitalised terms used herein shall
have the meanings given to them in the Security Trust and Intercreditor
Deed.
1.4 The parties hereto each acknowledge that the Trustee, when acting
hereunder, shall be acting in accordance with and subject to the terms
of the Security Trust and Intercreditor Deed.
1.5 Notwithstanding any provision to the contrary contained herein, the
parties agree that this Memorandum 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 COVENANT TO PAY
2.1 The Mortgagor hereby covenants with the Trustee as trustee for the
Secured Creditors that it shall on demand of the Trustee discharge all
the Secured Obligations and shall pay to the Trustee when due and
payable every sum at any time owing, due or incurred by it to the
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 nor the security
constituted by this Memorandum nor any other provision of this
Memorandum 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.
2.2 All payments to be made under this Memorandum by the Mortgagor shall be
made free and clear of and without deduction for taxes, levies,
imposts, duties, charges or withholdings of any nature whatsoever now
or hereafter imposed by any governmental, fiscal or other authority. If
the Mortgagor shall at any time be compelled by law to deduct or
withhold any amount from any payment to be made hereunder the Mortgagor
will concurrently pay to the Trustee such additional amount as will
result in payment to the Trustee of the full amount which would have
been received if such deduction or withholding had not been made.
3 INTEREST
If the Mortgagor fails to pay any sum on the due date for payment of
that sum the Mortgagor shall pay interest on any 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.
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4 DEPOSIT OF SHARES AND CREATION OF CHARGE
4.1 The Mortgagor hereby undertakes to deposit or cause to be deposited
with or to the order of the Trustee within 10 Business Days after the
date hereof the certificate relating to the Shares owned by it at the
date hereof and deliver or cause to be delivered within 10 Business
Days after the date hereof to or to the order of the Trustee or such
Delegate as the Trustee may appoint for this purpose a transfer form
duly completed by the Mortgagor and/or its nominee in respect of such
Shares to the intent that such Shares shall henceforth be held by the
Trustee (together with all Derivative Assets and Dividends) as trustee
for the Secured Creditors as a continuing security for the due payment
and discharge of the Secured Obligations.
4.2 The Mortgagor undertakes and agrees with the Trustee as trustee for the
Secured Creditors that upon the accrual, offer or issue of any Shares
in addition to the Shares referred to in clause 4.1 above, the
Mortgagor will within 10 Business Days thereafter deposit with or to
the order of the Trustee all the certificate(s) or other document(s) of
title relating to such Shares and deliver to or to the order of the
Trustee transfer form(s) relating to same (with the name of the
transferee, the consideration and the date left blank, but otherwise
duly completed), duly executed by each person in whose name such
certificate(s) or the document(s) of title is to the intent that the
Trustee shall hold such Shares as trustee for the Secured Creditors
(together with all Derivative Assets and Dividends) as a continuing
security for the due payment and discharge of the Secured Obligations.
4.3 The Mortgagor as beneficial owner hereby charges unto the Trustee as
trustee for the Secured Creditors by way of first specific charge all
its right, title and interest in and to the Beneficially Owned Shares,
the Shares, the Derivative Assets and the Dividends as security for the
payment and discharge of the Secured Obligations. The Mortgagor hereby
agrees that upon or after (but not, for the avoidance of doubt, prior
to) the occurrence of an Enforcement Event (which is continuing) the
Trustee shall be at liberty at any time to cause all or any of the
Secured Assets to be registered in the Trustee's name or in the name of
its nominee.
5 DERIVATIVE ASSETS
The Mortgagor undertakes and agrees with the Trustee as trustee for the
Secured Creditors that within 10 Business Days after the accrual, offer
or issue of any Derivative Assets the Mortgagor will deposit with or to
the order of the Trustee or with such Delegate as the Trustee may
approve for this purpose all certificate(s) or other document(s) of
title relating to such Derivative Assets and, within 10 Business Days
after any such accrual, offer or issue, deliver to or to the order of
the Trustee or any such Delegate transfer form(s) relating to same
(with the name of the transferee, the consideration and the date left
blank, but otherwise duly completed) duly executed by each person in
whose name such certificate(s) or other document(s) of title is to the
intent the Trustee shall hold such Derivative Assets as trustee for the
Secured Creditors as security for the Secured Obligations and such
Derivative Assets shall be subject to the provisions of this Memorandum
in all respects as if they formed part of the Shares.
6 DIVIDENDS AND OTHER MONIES
6.1 All Dividends and other monies forming part of the Secured Assets
(whether of the nature of capital or income) shall, as long as no
Enforcement Event has occurred and is continuing be paid to and
retained by the Mortgagor and any such Dividends and other such monies
which may be received by the Mortgagor shall, following the occurrence
of an Enforcement Event which is continuing, be held in trust for the
Trustee. The Trustee shall be entitled at any time following the
occurrence of an Enforcement Event (which is continuing) to apply all
Dividends and other such monies in or towards the reduction or
discharge of the Secured Obligations in accordance with the provisions
of the Security Trust and Intercreditor Deed. The Mortgagor shall,
following the occurrence of an Enforcement Event (which is continuing),
promptly execute and deliver (or cause
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to be executed and delivered) all such mandates or other authorities as
the Trustee may require for the purpose of enabling the Trustee to
receive all Dividends and other such monies.
6.2 The Trustee shall have no duty to ensure that any Dividends or other
monies forming part of the Secured Assets (whether of the nature of
capital or income) are duly and punctually paid, received or collected
or to ensure that the correct amounts (if any) are paid.
7 PROVISO FOR REDEMPTION
7.1 The Trustee shall, at the cost of the Mortgagor, release and cancel the
security constituted by this Memorandum and procure the reassignment to
the Mortgagors of the property and assets assigned to the Trustee
pursuant to this Memorandum 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 Trustee or any of its nominees.
7.2 A release or discharge of the Secured Assets or any of them from the
security hereby evidenced or created may be executed by the Trustee
alone and any such release shall be effective as if all the Secured
Creditors had executed the same and shall be effected in accordance
with the terms and subject to the conditions and warranties set out in
the Security Trust and Intercreditor Deed.
8 VOTING AND OTHER RIGHTS
8.1 Before Enforcement Event
Prior to the occurrence of an Enforcement Event and at any time when no
Enforcement Event is continuing, the Mortgagor shall:
8.1.1 be entitled to retain all Dividends, interest and other monies
arising from the Shares; and
8.1.2 exercise all voting rights in relation to the Shares provided
that the Mortgagor 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).
8.2 After Enforcement Event
The Trustee may, upon the occurrence of an Enforcement Event and at any
time thereafter while such an Enforcement Event is continuing, (in the
name of the Mortgagor or otherwise and without any further consent or
authority from the Mortgagor):
8.2.1 exercise (or refrain from exercising) any voting rights in
respect of any of the Shares;
8.2.2 apply all Dividends, interest and other monies arising from
any of the Shares in satisfaction of the Secured Obligations
in accordance with the Security Trust and Intercreditor Deed;
8.2.3 transfer any of the Shares into the name of such nominee(s) of
the Trustee as it shall require; and
8.2.4 exercise (or refrain from exercising) the powers and rights
conferred on or exercisable by the legal or beneficial owner
any of the Shares, including the right, in relation to any
company whose shares or other securities are included in the
Secured Assets, 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),
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(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 Trustee
may think fit, and the proceeds of any such action shall form
part of the Secured Assets.
8.3 The Mortgagor hereby irrevocably appoints the Trustee, its nominee and
each Delegate severally its proxy so to exercise all voting and other
rights and powers upon the occurrence of an Enforcement Event which is
continuing so long as any of the Secured Assets remain registered in
the name of the Mortgagor and undertakes to execute any form of proxy
required.
9 WARRANTIES AND UNDERTAKINGS
9.1 The Mortgagor represents and warrants to the Trustee that it is the
sole legal and beneficial owner of the Shares and the sole beneficial
owner of the Beneficially Owned Shares free from any Security (as such
term is defined in the Security Trust and Intercreditor Deed) except as
created by this Memorandum.
9.2 The Mortgagor represents and warrants to the Trustee that the Shares
are fully paid up.
10 NEGATIVE PLEDGE
The Mortgagor shall not after the date hereof except as not expressly
prohibited under the terms of the Indentures (a) create or permit to
subsist any Security over the Secured Assets or (b) permit any person
other than the Mortgagor, the Trustee, the Trustee's nominee, or any
Delegate any receiver appointed hereunder or any purchaser from the
Trustee or any such receiver to be registered as holder of the Secured
Assets or any of them.
11 REGISTRATION OF TRANSFERS
The Mortgagor shall take all steps within its power or procurement to
procure that any transfer of any of the Secured Assets to the Trustee
or its nominee or any Delegate or any receiver appointed hereunder or
to any purchaser from the Trustee or such a Delegate or such receiver
on a realisation of the security hereby evidenced or created shall be
registered by the directors of the Company.
12 DEFAULT
At any time after the occurrence of an Enforcement Event (which is
continuing) the security evidenced and created by this Memorandum shall
become enforceable and the Trustee (acting on instructions received
pursuant to the terms of the Security Trust and Intercreditor Deed) may
forthwith or at any time thereafter upon giving notice to the Mortgagor
(i) sell all or any of the Secured Assets in any manner permitted by
law upon such terms as the Trustee in its absolute discretion shall
determine and in relation to any such sale the provisions of the
Conveyancing Acts, 1881 to 1911 shall apply but without the
restrictions contained in Section 20 of the Conveyancing Act, 1881;
and/or (ii) collect, recover or compromise and give a good discharge
for any moneys payable in respect of the Secured Assets or in
connection therewith and/or (iii) by instrument in writing appoint any
person to be a receiver of all or any part of the Secured Assets and
may in like manner remove any such receiver and appoint another in his
stead.
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13 POWERS OF RECEIVER
13.1 Any receiver appointed hereunder upon the occurrence of an Enforcement
Event (which is continuing), shall, in addition to any powers conferred
on him by virtue of the Conveyancing Acts, 1881 to 1911, have power
from time to time (i) to take possession of, collect and get in all or
any of the Secured Assets and for this purpose to enter upon any
property of the Mortgagor; (ii) to carry on or concur in carrying on
the business of the Mortgagor; (iii) to settle, adjust, refer to
arbitration, arrange or compromise any claims, accounts, disputes,
questions and demands relating in any way to the Secured Assets which
he may think expedient; (iv) to bring, prosecute, enforce, defend and
abandon actions, suits and proceedings in relation to the Secured
Assets; (v) to sell or realise or concur in selling or realising all or
any of the Secured Assets upon any terms which such receiver shall
think reasonable (for which purpose the Mortgagor hereby irrevocably
appoints every receiver appointed hereunder to be the attorney of the
Mortgagor); (vi) for the purpose of exercising any of the rights,
powers or authorities conferred on any receiver appointed hereunder to
borrow or raise money either unsecured or on the security of the
Secured Assets (either in priority to the security hereby evidenced or
created) and generally on such terms and conditions as he may think
fit; and (vii) to do all such other acts and things as he may consider
desirable or necessary for realising the Secured Assets or any of them
or conducive to any of the matters, powers or authorities conferred on
any receiver appointed hereunder by this Memorandum or by law and to
exercise in relation to the Secured Assets or any of them all such
powers, authorities and things as he would be capable of exercising if
he were the absolute beneficial owner of the same and to use the name
of the Mortgagor for all or any of the purposes aforesaid.
13.2 Every receiver appointed hereunder shall be the agent of the Mortgagor
and the Mortgagor shall be solely responsible for his acts or defaults
and for his remuneration.
13.3 Any monies received by the Trustee or by any receiver shall, after the
security hereby constituted has become enforceable but subject to the
payment of any claims having priority to this security, be applied in
accordance with the terms of the Security Trust and Intercreditor Deed.
14 PROTECTION OF THIRD PARTIES
14.1 No purchaser or other person dealing with the Trustee, any Delegate or
any receiver appointed hereunder shall be bound or concerned to see or
enquire whether the right of the Trustee, any Delegate or any such
receiver to exercise any of the powers hereby conferred has arisen or
has become exercisable or be concerned with the propriety of the
exercise or purported exercise of such powers.
14.2 The receipt of the Trustee, any Delegate or any receiver appointed
hereunder shall be an absolute and conclusive discharge to a purchaser
or other person dealing with the Trustee or such Delegate or receiver
and shall relieve him of any obligation to see to the application of
any monies paid to or by the direction of the Trustee or such Delegate
or such receiver.
15 TRUSTEE ENTITLED TO EXERCISE RECEIVER'S POWERS
All or any of the powers, authorities and discretions which are
conferred by this Memorandum (either expressly or impliedly) upon any
receiver may be exercised after the security hereby evidenced or
created has become enforceable by the Trustee in relation to the whole
of the Secured Assets or any part thereof without first appointing a
receiver of the Secured Assets or any part thereof or notwithstanding
the appointment of a receiver of the Secured Assets or any part
thereof.
16 CONTINUING SECURITY
16.1 The security hereby evidenced and created shall constitute and be a
continuing security and shall not be considered satisfied by any
intermediate payment or satisfaction of all or any of the Secured
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Obligations and shall continue in full force and effect until all the
Secured Obligations have been discharged in full.
16.2 If the Trustee or any Secured Creditor shall at any time receive notice
of any subsequent mortgage, assignment, charge or other interest
affecting all or any of the Secured Assets, the Trustee or that Secured
Creditor (as the case may be) shall be entitled to open a new account
or accounts for the Mortgagor in its books and if the Trustee or that
Secured Creditor (as the case may be) does not in fact do so then
(unless the Trustee or that Secured Creditor (as the case may be) gives
express written notification to the Mortgagor that it has not done so)
as from the time when the Trustee or that Secured Creditor (as the case
may be) received such notice all payments made by the Mortgagor to the
Trustee or that Secured Creditor (as the case may be) shall be treated
as having been credited to such new account of the Mortgagor and not as
having been applied in reduction of the Secured Obligations outstanding
at the time of receipt of such notice by the Trustee or that Secured
Creditor (as the case may be).
17 CURRENCY CLAUSE
If any sum (a "SUM") owing by the Mortgagor under this Memorandum or
any order or judgment given or made in relation to this Memorandum 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:
(a) making or filing a claim or proof against the Mortgagor;
(b) obtaining an order or judgment in any court or other tribunal;
(c) enforcing any order or judgment given or made in relation to
this Memorandum; or
(d) applying the Sum in satisfaction of any of the Secured
Obligations,
the Mortgagor shall indemnify the 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 Trustee at the time of such receipt of such
Sum.
18 SECURITY ADDITIONAL
This Memorandum and the security hereby evidenced and created shall be
in addition to and shall not be affected by any other mortgage charge
pledge lien or other security or guarantee or indemnity which the
Trustee or any Secured Creditor may at any time hold for any of the
Secured Obligations. No other mortgage charge pledge lien or other
security or guarantee or indemnity now or hereafter held by the Trustee
or any Secured Creditor over the Secured Assets shall merge in the
security created by this Memorandum.
19 CONSOLIDATION
The restriction on the right of consolidating mortgages contained in
Section 17 of the Conveyancing Act, 1881 shall not apply in relation to
this Memorandum.
20 EXPENSES, COSTS AND TAXES
20.1 EXPENSES
The Mortgagor shall, from time to time and promptly on demand by the
Trustee reimburse the Trustee in respect of all costs and expenses
(including legal fees) on a full indemnity basis together
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with any applicable VAT incurred by the Trustee and any Delegate
(PROVIDED THAT in relation to sub-clause 20.1.1 of this clause 20.1,
such costs and expenses must be properly incurred) in connection with:
20.1.1 the execution, release and discharge of this Memorandum and
the Security created or intended to be created in respect of
the Secured Assets and the perfection of the Security
contemplated in this Memorandum or in any such documents or
forming part of the Security created or intended to be created
in respect of the Secured Assets;
20.1.2 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 Trustee
or any Delegate, or any amendment or waiver in respect of this
Memorandum;
20.1.3 the preservation and/or enforcement of the Security created or
intended to be created in respect of the Secured Assets; and
20.1.4 the foreclosure of any Secured Assets,
which shall carry interest from the date of such demand until so
reimbursed at the rate and on the basis as mentioned in clause 3.
20.2 TAXES
The Mortgagor shall pay promptly on demand of the Trustee all stamp,
registration, notarial and other similar taxes or fees paid or payable
by the Trustee in connection with any action taken or contemplated by
or on behalf of the Trustee for perfecting, enforcing, releasing,
cancelling, reassigning or resolving any doubt concerning, or for any
other purpose in relation to this Memorandum, 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 Secured Assets and shall, from time to time, indemnify the
Trustee promptly on demand against any liabilities, costs, claims and
expenses resulting from any failure to pay by the Mortgagor or any
delay by the Mortgagor in paying any such taxes or fees.
21 FURTHER ASSURANCE
The Mortgagor shall promptly do all such acts or execute all such
documents (including assignments, transfers, mortgages, charges,
notices and instructions) as the Trustee may specify (and in such form
as the Trustee may require in favour of the Trustee or its nominee(s)):
(a) to perfect the Security created or intended to be created in
respect of the Secured Assets (which may include the execution
by the Mortgagor of a mortgage, charge or assignment over all
or any of the assets constituting, or intended to constitute,
Secured Assets) or for the exercise of any rights relating
thereto;
(b) to confer on the Trustee Security over any property and assets
of that Company located in any jurisdiction outside Ireland
equivalent or similar to the Security intended to be conferred
by or pursuant to this Memorandum; and/or
(c) to facilitate the realisation of the Secured Assets.
22 POWER OF ATTORNEY
22.1 The Mortgagor hereby irrevocably and by way of security appoints the
Trustee, each Delegate and separately any receiver severally to be its
attorney (the "Attorney") in its name and on its behalf and as its act
and deed or otherwise to:-
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22.1.1 following the occurrence of an Enforcement Event (which is
continuing) execute, complete and perfect in favour of the
Trustee or its nominees or of any purchaser or any Delegate
any documents which the Trustee may require for perfecting its
title to or for vesting the Secured Assets in the Trustee or
its nominees or in any purchaser or any Delegate;
22.1.2 execute, complete and perfect all documents and do all such
acts and things as may be required for the full exercise of
all or any of the powers hereby conferred or which may be
deemed expedient by the Trustee, any Delegate or any receiver
on or in connection with any sale, lease, disposition,
realisation or getting in by the Trustee or any receiver of
the Secured Assets or any part thereof or in connection with
any other exercise of any power hereunder; and
22.1.3 execute, deliver and perfect all documents and do all things
which the Trustee, any Delegate or any receiver may consider
to be required or desirable for:
(i) carrying out any obligation imposed on the Mortgagor
by this Memorandum (including the execution and
delivery of any notices, deeds, charges, assignments
or other security and any transfers of the Secured
Assets); and
(ii) enabling the Trustee, each Delegate or any receiver
to exercise, or delegate the exercise of, any of the
rights, powers and authorities conferred on them by
or pursuant to this Memorandum or by law (including,
after the occurrence of an Enforcement Event (which
is continuing), the exercise of any right of a legal
or beneficial owner of the Secured Assets).
The Mortgagor hereby covenants with the Trustee, each Delegate and
separately with any receiver that on request it will ratify and confirm
all security agreements, documents, acts and things and all
transactions done and entered into by the Trustee, any Delegate or any
receiver or by the Mortgagor at the instance of the Trustee, any
Delegate or any receiver in the exercise or purported exercise of its
or his powers.
22.2 Each of the Trustee and any receiver shall have full power to delegate
the power conferred on it or him by this clause 22 but no such
delegation shall preclude the subsequent exercise of such power by the
Trustee or the receiver itself or himself or preclude the Trustee or
the receiver from making a subsequent delegation thereof to some other
person; any such delegation may be revoked by the Trustee or the
receiver at any time.
22.2 The Mortgagor 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 Memorandum unless such cost, claim or
liability arises as a result of the negligence or wilful misconduct of
the Attorney.
23 SET OFF
The Mortgagor authorises the Trustee (but the 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
Trustee to the Mortgagor.
24 SEVERABILITY
Each of the provisions of this Memorandum is severable and distinct
from the others and if at any time any such provision is or becomes
invalid illegal or unenforceable in any jurisdiction that shall not
affect the validity legality or enforceability of the remaining
provisions hereof or affect the
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validity legality or enforceability of such provision in any other
jurisdiction. Without prejudice to the foregoing, if at any time any
liability in relation to the Secured Obligations is or becomes invalid,
illegal or unenforceable then such occurrence shall not prejudice the
continuing effectiveness of the security evidenced or created by this
Memorandum for any liability in relation to the Secured Obligations
which is not so affected.
25 REMEDIES, WAIVERS, INDULGENCE, CONSENTS AND AMENDMENTS
25.1 The rights, powers and remedies provided in this Memorandum are
cumulative and not, nor are they to be construed as, exclusive of any
rights, powers or remedies provided by law or otherwise.
25.2 No failure or delay by the Trustee or any Secured Creditor in
exercising any right or remedy shall operate as a waiver thereof nor
shall any single or any partial exercise or waiver of any right or
remedy preclude its further exercise or the exercise of any other right
or remedy.
25.3 Any provision of this Memorandum may be amended, supplemented or
novated only if the Mortgagor and the Trustee so agree in writing. Any
waiver of, and any consent or approval by the Trustee under any
provision of this Memorandum shall not be effective unless it is in
writing, and may be given subject to any conditions thought fit by the
Trustee, may be withdrawn or modified at any time and shall be
effective only in the instance and for the purpose for which it was
given.
25.4 The liability of the Mortgagor hereunder will not be affected by any
act, omission, circumstances, matter or thing which but for this
provision would release or prejudice any of its obligations hereunder
or prejudice or diminish such obligation in whole or in part, including
without limitation and whether or not known to the Mortgagor, or the
Trustee or any Secured Creditor or any other person whatsoever:
25.4.1 any winding-up, dissolution, examinership, administration or
re-organisation of or other change in any Mortgagor or any
other person;
25.4.2 any of the Secured Obligations being at any time illegal,
invalid, unenforceable or ineffective;
25.4.3 any time or other indulgence being granted to any Mortgagor or
any other person;
25.4.4 any amendment, variation, waiver or release of any of the
Secured Obligations;
25.4.5 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;
25.4.6 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 Mortgagor hereunder.
25.5 Neither the Trustee, the Secured Creditors nor any receiver appointed
hereunder shall be under any liability for loss of any kind (including,
without limitation, any loss arising from changes in exchange rates or
the diminution in the value of any of the Secured Assets) which may be
occasioned by the exercise or purported exercise of, or any delay or
neglect to exercise any of its rights under or pursuant to this
Memorandum (except in the case of negligence or wilful default on its
part) and in particular without limitation neither the Trustee, the
Secured Creditors nor any receiver appointed hereunder shall (except in
the case of negligence or wilful default on its part) be liable to
account as mortgagee in possession or for anything except actual
receipts.
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26 THE TRUSTEE'S DISCRETION
26.1 Any liberty or power which may be exercised or any determination which
may be made hereunder by the Trustee may be exercised or made in the
absolute and unfettered discretion of the Trustee which shall not be
under any obligation to give reasons therefor.
27 NOTICES
27.1 Each communication to be made under this Memorandum shall be made and
delivered in accordance with the provisions of the Security Trust and
Intercreditor Deed.
28 ASSIGNMENT
28.1 This Memorandum shall be binding upon and inure to the benefit of each
party hereto and its successors personal representatives and permitted
assigns.
28.2 The Trustee and any Secured Creditor may assign or transfer all or any
of its rights and obligations hereunder in accordance with the Security
Trust and Intercreditor Deed. The Trustee and any Secured Creditor
shall be entitled to impart any information concerning the Mortgagor
and this Memorandum as the Trustee considers appropriate to any actual
or purported assignee, transferee or other successor or any
participant.
29 PERPETUITY PERIOD
The perpetuity period under the rule against perpetuities, if
applicable to this Memorandum, shall be the period of eighty years from
the date of the Security Trust and Intercreditor Deed.
30 COUNTERPART CLAUSE
This Memorandum may be executed in counterparts and by the parties on
separate counterparts each of which when executed and delivered shall
together constitute one and the same instrument.
31 GOVERNING LAW AND JURISDICTION
31.1 This Memorandum shall be governed by and construed in accordance with
the Laws of Ireland.
31.2 It is irrevocably agreed for the exclusive benefit of the Trustee and
each Secured Creditor that the courts of Ireland are to have
jurisdiction to settle any disputes which may arise out of or in
connection with this Memorandum and that accordingly any suit, action
or proceeding arising out of or in connection with this Memorandum (in
this clause referred to as "Proceedings") may be brought in such
courts. Nothing in this clause shall limit the right of the Trustee or
any Secured Creditor to take Proceedings against the Mortgagor in any
other court of competent jurisdiction, nor shall the taking of
Proceedings in one or more jurisdictions preclude the taking of
Proceedings in any other jurisdiction, whether concurrently or not.
31.3 The Mortgagor hereby irrevocably authorises and appoints Marconi
Communications Optical Networks Limited (or such other person, being a
firm of solicitors resident in Ireland as it may by notice to the other
parties hereto substitute) to accept service of all legal process
arising out of or connected with this Memorandum and service on Marconi
Communications Optical Networks Limited (or such substitute) shall be
deemed to be service on such party.
IN WITNESS whereof the Mortgagor has duly executed this Memorandum on the 19th
of May 2003
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SIGNED SEALED AND DELIVERED ▇▇▇▇▇ ▇▇▇▇▇
by the authorised attorney of
THE MORTGAGOR
in the presence of:
Witness Signature: H ▇▇▇▇▇▇
Witness name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Witness Address: ▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇, ▇▇▇▇▇▇ ▇
EXECUTED AS A DEED
on behalf of THE TRUSTEE by:- ▇. ▇. ▇▇▇▇
Director
▇. ▇. ▇▇▇▇▇
Director
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