Exhibit 10.23


 


Second Priority
Mortgage of Shares


 


in


 


Seagate
Technology


 


 


1 March 2010


 


 


Seagate Technology plc


 


 


(as Mortgagor)


 


 


and


 


 


Wells Fargo Bank, National Association


 


 


(as Mortgagee)


 





















 


TABLE OF CONTENTS


 


	
  CLAUSE

  	
   

  	
   

  	
  PAGE

  
	
   

  	
   

  	
   

  	
   

  
	
  1.

  	
   

  	
  DEFINITIONS
  AND INTERPRETATION

  	
  1

  
	
   

  	
   

  	
   

  	
   

  
	
  2.

  	
   

  	
  REPRESENTATION
  AND WARRANTIES

  	
  4

  
	
   

  	
   

  	
   

  	
   

  
	
  3.

  	
   

  	
  COVENANT
  TO PAY

  	
  6

  
	
   

  	
   

  	
   

  	
   

  
	
  4.

  	
   

  	
  SECURITY

  	
  6

  
	
   

  	
   

  	
   

  	
   

  
	
  5.

  	
   

  	
  RIGHTS
  IN RESPECT OF MORTGAGED PROPERTY

  	
  7

  
	
   

  	
   

  	
   

  	
   

  
	
  6.

  	
   

  	
  PRESERVATION
  OF SECURITY

  	
  8

  
	
   

  	
   

  	
   

  	
   

  
	
  7.

  	
   

  	
  ENFORCEMENT
  OF SECURITY

  	
  11

  
	
   

  	
   

  	
   

  	
   

  
	
  8.

  	
   

  	
  APPOINTMENT
  OF A RECEIVER

  	
  12

  
	
   

  	
   

  	
   

  	
   

  
	
  9.

  	
   

  	
  POWERS
  OF A RECEIVER

  	
  13

  
	
   

  	
   

  	
   

  	
   

  
	
  10.

  	
   

  	
  FURTHER
  ASSURANCES

  	
  13

  
	
   

  	
   

  	
   

  	
   

  
	
  11.

  	
   

  	
  INDEMNITIES

  	
  14

  
	
   

  	
   

  	
   

  	
   

  
	
  12.

  	
   

  	
  POWER
  OF ATTORNEY

  	
  15

  
	
   

  	
   

  	
   

  	
   

  
	
  13.

  	
   

  	
  EXPENSES

  	
  16

  
	
   

  	
   

  	
   

  	
   

  
	
  14.

  	
   

  	
  RELEASE

  	
  16

  
	
   

  	
   

  	
   

  	
   

  
	
  15.

  	
   

  	
  NOTICES

  	
  16

  
	
   

  	
   

  	
   

  	
   

  
	
  16.

  	
   

  	
  ASSIGNMENTS

  	
  17

  
	
   

  	
   

  	
   

  	
   

  
	
  17.

  	
   

  	
  COLLATERAL
  AGENT

  	
  17

  
	
   

  	
   

  	
   

  	
   

  
	
  18.

  	
   

  	
  SET-OFF

  	
  17

  
	
   

  	
   

  	
   

  	
   

  
	
  19.

  	
   

  	
  SUBSEQUENT
  SECURITY INTERESTS

  	
  17

  
	
   

  	
   

  	
   

  	
   

  
	
  20.

  	
   

  	
  MISCELLANEOUS

  	
  17

  
	
   

  	
   

  	
   

  	
   

  
	
  21.

  	
   

  	
  LAW
  AND JURISDICTION

  	
  18

  
	
   

  	
   

  	
   

  	
   

  
	
  22.

  	
   

  	
  INTERCREDITOR
  AGREEMENT

  	
  18

  
	
   

  	
   

  
	
  SCHEDULE 1

  	
  21

  
	
   

  	
   

  
	
  SCHEDULE 2

  	
  23

  
	
   

  	
   

  
	
  SCHEDULE 3

  	
  25

  



 


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THIS
EQUITABLE SHARE MORTGAGE is made on 1 March 2010


 


BETWEEN


 


(1)                                  SEAGATE TECHNOLOGY PLC, a company incorporated and
existing under the laws of Ireland with its registered office at Arthur Cox
Building, Earlsfort Terrace, Dublin 2, Ireland (the “Mortgagor”);
and


 


(2)                                  WELLS FARGO BANK, NATIONAL ASSOCIATION, a company established under
the laws of the United States of America as Collateral Agent and trustee for
and on behalf of the Secured Parties (the “Collateral Agent”
or “Mortgagee”).


 


WHEREAS


 


(A)                              Pursuant to the Indenture,
Seagate Technology International, an exempted company with limited liability
incorporated under the laws of the Cayman Islands, as Issuer (the “Issuer”) has issued USD430,000,000 in
aggregate principal amount of 10.00% Senior Secured Second-Priority Notes due
2014 (the “Notes”) guaranteed by
the Mortgagor as Guarantor.


 


(B)                                In order to
secure the Obligations of the Mortgagor under the Note Guaranty, the Indenture
and the Notes, the Mortgagor has agreed to grant security over the Mortgaged
Shares in favour of the Collateral Agent for the benefit of the Secured Parties
in respect of the Secured Obligations.


 


(C)                                The Security
Interests granted hereunder in respect of the Mortgaged Shares are subject to
the terms, conditions and provisions of the Intercreditor Agreement in all
respects.


 


NOW
THIS MORTGAGE WITNESSETH


 


1.                                      DEFINITIONS AND INTERPRETATION


 


1.1                                 In
this Mortgage, unless the context otherwise requires, words and expressions
which are capitalised but not defined herein (including in the recitals hereto)
shall have the same meanings as are given to them in the Indenture.  In addition, the following definitions shall
apply:


 


“Companies Law”
means the Companies Law (as amended) of the Cayman Islands;


 


“Company” means Seagate Technology, an exempted company with
limited liability incorporated under the laws of the Cayman Islands with a
company number  CR-103072 and having its
registered office at P.O Box 309, Ugland House, George Town, Grand Cayman
KY1-1104, Cayman Islands;


 


“Event of Default” means the occurrence of an Event of
Default as defined in the Indenture and/or the failure by the Mortgagor to
observe or perform any covenant or agreement contained in this Mortgage or any
default in the payment of any of the Secured Obligations;


 


“First Priority Obligation” has the meaning given to it in
the Intercreditor Agreement;


 


“First Priority Secured Party” means JPMorgan Chase Bank,
N.A. as administrative agent under the Senior Credit Facility or any other
administrative agent under a Senior Credit Facility that is a First Priority
Obligation;


 


“First Priority Share Mortgage” means the Equitable Share
Mortgage dated 1 March 2010 between the Mortgagor and the First Priority
Secured Party as varied from time to time;


 


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“gross negligence” shall be interpreted according to the laws
of the State of New York, United States of America;


 


“Guarantor” means each of the Company and certain other
subsidiaries of the Company, all of which entities have guaranteed the Notes
under the Indenture;


 


“Indenture” means the Indenture dated as of 1 May 2009
and made among the Issuer, the Company, Wells Fargo Bank, N.A. as trustee and
the other guarantors party thereto as varied from time to time;


 


“Indenture Documents”
has the meaning given to it in the U.S. Security Agreement;


 


“Initial
Shares” means the entire issued share capital of the Company legally
and beneficially held by the Mortgagor pursuant to the Schemes of Arrangement
becoming effective;


 


“Intercreditor Agreement” means the Intercreditor Agreement
dated 1 May 2009 among the Collateral Agent, JPMorgan Chase Bank, N.A.,
the Company, the Issuer, Seagate Technology HDD Holdings and the other parties
thereto as amended from time to time;


 


“Mortgage” means this share mortgage;


 


“Mortgaged Property” means the Mortgaged Shares and all
rights, benefits and advantages now or at any time in the future deriving from
or incidental to any of the Mortgaged Shares including:


 


(a)                                  all
dividends or other distributions (whether in cash, securities or other
property), interest and other income paid or payable in relation to any
Mortgaged Shares;


 


(b)                                 all
shares, securities, rights, monies or other property whether certificated or
uncertificated accruing, offered or issued at any time by way of redemption,
conversion, exchange, substitution, preference, option, bonus issue or
otherwise in respect of any Mortgaged Shares (including but not limited to
proceeds of sale); and


 


(c)                                  all
certificates or other evidence of title to any of the Mortgaged Shares now and
from time to time hereafter deposited with the Collateral Agent;


 


“Mortgaged Shares”
means:


 


(a)                                  any
and all shares (if any) in the capital of the Company legally or beneficially
held by the Mortgagor as at the date hereof;


 


(b)                                 any
shares acquired in respect of Mortgaged Shares by reason of a stock split,
stock dividend, reclassification or otherwise; and


 


(c)                                  all
other shares in the Company from time to time legally or beneficially owned by
the Mortgagor including, without limitation, the Initial Shares acquired by the
Mortgagor at the Transaction Time;


 


“Note Guaranty”
means the guaranty of the Notes by the Mortgagor as Guarantor pursuant to the
Indenture as varied from time to time;


 


“Other Guarantor”
means any of the Guarantors;


 


“Parties” means the parties to this Mortgage;


 


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“Register of Members” means the register of members of the
Company maintained by the Company in accordance with the Companies Law;


 


“Secured Obligations” has the meaning given to it in the U.S.
Security Agreement;


 


“Security Interest” means:


 


(a)                                  a
mortgage, charge, pledge, lien, assignment by way of security or other
encumbrance or security arrangement (including any hold back or “flawed asset” arrangement) securing any obligation of any
person;


 


(b)                                 any
arrangement under which money or claims to, or the benefit of, a bank or other
account may be applied, set off or made subject to a combination of accounts so
as to effect discharge of any sum owed or payable to any person;


 


(c)                                  any
other type of arrangement having a similar effect; or


 


(d)                                 agreements
to create the foregoing;


 


“Security Period” means the period commencing on the date of
Transaction Time and terminating on the date when all the Secured Obligations
have been discharged in full;


 


“Schemes of Arrangement” means (i) the scheme of
arrangement to be approved by the shareholders of Seagate Technology at a
meeting held in accordance with an order of the Grand Court of the Cayman
Islands (“Cayman Court”); and (ii) the scheme of arrangement supervised by
the Cayman Court pursuant to which Seagate Technology will merge with Seagate
Cayman Holdings, a wholly-owned subsidiary of Seagate Technology plc, Seagate
Technology will survive the merger, Seagate Cayman Holdings will be dissolved
and will cease to exist and Seagate Technology will become a direct,
wholly-owned subsidiary of Seagate Technology plc, the resulting publicly
traded parent of the Seagate group of companies;


 


“Transaction Time” has the meaning given to it in the Schemes
of Arrangement; and


 


“U.S. Security Agreement” means the Second Lien U.S. Security
Agreement among the Issuer, the Company, each of the subsidiaries listed in
Schedule I thereto and the Collateral Agent as supplemented by the Mortgagor
and Seagate HDD Cayman on or about the date hereof and as varied from time to
time.


 


1.2                                 In
construing this Mortgage (including the recitals), unless otherwise specified:


 


(a)                                  references
to any Party shall be construed so as to include that Party’s respective
successors in title, permitted assigns and permitted transferees;


 


(b)                                 “including” and “in particular”
shall not be construed restrictively but shall mean respectively “including,
without prejudice to the generality of the foregoing” and “including, without
limitation”, and “in particular, but without prejudice to the generality
of the foregoing”;


 


(c)                                  references
to a “person” shall be construed
so as to include any individual, firm, company or other body corporate,
government, state or agency of a state, local or municipal authority or
government body or any joint venture, association or partnership (whether or
not having separate legal personality); and in each case, its successors and
assigns and persons deriving title under or through it, in whole or in part,
and any person which replaces any party to any document in its respective role
thereunder, whether by 


 


3





















 


assuming the rights and obligations of
the party being replaced or whether by executing a document in or substantially
in the form of the document it replaces;


 


(d)                                 “variation” includes any variation, amendment, accession,
novation, restatement, modification, assignment, transfer, supplement, extension,
deletion or replacement however effected and “vary”
and “varied” shall be construed accordingly;


 


(e)                                  “writing” includes facsimile transmission legibly received
except in relation to any certificate, notice or other document which is
expressly required by this Mortgage to be signed and “written”
has a corresponding meaning;


 


(f)                                    references
to the “consent” of the Collateral Agent shall
be construed as the consent of the Collateral Agent acting in its absolute
discretion;


 


(g)                                 subject
to Clause 20.3, references to this Mortgage or to any other document
include references to this Mortgage or such other document as varied in any
manner from time to time, even if changes are made to:


 


(i)                                     the
composition of the parties to this Mortgage or such other document or to the
nature or amount (including any increase) of any facilities made available
under such other document; or


 


(ii)                                  the
nature or extent of any obligations under such other document;


 


(h)                                 references
to uncertificated shares are to shares the title to which can be transferred by
means of an electronic or other entry and references to certificated shares are
to shares which are not uncertificated shares;


 


(i)                                     references to the singular shall include the plural
and vice versa and references to the masculine shall include the feminine or
neuter and vice versa;


 


(j)                                     references
to clauses and schedules are to clauses of, and schedules to, this Mortgage;


 


(k)                                  references
to any statute or statutory provision shall be construed as a reference to the
same as it may have been, or may from time to time be amended, modified or
re-enacted;


 


(l)                                     headings
and titles are for convenience only and do not affect the interpretation of
this Mortgage;


 


(m)                               an
Event of Default is “continuing” if
it has not been remedied or waived; and


 


(n)                                 this
Mortgage is a “Security Agreement” under the
terms of the Indenture.


 


2.                                      REPRESENTATION AND WARRANTIES


 


2.1                                 The
Mortgagor hereby represents and warrants to the Collateral Agent and each
Secured Party on the date of the Transaction Time with respect to all
representations and warranties in this Clause 2.1 and with respect to Clause
2.1(h)(i); (i) and (j) on the date of this Mortgage that:


 


(a)                                  the
Mortgagor is the sole legal and beneficial owner of the Mortgaged Property free
from any Security Interest (other than that created by the First Priority Share
Mortgage and this Mortgage) or other interest and any options or rights of
pre-emption;


 


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(b)                                 the
Mortgaged Shares represent 100% (one hundred percent) of the issued shares
of the Company;


 


(c)                                  any
Mortgaged Shares are, or will be when mortgaged and charged, duly authorised,
validly issued, fully paid, non-assessable, freely transferable and constitute
shares in the capital of a Cayman Islands exempted company.  To the extent they are in existence there are
no moneys or liabilities outstanding or payable in respect of any such shares
nor will there be any and they have not been redeemed nor cancelled in any way
nor will they be;


 


(d)                                 no
person has or is entitled to any conditional or unconditional option, warrant
or other right to subscribe for, purchase or otherwise acquire any issued or
unissued shares, or any interest in shares, in the capital of the Company;


 


(e)                                  the
Mortgaged Shares are not issued with any preferred, deferred or other special
rights or restrictions whether in regard to dividends, voting, return of any
amount paid on account of shares or otherwise which are not expressly set out
in the memorandum and articles of association of the Company;


 


(f)                                    there
are no covenants, agreements, conditions, interest, rights or other matters
whatsoever which adversely affect the Mortgaged Property;


 


(g)                                 the
Mortgagor has not received any notice of an adverse claim by any person in
respect of the ownership of the Mortgaged Property or any interest in the
Mortgaged Property;


 


(h)                                 the
Mortgagor has full power and authority to:


 


(i)                                     execute
and deliver this Mortgage and the other Indenture Documents to which it is a
party;


 


(ii)                                  be
the legal and beneficial owner of the Mortgaged Property; and


 


(iii)                               comply
with the provisions of, and perform all its obligations under this Mortgage and
the other Indenture Documents to which it is a party;


 


(i)                                     it
is able to pay its debts as they fall due and it has not taken any action nor
have any steps been taken or legal proceedings been started or threatened in
writing against it for:


 


(i)                                     winding
up, dissolution or reorganisation;


 


(ii)                                  the
enforcement of any Security Interest over its assets; or


 


(iii)                               the
appointment of a liquidator, receiver, administrative receiver, administrator,
trustee or similar officer of it or of any or all of its assets;


 


(j)                                     all
licences, consents, exemptions, clearance filings, registration, payments of
taxes, notarisation and authorisations as are or may be necessary or desirable
for the proper conduct of its business, trade, and ordinary activities and for
the performance and discharge of its obligations and liabilities under this
Mortgage and each other Indenture Document to which the Mortgagor is a party
and which are required in connection with the execution, delivery, validity,
enforceability or admissibility in evidence of this Mortgage and each other
Indenture Document to which the Mortgagor is a party and the creation of security
over the Mortgaged Property have been obtained and are in full force and
effect;


 


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(k)                                  it
has not taken any action whereby the rights attaching to the Mortgaged Property
are altered or diluted save to the extent such alteration or dilution is
expressly permitted under this Mortgage or any other Indenture Document; and


 


(l)                                     this
Mortgage is effective to create a valid and enforceable second priority
equitable mortgage and second priority fixed charge upon the Mortgaged Property
in favour of the Collateral Agent ranking in priority to any claims by any
liquidator (or similar officer) or creditor of the Mortgagor other than the
parties secured by the First Priority Share Mortgage.


 


2.2                                 The
Mortgagor also represents and warrants to and undertakes with the Collateral
Agent that the foregoing representations and warranties will be true and
accurate throughout the continuance of this Mortgage with reference to the
facts and circumstances subsisting from time to time.


 


3.                                      COVENANT TO PAY


 


The Mortgagor hereby covenants with the
Collateral Agent as primary obligor and not merely as surety to pay and
discharge the Secured Obligations in the manner provided in the relevant
Indenture Documents.


 


4.                                      SECURITY


 


4.1                                 As
a continuing security for the payment and discharge of the Secured Obligations,
the Mortgagor as legal and beneficial owner hereby:


 


(a)                                  mortgages
to the Collateral Agent, by way of a second equitable mortgage, the
Mortgaged Shares;


 


(b)                                 charges
to the Collateral Agent, by way of a second fixed charge, all of its right,
title and interest in and to the Mortgaged Property including all benefits,
present and future, actual and contingent accruing in respect of the Mortgaged
Property; and


 


(c)                                  assigns,
and agrees to assign, absolutely by way of security to the Collateral Agent all
its rights, present and future, relating to any of the Mortgaged Property.


 


4.2                                 The
Mortgagor hereby agrees to deliver, or cause to be delivered, to the Collateral
Agent on the date of the Transaction Time:


 


(a)                                  copies
of the memorandum and articles of association and board and committee
resolutions of the Mortgagor required to authorise the execution of this
Mortgage;


 


(b)                                 an
executed but undated share transfer certificate in the form set out in Schedule
1 to this Mortgage and any other documents which from time to time may be
requested by the Collateral Agent in order to enable the Collateral Agent or
its nominees to be registered as the owner or otherwise obtain legal title to
the Mortgaged Shares;


 


(c)                                  all
share certificates (if any) representing the Mortgaged Shares (when a share
certificate is so issued by the Company and is not in the possession of the
First Priority Secured Party) and a certified copy of the Register of
Members of the Company showing the Mortgagor as registered owner of the
Mortgaged Shares;


 


(d)                                 an
executed irrevocable proxy and power of attorney made in respect of the
Mortgaged Shares in favour of the Collateral Agent in the form set out in
Schedule 2 to this Mortgage;


 


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(e)                                  an
executed irrevocable letter of instructions from the Company to its registered
office provider appointing an instructing party for the Company in the form set
out in Schedule 3 of this Mortgage; and


 


(f)                                    a
copy of the special resolution passed by the Mortgagor in the form agreed by
the parties.


 


4.3                                 The
Mortgagor will procure that there shall be no increase in the issued share
capital of the Company (other than by way of an issuance of further shares to
the person in whose name the Mortgaged Shares are registered) without the prior
consent in writing of the Collateral Agent subject to the terms, conditions and
provisions of the Intercreditor Agreement.


 


4.4                                 The
Mortgagor will deliver, or cause to be delivered, to the Collateral Agent
immediately upon (without prejudice to Clause 4.3) the issue of any
further Mortgaged Shares following the date of the Transaction Time, the items
listed in Clauses 4.2(b) and 4.2(c) in respect of all such
further Mortgaged Shares.


 


4.5                                 The
Mortgagor shall, immediately after the Transaction Time procure that any
existing notation be deleted and that the following notation be entered on the
Register of Members of the Company:


 


“All the ordinary shares issued as fully paid up and registered in the
name of Seagate Technology plc are subject to a second priority mortgage and
charge in favour of Wells Fargo Bank, National Association pursuant to a share
mortgage dated 1 March 2010, as amended from time to time.”


 


4.6                                 The
Mortgagor shall, on the date of Transaction Time, provide the Collateral Agent
with a certified true copy of the Register of Members of the Company with the
annotation referred to in Clause 4.5.


 


5.                                      RIGHTS IN RESPECT OF MORTGAGED PROPERTY


 


5.1                                 Unless
and until the declaration by the Collateral Agent of an occurrence of an Event
of Default:


 


(a)                                  the
Mortgagor shall be entitled to exercise all voting and consensual powers
pertaining to the Mortgaged Property or any part thereof for all purposes not
inconsistent with the terms of this Mortgage or the other Indenture Documents;
and


 


(b)                                 the
Mortgagor shall be entitled to receive and retain any dividends, interest or
other moneys or assets accruing on or in respect of the Mortgaged Property or
any part thereof.


 


5.2                                 The
Collateral Agent shall not have any duty to ensure that any dividends, interest
or other moneys and assets receivable in respect of the Mortgaged Property are
duly and punctually paid, received or collected as and when the same become due
and payable or to ensure that the correct amounts (if any) are paid or received
on or in respect of the Mortgaged Property or to ensure the taking up of any
(or any offer of any) stocks, shares, rights, moneys or other property paid,
distributed, accruing or offered at any time by way of redemption, bonus,
rights, preference, or otherwise on or in respect of, any of the Mortgaged
Property.


 


5.3                                 Subject
to the Intercreditor Agreement, the Mortgagor hereby authorises the Collateral
Agent to arrange at any time and from time to time after the occurrence of an
Event of Default for the Mortgaged Property or any part thereof to be
registered in the name of the Collateral Agent (or its nominee) thereupon to be
held, as so registered, subject to the terms of this Mortgage and, at the
request of the Collateral Agent, the Mortgagor shall without delay procure
that the foregoing shall be done.


 


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6.                                      PRESERVATION OF SECURITY


 


6.1                                 It
is hereby agreed and declared that:


 


(a)                                  the
security created by this Mortgage shall be held by the Collateral Agent as a
continuing security for the payment and discharge of the Secured Obligations
and the security so created shall not be satisfied by any intermediate payment
or satisfaction of any part of the Secured Obligations;


 


(b)                                 the
Collateral Agent shall not be bound to enforce any other security before
enforcing the security created by this Mortgage;


 


(c)                                  no
delay or omission on the part of the Collateral Agent in exercising any right,
power or remedy under this Mortgage shall impair such right, power or remedy or
be construed as a waiver thereof nor shall any single or partial exercise of
any such right, power or remedy preclude any further exercise thereof or the
exercise of any other right, power or remedy. 
The rights, powers and remedies herein provided are cumulative and not
exclusive of any rights, powers and remedies provided by law and may be
exercised from time to time and as often as the Collateral Agent may deem
expedient; and


 


(d)                                 any
waiver by the Collateral Agent of any terms of this Mortgage shall only be
effective if given in writing and then only for the purpose and upon the terms
for which it is given.


 


6.2                                 Any
settlement or discharge under this Mortgage between the Collateral Agent and
the Mortgagor shall be conditional upon no security or payment to the
Collateral Agent by the Company or the Mortgagor or any other person
(including, without limitation, any Other Guarantor) being avoided or set aside
or ordered to be refunded or reduced by virtue of any provision or enactment
relating to bankruptcy, insolvency, administration or liquidation for the time
being in force and, if such condition is not satisfied, the Collateral Agent
shall be entitled to enforce this Mortgage as if such settlement or discharge
had not been made, provided that such settlement or discharge shall become
unconditional six months and one day after the date of such settlement or
discharge.


 


6.3                                 The
rights of the Collateral Agent under this Mortgage and the security hereby
constituted shall not be affected by any act, omission, matter or thing which,
but for this provision, might operate to impair, affect or discharge such
rights and security, in whole or in part, including without limitation, and
whether or not known to or discoverable by the Company, the Mortgagor, the
Collateral Agent or any other person:


 


(a)                                  any
time or waiver granted to or composition with the Company, the Mortgagor or any
other person;


 


(b)                                 the
taking, variation, compromise, renewal or release of or refusal or neglect to
perfect or enforce any rights, remedies or securities against the Company, the
Mortgagor or any other person;


 


(c)                                  any
legal limitation, disability, incapacity or other circumstances relating to the
Company, the Mortgagor or any other person;


 


(d)                                 any
amendment or supplement to any Indenture Document or any other document or
security (including any amendment the effect of which is to change the nature
or amount of any facilities made available thereunder or to change the nature
or extent of any obligations thereunder);


 


(e)                                  the
dissolution, liquidation, amalgamation, reconstruction or reorganisation of the
Company, the Mortgagor or any other person; or


 


8
















 


(f)                                    the unenforceability, invalidity or frustration of any
obligations of the Company, the Mortgagor or any other person under any
Indenture Document or any other document or security.


 


6.4                               During the Security Period, the Mortgagor shall not by
virtue of any payment made hereunder on account of the Secured Obligations or
by virtue of any enforcement by the Collateral Agent of its rights under, or
the security constituted by, this Mortgage or any Indenture Document or by
virtue of any relationship between or transaction involving the Mortgagor
and/or the Company (whether such relationship or transaction shall constitute
the Mortgagor a creditor of the Company, a guarantor of the obligations of the
Company or in part subrogated to the rights of others against the Company or
otherwise howsoever and whether or not such relationship or transaction shall
be related to, or in connection with, the subject matter of this Mortgage):


 


(a)                                  exercise any rights of subrogation against the Company
or any other person in relation to any rights, security or moneys held or
received or receivable by the Collateral Agent or any person;


 


(b)                                 exercise any right of contribution from any co-surety
liable in respect of such moneys and liabilities under any other guarantee,
security or agreement;


 


(c)                                  exercise any right of set-off or counterclaim against
the Company or any such co-surety;


 


(d)                                 receive, claim or have the benefit of any payment,
distribution, security or indemnity from the Company or any such co-surety; or


 


(e)                                  unless so directed by the Collateral Agent (when the
Mortgagor will prove in accordance with such directions), claim as a creditor
of the Company or any such co-surety in competition with the Collateral Agent.


 


The
Mortgagor shall hold in trust for the Collateral Agent and forthwith pay or
transfer (as appropriate) to the Collateral Agent any such payment
(including an amount to any such set-off), distribution or benefit of such
security, indemnity or claim in fact received by it.


 


6.5                               During the Security Period, the Collateral Agent may
at any time keep in a separate account or accounts (without liability to pay
interest thereon) in the name of the Collateral Agent for as long as it may
think fit, any moneys received recovered or realised under this Mortgage or under
any other guarantee, security or agreement relating in whole or in part to the
Secured Obligations without being under any intermediate obligation to apply
the same or any part thereof in or towards the discharge of the Secured
Obligations or any other amount owing or payable under the Indenture Documents;
provided that the Collateral Agent shall be obliged to apply amounts standing
to the credit of such account or accounts once the aggregate amount held by the
Collateral Agent in any such account or accounts opened pursuant hereto is
sufficient to satisfy the outstanding amount of the Secured Obligations in
full.


 


6.6                               Subject to the Intercreditor Agreement, except as
otherwise permitted by the First Priority Share Mortgage, the Mortgagor shall
not, without the prior written consent of the Collateral Agent:


 


(a)                                  cause or permit any rights attaching to the Mortgaged
Property to be varied or abrogated;


 


(b)                                 cause or permit any of the Mortgaged Property to be
consolidated, sub-divided or converted or the capital of the Company to be
re-organised, exchanged or repaid; or


 


(c)                                  cause or permit anything to be done which may
depreciate, jeopardise or otherwise prejudice the value of the security hereby
given.


 


9

















 


6.7                               The Mortgagor hereby covenants that during the
Security Period it will remain the legal and beneficial owner of the Mortgaged
Property (subject to the Security Interests hereby created) and that it will
not (other than as permitted by the Indenture Documents):


 


(a)                                  create or suffer the creation of any Security
Interests (other than those created by this Mortgage and the First Priority
Share Mortgage) or any other interest on or in respect of the whole or any part
of the Mortgaged Property or any of its interest therein;


 


(b)                                 sell, assign, transfer or otherwise dispose of any of
its interest in the Mortgaged Property without the prior consent in writing of
the Collateral Agent; or


 


(c)                                  permit the register of members to be maintained
outside of the Cayman Islands or by a service provider other than the person to
whom the letter of instructions in Schedule 3 has been given (unless in the
later case, the Mortgagor has provided a new letter of instructions
substantially in the form of Schedule 3 by the new service provider).


 


6.8                               The Mortgagor shall remain liable to perform all the
obligations assumed by it in relation to the Mortgaged Property and the
Collateral Agent shall be under no obligation of any kind whatsoever in respect
thereof or be under any liability whatsoever in the event of any failure by the
Mortgagor to perform its obligations in respect thereof.


 


6.9                               The Mortgagor shall ensure that it shall not, without
the prior written consent of the Collateral Agent, use its voting rights to
permit the Company to amend its memorandum or articles of association in a way
which could be expected to adversely affect the interests of the Collateral
Agent or any of the Secured Parties.


 


6.10                         The Mortgagor shall procure that the Company shall
not:


 


(a)                                  create or permit to subsist any Security Interest upon
the whole or any part of its assets, except as permitted by the Indenture
Documents;


 


(b)                                 register any transfer of the Mortgaged Shares to any
person (except (i) to the Collateral Agent or its nominees pursuant to the
provisions of this Mortgage and (ii) as permitted by the Indenture
Documents);


 


(c)                                  issue any replacement share certificates in respect of
any of the Mortgaged Shares;


 


(d)                                 continue its existence under the laws of any
jurisdiction other than the Cayman Islands;


 


(e)                                  do anything which might result in the Company being
struck off the register as an exempted company;


 


(f)                                    issue, allot or grant warrants or options with respect
to any additional shares;


 


(g)                                 exercise any rights of forfeiture over any of the Mortgaged
Shares; or


 


(h)                                 purchase, redeem, otherwise acquire, cancel,
sub-divide, amalgamate, reclassify or otherwise restructure any of the
Mortgaged Property,


 


during
the Security Period without the prior written consent of the Collateral Agent.


 


6.11                         The Mortgagor shall procure that the Company shall
irrevocably consent to any transfer of the Mortgaged Shares by the Collateral
Agent or its nominee to any other person pursuant to the exercise of the
Collateral Agent’s rights under this Mortgage.


 


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6.12                         The Mortgagor shall not, without the prior written
consent of the Collateral Agent, participate in any vote concerning a members’
liquidation or compromise pursuant to the Companies Law.


 


7.                                      ENFORCEMENT OF SECURITY


 


7.1                               At any time after the occurrence of an Event of
Default or if a demand is made for the payment of the Secured Obligations, the
security hereby constituted shall become immediately enforceable and the rights
of enforcement of the Collateral Agent under this Mortgage shall be immediately
exercisable upon and at any time thereafter and, without prejudice to the
generality of the foregoing, the Collateral Agent without further notice to the
Mortgagor may, whether acting on its own behalf or through a receiver or agent:


 


(a)                                  solely and exclusively exercise all voting and/or
consensual powers pertaining to the Mortgaged Property or any part thereof and
may exercise such powers in such manner as the Collateral Agent may think fit;


 


(b)                                 date and present to the Company or any other person
any undated documents provided to it pursuant to Clause 4 or any other
provision of this Mortgage;


 


(c)                                  receive and retain all dividends, interest or other
moneys or assets accruing on or in respect of the Mortgaged Property or any
part thereof, such dividends, interest or other moneys or assets to be held by
the Collateral Agent, as additional security mortgaged and charged under and
subject to the terms of this Mortgage and any such dividends, interest and
other moneys or assets received by the Mortgagor after such time shall be held
in trust by the Mortgagor for the Collateral Agent and paid or transferred to
the Collateral Agent on demand;


 


(d)                                 take possession of, get in, assign, exchange, sell,
transfer, grant options over or otherwise dispose of the Mortgaged Property or
any part thereof at such place and in such manner and at such price or prices
as the Collateral Agent may deem fit, and thereupon the Collateral Agent shall
have the right to deliver, assign and transfer in accordance therewith the
Mortgaged Property so sold, transferred, granted options over or otherwise
disposed of including by way of changing the ownership of the Mortgaged Shares
as shown on the Register of Members;


 


(e)                                  borrow or raise money either unsecured or on the
security of the Mortgaged Property (either in priority to the Mortgage or
otherwise);


 


(f)                                    settle, adjust, refer to arbitration, compromise and
arrange any claims, accounts, disputes, questions and demands with or by any
person who is or claims to be a creditor of the Mortgagor or relating to the
Mortgaged Property;


 


(g)                                 bring, prosecute, enforce, defend and abandon actions,
suits and proceedings in relation to the Mortgaged Property or any business of
the Mortgagor;


 


(h)                                 redeem any security (whether or not having priority to
the Mortgage) over the Mortgaged Property and to settle the accounts of
any person with an interest in the Mortgaged Property;


 


(i)                                     exercise and do (or permit the Mortgagor or any
nominee of the Mortgagor to exercise and do) all such rights and things as the
Collateral Agent would be capable of exercising or doing if it were the
absolute beneficial owner of the Mortgaged Property;


 


11

















 


(j)                                     do anything else it may think fit for the realisation
of the Mortgaged Property or incidental to the exercise of any of the rights
conferred on the Collateral Agent under or by virtue of any document to which
the Mortgagor is party; and


 


(k)                                  exercise all rights and remedies afforded to it under
this Mortgage and applicable law.


 


7.2                               The Collateral Agent shall not be obliged to make any
enquiry as to the nature or sufficiency of any payment received by it under
this Mortgage or to make any claim or to take any action to collect any moneys
assigned by this Mortgage or to enforce any rights or benefits assigned to the
Collateral Agent by this Mortgage or to which the Collateral Agent may at any
time be entitled hereunder.


 


7.3                               Upon any sale of the Mortgaged Property or any part
thereof by the Collateral Agent, the purchaser shall not be bound to see or
enquire whether the Collateral Agent’s power of sale has become exercisable in
the manner provided in this Mortgage and the sale shall be deemed to be within
the power of the Collateral Agent, and the receipt of the Collateral Agent for
the purchase money shall effectively discharge the purchaser who shall not be
concerned with the manner of application of the proceeds of sale or be in any
way answerable therefor.


 


7.4                               Any money received or realised by the Collateral Agent
under the powers conferred by this Mortgage shall be paid or applied in a
manner consistent with Section 6.02 of the U.S. Security Agreement.


 


7.5                               During the Security Period, the Collateral Agent may
refrain from applying or enforcing any other moneys, security or rights held by
it in respect of the Secured Obligations or may apply and enforce such moneys,
security or rights in such manner and in such order as it shall decide in
its unfettered discretion.


 


7.6                               Neither the Collateral Agent nor its agents, managers,
officers, employees, delegates and advisers shall be liable for any claim,
demand, liability, loss, damage, cost or expense incurred or arising in
connection with the exercise or purported exercise of any rights, powers and
discretions hereunder in the absence of dishonesty or wilful default.


 


7.7                               The Collateral Agent shall not, by reason of the
taking of possession of the whole or any part of the Mortgaged Property or any
part thereof, be liable to account as mortgagee-in-possession or for anything
except actual receipts or be liable for any loss upon realisation or for any
default or omission for which a Collateral Agent-in-possession might be liable.


 


8.                                      APPOINTMENT OF A RECEIVER


 


8.1                               At any time after:


 


(a)                                  the occurrence of an Event of Default; or


 


(b)                                 a request has been made by the Mortgagor to the
Collateral Agent for the appointment of a receiver over its assets or in
respect of the Mortgagor,


 


then
notwithstanding the terms of any other agreement between the Mortgagor and any
person, the Collateral Agent may (unless precluded by law) appoint in writing
any person or persons to be a receiver or receiver and manager of all or any
part of the Mortgaged Property as the Collateral Agent may choose in its entire
discretion.


 


8.2                               Where more than one receiver is appointed, the
appointees shall have power to act jointly or separately unless the Collateral
Agent shall specify to the contrary.


 


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8.3                               The Collateral Agent may from time to time determine
the remuneration of a receiver.


 


8.4                               The Collateral Agent may remove a receiver from all or
any of the Mortgaged Property of which he is the receiver and after the
receiver has vacated office or ceased to act in respect of any of the Mortgaged
Property, appoint a further receiver over all or any of the Mortgaged Property
in respect of which he shall have ceased to act.


 


8.5                               Such an appointment of a receiver shall not preclude:


 


(a)                                  the Collateral Agent from making any subsequent appointment
of a receiver over all or any Mortgaged Property over which a receiver has not
previously been appointed or has ceased to act; or


 


(b)                                 the appointment of an additional receiver to act while
the first receiver continues to act.


 


8.6                               The receiver shall be the agent of the Mortgagor
(which shall be solely liable for his acts, defaults and remuneration)
unless and until the Mortgagor is placed into liquidation, after which time he
shall act as principal. The receiver shall not at any time become the agent of
the Collateral Agent.


 


9.                                      POWERS OF A RECEIVER


 


9.1                               Subject to the terms of the Intercreditor Agreement,
in addition to those powers conferred by law, a receiver shall have and be
entitled to exercise in relation to the Mortgagor all the powers set forth
below:


 


(a)                                  to exercise all rights of the Collateral Agent under
or pursuant to this Mortgage, including all voting and other rights attaching
to the Mortgaged Property;


 


(b)                                 to make any arrangement or compromise with others as
he shall think fit;


 


(c)                                  to appoint managers, officers and agents for the above
purposes at such remuneration as the receiver may determine;


 


(d)                                 to redeem any prior encumbrance and settle and pass
the accounts of the encumbrancer and any accounts so settled and passed shall (subject
to any manifest error) be conclusive and binding on the Mortgagor and the money
so paid shall be deemed an expense properly incurred by the receiver;


 


(e)                                  to pay the proper administrative charges in respect of
time spent by its agents and employees in dealing with matters raised by the
receiver or relating to the receivership of the Mortgagor; and


 


(f)                                    to do all such other acts and things as may be
considered by the receiver to be incidental or conducive to any of the above
matters or powers or otherwise incidental or conducive to the preservation,
improvement or realisation of the Mortgaged Property or the value thereof.


 


10.                               FURTHER ASSURANCES


 


10.1                         The Mortgagor shall at its own expense promptly do all
such acts or execute all such documents (including assignments, transfers,
mortgages, charges, notices and instructions) as the Collateral Agent may
reasonably specify and in such form as the Collateral Agent may reasonably
require in order to:


 


13

















 


(a)                                  perfect or protect the security created or intended to
be created under or evidenced by this Mortgage (which may include the execution
of a charge, assignment or other security over all or any of the assets which
are, or are intended to be, the subject of this Mortgage) or for the exercise
of any rights, powers and remedies of the Collateral Agent provided by or
pursuant to this Mortgage, the Indenture Documents or by law; or


 


(b)                                 following an Event of Default, subject to the
Intercreditor Agreement, facilitate the realisation of the assets which are, or
are intended to be, the subject of this Mortgage.


 


10.2                         Without limiting the other provisions of this
Mortgage, the Mortgagor shall at its own expense 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
Collateral Agent by or pursuant to this Mortgage.


 


11.                               INDEMNITIES


 


11.1                         The Mortgagor will indemnify and save harmless the
Collateral Agent, any receiver and each agent or attorney appointed under or
pursuant to this Mortgage from and against any and all reasonable expenses,
claims, liabilities, losses, taxes, costs, duties, fees and charges suffered,
incurred or made by the Collateral Agent or such agent or attorney other than
as a result of the gross negligence or wilful default of the Mortgagee:


 


(a)                                  in the exercise or purported exercise of any rights,
powers or discretions vested in them pursuant to this Mortgage;


 


(b)                                 in the preservation or enforcement of the Collateral
Agent’s rights under this Mortgage or the priority thereof;


 


(c)                                  on the release of any part of the Mortgaged Property
from the security created by this Mortgage; or


 


(d)                                 arising out of any breach by the Mortgagor of any term
of this Mortgage,


 


and
the Collateral Agent or such receiver, agent or attorney may retain and pay all
sums in respect of the same out of money received under the powers conferred by
this Mortgage.  All amounts suffered,
incurred or paid by the Collateral Agent or such receiver, agent or attorney or
any of them shall be recoverable on a full indemnity basis provided that
nothing in this Clause 11.1 shall require the Mortgagor to indemnify and
save harmless the Collateral Agent from and against any expenses, claims,
liabilities, losses, taxes, costs, duties, fees and charges suffered, incurred
or made by the Collateral Agent as a result of the Collateral Agent’s
dishonesty or wilful default.


 


11.2                         If, under any applicable law or regulation, and
whether pursuant to a judgment being made or registered against the Mortgagor
or the bankruptcy or liquidation of the Mortgagor or for any other reason any
payment under or in connection with this Mortgage is made or fails to be
satisfied in a currency (the “Payment Currency”)
other than the currency in which such payment is due under or in connection
with this Mortgage (the “Contractual Currency”),
then to the extent that the amount of such payment actually received by the
Collateral Agent when converted into the Contractual Currency at the rate of
exchange, falls short of the amount due under or in connection with this
Mortgage, the Mortgagor, as a separate and independent obligation, shall indemnify
and hold harmless the Collateral Agent against the amount of such
shortfall.  For the purposes of this
Clause 11.2, “rate of exchange”
means the rate at which the Collateral Agent is able on or about the date of
such payment to purchase the Contractual Currency with the Payment Currency and
shall take into account any premium and other costs of exchange with respect
thereto.


 


14

















 


12.                               POWER OF ATTORNEY


 


12.1                         The Mortgagor, by way of security and in order more
fully to secure the performance of its obligations hereunder, hereby
irrevocably appoints the Collateral Agent and the persons deriving title under
it (including, but without any limitation, any receiver) jointly and also
severally (with full power of substitution and delegation) to be its
attorney-in-fact:


 


(a)                                  to execute and complete in favour of the Collateral
Agent or its nominees or of any purchaser any documents which the Collateral
Agent may from time to time require for perfecting the Collateral Agent’s title
to, for vesting any of the assets and property hereby mortgaged,
or charged in the Collateral Agent or its nominees or in any purchaser or
for any of the purposes contemplated in Clause 7.1 hereof;


 


(b)                                 after the occurrence of an Event of Default, to give
effectual discharges for payments, to take and institute on non-payment (if the
Collateral Agent in its sole discretion so decides) all steps and proceedings
in the name of the Mortgagor or of the Collateral Agent for the recovery of
such moneys, property and assets hereby mortgaged or charged;


 


(c)                                  after the declaration by the Collateral Agent of an
Event of Default, to agree accounts and make allowances and give time or other
indulgence to any surety or other person liable;


 


(d)                                 so as to enable the Collateral Agent to carry out in
the name of the Mortgagor any obligation imposed on the Mortgagor by this
Mortgage (including the execution and delivery of any deeds, charges,
assignments or other security and any transfers of the Mortgaged Property and
the exercise of all the Mortgagor’s rights and discretions in relation to the
Mortgaged Property);


 


(e)                                  so as to enable the Collateral Agent and any receiver
or other person to exercise, or delegate the exercise of, any of the rights,
powers and authorities conferred on them by or pursuant to this Mortgage or by
law (including, after the occurrence of an Event of Default, the exercise of
any right of a legal and beneficial owner of the Mortgaged Property), and


 


(f)                                    generally for it and in its name and on its behalf and
as its act and deed or otherwise execute, seal and deliver and otherwise
perfect and do any such legal assignments and other assurances, charges,
authorities and documents over the moneys, property and assets hereby charged,
and all such deeds, instruments, acts and things which may be required for the
full exercise of all or any of the powers conferred or which may be deemed
proper on or in connection with any of the purposes aforesaid,


 


in each case, subject to the terms,
conditions and provisions of the Intercreditor Agreement.


 


12.2                         Notwithstanding any other provision of Clause 12.1,
the power of attorney created by Clause 12.1 shall not be exercisable by or on
behalf of the Collateral Agent as the case may be until an Event of Default has
occurred.


 


12.3                         The power hereby conferred shall be a general power of
attorney and the Mortgagor hereby ratifies and confirms and agrees to ratify
and confirm any instrument, act or thing which any attorney appointed pursuant
hereto may execute or do.  In relation to
the power referred to herein, the exercise by the Collateral Agent of such
power shall be conclusive evidence of its right to exercise the same.


 


15

















 


13.                               EXPENSES


 


13.1                         The Mortgagor shall pay to the Collateral Agent on
demand all reasonable costs, fees and expenses (including, but not limited
to, properly incurred legal fees and expenses) and taxes thereon incurred by
the Collateral Agent or for which the Collateral Agent may become liable in
connection with:


 


(a)                                  the negotiation, preparation and execution of this
Mortgage;


 


(b)                                 the preserving or enforcing of, or attempting to
preserve or enforce, any of its rights under this Mortgage or the priority
hereof;


 


(c)                                  any variation of, or amendment or supplement to, any
of the terms of this Mortgage; or


 


(d)                                 any consent or waiver required from the Collateral
Agent in relation to this Mortgage


 


and
in the case referred to in Clauses 13.1(c) and 13.1(d), regardless of
whether the same is actually implemented, completed or granted, as the case may
be.


 


13.2                         The Mortgagor shall pay promptly all registration,
stamp, documentary and other like duties and taxes to which this Mortgage may
be subject or give rise and shall indemnify the Collateral Agent on demand
against any and all liabilities with respect to or resulting from any delay or
omission on the part of the Mortgagor to pay any such duties or taxes.


 


14.                               RELEASE


 


14.1                         Subject to Clause 14.2, when all the Secured
Obligations have been paid in full in cash or the Security Interest created by
this Mortgage is automatically released pursuant to Section 11.04 of the
Indenture, the Collateral Agent shall (at the request and cost of the
Mortgagor) execute such documents and do all such reasonable acts as may be
necessary to release the Mortgaged Property from the security constituted by
this Mortgage.  Such release shall not
prejudice the rights of the Collateral Agent under Clause 11.


 


14.2                         If the Collateral Agent considers in good faith that
any amount received in payment or purported payment of the Secured Obligations
(whether received from or paid by the Company, any Other Guarantor or any other
relevant person) is capable of being avoided or reduced by virtue of any
insolvency or other similar laws:


 


(a)                                  the liability of the Mortgagor under this Mortgage and
the security constituted by this Mortgage shall continue and such amount shall
not be considered to have been irrevocably paid; and


 


(b)                                 the Collateral Agent may keep any security held by it
in respect of the Mortgagor’s liability under the Indenture Documents in order
to protect the Secured Parties against any possible claim under insolvency law
for up to six years after all Secured Obligations have been satisfied.  If a claim is made against a Secured Party
within that period, the Collateral Agent may keep the security until that
claim has finally been dealt with.


 


15.                               NOTICES


 


Any notice or other communication given or made
under or in connection with the matters contemplated by this Mortgage shall be
provided in accordance with Section 12.03 of the Indenture (with any
notice to the Mortgagor prior to the Transaction Time to be delivered care of
the Borrower).


 


16

















 


16.                               ASSIGNMENTS


 


16.1                         This Mortgage shall be binding upon and shall enure to
the benefit of the Mortgagor, the Collateral Agent and each of their
respective successors and (subject to clauses 16.2 and 16.3) assigns and
references in this Mortgage to any of them shall be construed accordingly.


 


16.2                         The Mortgagor may not assign or transfer all or any
part of its rights and/or obligations under this Mortgage.


 


16.3                         The Collateral Agent may assign and transfer its
rights pursuant to this Mortgage in accordance with the terms of Section 7.05
of the U.S. Security Agreement.


 


17.                               COLLATERAL AGENT


 


17.1                         The Collateral Agent holds the benefit of this
Mortgage (and any other security created in its favour pursuant to this
Mortgage) as agent for and on behalf of the Secured Parties pursuant to the
terms of the Indenture and the U.S. Security Agreement.  The retirement of the person for the
time being acting as Collateral Agent and the appointment of a successor shall
be effected in the manner provided for in the Indenture.


 


17.2                         Nothing in this Mortgage shall constitute or be deemed
to constitute a partnership between any of the Secured Parties and the
Collateral Agent.


 


18.                               SET-OFF


 


18.1                         The Mortgagor authorises the Collateral Agent (but the
Collateral Agent shall not be obliged to exercise such right), after the
occurrence of an Event of Default to set off against the Secured Obligations
any amount or other obligation (contingent or otherwise) owing by the
Collateral Agent to the Mortgagor.


 


19.                               SUBSEQUENT SECURITY INTERESTS


 


19.1                         If the Collateral Agent at any time receives or is
deemed to have received notice of any subsequent Security Interest affecting
all or any part of the Mortgaged Property or any assignment or transfer of the
Mortgaged Property which is prohibited by the terms of this Mortgage, all
payments thereafter by or on behalf of the Mortgagor to the Collateral Agent
shall be treated as having been credited to a new account of the Mortgagor and
not as having been applied in reduction of the Secured Obligations as at the
time when the Collateral Agent received such notice.


 


20.                               MISCELLANEOUS


 


20.1                         The Collateral Agent, at any time and from time to
time, may delegate by power of attorney or in any other manner to any person or
persons all or any of the powers, authorities and discretions which are for the
time being exercisable by the Collateral Agent under this Mortgage in relation
to the Mortgaged Property or any part thereof. 
Any such delegation may be made upon such terms and be subject to such
regulations as the Collateral Agent may think fit.  The Collateral Agent shall not be in any way
liable or responsible to the Mortgagor for any loss or damage arising from any
act, default, omission or misconduct on the part of any such delegate provided
the Collateral Agent has acted reasonably in selecting such delegate.


 


20.2                         If any of the clauses, conditions, covenants or
restrictions (the “Provision”) of
this Mortgage or any deed or document emanating from it shall be found to be
void but would be valid if some part thereof were deleted or modified, then the
Provision shall apply with such deletion or modification as may be necessary to
make it valid and effective.


 


17

















 


20.3                         This Mortgage (together with any documents referred to
herein) constitutes the whole agreement between the Parties relating to its
subject matter and no variations hereof shall be effective unless made in
writing and signed by each of the Parties.


 


20.4                         Each document, instrument, statement, report, notice
or other communication delivered in connection with this Mortgage shall be in
English or where not in English shall be accompanied by a certified English
translation which translation shall with respect to all documents of a
contractual nature and all certificates and notices to be delivered hereunder
be the governing version and upon which in all cases the Collateral Agent and
the Secured Parties shall be entitled to rely.


 


20.5                         This Mortgage may be executed in counterparts each of
which when executed and delivered shall constitute an original but all such
counterparts together shall constitute one and the same instrument.


 


20.6                         The parties intend that this Mortgage take effect as a
deed notwithstanding the fact that the Collateral Agent may only execute it
under hand.


 


20.7                         Whenever reference is made in this Mortgage to
any action by, consent, designation, specification, requirement or approval of,
notice, request or other communication from, or other direction given or action
to be undertaken or to be (or not to be) suffered or omitted by
the Collateral Agent or to any election, decision, opinion, acceptance,
use of judgment, expression of satisfaction or other exercise of discretion,
rights or remedies to be made (or not to be made) by the Collateral Agent,
it is understood that in all cases the Collateral Agent shall be
acting, giving, withholding, suffering, omitting, taking or otherwise
undertaking and exercising the same (or shall not be undertaking and exercising
the same) as directed in accordance with the Indenture.  This provision is intended solely for the
benefit of the Collateral Agent and its successors and permitted
assigns and is not intended to and will not entitle the other parties hereto to
any defense, claim or counterclaim, or confer any rights or benefits on any party
hereto.


 


21.                               LAW AND JURISDICTION


 


21.1                         This Mortgage shall be governed by and construed in
accordance with the laws of the Cayman Islands and the Parties hereby
irrevocably submit to the non-exclusive jurisdiction of the courts of the
Cayman Islands, provided that nothing in this clause shall affect the
right of the Collateral Agent to serve process in any manner permitted by law
or limit the right of the Collateral Agent to take proceedings with respect to
this Mortgage against the Mortgagor in any jurisdiction nor shall the taking of
proceedings with respect to this Mortgage in any jurisdiction preclude the
Collateral Agent from taking proceedings with respect to this Mortgage in any
other jurisdiction, whether concurrently or not.


 


22.                               INTERCREDITOR AGREEMENT


 


22.1                         The Security Interests created by this Mortgage on the
property described herein are subordinate to the Security Interests on such
property created by any similar instrument already granted to any First
Priority Secured Party, in such property, in accordance with the provisions of
the Intercreditor Agreement. 
Notwithstanding anything to the contrary, the exercise of any right or
remedy by the Collateral Agent hereunder is subject to the provisions of the
Intercreditor Agreement.  In the event of
any conflict between the terms of the Intercreditor Agreement and this
Mortgage, the terms of the Intercreditor Agreement shall govern.


 


18






 












 


IN
WITNESS whereof this Equitable Share Mortgage has been
entered into by the parties and executed as a deed on the day and the year
first before written.


 


 


	
  GIVEN under the Common Seal of

  	
  )

  	
   

  	
   

  
	
  SEAGATE TECHNOLOGY PLC

  	
  )

  	
   

  	
   

  
	
  in
  the presence of:

  	
  )

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  /s/ Kenneth M. Massaroni

  
	
   

  	
   

  	
  Kenneth M. Massaroni

  
	
   

  	
   

  	
  Director

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  /s/ Patrick J. O’Malley III

  
	
   

  	
   

  	
  Patrick J. O’Malley III

  
	
   

  	
   

  	
  Director

  



 


 


	
  in
  the presence of:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  /s/
  Demetrios N. Mavrikis

  	
   

  
	
  Signature
  of Witness

  	
   

  
	
   

  	
   

  
	
  Name:

  	
  Demetrios
  N. Mavrikis

  	
   

  
	
   

  	
   

  	
   

  
	
  Address:

  	
  920
  Disc Dr, Scotts Valley, CA 95066

  	
   

  
	
   

  	
   

  	
   

  
	
  Occupation:

  	
  Executive
  Assistant

  	
   

  



 


 


[Signature Page
to Second Priority Mortgage of Shares in Seagate Technology]


 

















 


	
  EXECUTED AS A DEED by WELLS FARGO

  	
  )

  	
   

  	
  /s/
  Maddy Hall

  
	
  BANK, NATIONAL ASSOCIATION

  	
  )

  	
   

  	
  Duly Authorised
  Signatory

  
	
   

  	
  )

  	
   

  	
   

  
	
   

  	
  )

  	
   

  	
   

  
	
   

  	
  )

  	
   

  	
   

  



 


 


	
  in
  the presence of:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  /s/
  Brian A. Buchanan

  	
   

  
	
  Signature
  of Witness

  	
   

  
	
   

  	
   

  
	
  Name:

  	
  Brian
  A. Buchanan, Vice President

  	
   

  
	
   

  	
   

  	
   

  
	
  Address:

  	
  Wells
  Fargo Bank, N.A.

  Corporate Trust Services

  707 Wilshire Blvd, 17th Floor

  Los Angeles, CA 90017

  	
   

  
	
   

  	
   

  	
   

  
	
  Occupation:

  	
  Corporate
  Trust Officer

  	
   

  



 


 


[Signature Page
to Second Priority Mortgage of Shares in Seagate Technology]


 

















 


SCHEDULE 1


 


SEAGATE TECHNOLOGY


 


(THE “COMPANY”)


 


SHARE TRANSFER CERTIFICATE


 


[LEFT UNDATED]


 


SHARE TRANSFER CERTIFICATE DATED                                                                                                           


 


                                                                                                                (the
“Transferor”) does hereby transfer to
                                                              
(the “Transferee”)
                                                                      
(the “Shares”) of a par value of
                
each.


 


 


	
  SIGNED by the Transferor by:

  	
  )

  	
   

  	
   

  
	
   

  	
  )

  	
   

  	
  Duly
  Authorised Signatory

  
	
   

  	
  )

  	
   

  	
   

  
	
   

  	
  )

  	
   

  	
  Name:

  	
   

  
	
   

  	
  )

  	
   

  	
   

  	
   

  
	
   

  	
  )

  	
   

  	
  Title:

  	
   

  
	
   

  	
  )

  	
   

  	
   

  



 


 


	
  in
  the presence of:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  Signature
  of Witness

  	
   

  
	
   

  	
   

  
	
  Name:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Address:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Occupation:

  	
   

  	
   

  



 


21

















 


And I/we do
hereby agree to take the Shares.


 


 


	
  SIGNED by the Transferee by:

  	
  )

  	
   

  	
   

  
	
   

  	
  )

  	
   

  	
  Duly
  Authorised Signatory

  
	
   

  	
  )

  	
   

  	
   

  
	
   

  	
  )

  	
   

  	
  Name:

  	
   

  
	
   

  	
  )

  	
   

  	
   

  	
   

  
	
   

  	
  )

  	
   

  	
  Title:

  	
   

  
	
   

  	
  )

  	
   

  	
   

  	
   

  



 


 


	
  in
  the presence of:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  Signature
  of Witness

  	
   

  
	
   

  	
   

  
	
  Name:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Address:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Occupation:

  	
   

  	
   

  



 


22

















 


SCHEDULE 2


 


IRREVOCABLE
APPOINTMENT OF PROXY


 


SEAGATE TECHNOLOGY


(THE “COMPANY”)


 


This Irrevocable
Appointment of Proxy shall not become effective until the Irrevocable
Appointment of Proxy dated 1 March 2010 granted by the Companies in favour
of JPMorgan Chase Bank, N.A. as first priority secured party has been
terminated pursuant to and in accordance with the Articles of Association of
the respective Companies.


 


The undersigned
being the legal and beneficial owner of all
of the issued and outstanding shares of US$1.00 par value
each (the “Initial Shares”) in the Company,
an exempted company incorporated with limited liability in the Cayman Islands,
hereby irrevocably, with respect to the Company:


 


1.                                       makes,
constitutes and appoints WELLS FARGO BANK, NATIONAL
ASSOCIATION as collateral agent and trustee for and on behalf of the
Secured Parties (as defined in the Mortgage) (the “Proxy”)
as the irrevocable proxy of the undersigned with full power to appoint a nominee
or nominees to act hereunder from time to time and to have all other rights and
entitlements of an “Irrevocable Proxy” (as such term is defined in the Articles
of Association of the Company) under the Articles of Association of the
Company, including to vote the Initial Shares and all other shares in the
Company from time to time legally owned by the undersigned (the “Shares”) registered in its name at all general meetings of
shareholders of the Company with the same force and effect as the undersigned might
or could do and to requisition and convene a meeting or meetings of the
shareholders of the Company for the purpose of considering  any
resolution of the members of the Company in respect of any proposal to amend
the Memorandum of Association and/or the Articles of Association with respect
to those provisions inserted pursuant to a Special Resolution of the Company
passed on or about the Transaction Time (the “Reserved
Matter”);


 


2.                                       makes,
constitutes and appoints the Proxy as the true and lawful attorney-in-fact of
the undersigned to approve, complete, amend, execute and deliver any resolution
in writing concerning any Reserved Matter or sign any approval in writing
concerning any Reserved Matter as contemplated in the Articles of Association
of the Company in the name of and on behalf of the undersigned, and the
undersigned hereby ratifies and confirms all that the said Proxy or its nominee
or nominees shall do or cause to be done by virtue hereof.


 


The Shares are
the subject of a mortgage (the “Mortgage”)
dated 1 March 2010, between the Proxy and Seagate Technology plc as
mortgagor.


 


The power of
attorney hereby granted is granted irrevocably for full value as part of the
security constituted hereby to secure proprietary interests of and the
performance of obligations owed to Wells Fargo Bank, National Association
within the meaning of the Powers of Attorney Law (1996 Revision) of the Cayman
Islands and the undersigned hereby acknowledges the same.


 


The power of
attorney granted hereunder (and the appointment of the Proxy as irrevocable
proxy of the undersigned) shall be governed by and construed in accordance with
the laws of the Cayman Islands and shall be irrevocable until the discharge and
release of the relevant Mortgage.


 


23

















 


IN
WITNESS whereof this Instrument is executed as a deed the
day and year first above written.


 


	
  GIVEN under the Common Seal of

  	
  )

  	
   

  	
   

  
	
  SEAGATE TECHNOLOGY PLC

  	
  )

  	
   

  	
   

  
	
  in
  the presence of:

  	
  )

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  Director

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  Director/Secretary*

  



 


 


	
  in
  the presence of: 

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  Signature
  of Witness

  	
   

  
	
   

  	
   

  
	
  Name:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Address:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Occupation:

  	
   

  	
   

  



 


24

















 


SCHEDULE 3


 


FORM OF LETTER OF
INSTRUCTIONS TO REGISTERED OFFICE PROVIDER APPOINTING

INSTRUCTING PARTY


 


SEAGATE TECHNOLOGY HDD HOLDINGS


(THE “COMPANY”)


PO Box 309, Ugland House


George Town, Grand Cayman KY1-1104


Cayman Islands


 


1 March 2010


 


MAPLES
CORPORATE SERVICES LIMITED (“MCS”)


PO Box 309,
Ugland House


George Town,
Grand Cayman KY1-1104


Cayman Islands


 


Dear Sirs


 


INSTRUCTIONS TO THE REGISTERED OFFICE PROVIDER APPOINTING
INSTRUCTING PARTY


 


These
Instructions to the Registered Office Provider Appointing Instructing Party
dated 1 March 2010 from the Companies to MCS shall not become effective
until the discharge and release of the mortgages dated 1 March 2010
between JPMorgan Chase Bank, N.A. as first priority secured party and Seagate
HDD Cayman as mortgagor.


 


We hereby
notify you that pursuant to a mortgage (the “Mortgage”) dated 1 March 2010 between Wells
Fargo Bank, National Association as Collateral Agent (the “Collateral Agent” or “Mortgagee”) and Seagate Technology plc as mortgagor
(the “Mortgagor”), the
Mortgagor has granted a second priority security interest in favour of the
Mortgagee over all the shares standing in its name in the Company identified in
the Mortgage and all other shares in the Company from time to time legally or
beneficially owned by the Mortgagor (the “Shares”).


 


We refer to
the registered office agreement dated 1 January 2002 between MCS and the
Company (the “RO Agreement”) and hereby
agree that Clause 9.1 (Instructions and Reliance) of the agreement shall be
deemed to be amended by the following. At any time after the Mortgagee notifies
you in writing that an Event of Default (as defined in the Mortgage) has
occurred you are hereby authorised and entitled to rely upon the instructions
of the Mortgagee to register the Mortgagee or its nominee (as the Mortgagee may
direct) as the registered holder of the Shares pursuant to the Mortgage and to
otherwise comply with any directions or instructions from the Mortgagee in
relation thereto.


 


Such
authorisation and entitlement to rely upon the instructions of the Mortgagee
shall terminate upon the discharge and release of the relevant Mortgage.


 


25

















 


Please confirm by
countersigning below that you agree to such amendment of the RO Agreement.


 


Yours faithfully


 


	
   

  	
   

  	
   

  
	
  Authorised Signatory for and on behalf of the Company

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  Acknowledged
  and agreed.

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Authorised Signatory for and on behalf of Maples Corporate Services
  Limited

  	
   

  
				



 


26