Exhibit 4.5.60


 


 


BNS AUTOMOBILE FUNDING B.V.


 


as Chargor


 


 


in favour of


 


 


BNP PARIBAS


as Security
Agent

for and on behalf of

the Secured Parties named herein


 






 


DEED OF CHARGE


relating
to a 

Senior Bridge Facilities Agreement

dated

21 December 2005


 






 


 


21 December
2005


 


 





 


1

















 


 


	
   

  	
   

  	
  CONTENTS

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Clause

  	
   

  	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  1.

  	
   

  	
  DEFINITIONS
  AND INTERPRETATION

  	
   

  	
  3

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  2.

  	
   

  	
  ASSIGNMENT

  	
   

  	
  5

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  3.

  	
   

  	
  PERFECTION
  OF SECURITY

  	
   

  	
  5

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  4.

  	
   

  	
  FURTHER
  ASSURANCE

  	
   

  	
  5

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  5.

  	
   

  	
  NEGATIVE
  PLEDGE AND DISPOSALS

  	
   

  	
  6

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  6.

  	
   

  	
  UNDERTAKINGS

  	
   

  	
  6

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  7.

  	
   

  	
  REPRESENTATIONS

  	
   

  	
  7

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  8.

  	
   

  	
  ENFORCEMENT
  OF SECURITY

  	
   

  	
  7

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  9.

  	
   

  	
  EXTENSION
  AND VARIATION OF THE LAW OF PROPERTY ACT 1925

  	
   

  	
  7

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  10.

  	
   

  	
  APPOINTMENT
  OF RECEIVER OR ADMINISTRATOR

  	
   

  	
  8

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  11.

  	
   

  	
  POWERS OF
  RECEIVER

  	
   

  	
  8

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  12.

  	
   

  	
  APPLICATION
  OF MONEYS

  	
   

  	
  9

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  13.

  	
   

  	
  PROTECTION
  OF PURCHASERS

  	
   

  	
  9

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  14.

  	
   

  	
  POWER OF
  ATTORNEY

  	
   

  	
  9

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  15.

  	
   

  	
  EFFECTIVENESS
  OF SECURITY

  	
   

  	
  10

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  16.

  	
   

  	
  RELEASE OF
  SECURITY

  	
   

  	
  11

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  17.

  	
   

  	
  SET-OFF

  	
   

  	
  12

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  18.

  	
   

  	
  SUBSEQUENT
  ENCUMBRANCES

  	
   

  	
  12

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  19.

  	
   

  	
  ASSIGNMENT

  	
   

  	
  13

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  20.

  	
   

  	
  NOTICES

  	
   

  	
  13

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  21.

  	
   

  	
  DISCRETION
  AND DELEGATION

  	
   

  	
  13

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  22.

  	
   

  	
  PERPETUITY
  PERIOD

  	
   

  	
  13

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  23.

  	
   

  	
  COUNTERPARTS

  	
   

  	
  13

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  24.

  	
   

  	
  GOVERNING
  LAW AND JURISDICTION

  	
   

  	
  13

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SCHEDULE 1
  FORM OF NOTICE OF ASSIGNMENT

  	
   

  	
  14

  



 


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THIS DEED OF CHARGE is made on 21
December 2005


 


BY


 


(1)           BNS AUTOMOBILE FUNDING B.V., a private company incorporated in The Netherlands with limited
liability and registered with company number 34238138 (the “Chargor”);


 


in favour of


 


(2)         BNP PARIBAS, as
security agent and security trustee for itself and on behalf of the Secured
Parties (as defined below) on the terms and conditions set out in the
Intercreditor Deed (as defined below) (the “Security
Agent”, which expression shall include any person for the time being
appointed as Security Agent or as a Supplemental Security Agent for the purpose
of, and in accordance with, the Intercreditor Deed).


 


WHEREAS:


 


(1)         Pursuant to a senior bridge facilities agreement dated 21 December
2005 and made between Hertz International, Ltd, the Arrangers, BNP Paribas, The
Royal Bank of Scotland plc and Calyon S.A. as Joint Bookrunners, BNP Paribas,
Calyon S.A., The Royal Bank of Scotland plc, BNP Paribas (Canada) and Indosuez
Finance (UK) Limited as Banks, BNP Paribas as Global Coordinator and as
Facility Agent, the Security Agent, the Chargor as a Borrower and a Guarantor,
the other Original Borrowers and the other Original Guarantors named therein
(in each case as such terms are defined therein) (the “Facility Agreement”) the Banks have made
available to the certain members of the Hertz group of companies, subject to
the terms set out therein, certain loan facilities.


 


(2)         It is a condition precedent to the making of Advances under the
Facility Agreement that the Chargor grants certain security interests in favour
of the Security Agent for the due and punctual performance of its obligations
arising from time to time under the Finance Documents.  The Chargor has agreed to grant such security
interests on and subject to the terms of this Deed.


 


(3)         This Deed is subject to the terms of the Intercreditor Deed.


 


NOW THIS DEED WITNESSETH as follows:


 


1.          DEFINITIONS
AND INTERPRETATION


 


1.1        Definitions


Terms
defined in the Facility Agreement and the Intercreditor Deed shall, unless
otherwise defined in this Deed, have the same meaning when used in this Deed
(including the recitals hereto) and in addition:


 


“Charged Property” means all of the assets
and undertaking of the Chargor which from time to time are the subject of the
security created or expressed to be created in favour of the Security Agent by
or pursuant to this Deed;


 


“Collateral Rights” means all rights, powers
and remedies of the Security Agent provided by or pursuant to this Deed or by
law;


 


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“Enforcement Event” means the occurrence of
an Event of Default which is continuing and has not been waived under the
Facility Agreement and which has resulted in the Facility Agent serving a
notice under Clause 23.16(a) (Acceleration
and Cancellation) of the Facility Agreement;


 


“Notice of Assignment” means a notice of
assignment in, or substantially in, the form set out in Schedule 1 (Notice of Assignment) or in such other
form as may from time to time be specified by the Security Agent;


 


“Receiver” means any person which is
appointed as a receiver, receiver and manager or (in so far as it is permitted
by law) an administrative receiver of the whole or any part of the Charged
Property pursuant to Clause 10.1 (Appointment
and Removal);


 


“Related Rights” means, in relation to any
asset:


 


(a)             the proceeds of sale of any part of that asset;


 


(b)            all rights under any licence, agreement for sale or agreement for lease
in respect of that asset;


 


(c)             all rights, benefits, claims, contracts, warranties, remedies,
security, indemnities or covenants for title in respect of that asset; and


 


(d)            any moneys and proceeds paid or payable in respect of that asset;


 


“Secured Liabilities” means all present and
future obligations and liabilities (whether actual or contingent and whether
owed jointly or severally or in any other capacity whatsoever) of the Chargor
to the Finance Parties (or any of them) under the Finance Documents (or any of
them);


 


“Secured Parties” means the Security Agent
and each other Finance Party from time to time; and


 


“Specified Contracts” means each of:


 


(a)             the intra-group loan agreement dated 21 December 2005 and made
between the Chargor, as lender and Hertz de España, S.A. as borrower;


 


(b)            the intra-group loan agreement dated 21 December 2005 and made
between the Chargor, as lender and Hertz Alquiler de Maquinaria, S.L, as
borrower; and


 


(c)             the intra-group loan agreement dated 21 December 2005 and made
between the Chargor, as lender, and Stuurgroep Holland B.V., as borrower,


 


in each case
as the same may be amended from time to time, and each, a “Specified Contract”.


 


1.2        Interpretation


In this
Deed:


 


1.2.1         the rules of interpretation contained in Clauses 1.2 (Interpretation) to 1.10 (Calculations) (inclusive) of the Facility
Agreement shall apply to the construction of this Deed;


 


1.2.2         any reference to the “Security
Agent”, the “Chargor”,
the “Facility Agent” or the “Secured Parties” shall be construed so as
to include its or their (and any subsequent) successors and any permitted
transferees in accordance with their respective interests;


 


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1.2.3         a “successor” of any
party shall be construed so as to include an assignee or successor in title of
such party and any person who under the laws of the jurisdiction of
incorporation or domicile of such party has assumed the rights and obligations
of such party under this Deed or to which, under such laws, such rights and
obligations have been transferred; and


 


1.2.4         references in this Deed to any Clause or Schedule shall be to a
clause or schedule contained in this Deed.


 


1.3        Third Party Rights


A
person who is not a party to this Deed has no right under the Contracts (Rights
of Third Parties) Act 1999 to enforce or to enjoy the benefit of any term of
this Deed.


 


2.          ASSIGNMENT


 


The
Chargor hereby assigns with full title guarantee to the Security Agent as
trustee for the Secured Parties as security for the payment and discharge of
the Secured Liabilities all of the Chargor’s right, title, interest and
benefits from time to time in and to each of the Specified Contracts and any
Related Rights in respect thereof, together with all rights to receive payments
of any amounts that may become payable under such Specified Contracts or any
related rights or entitlements, and all payments received by the Chargor
thereunder, including without limitation, all rights to serve notices and/or
make demands thereunder and/or to take such steps as are required to cause
amounts to become due and payable thereunder and all rights of action in
respect of any breach thereof and all rights to receive damages.


 


3.          PERFECTION
OF SECURITY


 


The
Chargor shall deliver to the Security Agent (or procure delivery of) a Notice
of Assignment duly executed by, or on behalf of, the Chargor in respect of each
Specified Contract, on the date of this Deed, and shall use its reasonable
endeavours to procure that each notice is acknowledged by the obligor or debtor
specified therein.


 


4.          FURTHER ASSURANCE


 


4.1        Further Assurance: General


The
Chargor shall promptly do all such acts or execute all such documents
(including  assignments, transfers,
mortgages, charges, notices and instructions) as the Security Agent may
reasonably specify (and in such form as the Security Agent may reasonably
require) in favour of the Security Agent or its nominee(s):


 


4.1.1         to perfect the security created or intended to be created in respect
of the Charged Property (which may include the execution by the Chargor of a
mortgage, charge or assignment over all or any of the assets constituting, or
intended to constitute, Charged Property) or for the exercise of the Collateral
Rights;


 


4.1.2         to confer on the Security Agent security over any property and
assets of the Chargor located in any jurisdiction outside England and Wales
equivalent or similar to the security interests intended to be conferred by or
pursuant to this Deed; and/or


 


4.1.3         to facilitate the realisation of the Charged Property.


 


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4.2        Necessary Action


The
Chargor shall take all such action as is available to it (including making all
filings and registrations) as may be necessary for the purpose of the creation,
perfection, protection or maintenance of any security conferred or intended to
be conferred on the Security Agent by or pursuant to this Deed.


 


4.3        Implied Covenants for Title


The
obligations of the Chargor under this Deed shall be in addition to the
covenants for title deemed to be included in this Deed by virtue of Part 1 of
the Law of Property (Miscellaneous Provisions) Act 1994.


 


5.          NEGATIVE
PLEDGE AND DISPOSALS


 


5.1        Negative Pledge


The
Chargor undertakes that it shall not, and it shall procure that none of its
subsidiaries shall, at any time during the subsistence of this Deed, create or
permit to subsist any Encumbrance over all or any part of the Charged Property
other than a Permitted Encumbrance.


 


5.2        No Disposal of Interests


The
Chargor undertakes that it shall not, and it shall procure that none of its
subsidiaries shall, at any time during the subsistence of this Deed, sell,
lease, transfer or otherwise dispose of, by one or more transactions or series
of transactions (whether related or not), the whole or any part of its revenues
or assets save for Permitted Disposals.


 


6.          UNDERTAKINGS


 


6.1        Amendments to Specified Contracts


Subject
to the following provisions of this Clause 6 (Undertakings),
the Chargor shall not request or agree to any amendment, modification,
supplement or variation (howsoever described) to any  Specified Contract without the Security
Agent’s prior written consent if the proposed amendment, modification,
supplement or variation would reasonably be expected to prejudice the Security
created pursuant to this Deed.


 


6.2        Notification of Amendments


The
Chargor shall, within five (5) Business Days of any amendment, modification,
supplement or variation to any agreement agreed to by it in accordance with the
terms of Clause 6.1 (Amendments to Specified
Contracts), notify the Security Agent in writing of such amendment,
modification, supplement or variation and shall promptly provide the Security
Agent with a copy (certified as a true, accurate and complete copy by a
director or other duly authorised officer of the Chargor) of each agreement or
instrument effecting such amendment, modification, supplement or variation
(each such agreement or instrument, a “Relevant
Amendment Agreement”).


 


6.3        Novations


In the
event that the Security Agent, in its sole discretion, determines that any such
Relevant Amendment Agreement constitutes a novation of the prior agreement to
which it relates, the Chargor shall promptly at its own cost and expense do all
such acts or execute all such documents (including  assignments, charges, notices and
instructions) as the Security Agent may reasonably specify (and in such form as
the Security Agent may reasonably require in favour of the Security


 


6

















 


Agent
or its nominee(s)) to confer on the Security Agent security over such Relevant
Amendment Agreement, and all of the Chargor’s rights, title, interests and
benefits thereunder, equivalent or similar to the security interests intended
to be conferred by or pursuant to this Deed in relation to the relevant
agreement prior to such amendment or variation.


 


7.          REPRESENTATIONS


 


The Chargor hereby represents and warrants to the
Security Agent for its own benefit and as trustee for the benefit of the
Secured Parties that it is the absolute legal and beneficial owner of all the
Charged Property.  The Chargor
acknowledges and agrees that the Security Agent and the Secured Parties have
relied upon such representation.


 


8.          ENFORCEMENT OF SECURITY


 


8.1        Enforcement


At any
time after the occurrence of an Enforcement Event, or if the Chargor requests
the Security Agent in writing to exercise any of its powers under this Deed,
the security created by or pursuant to this Deed is immediately enforceable and
the Security Agent may, without notice to the Chargor or prior authorisation
from any court, in its absolute discretion:


 


8.1.1         enforce all or any part of that security (at the times, in the
manner and on the terms it thinks fit) and take possession of and hold or
dispose of all or any part of the Charged Property; and


 


8.1.2         whether or not it has appointed a Receiver, exercise all or any of
the powers, authorities and discretions conferred by the Law of Property Act
1925 (as varied or extended by this Deed) on mortgagees and by this Deed on any
Receiver or otherwise conferred by law on mortgagees or Receivers.


8.2        No Liability as Mortgagee in Possession


Neither
the Security Agent nor any Receiver shall be liable to account as a mortgagee
in possession in respect of all or any part of the Charged Property or be
liable for any loss upon realisation or for any neglect, default or omission in
connection with the Charged Property to which a mortgagee in possession might
otherwise be liable.


 


9.          EXTENSION AND VARIATION OF THE LAW OF PROPERTY ACT
1925


 


9.1        Extension of Powers


The
power of sale or other disposal conferred on the Security Agent and on any
Receiver by this Deed shall operate as a variation and extension of the
statutory power of sale under Section 101 of the Law of Property Act 1925 and
such power shall arise (and the Secured Liabilities shall be deemed due and
payable for that purpose) on execution of this Deed.


 


9.2        Restrictions


The
restrictions contained in Sections 93 and 103 of the Law of Property Act 1925
shall not apply to this Deed or to the exercise by the Security Agent of its
right to consolidate all or any of the security created by or pursuant to this
Deed with any other security in existence at any time or to its power of sale,
which powers may be exercised by the Security Agent without notice to the
Chargor on or at any time after the occurrence of an Enforcement Event.


 


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9.3        Power of Leasing


The
statutory powers of leasing may be exercised by the Security Agent at any time
on or after the occurrence of an Enforcement Event and the Security Agent and
any Receiver may make any lease or agreement for lease, accept surrenders of
leases and grant options on such terms as it shall think fit, without the need
to comply with any restrictions imposed by Sections 99 and 100 of the Law of
Property Act 1925.


 


10.        APPOINTMENT OF RECEIVER OR ADMINISTRATOR


 


10.1      Appointment and Removal


After
the occurrence of an Enforcement Event, or upon the written request of the
Chargor, the Security Agent may by deed or otherwise (acting through an
authorised officer of the Security Agent), without prior notice to the Chargor:


 


10.1.1       appoint one or more persons to be a Receiver of the whole or any
part of the Charged Property;


 


10.1.2       remove (so far as it is lawfully able) any Receiver so appointed;


 


10.1.3       appoint another person(s) as an additional or replacement
Receiver(s); and


 


10.1.4       appoint one or more persons to be an administrator of the Chargor.


 


10.2      Capacity of Receivers


Each
person appointed to be a Receiver pursuant to Clause 10.1 (Appointment and Removal) shall be:


 


10.2.1       entitled to act individually or together with any other person
appointed or substituted as Receiver;


 


10.2.2       for all purposes shall be deemed to be the agent of the Chargor
which shall be solely responsible for his acts, defaults and liabilities and
for the payment of his remuneration and no Receiver shall at any time act as
agent for the Security Agent; and


 


10.2.3       entitled to remuneration for his services at a rate to be fixed by
the Security Agent (acting reasonably) from time to time (without being limited
to the maximum rate specified by the Law of Property Act 1925).


 


10.3      Statutory Powers of Appointment


The
powers of appointment of a Receiver shall be in addition to all statutory and
other powers of appointment of the Security Agent under the Law of Property Act
1925 (as extended by this Deed) or otherwise and such powers shall remain
exercisable from time to time by the Security Agent in respect of any part of
the Charged Property.


 


11.        POWERS OF RECEIVER


 


Every
Receiver shall (subject to any restrictions in the instrument appointing him
but notwithstanding any winding-up or dissolution of the Chargor) have and be
entitled to exercise, in relation to the Charged Property (and any assets of
the Chargor which, when got in, would be Charged Property) in respect of which
he was appointed, and as varied and extended by the provisions of this Deed (in
the


 


8

















 


name of
or on behalf of the Chargor or in his own name and, in each case, at the cost
of the Chargor):


 


11.1.1       all the powers conferred by the Law of Property Act 1925 on
mortgagors and on mortgagees in possession and on receivers appointed under
that Act;


 


11.1.2       all the powers of an administrative receiver set out in Schedule 1
to the Insolvency Act 1986 (whether or not the Receiver is an administrative
receiver);


 


11.1.3       all the powers and rights of an absolute owner and power to do or
omit to do anything which the Chargor itself could do or omit to do; and


 


11.1.4       the power to do all things (including bringing or defending
proceedings in the name or on behalf of the Chargor) which seem to the Receiver
to be incidental or conducive to (a) any of the functions, powers, authorities
or discretions conferred on or vested in him or (b) the exercise of the
Collateral Rights (including realisation of all or any part of the Charged
Property) or (c) bringing to his hands any assets of the Chargor forming part
of, or which when got in would be, Charged Property.


 


12.        APPLICATION OF MONEYS


 


All
moneys received or recovered by the Security Agent or any Receiver pursuant to
this Deed or the powers conferred by it shall (subject to the claims of any
person having prior rights thereto and by way of variation of the provisions of
the Law of Property Act 1925) be applied by the Security Agent (notwithstanding
any purported appropriation by the Chargor) in accordance with Clause 10 (Application of Recoveries) of the
Intercreditor Deed.


 


13.        PROTECTION OF PURCHASERS


 


13.1      Consideration


The
receipt of the Security Agent or any Receiver shall be conclusive discharge to
a purchaser and, in making any sale or disposal of any of the Charged Property
or making any acquisition, the Security Agent or any Receiver may do so for
such consideration, in such manner and on such terms as it thinks fit.


 


13.2      Protection of Purchasers


No
purchaser or other person dealing with the Security Agent or any Receiver shall
be bound to inquire whether the right of the Security Agent or such Receiver to
exercise any of its powers has arisen or become exercisable or be concerned
with any propriety or regularity on the part of the Security Agent or such
Receiver in such dealings.


 


14.        POWER OF ATTORNEY


 


14.1      Appointment and Powers


The Chargor
by way of security irrevocably appoints the Security Agent and any Receiver
severally to be its attorney (with full power to appoint substitutes and to
delegate) and in its name, on its behalf and as its act and deed to execute,
deliver and perfect all documents and do all things which the attorney may
consider to be required or desirable following the occurrence of an Enforcement
Event for:


 


9

















 


14.1.1       carrying out any obligation imposed on the Chargor by this Deed
(including the execution and delivery of any deeds, charges, assignments or
other security and any transfers of the Charged Property); and


 


14.1.2       enabling the Security Agent and any Receiver to exercise, or
delegate the exercise of, any of the rights, powers and authorities conferred
on them by or pursuant to this Deed or by law (including the exercise of any
right of a legal or beneficial owner of the Charged Property).


 


14.2      Ratification


The
Chargor shall ratify and confirm all things done and all documents executed by
any attorney in the exercise or purported exercise of all or any of his powers
under its appointment pursuant to this Clause 14.


 


15.        EFFECTIVENESS OF SECURITY


 


15.1      Continuing Security


The
security created by or pursuant to this Deed shall remain in full force and
effect as a continuing security for the Secured Obligations unless and until it
is released by the Security Agent in accordance with Clause 16 (Release of Security).


 


15.2      Chargor’s Obligations


The
obligations of the Chargor and the Collateral Rights shall not be
discharged,  impaired or otherwise
affected by:


 


15.2.1       the winding-up, dissolution, administration or re-organisation
of the Chargor or any other person or any change in its status, function,
control or ownership;


 


15.2.2       any of the obligations of the Chargor or any other person under the
Finance Documents being or becoming illegal, invalid, unenforceable or
ineffective in any respect;


 


15.2.3       time or other indulgence being granted or agreed to be granted to
the Chargor or any other Obligor in respect of its obligations under the
Finance Documents;


 


15.2.4       any amendment to, or any variation, waiver or release of, any
obligation of the Chargor or any other Obligor under the Finance Documents;


 


15.2.5       any failure to take, or fully to take, any security contemplated
hereby or otherwise agreed to be taken in respect of the obligations of the
Chargor or any other Obligor under the Finance Documents;


 


15.2.6       any failure to realise or fully to realise the value of, or any
release, discharge, exchange or substitution of, any Security taken in respect
of the obligations of the Chargor or any other Obligor under the Finance
Documents; or


 


15.2.7       any other act, event or omission which, but for this Clause 15.2,
might operate to discharge, impair or otherwise affect any of the obligations
of the Chargor herein contained or any of the rights, powers or remedies
conferred upon any of the Finance Parties by the Finance Documents or by law.


 


15.3      Cumulative Rights


The
security created by or pursuant to this Deed and the Collateral Rights shall be
cumulative, in


 


10

















 


addition
to and independent of every other security which the Security Agent or any
other Secured Party may at any time hold for the Secured Liabilities or any
other obligations or any rights, powers and remedies provided by law.  No prior security held by the Security Agent
(whether in its capacity as Security Agent or otherwise) or any of the other
Secured Parties over the whole or any part of the Charged Property shall merge
into the security constituted by this Deed.


 


15.4      No Liability


None of
the Security Agent, its nominee(s) or any Receiver shall be liable by reason of
(a) taking any action permitted by this Deed or (b) any neglect or default in
connection with the Charged Property or (c) taking possession of or realising
all or any part of the Charged Property, except in the case of gross negligence
or wilful default upon its part.


 


15.5      Partial Invalidity


If, at
any time, any provision of this Deed is or becomes illegal, invalid or
unenforceable in any respect under the law of any jurisdiction, neither the
legality, validity or enforceability of the remaining provisions of this Deed
nor of such provision under the laws of any other jurisdiction shall in any way
be affected or impaired thereby and, if any part of the security intended to be
created by or pursuant to this Deed is invalid, unenforceable or ineffective
for any reason, that shall not affect or impair any other part of the security.


 


16.        RELEASE OF SECURITY


 


16.1      Redemption of Security


Upon:


 


16.1.1       the Secured Liabilities being discharged in full and none of the
Secured Parties being under any further actual or contingent obligation to make
Advances or provide other financial accommodation to the Chargor or any other
person under any of the Finance Documents; or


 


16.1.2        the Chargor ceasing to be both a Borrower and a Guarantor, subject
to, and in accordance with, the Facility Agreement,


 


the
Security Agent shall, at the request and cost of the Parent, release and cancel
the security constituted by this Deed and procure the reassignment to the
Chargor of the property and assets assigned to the Security Agent pursuant to
this Deed, and in each case the Chargor shall have no recourse to, nor shall
any representation or warranty in relation thereto be given by, the Security
Agent or any of its nominees.


 


16.2      Partial Releases


In
connection with:


 


16.2.1       any Permitted Disposal of any Charged Property;


 


16.2.2       any sale or other disposition of any Charged Property otherwise
permitted by the Finance Documents;


 


16.2.3       any sale or other disposition of any Charged Property where the
Facility Agent or the Security Agent has consented to the disposal pursuant to
the Finance Documents;


 


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16.2.4       any sale or any other disposition of any property pursuant to a
merger, consolidation, reorganisation, winding-up, securitisation, Take-Out
Financing or sale and leaseback permitted by the Facility Agreement (to the
extent necessary to ensure such merger, consolidation, reorganisation,
winding-up, securitisation, Take-Out Financing or sale and leaseback take
place); or


 


16.2.5       the creation of any Encumbrance permitted by paragraph (x) of the
definition of Permitted Encumbrances,


 


the
Security Agent shall, at the request and cost of the Parent, release and cancel
the security constituted by this Deed and procure the reassignment to the
Chargor of the property and assets assigned to the Security Agent pursuant to
this Deed, and in each case the Chargor shall have no recourse to, nor shall
any representation or warranty in relation thereto be given by, the Security
Agent or any of its nominees; provided that,
to the extent that the disposal of such property is a Permitted Disposal or a
sale or disposition otherwise permitted by the Finance Documents, the property
shall be declared to be automatically released from the Security with effect
from the day of such disposal and the Security Agent shall do all such acts
which are reasonably requested by the Parent in order to release such property.


 


16.3      Avoidance of Payments


If the
Security Agent, acting reasonably, considers that any amount paid or credited
to it is reasonably likely to be avoided or reduced by virtue of any
bankruptcy, insolvency, liquidation or similar laws the liability of the
Chargor under this Deed and the security constituted hereby shall continue and
such amount shall not be considered to have been irrevocably paid.


 


17.        SET-OFF


 


The
Chargor authorises the Security Agent (but the Security Agent shall not be
obliged to exercise such right), after the occurrence of an Enforcement Event
to set off against the Secured Liabilities any amount or other obligation
(contingent or otherwise) owing by the Security Agent to the Chargor and apply
any credit balance to which the Chargor is entitled on any account with the
Security Agent in accordance with Clause 12 (Application
of Monies) (notwithstanding any specified maturity of any deposit
standing to the credit of any such account).


 


18.        SUBSEQUENT ENCUMBRANCES


 


If the
Security Agent (acting in its capacity as Security Agent or otherwise) or any
of the other Secured Parties at any time receives or is deemed to have received
notice of any subsequent Encumbrance affecting all or any part of the Charged
Property or any assignment or transfer of the Charged Property which is
prohibited by the terms of this Deed or the Facility Agreement, all payments
thereafter by or on behalf of the Chargor to the Security Agent (whether in its
capacity as Security Agent or otherwise) or any of the other Secured Parties
shall be treated as having been credited to a new account of the Chargor and
not as having been applied in reduction of the Secured Liabilities as at the
time when the Security Agent received such notice.


 


19.        ASSIGNMENT


 


The
Security Agent may assign and transfer all or any of its rights and obligations
under this Deed in accordance with the terms of the Intercreditor Deed.


 


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20.        NOTICES


 


Each
communication to be made under or in connection with this Deed shall be made in
accordance with the provisions of Clause 42 (Notices)
of the Facility Agreement.


 


21.        DISCRETION AND DELEGATION


 


21.1      Discretion


Any
liberty or power which may be exercised or any determination which may be made
under this Deed by the Security Agent or any Receiver may, subject to the terms
and conditions of the Intercreditor Deed, be exercised or made in its absolute
and unfettered discretion without any obligation to give reasons.


 


21.2      Delegation


Each of
the Security Agent and any Receiver shall have full power to delegate (either
generally or specifically) the powers, authorities and discretions conferred on
it by this Deed (including the power of attorney) on such terms and conditions
as it shall see fit which delegation shall not preclude either the subsequent
exercise any subsequent delegation or any revocation of such power, authority
or discretion by the Security Agent or the Receiver itself.


 


22.        PERPETUITY PERIOD


 


The
perpetuity period under the rule against perpetuities, if applicable to this
Deed, shall be the period of eighty years from the date of the Intercreditor
Deed.


 


23.        COUNTERPARTS


 


This
Deed may be executed in any number of counterparts, all of which taken together
shall constitute one and the same instrument.


 


24.        GOVERNING LAW AND JURISDICTION


 


This
Deed shall be governed by, and construed in accordance with, English law.  The provisions of Clause 47 (Jurisdiction) of the Facility Agreement
shall apply to this Deed, mutatis mutandis,
as if set out in full herein.


 


IN WITNESS WHEREOF this Deed has been
signed on behalf of the Security Agent and executed as a deed by the Chargor
and is delivered by the Chargor on the date specified above.


 


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Execution Page


 


BNS AUTOMOBILE FUNDING B.V.

Deed of Charge 

dated

21 December 2005


 






 


	
  The Chargor

  
	
   

  
	
  EXECUTED as a DEED

  
	
  by BNS AUTOMOBILE FUNDING B.V.

  
	
  acting by
  its authorised signatory:

  
	
   

  
	
   

  
	
  By:

  	
   /s/ Michel Taride

  	
   

  
	
   

  	
  Authorised
  Signatory

  
	
   

  
	
   

  
	
  The Security Agent

  
	
  EXECUTED as a DEED

  
	
  by BNP PARIBAS

  
	
  acting by
  its authorised signatory:

  
	
   

  
	
   

  
	
  By:

  	
   /s/ Authorised Signatory

  	
   

  
	
   

  	
  Authorised
  Signatory

  



 


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