Dated 18 April LANSDOWNE MORTGAGE SECURITIES No. 1 p.l.c. CAPITA TRUST COMPANY LIMITED. and OTHERS DEED OF CHARGE AND ASSIGNMENT

Transcription

1 Conformed Copy Dated 18 April 2006 LANSDOWNE MORTGAGE SECURITIES No. 1 p.l.c. CAPITA TRUST COMPANY LIMITED and OTHERS DEED OF CHARGE AND ASSIGNMENT McCann FitzGerald Solicitors 2 Harbourmaster Place International Financial Services Centre Dublin 1 FPG\

2 Conformed Copy CONTENTS Clause Page 1. Definitions, Interpretation and Common Terms The Issuer s Covenant to Pay Security Redemption and Release Restrictions on Exercise of Certain Rights; Bank Accounts Upon Enforcement Continuance of Security and Conflict Expenses The Trustee s Powers Receiver Protection of Third Parties Protection of Trustee and Receiver Indemnity Further Assurance and Power of Attorney Other Security etc Warranties and Covenants Application to Court Miscellaneous Trustee Provisions Governing Law...27 SCHEDULE 1 - Notice of and consent to assignment of rights in respect of Title Insurance Policy...28 FPG\

3 THIS DEED OF CHARGE AND ASSIGNMENT is made on 18 April 2006 BETWEEN: (1) LANSDOWNE MORTGAGE SECURITIES No. 1 p.l.c., whose registered number is and whose registered office is at Unit 5, Manor Street Business Park, Manor Street, Dublin 7, Ireland (the Issuer ); (2) CAPITA TRUST COMPANY LIMITED, a company incorporated under the laws of England and Wales whose registered number is and whose principal office is at 7 th Floor, Phoenix House, 18 King William Street, London EC4N 7HE, United Kingdom (the Trustee which expression shall include such company and all other persons or companies for the time being acting under the Trust Deed or under this Deed in the capacity of trustee or trustees); (3) HOMELOAN MANAGEMENT LIMITED, a company incorporated under the laws of England and Wales whose registered number is and whose registered office is at 1 Providence Place, Skipton, North Yorkshire BD23 2HL, United Kingdom acting in its capacity as mortgage administrator (in such capacity, the Mortgage Administrator ) under the Mortgage Administration Agreement and as standby cash manager (in such capacity, the Standby Cash Manager ) under the Standby Cash Management Agreement; (4) START DACS 1 LIMITED, whose registered number is and whose registered office is at 4 Percy Place, Dublin 4, Ireland in its capacity as seller of Loans and related Collateral Security ( DACS 1 or the Seller ) under the DACS 1/Issuer Mortgage Sale Agreement; (5) START MORTGAGES LIMITED, whose registered number is and whose registered office is at 4 Percy Place, Dublin 4, Ireland ( SML ) in its capacity as origination agent for SF1 in respect of the Loans and related Collateral Security (in such capacity, the Origination Agent ) the subject of the Mortgage Sale Agreements and in its capacity as mortgage manager (in such capacity, the Mortgage Manager ) under the Mortgage Management Agreement; (6) START FUNDING No. 1 LIMITED, whose registered number is and whose registered office is at 4 Percy Place, Dublin 4, Ireland in its capacity as seller of Loans and related Collateral Security under the SF1/DACS 1 Mortgage Sale Agreement ( SF1 and together with the Origination Agent, the Originators ); (7) KENSINGTON MORTGAGES LIMITED, (formerly known as Norland Capital Limited) a company incorporated under the laws of England and Wales whose registered number is and whose registered office is at 1 Sheldon Square, London W2 6PU, United Kingdom in its capacity as Cash Manager (in such capacity, the Cash Manager ) under the Cash Management Agreement; (8) BARCLAYS BANK PLC, a company incorporated under the laws of England under registered number , acting through its office at 5 The North Colonnade, London E14 4BB, United Kingdom as liquidity facility provider under the Liquidity Facility Agreement (in such capacity, the Liquidity Facility Provider ), as Fixed Rate Swap Counterparty under the Fixed Rate Swap Agreement (in such capacity, the FPG\

4 Fixed Rate Swap Counterparty ), as basis swap counterparty under the Basis Swap Counterparty Agreement (in such capacity, the Basis Swap Counterparty ) and in its capacity as interest rate cap counterparty under the Interest Rate Cap Agreement (in such capacity, the Interest Rate Cap Counterparty ); (9) HSBC BANK PLC, whose registered number is of 8 Canada Square, London E14 5HQ, United Kingdom in its capacity as Principal Paying Agent (in such capacity, the Principal Paying Agent ) and in its capacity as Agent Bank (in such capacity, the Agent Bank ); (10) HSBC INSTITUTIONAL TRUST SERVICES (IRELAND) LIMITED, whose registered number is and whose registered office is HSBC House, The Harcourt Centre, Harcourt Street, Dublin 2, Ireland in its capacity as paying agent in Ireland (in such capacity, the Irish Paying Agent ); (11) ALLIED IRISH BANKS, p.l.c., whose registered number is of Bankcentre, Ballsbridge, Dublin 4 in its capacity as GIC provider under the Guaranteed Investment Contract (in such capacity, the GIC Provider ) and as bank account provider under the Bank Agreement (in such capacity, the Account Bank ); and (12) CAPITA TRUST COMPANY (IRELAND) LIMITED, a company incorporated in Ireland under registered number and having its registered office at Unit 5, Manor Street Business Park, Dublin 7, Ireland (the Corporate Services Provider ). WHEREAS: This Deed of Charge and Assignment is supplemental to the Trust Deed of even date herewith and made between the Issuer and the Trustee constituting the Notes. NOW THIS DEED WITNESSES AND IT IS HEREBY AGREED AND DECLARED as follows: 1. DEFINITIONS, INTERPRETATION AND COMMON TERMS 1.1 Definitions and Principles of Construction This Deed shall have expressly and specifically incorporated into it the Definitions and the Principles of Construction contained in the Master Definitions Schedule as set out in Schedule 1 to the Master Securitisation Agreement entered into between, among others, the parties to this Deed and dated on or about the date hereof (as the same may be amended, varied, novated or supplemented from time to time with the consent of the parties to it (the Master Definitions Schedule )) as though the same were set out in full in this Deed. Except where the context otherwise requires, and save where otherwise defined in this Deed, the Definitions, shall have the same meanings where used in this Deed. In the event of any conflict between the provisions of this Deed and the Master Definitions Schedule, the provisions of this Deed shall prevail. 1.2 Common Terms This Deed shall have expressly and specifically incorporated into it the Common Terms as set out in the Master Securitisation Agreement as though the same were set FPG\

5 out in full in this Deed. In the event of any conflict between the provisions of this Deed and the Common Terms, the provisions of this Deed shall prevail; provided always that in the event of a conflict between Clause 27 of the Master Securitisation Agreement and the provisions of this Deed, Clause 27 of the Master Securitisation Agreement shall prevail. 2. THE ISSUER S COVENANT TO PAY The Issuer acknowledges to the Trustee the Issuer s liability in respect of the Secured Amounts and further covenants with and undertakes to the Trustee (for its own account and as trustee for the other Secured Creditors) that it shall duly and punctually pay and discharge: all moneys and liabilities whatsoever which from time to time become due, owing or payable by the Issuer: (i) (ii) (iii) to the order of the Trustee and/or any Receiver under this Deed, the Trust Deed or the Conditions at the times and in the manner provided herein or therein; under or in respect of the Notes; and/or to the Trustee on any account whatsoever, whether as principal or surety and whether or not directly with another; and all monies, liabilities and obligations whatsoever which from time to time become due, owing or payable by the Issuer to each of the other Secured Creditors in accordance respectively with each of the other Documents to which it is party. 3. SECURITY 3.1 The Mortgages The Issuer, by way of first fixed security for the payment or discharge of the Secured Amounts, as beneficial owner and subject in each case to the proviso for redemption hereinafter contained and to the provisos for redemption contained in the Mortgage Conditions, HEREBY CHARGES AND MORTGAGES in favour of the Trustee all the Issuer s right, title, interest and benefit present and future in, to and under the Loans and related Collateral Security comprised in the Mortgage Pool and all monies assured by or to become payable under the same and the benefit of all covenants relating thereto and all powers and remedies for enforcing the same and the title deeds and documents relating to the Properties and the Loans and related Collateral Security comprised in the Mortgage Pool including (without prejudice to the generality of the foregoing) any consents, postponements, reports, valuations, opinions, certificates and other statements of fact or opinion or both given in connection with the Loans and related Collateral Security comprised in the Mortgage Pool (and all causes and rights of action of the Issuer against any person in connection with the same) and any other collateral security, contractual documents or any security documents in either FPG\

6 case setting out the terms of the Loans and related Collateral Security TO HOLD the same unto the Trustee absolutely for the Trustee itself and on trust, subject to the terms of this Deed, for the Secured Creditors The Issuer agrees to execute and deliver such documents, in such form, and to take such other steps, as the Trustee shall reasonably consider necessary to enable the Trustee to perfect a first fixed equitable charge over the Loans and related Collateral Security comprised in the Mortgage Pool from time to time and at any time and all sums secured thereby. 3.2 Relevant Insurance Policies The Issuer, by way of further first fixed security for the payment or discharge of the Secured Amounts, as beneficial owner and subject to the proviso for redemption hereinafter contained, HEREBY ASSIGNS to the Trustee all the Issuer s right, title, interest and benefit present and future in, to and under the Relevant Insurance Policies, and all monies assured by or to become payable under the same and the benefit of all covenants and rights relating thereto and all powers and remedies for enforcing the same TO HOLD the same unto the Trustee absolutely for the Trustee itself and on trust, subject to the terms of this Deed, for the Secured Creditors. 3.3 Contractual and Other Rights The Issuer, by way of further first fixed security for the payment or discharge of the Secured Amounts, as beneficial owner and subject to the proviso for redemption hereinafter contained, HEREBY ASSIGNS to the Trustee all the Issuer s right, title, interest and benefit present and future in, to and under the Charged Obligation Documents and all other contracts, agreements, deeds and documents, present and future, to which the Issuer is or may become a party, (other than the Trust Deed and any deed expressed to be supplemental thereto and this Deed) including without limitation all rights to receive payment of any amounts which may become payable to the Issuer thereunder, all payments received by the Issuer thereunder, all rights to serve notices and/or make demands thereunder and/or to take such steps as are required to cause payments to become due and payable thereunder and all rights of action in respect of any breach thereof and all rights to receive damages or obtain other relief in respect thereof TO HOLD the same unto the Trustee absolutely for the Trustee itself and on trust, subject to the terms of this Deed, for the Secured Creditors Each of the Charged Obligors hereby acknowledges the assignment by the Issuer provided by Clause Notwithstanding such assignment each of the parties hereto (other than the Issuer) agrees with the Issuer that the Charged Obligors may continue to make all payments becoming due to the Issuer under any of the Charged Obligation Documents direct to the Issuer in the manner envisaged by such agreements (which payment shall constitute a good discharge by the person making the payment) until receipt of express written notice from the Trustee or the Receiver requiring such payments to be made elsewhere, which notice shall not be given at any time prior to the giving of an Enforcement Notice. FPG\

7 3.4 Bank Accounts The Issuer, by way of further first fixed security for the payment or discharge of the Secured Amounts, as beneficial owner and subject to the proviso for redemption hereinafter contained, HEREBY CHARGES to the Trustee, all the Issuer s right, title, benefit and interest present and future in, to and under the Bank Accounts and all sums of money which may now be or hereafter are from time to time standing to the credit of the Bank Accounts together with all interest accruing from time to time thereon and the debts represented thereby and the benefit of all covenants relating thereto and all powers and remedies for enforcing the same TO HOLD the same unto the Trustee absolutely for the Trustee itself and on trust, subject to the terms of this Deed, for the Secured Creditors. 3.5 Authorised Investments The Issuer, by way of further first fixed security for the payment or discharge of the Secured Amounts, as beneficial owner and subject to the proviso for redemption hereinafter contained, HEREBY CHARGES AND ASSIGNS to the Trustee, all the Issuer s right, title, interest and benefit present and future in, to and under the Authorised Investments and all moneys, income and proceeds to become payable thereunder or thereon and the benefits of all covenants relating thereto and all powers and remedies for enforcing the same TO HOLD the same unto the Trustee absolutely for the Trustee itself and on trust, subject to the terms of this Deed, for the Secured Creditors The Issuer shall procure that, in each case where an Authorised Investment comprises the deposit of cash from the GIC Account into a deposit account with a third party, such cash shall be deposited under instruction that it may not be paid out of such deposit account otherwise than by transferring such cash together with interest and/or any premium accrued thereon, direct to the GIC Account, which instructions may not be altered without the prior written consent of the Trustee The Issuer shall procure that, in each case where an Authorised Investment comprises securities, such securities are deposited into a securities account with a third party, on terms that any income or distributions arising in connection therewith and any redemption or sale proceeds thereof shall be paid directly into the GIC Account, or deposited into a cash account with such third party under instruction that they may not be paid out of such deposit account otherwise than by transferring such proceeds, together with interest and/or any premium accrued thereon, direct to the GIC Account, which instructions may not be altered without the prior written consent of the Trustee. 3.6 Floating charge The Issuer, by way of further security for the payment or discharge of the Secured Amounts, as beneficial owner and subject to the proviso for redemption hereinafter contained and subject where relevant to the provisos for redemption contained in the Mortgage Conditions, HEREBY CHARGES by way of first floating charge to the Trustee, the whole of its undertaking and all its property and assets, present and FPG\

8 future, except for the assets specifically secured by means of fixed charge, mortgage or otherwise assigned as security by this Clause 3, TO HOLD the same unto the Trustee absolutely for the Trustee itself and on trust, subject to the terms of this Deed, for the Secured Creditors. 3.7 Further Acquired Items For the avoidance of doubt it is hereby confirmed that reference herein to Loans, related Collateral Security, Mortgages, Relevant Insurance Policy, Authorised Investments, Bank Accounts and related items include those which are hereafter assigned or transferred to or otherwise acquired by the Issuer and that the security created by Clauses 3.1 to 3.6 (inclusive) are, and are intended to be, specific and fixed assignments by way of security of, or specific and fixed charges over (as the case may be), the items to which they relate, both present and future acquired. 3.8 Acknowledgement of Security By their execution of this Deed each of the Trustee, the Mortgage Administrator, the Origination Agent, SF1, the Mortgage Manager, the Cash Manager, the Interest Rate Cap Counterparty, the Basis Swap Counterparty, the Principal Paying Agent, the Irish Paying Agent, the Agent Bank, the Account Bank, the Liquidity Facility Provider, the GIC Provider, the Fixed Rate Swap Counterparty, DACS 1 and the Standby Cash Manager acknowledge, and consent to, the security assignments made pursuant to Clause 3.3 in respect of the Charged Obligation Documents to which they are a party and each of the GIC Provider and the Account Bank acknowledge, and consent to, the charging of the Bank Accounts pursuant to Clause No Transfer of Obligations Notwithstanding anything else in this Deed, it is hereby agreed that the Trustee does not assume, nor shall the Trustee be obligated to perform, any obligations of any other party to this Deed (including, for the avoidance of doubt, the making of further advances to Borrowers) and nothing herein shall be construed so as to transfer any of such obligations to the Trustee. 4. REDEMPTION AND RELEASE Upon proof being given to the satisfaction of the Trustee by the relevant Charged Obligor as to the full and final payment or discharge by the Issuer of all the Secured Amounts, the Trustee will at the request and cost of the Issuer release, re-convey, re-transfer or re-assign (as appropriate) the Charged Property to the Issuer or other person entitled thereto of whom the Trustee has notice provided that no assurance, security or payment which may be avoided under any enactment relating to bankruptcy and no release, settlement or discharge given or made by the Trustee on the faith of any such assurance, security or payment, shall prejudice or affect the right of the Trustee to enforce the security constituted hereby in respect of the full extent of the monies and liabilities hereby secured. It is hereby agreed that such security shall be deemed to have been and to have remained held by the Trustee as and by way of security for the payment to or to the order of the Trustee of all or any sums which may become due and owing to or to the order of the Trustee in respect of the monies and liabilities hereby secured. FPG\

9 5. RESTRICTIONS ON EXERCISE OF CERTAIN RIGHTS; BANK ACCOUNTS 5.1 Each of the Parties to this Deed acknowledges the terms of the Priorities of Payments and agrees to be bound by the Conditions, this Deed and the Cash Management Agreement and to subordinate each of its claims against the Issuer to those claims payable in priority to it in accordance with the applicable Priority of Payments as applied by the Conditions, this Deed and the Cash Management Agreement. Each party to this Deed agrees that to the extent a Party receives a payment which is not made in accordance with the Conditions, this Deed or the Cash Management Agreement, it will transfer any such amounts to the Trustee to hold in trust on behalf of all the Secured Creditors in accordance with this Deed. 5.2 The Issuer, or the Cash Manager on its behalf (or, in the case of clause 4.5.4(e) of the Cash Management Agreement only, the Issuer or the Mortgage Administrator on its behalf), may on any Business Day prior to the date on which an Enforcement Notice is served by the Trustee, withdraw or pay from the Collection Account (and give notice to the Account Bank to such effect) all or part of the funds standing to the credit thereof, provided that the following conditions (as applicable) are satisfied: the entire amount withdrawn is paid by the Issuer, or the Cash Manager or the Account Bank on its behalf, directly into the GIC Account in accordance with clause 1.4 of the Bank Agreement or such other account as is specified in accordance with clause 4.5 of the Bank Agreement; or the amount withdrawn is applied by the Issuer, or by the Cash Manager on its behalf, in accordance with clause of the Cash Management Agreement (but subject to clause of the Cash Management Agreement). 5.3 Save in respect of a withdrawal or payment in accordance with the provisions of Clause 5.2 above, no amount may be withdrawn or paid by the Issuer (or by the Cash Manager, the Mortgage Administrator or Account Bank on its behalf) from the Collection Account prior to the service of an Enforcement Notice without the prior written consent of the Trustee. 5.4 GIC Account The Issuer, or the Cash Manager on its behalf, may on any Business Day prior to the date on which an Enforcement Notice is served by the Trustee, withdraw or pay from the GIC Account (and give notice to the GIC Provider to such effect) all or part of the funds standing to the credit thereof, provided that the following conditions (as applicable) are satisfied: if such date is not an Interest Payment Date, the aggregate of the GIC Balance and any Authorised Investments after such withdrawal or payment shall be at least equal to the amount due and payable by the Issuer on the next Interest Payment Date in accordance with clause of the Cash Management Agreement; and the amount withdrawn is applied by the Issuer, or by the Cash Manager on its behalf, in accordance with the following: FPG\

10 (i) (ii) (iii) if the date of withdrawal is an Interest Payment Date, in accordance with clause of the Cash Management Agreement; or in accordance with clause of the Cash Management Agreement (but subject to clause of the Cash Management Agreement); or in accordance with clause of the Cash Management Agreement; or (iv) in investing in Authorised Investments in accordance with clause 4.6 of the Cash Management Agreement (but subject to Clauses and of this Deed of Charge). 5.5 Save in respect of a withdrawal or payment in accordance with the provisions of Clause 5.4 above, no amount may be withdrawn or paid by the Issuer (or by the Cash Manager on its behalf) from the GIC Account prior to the service of an Enforcement Notice without the prior written consent of the Trustee. 5.6 Subject to Clause 6.1, the Account Bank shall have no responsibility, and shall not be obliged, to monitor withdrawals and transfers from the Bank Accounts provided such withdrawals and transfers are made in accordance with the Bank Agreement and the Guaranteed Investment Contract. No amounts may be withdrawn or payment made out of the Bank Accounts save in accordance the terms with the Bank Agreement and the Guaranteed Investment Contract. 6. UPON ENFORCEMENT 6.1 Notwithstanding the security rights created by this Deed, the Trustee and each of the Secured Creditors hereby agrees, and the Issuer concurs, that from the time of the giving of an Enforcement Notice, (a) no amount may be withdrawn from any of the Bank Accounts except to the extent that it is applied in accordance with the order of priorities set out in Clause 6.3 or as otherwise permitted by the provisions of this Deed that are applicable after the giving of an Enforcement Notice; and (b) if not already so converted, the Trustee may, by notice in writing to the Issuer, for the benefit of itself and the Secured Creditors, convert any charge created by Clause 3 which is a floating charge into a specific fixed charge of the assets then secured thereby. 6.2 Notwithstanding the security rights created by this Deed, the Trustee and each of the Secured Creditors hereby agrees, and the Issuer concurs, that any monies whatsoever recovered by each of them or on their behalf whether by the Trustee or otherwise after the giving of an Enforcement Notice, shall be applied in accordance with the order of priorities set out in Clause 6.3, save for (i) any amounts in respect of Accrued Interest that have been received in the Collection Account and credited to the Revenue Ledger, which shall be paid in accordance with the DACS 1/Issuer Mortgage Sale Agreement, (ii) amounts in respect of any Excess Swap Collateral which shall be paid to the relevant Hedging Provider or (iii) any amount of Standby Drawings deposited in the GIC Account accordance with clause 7.3 the Liquidity Facility Agreement which shall instead be paid directly to the Liquidity Provider and will not be able for distribution to any other Secured Creditor. The Cash Manager or the Standby Cash Manager, as the case may be, shall advise the Trustee of such amounts described in (i) FPG\

11 through (iii) above as soon as reasonably practicable after delivery of an Enforcement Notice. 6.3 The order of priorities referred to in Clauses 6.1 and 6.2 is as follows: first, to pay, pro rata, any remuneration then due to any receiver and all amounts due in respect of legal fees and other costs, charges, liabilities, losses, damages, proceedings, claims and demands then incurred by any receiver together with interest thereon and to pay the fees, costs, expenses and liabilities due to the Trustee (plus value added tax, if any); second, to pay, pro rata, the fees, costs, expenses and liabilities due to the Mortgage Administrator, the Cash Manager, the Standby Cash Manager, the Mortgage Manager, the Agents, the Account Bank, the GIC Provider and the Corporate Services Provider; third, to pay all amounts due to the Liquidity Facility Provider pursuant to the Liquidity Facility Agreement; fourth, to pay, pro rata: (i) (ii) (iii) (iv) (v) all amounts of interest then due and payable in respect of the Class A Notes (pro rata according to the respective interest entitlements of the Class A Noteholders) in accordance with Condition 4; all amounts of principal due thereon until redemption in full of the Class A Notes (pro rata according to the respective entitlements of the Class A Noteholders); amounts payable (if any) to the Basis Swap Counterparty pursuant to the Basis Swap Agreement other than Hedge Subordinated Amounts; amounts payable (if any) to the Fixed Rate Swap Counterparty pursuant to the Fixed Rate Swap Agreements other than Hedge Subordinated Amounts; and all amounts of interest then due and payable in respect of the Class X Note in accordance with Condition 4; fifth, to pay pro rata: (i) (ii) all amounts of interest then due and payable in respect of the Class M1 Notes (pro rata according to the respective interest entitlements of the Class M1 Noteholders) in accordance with Condition 4; all amounts of principal due thereon until redemption in full of the Class M1 Notes (pro rata according to the respective entitlements of the Class M1 Noteholders); sixth, to pay pro rata: FPG\

12 (i) (ii) all amounts of interest then due and payable in respect of the Class M2 Notes (pro rata according to the respective interest entitlements of the Class M2 Noteholders) in accordance with Condition 4; all amounts of principal due thereon until redemption in full of the Class M2 Notes (pro rata according to the respective entitlements of the Class M2 Noteholders); seventh, to pay pro rata: (i) (ii) all amounts of interest then due and payable in respect of the Class B1 Notes (pro rata according to the respective interest entitlements of the Class B1 Noteholders) in accordance with Condition 4; all amounts of principal due thereon until redemption in full of the Class B1 Notes (pro rata according to the respective entitlements of the Class B1 Noteholders); eighth, to pay pro rata: (i) (ii) all amounts of interest then due and payable in respect of the Class B2 Notes (pro rata according to the respective interest entitlements of the Class B2 Noteholders) in accordance with Condition 4; all amounts of principal due thereon until redemption in full of the Class B2 Notes (pro rata according to the respective entitlements of the Class B2 Noteholders); ninth, to pay pro rata (i) (ii) all amounts of interest then due and payable pari passu in respect of Principal Level A, Principal Level B and Principal Level C of the Class C Notes; all amounts of principal due thereon pari passu until redemption in full of Principal Level A, Principal Level B and Principal Level C of the Class C Notes; tenth, from the amount standing to the credit of the Class X Note Ledger, to pay all amounts of principal due thereon until repayment in full of the Class X Note; eleventh, to pay any amounts due and payable pro rata to each Hedging Provider in respect of any Hedge Subordinated Amounts; twelfth, to pay to DACS 1 as deferred consideration under the DACS 1/Issuer Mortgage Sale Agreement, the Residual Revenue (if any); and thirteenth, to pay surplus (if any) to the Issuer. provided that for the purposes of this Clause 6.3 the Trustee shall be entitled, and is hereby authorised, to call for and accept as conclusive evidence thereof a certificate FPG\

13 from the auditors for the time being of the Issuer or, if applicable, the liquidator (if any) of the Issuer as to the amount of the claims specified above and shall not be liable to any person for so doing. 6.4 The Security created by this Deed will become enforceable upon (i) the occurrence of an Event of Default (as defined in Condition 9(a)); or (ii) if the Issuer requests the Trustee to exercise any of its power under this Deed, provided that, if the Security has become enforceable otherwise than by reason of a default in payment of any amount due on the Notes, the Trustee will not be entitled to dispose of the assets comprised in the Security or any part thereof unless either a sufficient amount would be realised to allow discharge in full of all amounts owing in respect of the Class A Notes or the Trustee is of the opinion, reached after considering at any time and from time to time the advice of an investment bank or other financial adviser selected by the Trustee, that the cash flow prospectively receivable by the Issuer will not (or that there is a significant risk that it will not) be sufficient, having regard to any other relevant actual, contingent or prospective liabilities of the Issuer, to discharge in full in due course all amounts owing in respect of the Class A Notes. 6.5 Without prejudice to the provisions of Clause 6.3 and Clause 6.4, the Trustee and each of the Secured Creditors hereby agree, and the Issuer concurs, that: in the exercise or non-exercise of its powers in relation to the Charged Property the Trustee shall be required to have regard only to the interests of the Noteholders and shall not be required to have regard to the interests of the other Secured Creditors or to act upon or comply with any direction or request of the other Secured Creditors; the Trustee shall remain trustee of the Charged Property at all times while it remains Trustee in relation to the Notes and shall not be liable to be removed at the behest of any Secured Creditor; if, at any time after the Security created by this Deed has become enforceable, the Trustee determines (in respect of which determination, the provisions of sub-clause shall apply) to sell, refinance or otherwise dispose of the Loans and their related Collateral Security or any interest therein (the Assets ), the Trustee shall appoint an investment bank selected by it to invite bids (each a Bid ) for the purchase or financing of the Assets by way of competitive tender (and based on such assumptions as the Trustee or the relevant investment bank may select); if the investment bank appointed pursuant to sub-clause receives a Bid or Bids, subject to sub-clause 6.5.3, the Trustee shall sell the Assets at a price no less than that contained in the Bid or, in the case of more than one Bid, the highest Bid; and nothing in this sub-clause shall, whether or not following the appointment of an investment bank pursuant to sub-clause the Trustee has received a Bid or Bids, (i) prevent the Trustee from declining to sell the Assets or otherwise postponing any sale; or FPG\

14 (ii) require the Trustee to sell the Assets, if, in either case, the Trustee determines (in respect of which determination, the provisions of sub-clause shall apply) that it is in the interests of the Noteholders to do so. 7. CONTINUANCE OF SECURITY AND CONFLICT 7.1 Without prejudice to the generality of the foregoing, the Security created by and covenants and provisions contained in this Deed shall remain in force as a continuing security to the Trustee (for itself and on trust for the various other persons to whom the Secured Amounts from time to time become due, owing or payable) notwithstanding any intermediate payment, settlement of account or any other act, event or matter whatsoever, except only the execution by or on behalf of the Trustee under seal of an absolute and unconditional release or the execution by or on behalf of the Trustee of a receipt for all (and not part only) of the Secured Amounts, which receipt the Trustee is hereby authorised to execute on behalf of all other persons to whom any of the Secured Amounts are due, owing or payable. 7.2 In relation to the Trustee s duties, obligations and responsibilities as trustee to the Secured Creditors in relation to the Charged Property and under or in connection with this Deed, the Trustee and the other Secured Creditors hereby agree, and the Issuer concurs, that the Trustee shall discharge these by performing and observing its duties, obligations and responsibilities as trustee to the Noteholders in accordance with the provisions of, and subject to the provisions in favour of the Trustee contained in, this Deed and the Documents and the Secured Creditors shall accordingly be bound by, and deemed to have notice of, all of the provisions of this Deed and the Documents as if they were Noteholders. 7.3 All the provisions of the Trust Deed relating to the exercise by the Trustee of its powers, trusts, authorities, duties, rights and discretions shall apply, mutatis mutandis, to the discharge by the Trustee of its powers, trusts, authorities, duties, rights and discretions under this Deed. 7.4 Without prejudice to the generality of the foregoing, the Trustee shall, in its exercise of such powers, trusts, authorities, duties, rights and discretions, have regard only to the interests of the Noteholders. The Trustee shall have no regard to the interest of any other Secured Creditor and no Secured Creditor shall have any claim against the Trustee for so doing. Each of the Secured Creditors (other than the Trustee and the Noteholders) acknowledges that the Trustee shall not be bound to take any steps or institute any proceedings after the service of an Enforcement Notice or to take any other action to enforce the security constituted by this Deed unless the Trustee shall have been indemnified to its satisfaction against all actions, proceedings, claims and demands to which it may thereby render itself liable and all costs, charges, damages and expenses which it may incur by so doing. 8. EXPENSES The Issuer further covenants with and undertakes to the Trustee, subject to the Priorities of Payments, to reimburse, pay or discharge (on the basis of a full indemnity) all costs, charges, liabilities and expenses properly incurred by the FPG\

15 Trustee, the Receiver or any attorney, manager, agent or delegate appointed by the Trustee under this Deed, the Trust Deed or any of the other Documents in connection with: 8.1 the preparation, execution, registration or perfecting of this Deed or any other document relating hereto, which for the avoidance of doubt includes any amendments thereto; 8.2 the carrying out of the trusts and duties under or in connection with this Deed and the Trust Deed or any other of the Documents; 8.3 the exercise, or the attempted or purported exercise, by or on behalf of the Trustee or the Receiver of any of the powers of the Trustee or the Receiver; and 8.4 any other action taken by or on behalf of the Trustee or the Receiver with a view to or in connection with the recovery of the Secured Amounts from the Issuer or any other person or the enforcement of the security for the Secured Amounts, together with any Value Added Tax or similar tax charged or chargeable in respect thereof. 9. THE TRUSTEE S POWERS 9.1 Section 20 of the Act shall not apply to this Deed and forthwith after the service of an Enforcement Notice the security created by this Deed shall become immediately enforceable and the powers conferred by the Act and this Deed immediately exercisable without the restrictions contained in the Act, but subject to the proviso to the final paragraph of Condition 2 of the Notes. 9.2 The provisions of the Act relating to the power of sale are hereby extended as if such extensions were contained in the Act and the exercise of the statutory power of sale conferred on mortgagees by the Act shall be free from the restrictions imposed by Section 19 of the Act and Section 4 of the Conveyancing Act, 1911 which shall not apply to this Deed, but without limiting the Trustee s power to enter into possession of the Charged Property or into receipt of the income therefrom or the Trustee s other rights, subject to compliance with any specific restrictions imposed on the Trustee in this Deed or in the Administration Agreements in relation to dealing with the Charged Property, the Trustee is entitled at any time after the Security created hereby has become enforceable, at its absolute discretion, subject as aforesaid, and upon such terms as it may think fit: to dispose of the Charged Property, or any interest in the same, and to do so for shares, debentures or any other securities whatsoever, or in consideration of an agreement to pay all or part of the purchase price in respect of such disposal at a later date or dates, or an agreement to make periodical payments, whether or not any such agreement is secured by a Security Interest or a guarantee, or for such other consideration whatsoever as the Trustee may think fit, and also to grant any option to purchase, and to effect exchanges (and nothing shall preclude any such disposal being made to any person the Trustee thinks fit, including the Secured Creditors or any person associated with any of them); FPG\

16 9.2.2 with a view to, or in connection with, the disposal of the Charged Property, to carry out any transaction, scheme or arrangement which the Trustee may, in its absolute discretion, consider appropriate; to take possession of, get in and collect the Charged Property; to carry on and manage or concur in managing the business of the Issuer; to appoint and engage employees, managers, agents and advisers (and nothing shall preclude the Secured Creditors or any person associated with any of them) upon such terms as to remuneration and otherwise for such periods as it may determine, and to dismiss them; in connection with the exercise, or the proposed exercise, of any of its powers or in order to obtain payment of its remuneration or reimbursement of its expenses (in each case, whether or not already due), to borrow or raise money from any person, without security or on the security of the Charged Property (either in priority to this security or otherwise) and generally in such manner and on such terms as it may think fit; to bring, defend, submit to arbitration, negotiate, compromise, abandon and settle any claims and proceedings concerning the Charged Property; to transfer all or any of the Charged Property and/or of the liabilities of the Issuer to any other company or body corporate, whether or not formed or acquired for the purpose and whether or not a subsidiary or associated company of the Trustee, the Secured Creditors or a company or body corporate in which the Trustee, or any Secured Creditor has an interest; to call up all or any portion of the uncalled capital (if any) for the time being of the Issuer; generally to carry out, or cause or authorise to be carried out, any transaction, scheme or arrangement whatsoever, whether similar or not to any of the foregoing, in relation to the Charged Property which it may consider expedient as effectually as if it were solely and absolutely entitled to the Charged Property; in connection with the exercise of any of its powers, to execute or do, or cause or authorise to be executed or done, on behalf of or in the name of the Issuer or otherwise, as it may think fit, all documents, acts or things which it may consider appropriate; and to pay and discharge out of the profits and income of the Charged Property and the monies to be made by it in carrying on any such business as aforesaid the expenses incurred in and about the carrying on and management of any such business as aforesaid or in the exercise of any of the powers conferred by this Clause 9.2 or otherwise in respect of the Charged Property and all outgoings which it shall think fit to pay and to apply the residue of the said profits, income or monies in the manner provided by Clause 6.3. FPG\

17 10. RECEIVER 10.1 At any time after this Deed becomes enforceable or after any application is made for the appointment of, or notice is given of the intention to appoint, an examiner in relation to the Issuer the Trustee may appoint such person or persons (including an officer or officers of the Trustee) as it thinks fit to be receiver or receivers of the Charged Property or any part or parts thereof A Receiver so appointed shall have and be entitled to exercise all powers conferred by the Conveyancing Acts, 1881 to 1911 in the same way as if the Receiver had been duly appointed thereunder and shall furthermore, but without limiting any powers hereinbefore referred to, have power to do the following things either in his own name or in the name of the Issuer: Take possession: to take immediate possession of, get in and collect the Charged Property or any part thereof and for that purpose to make, or to require the directors of the Issuer to make, calls upon the holders of the Issuer s share capital in respect of any such capital of the Issuer which remains uncalled and to enforce payment of calls by taking proceedings in the name of the Issuer or his own name; Carry on business: to manage and carry on any business of the Issuer including entering into any contract or arrangement and performing, repudiating, rescinding or varying any contract or arrangement to which the Issuer is party; Deal with Charged Property: to sell, transfer, assign, exchange, hire out, lend, grant leases, tenancies and rights of user, grant renewals and accept surrenders of leases, tenancies, licences or rights of user and otherwise dispose of or realise the Charged Property (including any fixtures, which may be sold separately from the premises containing them), either by public offer or auction, tender or private contract and for rents, premiums or other compensation or consideration and so that (without limitation) he may do any of these things for a consideration consisting of cash, debentures, or other obligations, investments or other valuable consideration of any kind and any such consideration may be payable or delivered in a lump sum or by instalments spread over such period as he may think fit; Hive Down: without prejudice to the generality of Clause 10.2 above, to do any of the following acts and things: (i) (ii) (iii) to promote or procure the formation of any new corporation; to subscribe for or acquire (for cash or otherwise) any investment in or of such new corporation; to sell, transfer, assign, hire our and lend, and grant leases, tenancies and rights of user of, the Charged Property to any such new corporation and accept as consideration or part of the consideration therefor any shares or other security in or of any corporation or allow FPG\

18 the payment of the whole or any part of such consideration to remain deferred or outstanding; (iv) to sell, transfer, assign, exchange and otherwise dispose of or realise any such shares or other security or deferred consideration or part thereof or any rights attaching thereto; Borrow money: for the purpose of exercising any of the powers conferred on him by or pursuant to this Deed and/or of defraying any costs, charges, losses, liabilities or expenses (including his remuneration) incurred by or due to him in the exercise thereof and/or for any other purpose, to borrow or raise money either unsecured or on the security of the Charged Property (either in priority to the security hereby created or otherwise) and generally on such terms and conditions as he may think fit; Covenants and Guarantees: to enter into bonds, covenants, commitments, guarantees, indemnities and like matters and to make all payments needed to effect, maintain or satisfy the same; Dealing with tenants: to each agreements and make arrangements with, and to make allowances to, any lessees, tenants or other person from whom any rents and profits may be receivable (including those relating to the grant of any licences, review of rent in accordance with the terms of, and the variation of, the provisions of any leases, tenancies or rights of user affecting the Charged Property; Rights of Ownership: to manage and use the Charged Property and to exercise and do (or permit the Issuer or any nominee of it to exercise and do) all such rights and things as the Receiver would be capable of exercising or doing if he were the beneficial owner of the Charged Property and in particular, without limitation, to exercise all rights attaching to the Charged Property and to arrange for or provide all services which he may deem property for the efficient management or use of the Charged Property or the exercise of such rights and to give valid receipts for all monies and execute all assurances and things which may be proper or desirable for realising the Charged Property; Repairs, Improvements, etc.: to make and effect decorations, repairs, structural and other developments, alterations, improvements and additions in or to the Charged Property (including, without limitation, the development or redevelopment of any premises thereon) and to purchase or acquire any materials, articles or things and do anything else in connection with the Charged Property as he may think desirable for the purpose of making them productive or more productive, increasing their letting or market value or protecting the security hereby constituted; Claims: to settle, adjust, refer to arbitration, compromise and arrange any claims, accounts, disputes, questions and demand with or by any person who is or claims to be a creditor of the Issuer or relating in any way to the Charged Property; FPG\

19 Legal Action: to bring, prosecute, enforce, defend and abandon actions, suits and proceedings in relation to the Charged Property or any of the businesses of the Issuer; Redemption of Security Interests: to redeem any Security Interest (whether or not having priority to the security hereby created) over the Charged Property and to settle the accounts of encumbrancers; Employees, etc.: to appoint, hire and employ officers, employees, contractors, agents and advisors of all kinds and to discharge any such persons and any such persons appointed, hired or employed by the Issuer; and Other Powers: do all such other acts and things as he may consider desirable or necessary for realising the Charged Property or any part thereof or incidental or conducive to any of the matters, powers or authorities conferred on a Receiver under or by virtue of this Deed and to exercise in relation to the Charged Property or any part thereof 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 Issuer for all or any of the purposes aforesaid and in any legal proceedings with full power to convey any property sold in the name of the Issuer for all of which purposes the Issuer hereby irrevocably appoints every such Receiver to be its attorney. Provided nevertheless that a Receiver shall not be authorised to exercise any of the aforesaid powers, authorities and discretions if and insofar and so long as the Trustee shall in writing exclude the same whether at the time of his appointment or subsequently The Trustee may remove the Receiver appointed by it whether or not appointing another in his place, and the Trustee may also appoint another receiver if the Receiver resigns The exclusion of any part of the Charged Property from the appointment of the Receiver shall not preclude the Trustee from subsequently extending his appointment (or that of the Receiver replacing him) to that part The Receiver shall, so far as the law permits, be the agent of the Issuer and (subject to the Companies Acts 1963 to 2005) the Issuer shall be solely responsible for his acts and defaults and liable on any contracts or engagements made or entered into by him; and in no circumstances whatsoever shall the Trustee, or any Secured Creditor be in any way responsible for any fraud, misconduct, negligence or default of his. Notwithstanding the generality of the foregoing, such Receiver shall in the exercise of his powers, authorities and discretions conform to the regulations from time to time made and given by the Trustee. The Trustee shall not in any way be responsible for any misconduct or negligence on the part of any Receiver The remuneration of the Receiver may be fixed by the Trustee (and may be or include a commission calculated by reference to the gross amount of all money received or otherwise) and the restrictions in Section 318 of the Companies Act, 1963 shall not FPG\

20 apply, but such remuneration shall be payable by the Issuer alone; and the amount of such remuneration may be debited by the Trustee to any account of the Issuer, but shall, in any event, form part of the Secured Amounts and accordingly be secured on the Charged Property under the security created by this Deed The Receiver may be invested by the Trustee with such of the powers exercisable by the Trustee under this Deed as the Trustee may think fit The Receiver shall in the exercise of his powers conform to the regulations and directions from time to time made and given by the Trustee The Trustee may from time to time and at any time require any such Receiver to give security for the due performance of his duties as such Receiver and may fix the nature and amount of the security to be so given but the Trustee shall not be bound in any case to require any such security Save so far as otherwise directed by the Trustee all monies from time to time received by such Receiver shall be paid over to the Trustee to be held by it on the trusts declared by Clause The Trustee may pay over to such Receiver any monies constituting part of the Charged Property to the intent that the same may be applied for the purposes of this Deed by such Receiver and the Trustee may from time to time determine what funds the Receiver shall be at liberty to keep in hand with a view to the performance of his duties as such Receiver Section 24(6) and (8) of the Act (application of monies received by receiver) shall not apply in relation to the Receiver. 11. PROTECTION OF THIRD PARTIES 11.1 The Secured Amounts shall become due for the purposes of Section 19 of the Act and the statutory powers of sale and of appointing a receiver which are conferred upon the Trustee as varied and extended by this Deed and all other powers shall in favour of any purchaser be deemed to arise and be exercisable immediately after the execution of this Deed No purchaser from or other person dealing with the Trustee and/or the Receiver shall be concerned to enquire whether any of the powers which they have exercised or purported to exercise has arisen or become exercisable, or whether the Secured Amounts remain outstanding, or whether any event has happened to authorise the Trustee and/or the Receiver to act or as to the propriety or validity of the exercise or purported exercise of any such power, or whether the requirements of the proviso to the final paragraph of Condition 2 have been satisfied; and the title and position of such a purchaser or other persons shall not be impeachable by reference to any of those matters The receipt of the Trustee or the Receiver shall be an absolute and a conclusive discharge to a purchaser or such other person 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 the Receiver or, if applicable, the Secured Creditors. FPG\