EXHIBIT 4.16
[MARCONI LOGO]
CONFORMED COPY
MARCONI CORPORATION PLC
One Brutton Street
London WIJ 6AQ
Telephone: +44(0)20 7493 8484
Fax: +44 (0)20 7493 1974
Web site: www.marconi.com
4 November 2002
To: UBS AG
100 Liverpool Street
London EC2M 2RH
Attention: Matthew Jolly, Executive Director
Duncan Rodgers, Executive Director
Copy to: UBS AG
Bahnhofstrasse 45,
Zurich CH-270.3004.646-4
Switzerland
Dear Sirs
ISDA MASTER AGREEMENT DATED 3RD MARCH 1999 BETWEEN UBS AG AND MARCONI
CORPORATION PLC AS AMENDED, TOGETHER WITH ALL SCHEDULES AND EXHIBITS THERETO AND
ALL CONFIRMATIONS EXCHANGED PURSUANT TO TRANSACTIONS ENTERED INTO THEREUNDER
(TOGETHER, THE "AGREEMENT")
We refer to the Agreement. In consideration for the mutual covenants set out
below, and for such other valuable consideration receipt of which is hereby
acknowledged, it is agreed as follows.
1. INTERPRETATION
Unless otherwise defined in this Letter, terms defined in the Agreement
shall have the same meaning in this Letter.
2. TERMINATION NOTICE
(a) On 23rd October 2002, you issued a notice of an Event of
Default under the Agreement ("TERMINATION NOTICE"). The
Termination Notice alleged that an Event of Default had
occurred under Section 5(a)(vii)(9) of the Agreement (the
"EVENT") and purported to designate 24th October 2002 as the
Early Termination Date in respect of all Transactions governed
by the Agreement.
(b) On 24th October 2002, you ISSUED a statement under Section
6(d) of the Agreement ("SECTION 6(d) STATEMENT") alleging that
an amount of USD 31,598,367 was payable by us to you
("TERMINATION SUM").
(c) By letter to you dated 28th October 2002, we refuted the
Termination Notice and disputed the occurrence of the Event.
We continue to dispute that either the Termination Notice or
Section 6(d) Statement has been validly given and dispute that
the Termination Sum is payable.
3. WITHDRAWAL OF TERMINATION NOTICE
3.1 You hereby:
(a) unconditionally revoke and withdraw the Termination Notice and
Section 6(d) Statement;
(b) acknowledge and agree that no Early Termination Date has
occurred; and
(c) acknowledge and agree that no Termination Sum is, or has been,
payable by us.
3.2 We hereby waive all claims, rights and actions that we may have against
you as a result of the issue of the Termination Notice and Section 6(d)
Statement.
4. TRUE-UP PAYMENT
4.1 A periodic contractual payment under the Agreement of USD4,920,486.11
for the period from 3rd May 2002 to 4th November 2002 (the "CONTRACTUAL
PAYMENT") is due to be made by us to you on 4th November 2002.
4.2 We undertake, by 5pm London time on 4th November 2002 (the "PAYMENT
TIME"), to pay an amount of USD 4,388,542.00 to you in payment of a
pro-rata portion of the Contractual Payment for the period from 3rd May
2002 to 15th October 2002 (the "TRUE-UP PAYMENT"). The True-up Payment
shall be made to account number 101-WA-140007-000 with UBS AG, Stamford
in favour of UBS AG, London Branch.
4.3 Upon payment of the True-up Payment in accordance with paragraph 4.2
above, a grace period for payment shall apply to any other portion of
the Contractual Payment which remains unpaid at the Payment Time (the
"UNPAID PORTION"), such grace period to expire on the receipt by us of
a written demand from you for payment of the Unpaid Portion ("DEMAND").
4.4 You will not make any Demand under paragraph 4.3 until the earlier of:
(a) the date on which HSBC Investment Bank plc (as agent under our
E6 billion syndicated credit facility dated 25th March 1998)
(the "AGENT") serves notice of acceleration pursuant to the
terms of the letter dated 22 March 2002 from us and Marconi
plc to the Agent;
(b) the date on which (i) a resolution is passed at a meeting of
the members of Marconi Corporation plc for (or to petition
for) our winding up, or (ii) we present any petition for our
winding up or administration, or (iii) an order for our
winding up or administration is made, or (iv) analogous
procedures occur in relation to us in any other country
(including without limitation any moratorium or suspension of
payment proceedings and any voluntary or involuntary
proceedings under the United States Bankruptcy Code);
(c) the date on which any scheme of arrangement in respect of us
is not approved by the relevant class of creditors at the
relevant meeting of creditors and/or such scheme is not
sanctioned at the relevant court hearing; or
(d) 25th March 2003 or such other date as we may agree in writing.
5. SEVERABILITY OF PROVISIONS
If any provision of this Letter is prohibited or unenforceable in any
jurisdiction, such prohibition or unenforceability shall not invalidate
the remaining provisions hereof or affect the validity or
enforceability of such provisions in any other jurisdiction.
6. GOVERNING LAW
This Letter shall be governed by and construed in accordance with the
laws of England. Each party to this Letter agrees that the Courts of
England are to have exclusive jurisdiction to settle any disputes which
may arise out of or in connection with this Letter.
7. COUNTERPARTS
This Letter may be executed in any number of counterparts and all such
counterparts taken together shall be deemed to constitute one and the
same instrument.
Please confirm your agreement to the terms of this Letter by signing below.
Yours faithfully
MARY SKELLY (signed)
For and on behalf of
MARCONI CORPORATION PLC
We hereby agree to the above.
MATTHEW JOLLY (signed) DUNCAN RODGERS (signed)
Matthew Jolly Duncan Rodgers
Executive Director Executive Director
For and on behalf of
UBS AG