APPENDIX 21 RESIDUAL SECURITIES TRUST DEED - 144 -
FORM OF RESIDUAL SECURITIES TRUST DEED THIS DEED OF TRUST (this Deed ) is made by way of deed poll on [ ] by: (1) EXETER GROUP LIMITED (d/b/a/ LYNCHPIN BONDHOLDER MANAGEMENT) a company incorporated in Hong Kong with CR No. 0851014 whose registered office is at Wellington Plaza, 4th Floor, Suite 402, 56-58, Wellington Street, Central, Hong Kong (the Residual Securities Trustee, which expression, where the context so admits, includes all persons for the time being the trustee or trustees of the trusts created by this Deed). IN FAVOUR OF (2) THE BENEFICIARIES, as such term is defined below. WHEREAS (A) (B) (C) Blue Ocean Resources Pte. Ltd. (the Scheme Company ) proposes to enter into a scheme of arrangement ( Scheme ) pursuant to section 210 of the Companies Act (Chapter 50; 2006 Revised Edition) of the Republic of Singapore with the Scheme Creditors. Under the terms of the Scheme: (i) the Scheme Company will issue New Notes and the MEB Issuer will issue MEBs, in each case to Noteholders who are eligible to receive the same in accordance with the terms of the Scheme; and (ii) the New Notes and MEBs that would otherwise have been issued to Ineligible Creditors will instead be issued to the Residual Securities Trustee to be held by the Residual Securities Trustee on trust for the benefit of the Ineligible Creditors (as Beneficiaries) in accordance with the terms of this Deed. The terms of the Scheme are described in further detail in the scheme document dated [date] which contains, among other things, the explanatory statement of the Scheme Company relating to the Scheme (the Scheme Document ). DEFINITIONS Unless otherwise indicated, capitalised words and phrases used in this Deed have the meaning provided in the Scheme Document. In addition: Account Bank means a bank that is a participant in and holds an account with Euroclear or Clearstream, with which the Residual Securities Trustee will set up the Escrow Accounts. Additional Notes means additional securities having identical terms and conditions as the New Notes, except, as the case may be, for their issuance date. Allocated MEBs means the aggregate number of Residual MEBs distributed to all Ineligible Creditors who establish, prior to the Bar Time, their entitlement to the Residual MEBs in accordance with Clause 2.1. Allocated MEB Cash Distributions means the aggregate amount of MEB Cash Distributions distributed to all Ineligible Creditors who establish, prior to the Bar Time, their entitlement to the Residual MEBs in accordance with Clause 2.1. Allocated New Notes means the aggregate number of New Notes distributed to all Ineligible Creditors who establish, prior to the Bar Time, their entitlement to the Residual New Notes in accordance with Clause 2.1. Allocated New Notes Cash Distributions means the aggregate amount of New Notes Cash Distributions distributed to all Ineligible Creditors who establish, prior to the Bar Time, their entitlement to the Residual New Notes in accordance with Clause 2.1.
Allocated Non-Cash MEB Distributions means the aggregate amount of MEB Non-Cash Distributions distributed to all Ineligible Creditors who establish, prior to the Bar Time, their entitlement to the Residual MEBs in accordance with Clause 2.1. Allocated Non-Cash New Note Distributions means the aggregate amount of New Notes Non-Cash Distributions distributed to all Ineligible Creditors who establish, prior to the Bar Time, their entitlement to the Residual New Notes in accordance with Clause 2.1. Allocation Date means: (a) (b) in the case of an Ineligible Creditor who satisfies each of the conditions outlined in Clause 2.1 on or prior to the date falling ninety (90) calendar days after the Settlement Date, ten (10) Trading Days after such date; and in the case of an Ineligible Creditor who fails to satisfy each of the conditions outlined in Clause 2.1 on or prior to the date falling ninety (90) calendar days after the Settlement Date, but satisfies each such condition on or prior to the date falling ten (10) Trading Days before the Final Settlement Date, the Final Settlement Date. Appointee has the meaning given to it in Clause 7.4. Bar Date Creditors means: (a) (b) those Noteholders (acting, where applicable, through their Account Holders) who have submitted a duly completed Account Holder Letter to the Information Agent and made affirmative Securities Law Representations, in each case prior to the Record Time; and those Ineligible Creditors who satisfy the conditions set out in Clause 2.1 of this Deed prior to the Bar Time. Bar Time means 5:00 p.m. (Singapore time) on the Bar Date. Beneficiaries means the Ineligible Creditors (as such term is defined in the Scheme Document). Cash Distribution means any MEB Cash Distribution and/or New Note Cash Distribution. Clearing System Account means an account held with either Euroclear or Clearstream. Dispute has the meaning given to it in Clause 12. Eligible Pro Rata Share means, in relation to any Bar Date Creditor, a number or proportion (as applicable) of Remaining MEBs, Remaining New Notes, Remaining Non-Cash MEB Distributions, Remaining Non-Cash New Notes Distributions, Remaining MEB Cash Distributions and/or Remaining New Notes Cash Distributions (as the case may be) reflecting: (a) (b) (c) (d) in the case of Remaining MEBs, the same proportion of the Remaining MEBs held by the Residual Securities Trustee on the Bar Date (subsequent to the distribution of any Allocated MEBs); in the case of Remaining New Notes, the same proportion of the Remaining New Notes held by the Residual Securities Trustee on the Bar Date (subsequent to the distribution of any Allocated New Notes); in the case of any Remaining MEB Non-Cash Distributions, the same proportion of the Remaining MEB Non- Cash Distributions held by the Residual Securities Trustee on the Bar Date (subsequent to the distribution of any Allocated MEB Non-Cash Distributions); in the case of any Remaining New Notes Non-Cash Distributions, the same proportion of the Remaining New Notes Non-Cash Distributions held by the Residual Securities Trustee on the Bar Date (subsequent to the distribution of any Allocated New Notes Non-Cash Distributions); 2
(e) (f) in the case of any Remaining MEB Cash Distributions, the same proportion of the Remaining MEB Cash Distributions held by the Residual Securities Trustee on the Bar Date (subsequent to the distribution of any Allocated MEB Cash Distributions); and in the case of any Remaining New Notes Cash Distributions, the same proportion of the Remaining New Notes Cash Distributions held by the Residual Securities Trustee on the Bar Date (subsequent to the distribution of any Allocated New Notes Cash Distributions); in each case as the proportion that the amount of the Original Principal Amount of the Existing Notes to which that Bar Date Creditor was entitled at the Record Time bore to Original Principal Amount of the Existing Notes to which all Bar Date Creditors were entitled at the Record Time. Escrow Accounts means the New Notes Escrow Account and the MEB Escrow Account. First Sale Period means the period commencing on (and including) the date falling sixty (60) calendar days after the Settlement Date and ending on (and including) the date falling ninety (90) calendar days after the Settlement Date. Ineligible Pro Rata Share means, in relation to any Ineligible Creditor, a number or proportion (as applicable) of Residual MEBs, Residual New Notes, MEB Non-Cash Distributions, New Notes Non-Cash Distributions, MEB Cash Distributions and/or New Notes Cash Distributions (as the case may be) reflecting: (a) (b) (c) (d) (e) (f) in the case of the Residual MEBs, the same proportion of the Residual MEBs; in the case of Residual New Notes, the same proportion of the Residual New Notes; in the case of any MEB Non-Cash Distribution, the same proportion of the MEB Non-Cash Distribution received by the Residual Securities Trustee on the date that it was distributed by the MEB Issuer; in the case of any New Notes Non-Cash Distribution, the same proportion of the New Notes Non-Cash Distribution received by the Residual Securities Trustee on the date that it was distributed by the Scheme Company, the Parent or any Subsidiary Guarantor; in the case of any MEB Cash Distribution, the same proportion of the MEB Cash Distribution received by the Residual Securities Trustee on the date it was distributed by the MEB Issuer; and in the case of any New Notes Cash Distribution, the same proportion of the New Notes Cash Distribution received by the Residual Securities Trustee on the date it was distributed by the Scheme Company, the Parent or any Subsidiary Guarantor; in each case as the proportion that the amount of the Original Principal Amount of the Existing Notes to which that Ineligible Creditor was entitled at the Record Time bore to Original Principal Amount of the Existing Notes held by all Ineligible Creditors at the Record Time. Information Notice means a letter from an Account Holder on behalf of the relevant Ineligible Creditor in the form set out at Appendix 1. Known Beneficiary has the meaning given to it in Clause 5.1. MEB Cash Distribution means any dividend, distribution or other payment made to the Residual Securities Trustee by the MEB Issuer in respect of the MEBs that is not a MEB Non-Cash Distribution. "MEB Escrow Account means the securities and cash account to be established in the name of the Residual Securities Trustee with the Account Bank, in which the Residual MEBs will be held subject to and in accordance with the terms of this Deed. MEB Non-Cash Distributions means any distributions made by the MEB Issuer to the Residual Securities Trustee in 3
respect of the Residual MEBs that are not in the form of cash. "New Notes" means the US$145,750,000 guaranteed senior secured notes due 2021 to be issued by the Scheme Company pursuant to the New Notes Indenture, including any Additional Notes. New Notes Cash Distribution means any distribution or other payment (whether in respect of principal, interest or otherwise) made to the Residual Securities Trustee by the Scheme Company, the Parent or any Subsidiary Guarantor in respect of the Residual New Notes that is not a New Notes Non-Cash Distribution. "New Notes Escrow Account means the securities and cash account to be established in the name of the Residual Securities Trustee with the Account Bank, in which Residual New Notes will be held subject to and in accordance with the terms of this Deed. New Notes Non-Cash Distributions means any distributions made by the Scheme Company, the Parent or any Subsidiary Guarantor to the Residual Securities Trustee in respect of the Residual New Notes that are not in the form of cash. Non-Cash Distribution means any MEB Non-Cash Distribution and/or New Notes Non-Cash Distribution. President has the meaning given to it in Clause 13.1. Remaining MEBs means the number of MEBs equal to the sum of: (i) the total number of Residual MEBs; less (ii) the total number of Allocated MEBs. Remaining MEB Cash Distributions means an amount equal to the sum of: (i) the total aggregate MEB Cash Distributions; less (ii) the Allocated MEB Cash Distributions. Remaining MEB Non-Cash Distributions means an amount of the MEB Non-Cash Distributions equal to the sum of: (i) the aggregate MEB Non-Cash Distributions; less (ii) the Allocated MEB Non-Cash Distributions. Remaining New Notes means the number of New Notes equal to the sum of: (i) the total number of Residual New Notes; less (ii) the total number of Allocated New Notes. Remaining New Notes Cash Distributions means an amount equal to the sum of: (i) the total aggregate New Notes Cash Distributions; less (ii) the Allocated New Notes Cash Distributions. Remaining New Notes Non-Cash Distribution means an amount of the New Notes Non-Cash Distributions equal to the sum of: (i) the aggregate New Notes Non-Cash Distributions; less (ii) the Allocated New Notes Non-Cash Distributions. Residual MEBs means the MEBs held by the Residual Securities Trustee on the date of this Deed. Residual New Notes means the New Notes held by the Residual Securities Trustee on the date of this Deed and any Additional Notes issued in respect of such New Notes. Residual Securities means the Residual New Notes and the Residual MEBs. Sale Instruction has the meaning given to it in Clause 3.1. Sale Period means the First Sale Period or the Second Sale Period (as applicable). Second Sale Period means the period commencing on (and including) the date falling forty (40) calendar days prior to the Final Settlement Date and ending on (and including) the Bar Date. SIAC has the meaning given to it in Clause 13.1. SIAC Rules has the meaning given to it in Clause 13.1. 4
"Terms of Engagement" means the terms of engagement of the Residual Securities Trustee, as executed by the Scheme Company and the Residual Securities Trustee on [ ]. Trading Day means a day (other than a Saturday or a Sunday) on which banks are open for general business in Singapore and Hong Kong. Trustees Act means the Trustees Act (Cap 337; 2005 Revised Edition) of the Republic of Singapore. THIS DEED WITNESSES AND IT IS HEREBY DECLARED AS FOLLOWS: 1. DECLARATION OF TRUST The Residual Securities Trustee hereby declares that it shall hold the Residual Securities, any Cash Distributions and any Non-Cash Distributions on trust for the benefit of the Beneficiaries in accordance with the terms of this Deed, such that each Beneficiary has a beneficial entitlement to its Ineligible Pro Rata Share. 2. DISTRIBUTIONS 2.1. In the event that any Ineligible Creditor: (a) (b) (c) (d) (e) establishes, prior to the Bar Time, to the reasonable satisfaction of the Residual Securities Trustee that it held a beneficial interest as principal in the Existing Notes at the Record Time; submits (or procures that its Account Holder submits) a duly completed Information Notice to the Residual Securities Trustee prior to the Bar Time; makes the Securities Law Representations for the benefit of the Scheme Company and the Residual Securities Trustee; provides the details of a Clearing System Account into which its Ineligible Pro Rata Share of the Residual Securities, Cash Distributions and Non-Cash Distributions (if any) can be transferred; and supplies or procures the supply of, all documentation and other evidence as may be reasonably requested by the Residual Securities Trustee or the Account Bank in order for the Residual Securities Trustee or the Account Bank to comply with all necessary "know your customer" or other similar checks that it is required to comply with in order to make the distributions to such Ineligible Creditor under the terms of this Deed; the Residual Securities Trustee shall transfer such Ineligible Creditor s Ineligible Pro Rata Share of the Residual MEBs and Residual New Notes and any Non-Cash Distributions and/or Cash Distributions to the Clearing System Account designated by that Ineligible Creditor on the next possible Allocation Date. For the avoidance of doubt, the failure of one Ineligible Creditor to complete any applicable know your customer or other similar checks of the Residual Securities Trustee or the Account Bank shall not prejudice any distribution to any other Ineligible Creditor. 2.2. In the event that any Ineligible Creditor does not satisfy each of the conditions outlined in Clause 2.1 above, prior to the Bar Time, such Ineligible Creditor shall cease to hold any interest (beneficial or otherwise) in the Residual Securities and any Non-Cash Distributions or Cash Distributions on and from the Final Settlement Date. 2.3. In the event that any Ineligible Creditor satisfies each of the conditions outlined in paragraphs (a), (b) and (e) of Clause 2.1 above, but is unable to make affirmative Securities Law Representations for the benefit of the Scheme Company and the Residual Securities Trustee, such Ineligible Creditor shall be entitled to deliver a Sale Instruction (as defined below) in accordance with Clause 3 below and receive the proceeds of the sale of any Residual Securities that were the subject of such Sale Instruction in accordance with Clause 4 below. For the avoidance of doubt, in the event that the Residual Securities Trustee is unable to dispose of any 5
Residual Securities that are the subject of a Sale Instruction prior to the Bar Time and the Ineligible Creditor who claims entitlement to such Residual Securities does not satisfy each of the conditions outlined in Clause 2.1 above, prior to the Bar Time, such Ineligible Creditor shall cease to hold any interest (beneficial or otherwise) in the Residual Securities and any Non-Cash Distributions or Cash Distributions on and from the Final Settlement Date. 2.4. The Residual Securities Trustee shall, on the Final Settlement Date, transfer to each Bar Date Creditor its Eligible Pro Rata Share of each of: (a) (b) (c) (d) (e) (f) the Remaining MEBs; the Remaining MEB Cash Distributions; any Remaining MEB Non-Cash Distributions; the Remaining New Notes; the Remaining New Notes Cash Distributions; and any Remaining New Notes Non-Cash Distributions. For the avoidance of doubt, the failure of one Bar Date Creditor to complete any applicable know your customer or other similar checks of the Residual Securities Trustee or the Account Bank shall not prejudice any distribution to any other Bar Date Creditor. 3. SALE OF RESIDUAL SECURITIES 3.1 An Ineligible Creditor that: (i) satisfies each of the conditions outlined in Clause 2.1 above; or (ii) satisfies each of the conditions outlined in paragraphs (a), (b) and (e) of Clause 2.1 above, but is unable to make affirmative Securities Law Representations for the benefit of the Scheme Company and the Residual Securities Trustee; shall be entitled, by written instruction substantially in the form of Appendix 2 (a Sale Instruction ) to the Residual Securities Trustee, delivered at any time on or prior to the date falling ten (10) Trading Days before the expiration of the Second Sale Period, to require the Residual Securities Trustee to dispose of all (but not part of) its Ineligible Pro Rata Share of the Residual Securities, by the sale of the economic and/or beneficial interest in such Residual Securities. 3.2 Where the relevant Sale Instruction is provided to the Residual Securities Trustee on or prior to the start of the First Sale Period, the Residual Securities Trustee (acting through a suitably qualified broker) will attempt to sell the Residual Securities during the First Sale Period. 3.3 Where the relevant Sale Instruction is provided to the Residual Securities Trustee after the start of the First Sale Period but on or prior to the date falling ten (10) Trading Days before the expiration of the Second Sale Period, the Residual Securities Trustee (acting through a suitably qualified broker) will attempt to sell the Residual Securities during the Second Sale Period. 3.4 In the event that the Residual Securities Trustee is unable to dispose of any Residual Securities that are the subject of a Sale Instruction prior to the Bar Time and the Ineligible Creditor who claims entitlement to such Residual Securities does not satisfy each of the conditions outlined in Clause 2.1 above, such Ineligible Creditor shall cease to hold any interest (beneficial or otherwise) in the Residual Securities and any Non- Cash Distributions or Cash Distributions on and from the Final Settlement Date. 4. DISTRIBUTION OF SALE PROCEEDS 4.1 Any sale of Residual Securities pursuant to the terms of this Deed shall be made at the best obtainable market price by a suitably qualified broker working with the Account Bank during the applicable Sale Period. In the event that the Residual Securities Trustee receives Sale Instructions from more than one Ineligible Creditor that are required to be executed within the same Sale Period, the Residual Securities Trustee shall 6
distribute the aggregate proceeds of sale of Residual Securities to the Beneficiaries who submitted such Sale Instructions such that each such Beneficiary receives a portion of such proceeds that reflects the proportion that the Residual Securities to which that Beneficiary claims entitlement bears to the aggregate amount of Residual Securities to which all of the Beneficiaries who submitted such Sale Instructions collectively claim entitlement on: (a) (b) in relation to proceeds of disposals during the First Sale Period, the date falling ten (10) Trading Days after the First Sale Period has ended; and in relation to the proceeds of disposals during the Second Sale Period, the Final Settlement Date. 4.2 The distribution of the proceeds of sale will be made in full and final satisfaction of the rights of the relevant Beneficiary under this Deed in respect of the Residual Securities that were sold in order to generate such proceeds of sale and, with immediate effect from the date of distribution: (a) (b) (c) the Residual Securities in question will cease to constitute Residual Securities for purposes of this Deed; in the event that only part of the Residual Securities to which that Beneficiary claimed entitlement has been disposed of, that Beneficiary s Ineligible Pro Rata Share shall be adjusted accordingly; and in the event that all of the Residual Securities to which that Beneficiary claimed entitlement have been disposed of, such Beneficiary shall cease to constitute a Beneficiary for purposes of this Deed. 4.3 The Residual Securities Trustee shall distribute the proceeds of any sale of Residual Securities to which a Beneficiary is entitled pursuant to Clause 4.1 above to: (a) (b) the Euroclear or Clearstream account in which that Beneficiary held the Existing Notes on the Record Date; or if that Beneficiary held the Existing Notes on the Record Date through DTC, the Euroclear or Clearstream account designated by that Beneficiary in its Information Notice. 5. VOTING 5.1 The Residual Securities Trustee shall (unless prevented from doing so by any applicable law or other regulation or any other restriction that is binding on the Residual Securities Trustee) promptly provide each of the Beneficiaries from whom it has received a completed Information Notice (each a Known Beneficiary and together, the Known Beneficiaries ) with copies of all communications and documents it receives under or in relation to the Residual Securities. 5.2 The Residual Securities Trustee shall, as soon as reasonably practicable after its having actual notice thereof, but in any event within five (5) Business Days of its receipt of such actual notice, notify each Known Beneficiary in writing of any matter in respect of which the Residual Securities Trustee may make any decision or cast any vote in respect of the Residual Securities. 5.3 Subject to Clauses 5.4 and 5.5 below, any Known Beneficiary may, within ten (10) Business Days of notice of a vote or other proposed action by the holders of the Residual Securities, by notice in writing to the Residual Securities Trustee, direct the Residual Securities Trustee to vote its Ineligible Pro Rata Share of the applicable tranche of Residual Securities. 5.4 If the Residual Securities Trustee has not received direction from any Known Beneficiary in respect of the exercise of its voting and other rights and remedies as set out above within the ten (10) Business Day period set out in Clause 5.3 above, the Residual Securities Trustee may, but shall have no obligation to, exercise such voting and other rights and remedies as it sees fit (in its sole discretion). 7
5.5 Notwithstanding the preceding provisions of this Clause 5, the Residual Securities Trustee shall have an overriding right to refrain from acting in accordance with any directions in relation to the Residual Securities if the Residual Securities Trustee reasonably believes that to act in accordance with such directions may: (a) (b) cause the Residual Securities Trustee to breach any applicable law or regulation; or cause it to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties or in the exercise of any of its own rights or powers. 6. ROLE OF RESIDUAL SECURITIES TRUSTEE 6.1 Section 3A(1) of the Trustees Act shall not apply to any function of the Residual Securities Trustee in relation to any trust constituted under this Deed. Where there are any inconsistencies between the Trustees Act and the provisions of this Deed, the provisions of this Deed shall, to the extent allowed by law, prevail. 6.2 The Residual Securities Trustee shall not be responsible for acting upon any written instruction purporting to be provided by a Beneficiary in accordance with the terms of this Deed, save in relation to its own gross negligence, willful default or fraud. 6.3 The Residual Securities Trustee shall not be liable in any way for its reliance on the instructions, data or information provided by the Clearing Systems. 6.4 No provision of this Deed shall require the Residual Securities Trustee to do anything which may: (a) be illegal or contrary to applicable law or regulation; or (b) cause it to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties or in the exercise of any of its own rights or powers. 6.5 Save as expressly otherwise provided in this Deed, the Residual Securities Trustee shall have absolute and uncontrolled discretion as to the exercise or non-exercise of its trusts, powers, authorities and discretions under this Deed (the exercise or non-exercise of which as between the Residual Securities Trustee and the Beneficiaries shall be conclusive and binding on the Beneficiaries) and shall not be responsible for any liabilities, losses, costs, charges or expenses which may result from their exercise or non-exercise (save in relation to its own gross negligence, willful default or fraud) and in particular the Residual Securities Trustee shall not be bound to act at the request or direction of the Beneficiaries or otherwise under any provision of this Deed or to take at such request or direction or otherwise any other action under any provision of this Deed unless it shall first be indemnified and/or secured to its satisfaction (including advancing of costs and expenses) against all liabilities, losses, costs, charges and expenses to which it may render itself liable or which it may incur by so doing. 6.6 The Residual Securities Trustee shall be entitled to seek and rely upon, and shall be protected in acting in good faith upon, the advice or opinion of, or any information (whether addressed to the Residual Securities Trustee or not) obtained from any legal counsel or other expert who the Residual Securities Trustee may appoint and shall not be responsible or liable for any liability occasioned by so acting (or for any delay or inaction pending the obtaining of such advice or opinion in good faith). 6.7 As between itself and the Beneficiaries the Residual Securities Trustee may determine all questions and doubts arising in relation to any of the provisions of this Deed. Such determinations, whether made upon such a question actually raised or implied in the acts or proceedings of the Residual Securities Trustee, will be conclusive and shall (in the absence of manifest error) bind the Residual Securities Trustee and the Beneficiaries. 6.8 Notwithstanding anything else herein contained, the Residual Securities Trustee may refrain from doing anything which would or might in its opinion be contrary to any law of any jurisdiction, any court order or arbitral award or any directive or regulation of any agency or any state or which would or might otherwise render it liable to any person or which it would not have the power to do in that jurisdiction and may do anything which is, in its opinion, necessary to comply with any such law, court order, arbitral award, directive or regulation. 8
6.9 Notwithstanding anything to the contrary in this Deed, the Residual Securities Trustee shall not be liable to any person for any matter or thing done or omitted in any way in connection with or in relation to this Deed, save in relation to its own gross negligence, willful default or fraud. 6.10 The duties, responsibilities and obligations of the Residual Securities Trustee shall be limited to those expressly set forth herein and subject to applicable laws and regulations no duties, responsibilities or obligations shall be inferred or implied. The Residual Securities Trustee shall not be required to and shall not expend or risk any of its own funds or otherwise incur any financial liability in the performance of any of its duties under this Deed save where the same arises as a result of its own gross negligence, willful default or fraud. Under no circumstances shall the Residual Securities Trustee be liable for any consequential or special loss, or indirect, consequential or punitive damages, however caused or arising (including loss of business, goodwill, opportunity or profit) even if advised of the possibility of such loss or damage. 6.11 The Scheme Company has agreed, pursuant to the Terms of Engagement, to reimburse the Residual Securities Trustee on demand for, and to indemnify and hold harmless the Residual Securities Trustee for an amount equal to any and all losses, costs, claims, liabilities, damages, demands and expenses of any kind whatsoever (and any interest thereon) that may be imposed on or incurred by the Residual Securities Trustee in connection with any action, claim or proceeding of any kind brought or threatened to be brought against it as a result of its acting in accordance with the Scheme or this Deed (including, but not limited to, all properly incurred costs, charges and expenses (together with any taxes thereon) paid or incurred in disputing or defending any of the foregoing) or as a result of any action taken or omitted to be taken by it before the date of this Deed in preparation for acting hereunder, provided that the Scheme Company shall not have any obligation to indemnify the Residual Securities Trustee or any of its officers and employees or any other person for any claims arising in consequence of the gross negligence, fraud or willful default on the part of the Residual Securities Trustee. 6.12 The indemnities given by the Scheme Company to the Residual Securities Trustee pursuant to the Terms of Engagement will survive the termination of this Deed and the winding up of the trusts set out in this Deed. 7. APPOINTEES 7.1 Whenever it considers it expedient in the interests of the Beneficiaries, the Residual Securities Trustee may, in the conduct of its trust business, act by any responsible officer or officers or employees, employ and pay an agent selected by it, whether or not a lawyer or other professional person, to transact or conduct, or concur in transacting or conducting, any business and to do or concur in doing all acts required to be done by the Residual Securities Trustee (including the receipt and payment of money). 7.2 Whenever it considers it expedient in the interests of the Beneficiaries, the Residual Securities Trustee may delegate to any person subject to using reasonable care in such delegation on any terms (including power to sub-delegate) all or any of its functions. 7.3 In relation to any asset held by it under this Deed, the Residual Securities Trustee may appoint any person to act as its nominee or custodian on any terms. 7.4 Provided that the Residual Securities Trustee exercises reasonable care in selecting any agent, delegate, nominee or custodian appointed under this Clause 7 (an Appointee ), the Residual Securities Trustee will not have any obligation to supervise the Appointee and will not be responsible for any loss, liability, cost, claim, action, demand or expense incurred by reason of the Appointee's misconduct or default or the misconduct or default of any substitute appointed by the Appointee. 8. RETIREMENT OF RESIDUAL SECURITIES TRUSTEES AND APPOINTMENT OF CO-RESIDUAL SECURITIES TRUSTEES 8.1 Any Residual Securities Trustee may retire at any time on giving at least thirty (30) days' prior written notice to the Beneficiaries, without giving any reason and without being responsible for any costs occasioned by such retirement. If any Residual Securities Trustee gives notice of retirement at a time when it is the sole Residual Securities Trustee, that Residual Securities Trustee shall, as soon as reasonably practicable, appoint 9
another entity selected by that Residual Securities Trustee as its successor. 8.2 The retiring Residual Securities Trustee shall make available to the successor Residual Securities Trustee such documents and records and provide such assistance as the successor Residual Securities Trustee may reasonably request for the purposes of performing its functions as the Residual Securities Trustee under this Deed. 8.3 No retirement of a Residual Securities Trustee shall be effective unless the retiring Residual Securities Trustee has delivered all Residual Securities and any Cash Distributions and/or Non-Cash Distributions held by it to the successor Residual Securities Trustee. 8.4 The Residual Securities Trustee may, by written notice to the Beneficiaries appoint anyone to act as an additional Residual Securities Trustee jointly with the Residual Securities Trustee: (a) (b) (c) if the Residual Securities Trustee considers such appointment to be in the interests of the Beneficiaries; to conform with any legal requirement, restriction or condition in a jurisdiction in which a particular act is to be performed; or to obtain a judgment or to enforce a judgment or any provision of this Deed in any jurisdiction. Subject to the provisions of this Deed the Residual Securities Trustee may confer on any person appointed as an additional Residual Securities Trustee such functions as it thinks fit. The Residual Securities Trustee may by written notice to the Beneficiaries and that person remove any person appointed as an additional Residual Securities Trustee. 8.5 If there are more than two Residual Securities Trustees the majority of them acting together will be competent to perform the Residual Securities Trustee's functions. 9. TERMINATION On the Final Settlement Date the Residual Securities Trustee shall transfer to each: (a) (b) Ineligible Creditor who satisfies the conditions set out in Clause 2.1 of this Deed, its Ineligible Pro Rata Share of the Residual Securities, any Cash Distributions and any Non-Cash Distributions (to the extent not already transferred in accordance with Clause 2 of the Deed); and Bar Date Creditor its Eligible Pro Rata Share of the Remaining Residual Securities, any Remaining Cash Distributions and any Remaining Non-Cash Distributions immediately following distribution of the Residual Securities, any Cash Distributions and any Non-Cash Distributions to Ineligible Creditors in accordance with paragraph (a) above, provided that such Bar Date Creditor has completed all necessary know your customer or similar checks of the Residual Securities Trustee or Account Bank. For the avoidance of doubt, the failure of one Ineligible Creditor or Bar Date Creditor (as the case may be) to complete any applicable know your customer or other similar checks of the Residual Securities Trustee or Account Bank shall not prejudice the distribution of New Securities, Cash Distributions and/or Non-Cash Distributions to any other Ineligible Creditor or Bar Date Creditor (as the case may be). 10. CONFLICT This Deed is expressly intended to supplement the obligations set out in the Scheme. If at any time there shall be any conflict between the provisions of this Deed and the provisions of the Scheme, the provisions of the Scheme shall prevail. 10
11. THIRD PARTIES This Deed is for the benefit of the Beneficiaries and the Beneficiaries shall be able to enforce the terms of this Deed. Save as aforesaid, a person who is not a party to this Deed shall have no rights, whether under the Contracts (Rights of Third Parties) Act (Cap 53B; 2002 Revised Edition) or otherwise, to enforce any of its terms. 12. GOVERNING LAW This Deed and any disputes or claims arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) (a Dispute ), shall be governed by and construed in accordance with the laws of the Republic of Singapore. 13. DISPUTE RESOLUTION 13.1 Any Dispute will be referred to and finally resolved by arbitration in Singapore in accordance with the Arbitration Rules (the SIAC Rules ) of the Singapore International Arbitration Centre (the SIAC ) for the time being in force, which rules are deemed to be incorporated by reference in this Clause. The seat of the arbitration shall be Singapore. The tribunal shall consist of three arbitrators. The claimant(s) shall jointly nominate one arbitrator (in the Notice of Arbitration) and the respondent(s) shall jointly nominate one arbitrator (in the Response to the Notice of Arbitration). If the respondent(s) fail to nominate an arbitrator within 14 days after receipt of the claimants nomination of an arbitrator, the president of the SIAC ( President ) shall proceed to appoint an arbitrator on their behalf. The two arbitrators so appointed shall nominate a third arbitrator who shall act as the presiding arbitrator of the tribunal. If the two arbitrators so appointed fail to nominate a third presiding arbitrator within 14 days of the appointment of the second arbitrator, the President shall appoint the third presiding arbitrator. The language of the arbitration shall be English. The arbitral award shall be final and binding upon the claimants and respondents. Any award rendered by the arbitral tribunal may be enforced by any court having jurisdiction over the claimants and respondents or over their respective assets wherever the same may be located. The governing law of this arbitration Clause shall be the laws of the Republic of Singapore. 13.2 Nothing in this Clause 13 shall prevent any Beneficiary from seeking conservatory or interim relief (including injunction, specific performance or other similar or comparable forms of equitable relief) from any court of competent jurisdiction pending the final determination of any Dispute by the arbitral tribunal. 14. NOTICES 14.1 Any notice, instruction or other written communication to be given to the Residual Securities Trustee under or in relation to this Deed shall be given in writing and shall be deemed to have been duly given if it is delivered by hand or sent by Post, fax or electronic mail to the Residual Securities Trustee at: Address: 56-58 Wellington St., 402 Fax: +852 2526 5020 Email: Attention: blueoceaninfo@lynchpinbm.com Brenda O Brien or such other address as may be notified by the Residual Securities Trustee to the Beneficiaries from time to time. For the purposes of this Deed, an electronic communication will be treated as being in writing. 14.2 Any notice, instruction or other written communication to be given to the Residual Securities Trustee under or in relation to this Deed shall be deemed to have been served: (a) if delivered by hand, on the first Business Day following delivery; 11
(b) (c) if sent by Post, on the second Business Day after posting if the recipient is in the country of dispatch, and otherwise on the seventh day after posting; and if sent by fax or electronic mail, when received in legible form. 12
IN WITNESS of which this Deed has been duly executed and delivered as a deed poll on the date first appearing on this Deed. The Residual Securities Trustee EXECUTED AND DELIVERED AS A DEED POLL ) by EXETER GROUP LIMITED ) acting by its duly authorised signatory ) Name: Designation: 13
APPENDIX 1 INFORMATION NOTICE For use by Account Holders in DTC, Euroclear or Clearstream (together Account Holders ) on behalf of Ineligible Creditor(s) in respect of the US$325,000,000 amended and restated step up rate guaranteed senior secured notes due 2020 (CUSIP: Y09189AB0; ISIN: USY09189AB06; Regulation S Global Note) issued by BLUE OCEAN RESOURCES PTE. LTD. ( Scheme Company ) in relation to the Scheme Company s scheme of arrangement under Section 210 of the Companies Act (Chapter 50; 2006 Revised Edition) of the Republic of Singapore ( Scheme ). Unless otherwise indicated, capitalised words and phrases used in this Information Notice have the meaning provided in: (i) the scheme document dated [ ] 2018 which contains, among other things, the Explanatory Statement of the Scheme Company relating to the Scheme ( Scheme Document ); and (ii) the residual securities trust deed dated [ ] ( Residual Securities Trust Deed ). DEADLINES FOR RECEIPT OF INFORMATION NOTICE This Information Notice must be submitted online at the website maintained by Lynchpin Bondholder Management (the Residual Securities Trustee ) (telephone number: +852 2526 5406; e-mail: blueoceaninfo@lynchpinbm.com; attention: Brenda O Brien) at www.lynchpinbm.com/project/5a262b96722dd/, and must be received by the Residual Securities Trustee by no later than 5:00 p.m. (Singapore time) on [ ] ( Bar Time ). If an Account Holder fails to submit this Information Notice on behalf of an Ineligible Creditor to the Residual Securities Trustee prior to the Bar Time, such Ineligible Creditor shall cease to hold any interest (beneficial or otherwise) in the Residual Securities and any Non-Cash Distributions or Cash Distributions on and from the Final Settlement Date. A separate Information Notice must be completed in respect of each separate beneficial holding of Notes. You are strongly advised to read the Scheme Documents (including the Explanatory Statement) and the Residual Securities Trust Deed before you complete this Information Notice. This Information Notice shall be governed by and construed in accordance with the laws of the Republic of Singapore. FOR ASSISTANCE CONTACT Lynchpin Bondholder Management Address: Room 402, Wellington Plaza, 56-58 Wellington Street Telephone: +852 25265406 Fax: +852 25265020 Email: blueoceaninfo@lynchpinbm.com Attention: Brenda O Brien 14
PART 1 : INELIGIBLE CREDITOR DETAILS If you are not the Ineligible Creditor (that is, a Person who held an economic or beneficial interest as principal in the Existing Notes held through the Clearing Systems at the Record Time), please ensure that you identify the Ineligible Creditor on whose behalf you are submitting this Information Notice. If such Ineligible Creditor does not wish to provide details of their identity, please identify a Person authorised to act as their representative. Full Name of Ineligible Creditor: Address of Ineligible Creditor: Jurisdiction of Incorporation of Ineligible Creditor (required if Ineligible Creditor is a company, partnership or other non-natural Person): Details of Authorised Employee (required if Ineligible Creditor is a company, partnership or other non-natural Person): Name and Title of Authorised Employee: Telephone number of Ineligible Creditor or Authorised Employee: Facsimile number of Ineligible Creditor or Authorised Employee: E-mail address of Ineligible Creditor or Authorised Employee: 15
PART 2 : HOLDING DETAILS Details of the Existing Notes to which this Information Notice relates The Account Holder held, at the Record Time, the following Existing Notes, which are identifiable by reference to: (a) in the case of Existing Notes held through Euroclear, the unique reference number issued by Euroclear; or (b) in the case of Existing Notes held through Clearstream or DTC, the unique reference number chosen by the Account Holder (and derived in the manner described below); and set out against such Existing Notes in the table below. AMOUNT HELD AT THE RECORD TIME CLEARING SYSTEM CLEARING SYSTEM ACCOUNT NUMBER UNIQUE REFERENCE NUMBER* * The unique reference number should be the unique reference number issued by Euroclear (where the Existing Notes referred to above are held through Euroclear) or chosen by the Account Holder (where the Existing Notes referred to above are held through Clearstream or DTC) to identify the outstanding principal amount of the Existing Notes in respect of which the Ineligible Creditor on whose behalf this Information Notice is submitted held an economic or beneficial interest as principal at the Record Time. The unique reference number shall be derived in the following manner: Initials of Clearing System + Clearing System account number + sequential letter of the alphabet. For the initials of clearing systems, Clearstream is CS and DTC is DTC. By way of example: (i) CS2384a would be the first position submitted by Clearstream Account Holder number 2384; and (ii) "DTC915c" would be the third position submitted by DTC participant number 915. 16
PART 3 : CONFIRMATIONS The Account Holder named below confirms to the Scheme Company, the Parent and the Residual Securities Trustee (select yes or no as appropriate for each item): A. That all authority conferred or agreed to be conferred pursuant to this Information Notice and every obligation of the Account Holder under this Information Notice shall be binding upon the successors, assigns, heirs, executors, administrators, trustees in bankruptcy and legal representatives of the Account Holder and shall not be affected by, and shall survive, the death or incapacity of the Account Holder and that all of the information in this Information Notice is complete and accurate. Yes No B. That in relation to the Existing Notes identified in Part 2 of this Information Notice, the Account Holder has authority to give the confirmations and undertakings set out in this Part 3 of this Information Notice on behalf of itself and the relevant Ineligible Creditor (if different). Yes No An Account Holder who is unable to confirm yes in respect of paragraphs A to B above should contact the Information Agent for assistance. 17
PART 4 : CLEARING SYSTEM ACCOUNT DETAILS This Part 4 is required to be completed with the details of the Euroclear or Clearstream account to which the Ineligible Creditor on whose behalf this Information Notice is submitted wishes the Residual Securities to which it is entitled under the terms of the Scheme be credited. Ineligible Creditors will be able to receive the Residual New Notes and Residual MEBs and any Cash Distributions or Non-Cash Distributions to which they are entitled only: (i) via Euroclear or Clearstream accounts; and (ii) in the event that they satisfy all applicable requirements set out in the Residual Securities Trust Deed. For the avoidance of doubt, where the Ineligible Creditor on whose behalf this Information Notice is submitted held those interests in the Existing Notes to which it was entitled at the Record Time through: (i) (ii) an account with Euroclear or Clearstream, that Ineligible Creditor may only designate that account (being the account identified in Part 2 of this Information Notice) to receive any New Securities, Cash Distributions and/or Non-Cash Distributions to which it may be entitled under the terms of the Residual Securities Trust Deed; or an account with DTC, that Ineligible Creditor will be required to designate a Euroclear or Clearstream Account to receive any New Securities, Cash Distributions and/or Non-Cash Distributions to which it may be entitled under the terms of the Residual Securities Trust Deed. Details of the clearing system account to which the Residual Securities and any Cash Distributions or Non-Cash Distributions to which the Ineligible Creditor is entitled under the terms of the Scheme and the Residual Securities Trust Deed should be credited are as follows: Clearing System (please select one only) Euroclear Clearstream Clearing System Account Number: Authorized Employee Name and Job Title: Telephone number (including country code): E-mail address: Address (including postal code and country): 18
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PART 5 : SECURITIES LAW REPRESENTATIONS As a result of applicable securities laws and regulations, in order to receive the Residual Securities, Ineligible Creditors must make the following representations. Ineligible Creditors who are able to make these representations must make them through the relevant Account Holder in this Information Notice. Ineligible Creditors who are unable to make these representations shall, subject to any Sale Instruction, cease to hold any interest (beneficial or otherwise) in the Residual Securities and any Non-Cash Distributions or Cash Distributions on and from the Final Settlement Date. We understand and unconditionally acknowledge that: 1. neither the Residual New Notes nor the Residual MEBs will be registered under the US Securities Act or any state or other securities laws of the United States or any other jurisdiction. Accordingly, the New Securities are being offered outside the United States in accordance with Regulation S under the US Securities Act. The Residual Securities may not be offered or sold in the United States or to any US Persons except in accordance with Regulation S under the US Securities Act or as set out in paragraph 2 below; 2. in the event that any holder of the Existing Notes is a resident of the United States, the Residual Securities will be available solely to an Ineligible Creditor that is an institutional accredited investor within the meaning of Rule 501(a)(1), (2), (3) or (7) of Regulation D under the US Securities Act or a qualified institutional buyer within the meaning of Rule 144A under the US Securities Act; 3. the distribution of the Residual Securities to Persons located in certain jurisdictions, including the states of Arizona, California, Colorado, Guam and Indiana, is also subject to the limitations described in Appendix 2 of the Scheme Document; and 4. defined terms used in these Securities Law Representations shall be those defined in the Scheme. Furthermore, we represent for the benefit of the Scheme Company and the MEB Issuer that: 1. we have complied with all laws and regulations applicable to us in force in any relevant jurisdictions as required for us to receive the Residual Securities and have obtained all authorisations required to be obtained by us under the laws and regulations applicable to us in force in any relevant jurisdiction to which we are subject and the Scheme Company, its directors and advisers shall not have any responsibility therefor; 2. the distribution of the Residual Securities to us will not infringe the laws of any jurisdiction or require the Scheme Company to observe or obtain any authorisation; 3. we are not requesting delivery of any Residual Securities to or to the order of, or for the account or benefit of, a Person that is located in any jurisdiction where the distribution of any of the Residual Securities to that Person would be prohibited by any applicable law or regulation or require the Scheme Company to observe or obtain any authorisation; and 4. in the event that we are: (i) a US person (as defined in Regulation S under the US Securities Act); or (ii) located in the United States of America; we are a "qualified institutional buyer" (as defined in Rule 144A under the US Securities Act) or an institutional "accredited investor" (as defined under Rule 501(a)(1), (2), (3) or (7) of Regulation D under the US Securities Act) or purchasing for the account of a qualified institutional buyer or an institutional accredited investor (as the case may be) and: (i) the Residual Securities have not been offered to us by any form of general solicitation or general advertising; and (ii) our receipt of the Residual Securities is not part of a plan or scheme to evade the registration requirements of the US Securities Act. 20