exhibit419vttimlpbvnotep







ln-255235    Exhibit 4.19      EXECUTION VERSION            VTTI MLP B.V.   U.S.$75,000,000   4.53% Series A Senior Unsecured Notes due December 15, 2022   and   U.S.$72,000,000   4.87% Series B Senior Unsecured Notes due December 15, 2025   and   U.S.$98,000,000   4.97% Series C Senior Unsecured Notes due December 15, 2027   and   €50,000,000   2.50% Series D Senior Unsecured Notes due December 15, 2022   and   €130,000,000   2.86% Series E Senior Unsecured Notes due December 15, 2025   ______________   NOTE PURCHASE AGREEMENT   ______________   Dated as of December 15, 2015        





 







TABLE OF CONTENTS      Page       -i-    ln-255235    1. AUTHORIZATION OF NOTES; ESTABLISHMENT OF SERIES;   SUBSIDIARY GUARANTEES. ............................................................................ 1   2. SALE AND PURCHASE OF NOTES. .................................................................. 2   3. CLOSING. .............................................................................................................. 2   4. CONDITIONS TO CLOSING. .............................................................................. 3   4.1. Representations and Warranties. ....................................................................... 3   4.2. Performance; No Default. ................................................................................. 3   4.3. Compliance Certificates. ................................................................................... 3   4.4. Opinions of Counsel. ........................................................................................ 4   4.5. Purchase Permitted By Applicable Law, Etc. ................................................... 4   4.6. Sale of Other Notes. .......................................................................................... 4   4.7. Payment of Special Counsel Fees. .................................................................... 4   4.8. Private Placement Numbers. ............................................................................. 5   4.9. Changes in Corporate Structure. ....................................................................... 5   4.10. Funding Instructions. ........................................................................................ 5   4.11. Acceptance of Appointment to Receive Service of Process. ............................ 5   4.12. Original Subsidiary Guaranty Agreements. ...................................................... 5   4.13. BNM Approval. ................................................................................................ 5   4.14. ATT Tanjung Bin Subordination Agreement and Subordination Deed Poll. ... 6   4.15. Malaysian Stamp Tax. ...................................................................................... 6   4.16. Proceedings and Documents. ............................................................................ 6   5. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. .................. 6   5.1. Organization; Power and Authority. ................................................................. 6   5.2. Authorization, Etc. ............................................................................................ 6   5.3. Disclosure. ........................................................................................................ 7   5.4. Organization and Ownership of Shares of Subsidiaries; Affiliates. ................. 7   5.5. Financial Statements; Material Liabilities. ....................................................... 8   5.6. Compliance with Laws, Other Instruments, Etc. .............................................. 8   5.7. Governmental Authorizations, Etc.................................................................... 9   5.8. Litigation; Observance of Agreements, Statutes and Orders. ........................... 9   5.9. Taxes. .............................................................................................................. 10   5.10. Title to Property; Leases. ................................................................................ 10   5.11. Licenses, Permits, Etc. .................................................................................... 10   5.12. Compliance with ERISA; Non-U.S. Plans. .................................................... 11   5.13. Private Offering by the Company. .................................................................. 12   5.14. Use of Proceeds; Margin Regulations............................................................. 13   5.15. Existing Indebtedness; Future Liens. .............................................................. 13   5.16. Foreign Assets Control Regulations, Etc. ....................................................... 14   5.17. Status under Certain Statutes. ......................................................................... 16   5.18. Environmental Matters.................................................................................... 16   5.19. Ranking of Obligations ................................................................................... 16   5.20. Representations of Original Subsidiary Guarantors. ...................................... 17   6. REPRESENTATIONS OF THE PURCHASERS. ............................................... 17     





 







TABLE OF CONTENTS   (continued)   Page       -ii-    ln-255235    6.1. Purchase for Investment, Etc. ......................................................................... 17   6.2. Source of Funds. ............................................................................................. 18   7. INFORMATION AS TO COMPANY. ................................................................ 19   7.1. Financial and Business Information. ............................................................... 19   7.2. Officer’s Certificate. ....................................................................................... 22   7.3. Visitation. ........................................................................................................ 23   7.4. Electronic Delivery. ........................................................................................ 23   7.5. Limitation on Disclosure Obligation. ............................................................. 24   8. PAYMENT AND PREPAYMENT OF THE NOTES. ........................................ 25   8.1. Maturity........................................................................................................... 25   8.2. Optional Prepayments with Make-Whole Amount......................................... 25   8.3. Prepayment for Tax Reasons. ......................................................................... 25   8.4. Allocation of Partial Prepayments. ................................................................. 27   8.5. Maturity; Surrender, Etc. ................................................................................ 27   8.6. Purchase of Notes. .......................................................................................... 28   8.7. Make-Whole Amount and Modified Make-Whole Amount. ......................... 28   8.8. Payments Due on Non-Business Days. ........................................................... 31   8.9. OFAC Sanctions. ............................................................................................ 31   8.10. Change of Control Prepayment Offer. ............................................................ 32   9. AFFIRMATIVE COVENANTS. ......................................................................... 34   9.1. Compliance with Law. .................................................................................... 34   9.2. Insurance. ........................................................................................................ 34   9.3. Maintenance of Properties. ............................................................................. 35   9.4. Payment of Taxes and Claims......................................................................... 35   9.5. Corporate Existence, Etc. ................................................................................ 35   9.6. Books and Records. ........................................................................................ 35   9.7. Priority of Obligations. ................................................................................... 36   9.8. Subsidiary Guarantors. .................................................................................... 36   9.9. Designation and Maintenance of Non-Recourse Entities. .............................. 37   10. NEGATIVE COVENANTS. ................................................................................ 39   10.1. Transactions with Affiliates. ........................................................................... 39   10.2. Merger, Consolidation, Etc. ............................................................................ 39   10.3. Sale of Assets. ................................................................................................. 40   10.4. Liens. ............................................................................................................... 42   10.5. Limitation on Subsidiary Indebtedness. .......................................................... 45   10.6. Interest Cover .................................................................................................. 46   10.7. Debt Cover ...................................................................................................... 46   10.8. Line of Business. ............................................................................................. 47   10.9. Terrorism Sanctions Regulations. ................................................................... 47   10.10. Lease Contracts and Subordination Deed Poll. ............................................... 47   10.11. Non-Recourse Liabilities. ............................................................................... 48   10.12. Distributions. ................................................................................................... 48   11. EVENTS OF DEFAULT. ..................................................................................... 49     





 







TABLE OF CONTENTS   (continued)   Page       -iii-    ln-255235    12. REMEDIES ON DEFAULT, ETC. ...................................................................... 53   12.1. Acceleration. ................................................................................................... 53   12.2. Other Remedies. .............................................................................................. 54   12.3. Rescission. ...................................................................................................... 54   12.4. No Waivers or Election of Remedies, Expenses, Etc. .................................... 54   13. TAX INDEMNIFICATION. ................................................................................ 55   13.1. Gross-up. ......................................................................................................... 55   13.2. Treaty Clearance. ............................................................................................ 56   13.3. Tax Credits, Etc. ............................................................................................. 57   13.4. FATCA Information. ...................................................................................... 58   14. REGISTRATION; EXCHANGE; SUBSTITUTION OF NOTES. ..................... 59   14.1. Registration of Notes. ..................................................................................... 59   14.2. Transfer and Exchange of Notes; No Transfer to Competitors. ..................... 59   14.3. Replacement of Notes. .................................................................................... 60   15. PAYMENTS ON NOTES. ................................................................................... 61   15.1. Place of Payment............................................................................................. 61   15.2. Home Office Payment..................................................................................... 61   16. EXPENSES, ETC. ................................................................................................ 61   16.1. Transaction Expenses...................................................................................... 61   16.2. Certain Taxes. ................................................................................................. 62   16.3. Survival. .......................................................................................................... 62   17. SURVIVAL OF REPRESENTATIONS AND WARRANTIES; ENTIRE   AGREEMENT. ..................................................................................................... 63   18. AMENDMENT AND WAIVER. ......................................................................... 63   18.1. Requirements. ................................................................................................. 63   18.2. Solicitation of Holders of Notes. .................................................................... 63   18.3. Binding Effect, Etc.......................................................................................... 64   18.4. Notes Held by Company, Etc.......................................................................... 64   19. NOTICES; ENGLISH LANGUAGE. .................................................................. 65   20. REPRODUCTION OF DOCUMENTS. ............................................................... 65   21. CONFIDENTIAL INFORMATION. ................................................................... 66   22. SUBSTITUTION OF PURCHASER. .................................................................. 67   23. MISCELLANEOUS. ............................................................................................ 67   23.1. Successors and Assigns................................................................................... 67   23.2. Accounting Terms. .......................................................................................... 68   23.3. Severability. .................................................................................................... 69   23.4. Construction, Etc............................................................................................. 69   23.5. Counterparts. ................................................................................................... 69   23.6. Governing Law. .............................................................................................. 69   23.7. Jurisdiction and Process; Waiver of Jury Trial. .............................................. 69   23.8. Obligation to Make Payment in Dollars or Euros. .......................................... 71   23.9. IAS 39. ............................................................................................................ 72   23.10. Setoff. .............................................................................................................. 72     





 







TABLE OF CONTENTS   (continued)   Page       -iv-    ln-255235         





 







        ln-255235       Schedule A — Defined Terms    Schedule B — Information Relating to Purchasers   Schedule 5.3  — Disclosure Materials   Schedule 5.4  — Subsidiaries of the Company and Ownership of Subsidiary Stock   Schedule 5.5  — Financial Statements   Schedule 5.15 — Existing Indebtedness   Exhibit 1(a)(i) — Form of 4.53% Series A Senior Unsecured Notes due December 15,   2022   Exhibit 1(a)(ii) — Form of 4.87% Series B Senior Unsecured Notes due December 15,   2025   Exhibit 1(a)(iii) — Form of 4.97% Series C Senior Unsecured Notes due December 15,   2027   Exhibit 1(a)(iv) — Form of 2.50% Series D Senior Unsecured Notes due December 15,   2022   Exhibit 1(a)(v) — Form of 2.86% Series E Senior Unsecured Notes due December 15,   2025   Exhibit 1(b)  — Form of Subsidiary Guaranty Agreement   Exhibit 4.4(a)(i) —  Form of Opinion of U.S. Special Counsel for the Company   Exhibit 4.4(a)(ii) —  Form of Opinion of Dutch Special Counsel for the Company   and the Original Subsidiary Guarantors organized in the   Netherlands   Exhibit 4.4(a)(iii) —  Form of Opinion of United Arab Emirates Special counsel for the   Original Subsidiary Guarantor organized in the United Arab   Emirates   Exhibit 4.4(a)(iv) —  Form of Opinion of Belgian Special counsel for the Original   Subsidiary Guarantor organized in Belgium      Exhibit 4.4(a)(v) —  Form of Opinion of Malaysian Special counsel for the Original   Subsidiary Guarantor organized in Malaysia   Exhibit 4.4(b)  — Form of Opinion of Special Counsel for the Purchasers    





 







      VTTI MLP B.V.   c/o VTTI Energy Partners LP   Warwick House   25-27 Buckingham Palace Road   London   SW1W 0PP   4.53% Series A Senior Unsecured Notes due December 15, 2022   4.87% Series B Senior Unsecured Notes due December 15, 2025   4.97% Series C Senior Unsecured Notes due December 15, 2027   2.50% Series D Senior Unsecured Notes due December 15, 2022   2.86% Series E Senior Unsecured Notes due December 15, 2025   December 15, 2015   To Each of the Purchasers Listed in   Schedule B Hereto:   Ladies and Gentlemen:   VTTI MLP B.V., a private company with limited liability incorporated   under the laws of the Netherlands and having its corporate seat in Rotterdam, the   Netherlands (together with any successor thereto that becomes a party hereto pursuant to   Section 10.2, the “Company”), agrees with each of the purchasers whose names appear   in Schedule B (each, a “Purchaser” and, collectively, the “Purchasers”) as follows:   1. AUTHORIZATION OF NOTES; ESTABLISHMENT OF SERIES;   SUBSIDIARY GUARANTEES.   (a) The Company will authorize the issue and sale of (i)   U.S.$75,000,000 aggregate principal amount of its 4.53% Series A Senior   Unsecured Notes due December 15, 2022 (the “Series A Notes”), (ii)   U.S.$72,000,000 aggregate principal amount of its 4.87% Series B Senior   Unsecured Notes due December 15, 2025 (the “Series B Notes”), (iii)   U.S.$98,000,000 aggregate principal amount of its 4.97% Series C Senior   Unsecured Notes due December 15, 2027 (the “Series C Notes”), (iv)   €50,000,000 aggregate principal amount of its 2.50% Series D Senior Unsecured   Notes due December 15, 2022 (the “Series D Notes”) and (v) €130,000,000   aggregate principal amount of its 2.86% Series E Senior Unsecured Notes due   December 15, 2025 (the “Series E Notes”, and together with the Series A Notes,   the Series B Notes, the Series C Notes and the Series D Notes, the “Notes”, such     





 







        ln-255235    2   term to include any amendment, restatement or other modification from time to   time pursuant to Section 18 and including any such notes issued in substitution   therefor pursuant to Section 14).  The Notes shall be substantially in the   respective forms set out in Exhibits 1(a)(i), 1(a)(ii), 1(a)(iii), 1(a)(iv) and 1(a)(v).    Certain capitalized and other terms used in this Agreement are defined in   Schedule A. References to a “Schedule” or an “Exhibit” are, unless otherwise   specified, to a Schedule or an Exhibit attached to this Agreement.  References to a   “Section” are references to a Section of this Agreement unless otherwise specified.   (b) The payment of the Notes and the performance by the Company of   its obligations under this Agreement may, from time to time, be guaranteed by   other members of the Group (each being a “Subsidiary Guarantor”), pursuant to   a Subsidiary Guaranty Agreement of such Subsidiary Guarantor (as amended   from time to time).   2. SALE AND PURCHASE OF NOTES.   Subject to the terms and conditions of this Agreement, the Company will   issue and sell to each Purchaser and each Purchaser will purchase from the Company, at   the Closing provided for in Section 3, Notes in the principal amount and in the series   specified opposite such Purchaser’s name in Schedule B at the purchase price of 100% of   the principal amount thereof.  The Purchasers’ obligations hereunder are several and not   joint obligations and no Purchaser shall have any liability to any Person for the   performance or non-performance of any obligation by any other Purchaser hereunder.   3. CLOSING.   The sale and purchase of the Notes to be purchased by each Purchaser   shall occur at the offices of Chapman and Cutler LLP, 111 West Monroe Street, Chicago,   Illinois 60603, at 10:00 a.m., New York City time, at a closing (the “Closing”) on   December 15, 2015.  At the Closing the Company will deliver to each Purchaser the   Notes to be purchased by such Purchaser in the form of a single Note of each series to be   purchased by such Purchaser (or such greater number of Notes in denominations of at   least $500,000 or €500,000 (as applicable) as such Purchaser may request) dated the date   of the Closing and registered in such Purchaser’s name (or in the name of its nominee),   against delivery by such Purchaser to the Company or its order of immediately available   funds in the amount of the purchase price therefor by wire transfer of immediately   available funds for the account of the Company to:   (a) in the case of the Series A Notes, the Series B Notes and the Series   C Notes, account number 983617671 at JPMorgan Chase Bank, N.A.; Account   Name: ING Financial Markets Escrow A/C; ABA Number: 021000021; SWIFT   Code: CHASUS33; Reference: VTTI MLP B.V. Private Placement   (b) in the case of the Series D Notes and the Series E Notes, account   number 0184 3040 08 at Rabobank; SWIFT Code: RABONL2U; IBAN: NL66   RABO 0184 3040 08; Reference: VTTI MLP B.V. Private Placement     





 







        ln-255235    3   If at the Closing the Company shall fail to tender such Notes to any   Purchaser as provided above in this Section 3, or any of the conditions specified in   Section 4 shall not have been fulfilled to such Purchaser’s satisfaction, such Purchaser   shall, at its election, be relieved of all further obligations under this Agreement, without   thereby waiving any rights such Purchaser may have by reason of any of the conditions   specified in Section 4 not having been fulfilled to such Purchaser’s satisfaction or such   failure by the Company to tender such Notes.   4. CONDITIONS TO CLOSING.   Each Purchaser’s obligation to purchase and pay for the Notes to be sold   to such Purchaser at the Closing is subject to the fulfillment to such Purchaser’s   satisfaction, prior to or at the Closing, of the following conditions:   4.1. Representations and Warranties.   The representations and warranties of the Company in this Agreement   shall be correct when made and at the Closing. The representations and warranties of   each Original Subsidiary Guarantor in its Subsidiary Guaranty Agreement shall be   correct when made and at the Closing.   4.2. Performance; No Default.   The Company shall have performed and complied with all agreements and   conditions contained in this Agreement required to be performed or complied with by it   prior to or at the Closing.  Before and after giving effect to the issue and sale of the Notes   (and the application of the proceeds thereof as contemplated by Section 5.14), no Default   or Event of Default shall have occurred and be continuing.  Neither the Company nor any   Subsidiary shall have entered into any transaction since the date of the Memorandum that   would have been prohibited by Section 10 had such Section applied since such date.   4.3. Compliance Certificates.   (a) Officer’s Certificate.  The Company shall have delivered to such   Purchaser an Officer’s Certificate, dated the date of the Closing, certifying that   the conditions specified in Sections 4.1, 4.2 and 4.9 have been fulfilled.   (b) Secretary’s or Director’s Certificate.  The Company shall have   delivered to such Purchaser a certificate of its Secretary, an Assistant Secretary, a   Director or another appropriate person, dated the date of the Closing, certifying as   to (i) the resolutions attached thereto and other corporate proceedings relating to   the authorization, execution and delivery of the Notes and this Agreement and (ii)   the Company’s organizational/constitutional documents as then in effect. Each   Original Subsidiary Guarantor shall have delivered to such Purchaser a certificate   of its Secretary or a Director or other appropriate person, dated the date of the   Closing, certifying as to (i) the resolutions attached thereto and other corporate   proceedings relating to the authorization, execution and delivery of its Subsidiary     





 







        ln-255235    4   Guaranty Agreement and (ii) its organizational/constitutional documents as then   in effect.   4.4. Opinions of Counsel.   Such Purchaser shall have received opinions in form and substance   satisfactory to such Purchaser, dated the date of the Closing (a) from Morrison & Foerster   (UK) LLP, U.S. special counsel for the Company, De Brauw Blackstone Westbroek N.V.,   Dutch counsel for the Company and the Original Subsidiary Guarantors organized in the   Netherlands, Stephenson Harwood Middle East LLP, United Arab Emirates counsel for   the Original Subsidiary Guarantor organized in the United Arab Emirates, NautaDutilh   BVBA/SPRL, Belgium counsel for the Original Subsidiary Guarantor organized in   Belgium and Rahmat Lim & Partners, Malaysian counsel for the Original Subsidiary   Guarantor organized in Malaysia, substantially in the respective forms set forth in   Exhibits 4.4(a)(i), 4.4(a)(ii), 4.4(a)(iii), 4.4(a)(iv) and 4.4(a)(v) and covering such other   matters incident to the transactions contemplated hereby as such Purchaser or its counsel   may reasonably request (and the Company hereby instructs its counsel to deliver such   opinions to the Purchasers) and (b) from Chapman and Cutler LLP, the Purchasers’   special counsel in connection with such transactions, substantially in the form set forth in   Exhibit 4.4(b) and covering such other matters incident to such transactions as such   Purchaser may reasonably request.   4.5. Purchase Permitted By Applicable Law, Etc.   On the date of the Closing such Purchaser’s purchase of Notes shall (a) be   permitted by the laws and regulations of each jurisdiction to which such Purchaser is   subject, without recourse to provisions (such as section 1405(a)(8) of the New York   Insurance Law) permitting limited investments by insurance companies without   restriction as to the character of the particular investment, (b) not violate any applicable   law or regulation (including, without limitation, Regulation T, U or X of the Board of   Governors of the Federal Reserve System) and (c) not subject such Purchaser to any tax,   penalty or liability under or pursuant to any applicable law or regulation, which law or   regulation was not in effect on the date hereof.  If requested by such Purchaser, such   Purchaser shall have received an Officer’s Certificate certifying as to such matters of fact   as such Purchaser may reasonably specify to enable such Purchaser to determine whether   such purchase is so permitted.   4.6. Sale of Other Notes.   Contemporaneously with the Closing the Company shall sell to each other   Purchaser and each other Purchaser shall purchase the Notes to be purchased by it at the   Closing as specified in Schedule B.   4.7. Payment of Special Counsel Fees.   Without limiting Section 16.1, the Company shall have paid on or before   the Closing the reasonable fees, charges and disbursements of the Purchasers’ special     





 







        ln-255235    5   counsel referred to in Section 4.4 to the extent reflected in a statement of such counsel   rendered to the Company at least one Business Day prior to the Closing.   4.8. Private Placement Numbers.   A Private Placement Number issued by Standard & Poor’s CUSIP Service   Bureau (in cooperation with the SVO) shall have been obtained for each series of the   Notes.   4.9. Changes in Corporate Structure.   Neither the Company nor the Original Subsidiary Guarantors shall have   changed their respective jurisdictions of incorporation or organization, as applicable, or   been a party to any merger or consolidation or succeeded to all or any substantial part of   the liabilities of any other entity, at any time following the date of the most recent   financial statements referred to in Schedule 5.5.   4.10. Funding Instructions.   At least three Business Days prior to the date of the Closing, each   Purchaser shall have received written instructions signed by a Responsible Officer on   letterhead of the Company confirming the information specified in Section 3 including   (a) the name and address of each transferee bank, (b) each such transferee bank’s ABA   number, SWIFT code and IBAN, as applicable and (c) the account names and numbers   into which the purchase price for the Notes is to be deposited.   4.11. Acceptance of Appointment to Receive Service of Process.   Such Purchaser shall have received evidence of the acceptance by CT   Corporation System of the appointments and designations provided for by Section 23.7(f)   of this Agreement and Section 8 of the Subsidiary Guaranty Agreements of the Original   Subsidiary Guarantors, for the period from the date of the Closing to December 15, 2028   (and the payment in full of all fees in respect thereof).   4.12. Original Subsidiary Guaranty Agreements.   Each of the Original Subsidiary Guarantors shall have duly executed and   delivered to such Purchaser a Subsidiary Guaranty Agreement and such Subsidiary   Guaranty Agreement shall be in full force and effect.   4.13. BNM Approval.   Such Purchaser shall have received evidence that ATT Tanjung Bin Sdn.   Bhd. has received approval from BNM to enter into its Subsidiary Guaranty Agreement   (as contemplated by Section 4.12) and that such Subsidiary Guaranty Agreement has   been duly stamped in Malaysia under the Stamp Act 1949 of Malaysia.     





 







        ln-255235    6   4.14. ATT Tanjung Bin Subordination Agreement and Subordination Deed Poll.   The ATT Tanjung Bin Subordination Agreement shall have been   terminated and shall be of no further force and effect, and a subordination deed poll shall   have been entered into in its place (the “Subordination Deed Poll”), which   Subordination Deed Poll shall ensure that all Indebtedness arising under the ATT   Tanjung Bin Phase 2 Loan shall be subordinated to amounts due under this Agreement   and the Notes upon the occurrence of any insolvency proceedings (or analogous   procedures) in respect of ATT Tanjung Bin Sdn. Bhd.   4.15. Malaysian Stamp Tax.   ATT Tanjung Bin Sdn. Bhd. shall have made payment of the stamp duty   of RM10.00 due to the Inland Revenue Board, Malaysia on its Subsidiary Guaranty   Agreement (and the applicable stamp duties on copies thereof if such Subsidiary   Guaranty Agreement is brought into or executed in Malaysia under the Stamp Act 1949   of Malaysia).   4.16. Proceedings and Documents.   All corporate and other proceedings in connection with the transactions   contemplated by this Agreement and all documents and instruments incident to such   transactions shall be satisfactory to such Purchaser and its special counsel, and such   Purchaser and its special counsel shall have received all such counterpart originals or   certified or other copies of such documents as such Purchaser or such special counsel   may reasonably request.   5. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.   As of the date of Closing, the Company represents and warrants to each   Purchaser that:   5.1. Organization; Power and Authority.   The Company is a corporation duly organized and validly existing under   the laws of its jurisdiction of incorporation, and is duly qualified as a foreign corporation   and, where applicable, is in good standing in each jurisdiction in which such qualification   is required by law, other than those jurisdictions as to which the failure to be so qualified   or in good standing could not, individually or in the aggregate, reasonably be expected to   have a Material Adverse Effect.  The Company has the corporate power and authority to   own or hold under lease the properties it purports to own or hold under lease, to transact   the business it transacts and proposes to transact, to execute and deliver this Agreement   and the Notes and to perform the provisions hereof and thereof.   5.2. Authorization, Etc.   This Agreement and the Notes have been duly authorized by all necessary   corporate action on the part of the Company, and this Agreement constitutes, and upon     





 







        ln-255235    7   execution and delivery thereof each Note will constitute, a legal, valid and binding   obligation of the Company enforceable against the Company in accordance with its terms,   except as such enforceability may be limited by (i) applicable bankruptcy, insolvency,   reorganization, moratorium or other similar laws affecting the enforcement of creditors’   rights generally and (ii) general principles of equity (regardless of whether such   enforceability is considered in a proceeding in equity or at law).   5.3. Disclosure.   The Company, through its agents, Citigroup Global Markets Inc., ING   Financial Markets LLC and Rabo Securities USA, Inc. has delivered to each Purchaser a   copy of a Confidential Private Placement Memorandum, dated September 2015 (the   “Memorandum”), relating to the transactions contemplated hereby.  The Memorandum   fairly describes, in all material respects, the general nature of the business and principal   properties of the Company and its Subsidiaries.  This Agreement, the Memorandum, the   financial statements listed in Schedule 5.5 and the documents, certificates or other   writings delivered to the Purchasers by or on behalf of the Company prior to September   25, 2015 in connection with the transactions contemplated hereby and identified in   Schedule 5.3 (this Agreement, the Memorandum and such documents, certificates or   other writings and such financial statements delivered to each Purchaser being referred to,   collectively, as the “Disclosure Documents”), taken as a whole, do not contain any   untrue statement of a material fact or omit to state any material fact necessary to make the   statements therein not misleading in light of the circumstances under which they were   made.  Except as disclosed in the Disclosure Documents, since December 31, 2014 there   has been no change in the financial condition, operations, business or properties of the   Company or any Subsidiary except changes that could not, individually or in the   aggregate, reasonably be expected to have a Material Adverse Effect.  There is no fact   known to the Company that could reasonably be expected to have a Material Adverse   Effect that has not been set forth herein or in the Disclosure Documents.  No   representation is made as to any projections in the Disclosure Documents other than that   the projections are based on information that the Company believes to be accurate and   were calculated in a manner the Company believes to be reasonable.   5.4. Organization and Ownership of Shares of Subsidiaries; Affiliates.   (a) Schedule 5.4 contains (except as noted therein) complete and   correct lists of (i) the Company’s Subsidiaries, showing, as to each Subsidiary, the   name thereof, the jurisdiction of its organization, and the percentage of shares of   each class of its capital stock or similar equity interests outstanding owned by the   Company and each other Subsidiary, (ii) the Company’s Affiliates, other than   Subsidiaries, and (iii) the Company’s directors.   (b) All of the outstanding shares of capital stock or similar equity   interests of each Subsidiary shown in Schedule 5.4 as being owned by the   Company and its Subsidiaries have been validly issued, are fully paid and non-   assessable and are owned by the Company or another Subsidiary free and clear of   any Lien that is prohibited by this Agreement.     





 







        ln-255235    8   (c) Each Subsidiary identified in Schedule 5.4 is a corporation or other   legal entity duly organized or incorporated, validly existing and, where applicable,   in good standing under the laws of its jurisdiction of organization, and, where   applicable, duly qualified as a foreign corporation or other legal entity and, where   applicable, is in good standing in each jurisdiction in which such qualification is   required by law, other than those jurisdictions as to which the failure to be so   qualified or in good standing could not, individually or in the aggregate,   reasonably be expected to have a Material Adverse Effect.  Each such Subsidiary   has the corporate or other power and authority to own or hold under lease the   properties it purports to own or hold under lease and to transact the business it   transacts and proposes to transact.   (d) No Subsidiary is subject to any legal, regulatory, contractual or   other restriction (other than the agreements listed on Schedule 5.4 and customary   limitations imposed by corporate law or similar statutes) restricting the ability of   such Subsidiary to pay dividends out of profits or make any other similar   distributions of profits to the Company or any of its Subsidiaries that owns   outstanding shares of capital stock or similar equity interests of such Subsidiary.   5.5. Financial Statements; Material Liabilities.   The Company has delivered to each Purchaser copies of the consolidated   financial statements of the Company and its Subsidiaries listed on Schedule 5.5, as well   as the consolidated financial statements of VTTI Energy Partners LP and its Subsidiaries   listed on Schedule 5.5.  All of such financial statements (including in each case the   related schedules and notes) fairly present in all material respects the consolidated   financial position of the companies being reported on therein as of the respective dates   specified in such Schedule and the consolidated results of their operations and cash flows   for the respective periods so specified and have been prepared in accordance with IFRS   (in the case of the financial statements of the Company and its Subsidiaries) or US GAAP   (in the case of the financial statements of VTTI Energy Partners LP and its Subsidiaries)   consistently applied throughout the periods involved except as set forth in the notes   thereto (subject, in the case of any interim financial statements, to normal year-end   adjustments).  The Company and its Subsidiaries do not have any Material liabilities that   are not disclosed in the Disclosure Documents.   5.6. Compliance with Laws, Other Instruments, Etc.   The execution, delivery and performance by the Company of this   Agreement and the Notes will not (a) contravene, result in any breach of, or constitute a   default under, or result in the creation of any Lien in respect of any property of the   Company or any Subsidiary under, any indenture, mortgage, deed of trust, loan, purchase   or credit agreement, lease, corporate charter, memorandum of association, articles of   association, regulations or by-laws, shareholders agreement or any other agreement or   instrument to which the Company or any Subsidiary is bound or by which the Company   or any Subsidiary or any of their respective properties may be bound or affected,     





 







        ln-255235    9   (b) conflict with or result in a breach of any of the terms, conditions or provisions of any   order, judgment, decree, or ruling of any court, arbitrator or Governmental Authority   applicable to the Company or any Subsidiary or (c) violate any provision of any statute or   other rule or regulation of any Governmental Authority applicable to the Company or any   Subsidiary.   5.7. Governmental Authorizations, Etc.   No consent, approval or authorization of, or registration, filing or   declaration with, any Governmental Authority is required in connection with the   execution, delivery or performance by the Company of this Agreement or the Notes,   except in each case such declarations as the Company may be required to make under the   Dutch 1994 Act on Foreign Financial Relations (Wet financiële betrekkingen buitenland   1994) which do not in any way affect the legality, validity, binding effect on and   enforceability against the Company of its obligations under this Agreement or the Notes,   including, without limitation, any thereof required in connection with the obtaining of   Dollars or Euros (as applicable) to make payments under this Agreement or the Notes and   the payment of such Dollars or Euros (as applicable) to Persons resident in the United   States of America.  Other than the BNM Approval and the payment of stamp duty of   RM10.00 to the Inland Revenue Board, Malaysia on the Subsidiary Guaranty Agreement   of ATT Tanjung Bin Sdn. Bhd. (and the applicable stamp duties on copies thereof if such   Subsidiary Guaranty Agreement is brought into or executed in Malaysia under the Stamp   Act 1949 of Malaysia), it is not necessary to ensure the legality, validity, enforceability or   admissibility into evidence in the Netherlands of this Agreement, the Notes or any   Subsidiary Guaranty Agreement that any thereof or any other document be filed,   recorded or enrolled with any Governmental Authority, or that any such agreement or   document be stamped with any stamp, registration or similar transaction tax.   5.8. Litigation; Observance of Agreements, Statutes and Orders.   (a) There are no actions, suits, investigations or proceedings pending   or, to the best knowledge of the Company, threatened against or affecting the   Company or any Subsidiary or any property of the Company or any Subsidiary in   any court or before any arbitrator of any kind or before or by any Governmental   Authority that could, individually or in the aggregate, reasonably be expected to   have a Material Adverse Effect.   (b) Neither the Company nor any Subsidiary is (i) in default under any   agreement or instrument to which it is a party or by which it is bound, (ii) in   violation of any order, judgment, decree or ruling of any court, arbitrator or   Governmental Authority or (iii) in violation of any applicable law, ordinance, rule   or regulation of any Governmental Authority (including, without limitation,   Environmental Laws, the USA PATRIOT Act or any of the other laws and   regulations that are referred to in Section 5.16), which default or violation could,   individually or in the aggregate, reasonably be expected to have a Material   Adverse Effect.     





 







        ln-255235    10   5.9. Taxes.   (a) The Company and its Subsidiaries have filed all income tax returns   that are required to have been filed in any jurisdiction, and have paid all taxes   shown to be due and payable on such returns and all other taxes and assessments   levied upon them or their properties, assets, income or franchises, to the extent   such taxes and assessments have become due and payable and before they have   become delinquent, except for any taxes and assessments (i) the amount of which,   individually or in the aggregate, is not Material or (ii) the amount, applicability or   validity of which is currently being contested in good faith by appropriate   proceedings and with respect to which the Company or a Subsidiary, as the case   may be, has established adequate provisions in accordance with IFRS.  The   Company knows of no basis for any other tax or assessment that could,   individually or in the aggregate, reasonably be expected to have a Material   Adverse Effect.  The charges, accruals and provisions on the books of the   Company and its Subsidiaries in respect of federal, national, state or other taxes   for all fiscal periods are adequate.   (b) No liability for any Tax, directly or indirectly, imposed, assessed,   levied or collected by or for the account of any Governmental Authority of the   Netherlands or any political subdivision thereof will be incurred by the Company   or any holder of a Note as a result of the execution or delivery of this Agreement   or the Notes and no deduction or withholding in respect of Taxes imposed by or   for the account of the Netherlands or, to the knowledge of the Company, any other   Taxing Jurisdiction, is required to be made from any payment by the Company   under this Agreement or the Notes except for any such liability, withholding or   deduction imposed, assessed, levied or collected by or for the account of any such   Governmental Authority of the Netherlands arising out of circumstances   described in clause (a), (b), (c), (d), (e) or (f) of Section 13.1 and the provisos   thereto.   5.10. Title to Property; Leases.   The Company and its Subsidiaries have good and sufficient title to their   respective properties that individually or in the aggregate are Material, including all such   properties reflected in the most recent audited balance sheet referred to in Section 5.5 or   purported to have been acquired by the Company or any Subsidiary after such date   (except as sold or otherwise disposed of in the ordinary course of business), in each case   free and clear of Liens prohibited by this Agreement.  All leases that individually or in   the aggregate are Material are valid and subsisting and are in full force and effect in all   material respects.   5.11. Licenses, Permits, Etc.   (a) The Company and its Subsidiaries own or possess all licenses,   permits, franchises, authorizations, patents, copyrights, proprietary software,     





 







        ln-255235    11   service marks, trademarks and trade names, or rights thereto, that individually or   in the aggregate are Material, without known conflict with the rights of others.   (b) To the best knowledge of the Company, no product or service of   the Company or any of its Subsidiaries infringes in any material respect any   license, permit, franchise, authorization, patent, copyright, proprietary software,   service mark, trademark, trade name or other right owned by any other Person.   (c) To the best knowledge of the Company, there is no Material   violation by any Person of any right of the Company or any of its Subsidiaries   with respect to any license, permit, franchise, authorization, patent, copyright,   proprietary software, service mark, trademark, trade name or other right owned or   used by the Company or any of its Subsidiaries.   5.12. Compliance with ERISA; Non-U.S. Plans.   (a) The Company and each ERISA Affiliate have operated and   administered each Plan in compliance with all applicable laws except for such   instances of noncompliance as have not resulted in and could not, individually or   in the aggregate, reasonably be expected to result in a Material Adverse Effect.    Neither the Company nor any ERISA Affiliate has incurred any liability pursuant   to Title I or IV of ERISA or the penalty or excise tax provisions of the Code   relating to employee benefit plans (as defined in section 3 of ERISA), and no   event, transaction or condition has occurred or exists that could, individually or in   the aggregate, reasonably be expected to result in the incurrence of any such   liability by the Company or any ERISA Affiliate, or in the imposition of any Lien   on any of the rights, properties or assets of the Company or any ERISA Affiliate,   in either case pursuant to Title I or IV of ERISA or to section 430(k) of the Code   or to any such penalty or excise tax provisions under the Code or federal law or   section 4068 of ERISA or by the granting of a security interest in connection with   the amendment of a Plan, other than such liabilities or Liens as would not be   individually or in the aggregate Material.   (b) The present value of the aggregate benefit liabilities under each of   the Plans (other than Multiemployer Plans), determined as of the end of such   Plan’s most recently ended plan year on the basis of the actuarial assumptions   specified for funding purposes in such Plan’s most recent actuarial valuation   report, did not exceed the aggregate current value of the assets of such Plan   allocable to such benefit liabilities.  The present value of the accrued benefit   liabilities (whether or not vested) under each Non-U.S. Plan that is funded,   determined as of the end of the Company’s most recently ended fiscal year in   accordance with International Accounting Standard 19, did not exceed the current   value of the assets of such Non-U.S. Plan allocable to such benefit liabilities by   more than U.S.$11,822,471.     (c) The Company and its ERISA Affiliates have not incurred (i)   withdrawal liabilities (and are not subject to contingent withdrawal liabilities)     





 







        ln-255235    12   under section 4201 or 4204 of ERISA in respect of Multiemployer Plans that   individually or in the aggregate are Material or (ii) any obligation in connection   with the termination of or withdrawal from any Non-U.S. Plan that individually or   in the aggregate are Material.   (d) The expected postretirement benefit obligation (determined as of   the last day of the Company’s most recently ended fiscal year in accordance with   Financial Accounting Standards Board Accounting Standards Codification Topic   715-60, without regard to liabilities attributable to continuation coverage   mandated by section 4980B of the Code) of the Company and its Subsidiaries is   not Material.   (e) The execution and delivery of this Agreement and the issuance and   sale of the Notes hereunder will not involve any transaction that is subject to the   prohibitions of section 406 of ERISA or in connection with which a tax could be   imposed pursuant to section 4975(c)(1)(A)-(D) of the Code.  The representation   by the Company to each Purchaser in the first sentence of this Section 5.12(e) is   made in reliance upon and subject to the accuracy of such Purchaser’s   representation in Section 6.2 as to the sources of the funds to be used to pay the   purchase price of the Notes to be purchased by such Purchaser.   (f) All Non-U.S. Plans have been established, operated, administered   and maintained in compliance with all laws, regulations and orders applicable   thereto, except where failure so to comply could not be reasonably expected to   have a Material Adverse Effect.  All premiums, contributions and any other   amounts required by applicable Non-U.S. Plan documents or applicable laws to   be paid or accrued by the Company and its Subsidiaries have been paid or accrued   as required, except where failure so to pay or accrue could not be reasonably   expected to have a Material Adverse Effect.   5.13. Private Offering by the Company.   Neither the Company nor anyone acting on its behalf has offered the Notes   or any similar Securities for sale to, or solicited any offer to buy the Notes or any similar   Securities from, or otherwise approached or negotiated in respect thereof with, (i) any   Person other than 75 Institutional Investors (including the Purchasers), each of which has   been offered the Notes at a private sale for investment and (ii) any Person other than a   “qualified investor” within the meaning of the Prospectus Directive (2003/71/EC), as   amended.  Neither the Company nor anyone acting on its behalf has, with respect to the   Notes or the guarantees of the Original Subsidiary Guarantors, engaged in any form of   “general solicitation or general advertising,” as defined under Rule 502(c) of the   Securities Act.  The Company has provided each Purchaser an opportunity to discuss   with the Company’s management the financial statements delivered pursuant to Section   5.5, as well as the Company’s business, management, financial affairs and the terms and   conditions of the offering of the Notes and the issuance of the guarantees of the Original   Subsidiary Guarantors. Neither the Company nor anyone acting on its behalf has taken,     





 







        ln-255235    13   or will take, any action that would subject the issuance or sale of the Notes to the   registration requirements of Section 5 of the Securities Act or to the registration or   prospectus requirements of any securities laws of the jurisdiction of organization of the   Company.   5.14. Use of Proceeds; Margin Regulations.   The Company will apply the proceeds of the sale of the Notes hereunder   as set forth in Section 1.D. of the Memorandum.  No part of the proceeds from the sale of   the Notes hereunder will be used, directly or indirectly, for the purpose of buying or   carrying any margin stock within the meaning of Regulation U of the Board of Governors   of the Federal Reserve System (12 CFR 221), or for the purpose of buying or carrying or   trading in any Securities under such circumstances as to involve the Company in a   violation of Regulation X of said Board (12 CFR 224) or to involve any broker or dealer   in a violation of Regulation T of said Board (12 CFR 220).  Margin stock does not   constitute more than 5% of the value of the consolidated assets of the Company and its   Subsidiaries and the Company does not have any present intention that margin stock will   constitute more than 5% of the value of such assets.  As used in this Section, the terms   “margin stock” and “purpose of buying or carrying” shall have the meanings assigned to   them in said Regulation U.   5.15. Existing Indebtedness; Future Liens.   (a) Except as described therein, Schedule 5.15 sets forth a complete   and correct list of all outstanding Indebtedness of the Company and its   Subsidiaries (other than Indebtedness owing from one member of the Group to   another) as of November 30, 2015 (including descriptions of the obligors and   obligees, principal amounts outstanding, any collateral therefor and any   Guaranties thereof), since which date there has been no Material change in the   amounts, interest rates, sinking funds, installment payments or maturities of the   Indebtedness of the Company or its Subsidiaries.  Neither the Company nor any   Subsidiary is in default and no waiver of default is currently in effect, in the   payment of any principal or interest on any Indebtedness of the Company or such   Subsidiary and no event or condition exists with respect to any Indebtedness of   the Company or any Subsidiary that would permit (or that with notice or the lapse   of time, or both, would permit) one or more Persons to cause such Indebtedness to   become due and payable before its stated maturity or before its regularly   scheduled dates of payment.   (b) Except as disclosed in Schedule 5.15, neither the Company nor any   Subsidiary has agreed or consented to cause or permit any of its property, whether   now owned or hereafter acquired, to be subject to a Lien that secures Indebtedness   that is not permitted by Section 10.4 or to cause or permit in the future (upon the   happening of a contingency or otherwise) any of its property, whether now owned   or hereafter acquired, to be subject to a Lien that secures Indebtedness that is not   permitted by Section 10.4.     





 







        ln-255235    14   (c) Neither the Company nor any Subsidiary is a party to, or otherwise   subject to any provision contained in, any instrument evidencing Indebtedness of   the Company or such Subsidiary, any agreement relating thereto or any other   agreement (including, but not limited to, its charter or other organizational   document) which limits the amount of, or otherwise imposes restrictions on the   incurring of, Indebtedness of the Company, except as specifically indicated in   Schedule 5.15.   5.16. Foreign Assets Control Regulations, Etc.   (a) Neither the Company nor any Controlled Entity is (i) a Person   whose name appears on the list of Specially Designated Nationals and Blocked   Persons published by the Office of Foreign Assets Control, United States   Department of the Treasury (“OFAC”) (an “OFAC Listed Person”) (ii) an agent,   department, or instrumentality of, or is otherwise beneficially owned by,   controlled by or acting on behalf of, directly or indirectly, (x) any OFAC Listed   Person or (y) any Person, entity, organization, foreign country or regime that is   subject to any OFAC Sanctions Program, or (iii) otherwise blocked, subject to   sanctions under or engaged in any activity in violation of other United States   economic sanctions, including but not limited to, the Trading with the Enemy Act,   the International Emergency Economic Powers Act, CISADA or any similar law   or regulation with respect to Iran or any other country, the Sudan Accountability   and Divestment Act, any OFAC Sanctions Program, or any economic sanctions   regulations administered and enforced by the United States or any enabling   legislation or executive order relating to any of the foregoing (collectively, “U.S.   Economic Sanctions”) or sanctions imposed by the United Nations or the   European Union (each OFAC Listed Person and each other Person, entity,   organization and government of a country described in clause (i), clause (ii) or   clause (iii),  a “Blocked Person”).  Neither the Company nor any Controlled   Entity has been notified that its name appears or may in the future appear on a   state list of Persons that engage in investment or other commercial activities in   Iran or any other country that is subject to U.S. Economic Sanctions.   (b) No part of the proceeds from the sale of the Notes hereunder   constitutes or will constitute funds obtained on behalf of any Blocked Person or   will otherwise be used by the Company or any Controlled Entity, directly or   indirectly, (i) in connection with any investment in, or any transactions or   dealings with, any Blocked Person, (ii) in violation of, or cause any Purchaser to   be in violation of, any applicable Anti-Money Laundering Laws, or (iii) otherwise   in violation of U.S. Economic Sanctions.   (c) Neither the Company nor any Controlled Entity (i) has been found   in violation of, charged with, or convicted of, money laundering, drug trafficking,   terrorist-related activities or other money laundering predicate crimes under the   Currency and Foreign Transactions Reporting Act of 1970 (otherwise known as   the Bank Secrecy Act), the USA PATRIOT Act, any U.S. Economic Sanctions,   any other United States law or regulation governing such activities or under any     





 







        ln-255235    15   other similar laws of any other jurisdiction governing such activities (collectively,   “Anti-Money Laundering/Anti-Terrorism Laws”), (ii) to the Company’s actual   knowledge after making due inquiry, is under investigation by any Governmental   Authority for possible violation of Anti-Money Laundering/Anti-Terrorism Laws,   (iii) has been assessed civil penalties under any Anti-Money Laundering/Anti-   Terrorism Laws, or (iv) has had any of its funds seized or forfeited in an action   under any Anti-Money Laundering/Anti-Terrorism Laws. The Company has   established procedures and controls which it reasonably believes are adequate   (and otherwise comply with applicable law) to ensure that the Company and each   Controlled Entity is and will continue to be in compliance with all applicable   Anti-Money Laundering/Anti-Terrorism Laws    (d) (1) Neither the Company nor any Controlled Entity (i) has   been charged with, or convicted of bribery or any other anti-corruption related   activity under any applicable law or regulation in a U.S. or any non-U.S. country   or jurisdiction, including but not limited to, the U.S. Foreign Corrupt Practices   Act and the U.K. Bribery Act 2010 (collectively, “Anti-Corruption Laws”), (ii)   to the Company’s actual knowledge after making due inquiry, is under   investigation by any U.S. or non-U.S. Governmental Authority for possible   violation of Anti-Corruption Laws, (iii) has been assessed civil or criminal   penalties under any Anti-Corruption Laws or (iv) has been or is the target of   sanctions imposed by the United Nations or the European Union;    (2) to the Company’s actual knowledge after making due inquiry,   neither the Company nor any Controlled Entity has, within the last five years,   directly or indirectly offered, promised, given, paid or authorized the offer,   promise, giving or payment of anything of value to a Governmental Official or a   commercial counterparty for the purposes of: (i) influencing any act, decision or   failure to act by such Government Official in his or her official capacity, (ii)   inducing a Governmental Official to do or omit to do any act in violation of the   Governmental Official’s lawful duty, or (iii) inducing a Governmental Official or   a commercial counterparty to use his or her influence with a government or   governmental instrumentality to affect any act or decision of such government or   governmental instrumentality; in each case in order to obtain, retain or direct   business or to otherwise secure an improper advantage in violation of any   applicable law or regulation or which would cause any holder to be in violation of   any law or regulation applicable to such holder; and    (3) No part of the proceeds from the sale of the Notes   hereunder will be used, directly or indirectly, for any illegal payments, including   bribes, to any Governmental Official or commercial counterparty in order to   obtain, retain or direct business or obtain any improper advantage in violation of   law.  The Company has established procedures and controls which it reasonably   believes are adequate (and otherwise comply with applicable law) to ensure that   the Company and each Controlled Entity is and will continue to be in compliance   with all applicable Anti-Corruption Laws.      





 







        ln-255235    16   5.17. Status under Certain Statutes.   Neither the Company nor any Subsidiary is subject to regulation under the   United States Investment Company Act of 1940, as amended, the United States Public   Utility Holding Company Act of 2005, as amended, the United States ICC Termination   Act of 1995, as amended, or the United States Federal Power Act, as amended.   5.18. Environmental Matters.   (a) Neither the Company nor any Subsidiary has knowledge of any   claim or has received any notice of any claim, and no proceeding has been   instituted asserting any claim against the Company or any of its Subsidiaries or   any of their respective real properties or other assets now or formerly owned,   leased or operated by any of them, alleging any damage to the environment or   violation of any Environmental Laws, except, in each case, such as could not   reasonably be expected to result in a Material Adverse Effect.   (b) Neither the Company nor any Subsidiary has knowledge of any   facts which would give rise to any claim, public or private, of violation of   Environmental Laws or damage to the environment emanating from, occurring on   or in any way related to real properties now or formerly owned, leased or operated   by any of them or to other assets or their use, except, in each case, such as could   not, individually or in the aggregate, reasonably be expected to result in a   Material Adverse Effect.   (c) Neither the Company nor any Subsidiary has stored any Hazardous   Materials on real properties now or formerly owned, leased or operated by any of   them in a manner contrary to any Environmental Laws that could, individually or   in the aggregate, reasonably be expected to result in a Material Adverse Effect.    (d) Neither the Company nor any Subsidiary has disposed of any   Hazardous Materials in a manner which is contrary to any Environmental Law   that could, individually or in the aggregate, reasonably be expected to result in a   Material Adverse Effect.   (e) All buildings on all real properties now owned, leased or operated   by the Company or any Subsidiary are in compliance with applicable   Environmental Laws, except where failure to comply could not, individually or in   the aggregate, reasonably be expected to result in a Material Adverse Effect.    5.19. Ranking of Obligations   The Company’s payment obligations under this Agreement and the Notes   will, upon issuance of the Notes, rank at least pari passu, in right of payment without   preference or priority, with all other unsecured and unsubordinated Indebtedness of the   Company except for those obligations that are mandatorily preferred by law.     





 







        ln-255235    17   5.20. Representations of Original Subsidiary Guarantors.   The representations and warranties of each Original Subsidiary Guarantor   contained in its Subsidiary Guaranty Agreement are true and correct as of the date of the   Closing.   6. REPRESENTATIONS OF THE PURCHASERS.   6.1. Purchase for Investment, Etc.   (a) Each Purchaser severally represents that (i) it is an “accredited   investor” within the meaning of Regulation D of the Securities Act and is   purchasing the Notes for its own account or for one or more separate accounts   maintained by such Purchaser or for the account of one or more pension or trust   funds and not with a view to the distribution thereof, provided that the disposition   of such Purchaser’s or their property shall at all times be within such Purchaser’s   or their control, (ii) it has knowledge and experience in financial and business   matters and  is capable of evaluating the merits and risks of its investment in the   Notes and is able to bear the economic risk of holding the Notes for an indefinite   period of time and (iii) it is a “qualified investor” within the meaning of the Dutch   Financial Supervision Act (Wet of het financieel toezicht).  Each Purchaser   understands that the Notes have not been registered under the Securities Act and   may be resold only if registered pursuant to the provisions of the Securities Act or   if an exemption from registration is available, except under circumstances where   neither such registration nor such an exemption is required by law, and that the   Company is not required to register the Notes nor does it intend to do so and, in   any event, a Purchaser shall only reoffer or resell the Notes purchased by it in   accordance with any available exemption from the requirements of Section 5 of   the Securities Act, except as aforesaid.   Each Purchaser also severally represents   that the Company has provided such Purchaser an opportunity to discuss with the   Company’s management the financial statements delivered pursuant to Section   5.5, as well as the Company’s business, management, financial affairs and the   terms and conditions of the offering of the Notes and the issuance of the   guarantees of the Original Subsidiary Guarantors.   (b) Without limiting the foregoing, each Purchaser severally agrees   that it will not, directly or indirectly, resell the Notes purchased by it to a Person   which it is aware is a Competitor (it being understood that such Purchaser shall   advise any broker or intermediary acting on its behalf that such resale to a   Competitor is limited hereby).   (c) Each Purchaser severally represents that it is not organized under   the laws of Malaysia.     





 







        ln-255235    18   6.2. Source of Funds.   Each Purchaser severally represents that at least one of the following   statements is an accurate representation as to each source of funds (a “Source”) to be   used by such Purchaser to pay the purchase price of the Notes to be purchased by such   Purchaser hereunder:   (a) the Source is an “insurance company general account” (as the term   is defined in the United States Department of Labor’s Prohibited Transaction   Exemption (“PTE”) 95-60) in respect of which the reserves and liabilities (as   defined by the annual statement for life insurance companies approved by the   NAIC (the “NAIC Annual Statement”)) for the general account contract(s) held   by or on behalf of any employee benefit plan together with the amount of the   reserves and liabilities for the general account contract(s) held by or on behalf of   any other employee benefit plans maintained by the same employer (or affiliate   thereof as defined in PTE 95-60) or by the same employee organization in the   general account do not exceed 10% of the total reserves and liabilities of the   general account (exclusive of separate account liabilities) plus surplus as set forth   in the NAIC Annual Statement filed with such Purchaser’s state of domicile; or   (b) the Source is a separate account that is maintained solely in   connection with such Purchaser’s fixed contractual obligations under which the   amounts payable, or credited, to any employee benefit plan (or its related trust)   that has any interest in such separate account (or to any participant or beneficiary   of such plan (including any annuitant)) are not affected in any manner by the   investment performance of the separate account; or   (c) the Source is either (i) an insurance company pooled separate   account, within the meaning of PTE 90-1 or (ii) a bank collective investment fund,   within the meaning of the PTE 91-38 and, except as disclosed by such Purchaser   to the Company in writing pursuant to this clause (c), no employee benefit plan or   group of plans maintained by the same employer or employee organization   beneficially owns more than 10% of all assets allocated to such pooled separate   account or collective investment fund; or   (d) the Source constitutes assets of an “investment fund” (within the   meaning of Part VI of PTE 84-14 (the “QPAM Exemption”)) managed by a   “qualified professional asset manager” or “QPAM” (within the meaning of Part   VI of the QPAM Exemption), no employee benefit plan’s assets that are managed   by the QPAM in such investment fund, when combined with the assets of all   other employee benefit plans established or maintained by the same employer or   by an affiliate (within the meaning of Part VI(c)(1) of the QPAM Exemption) of   such employer or by the same employee organization and managed by such   QPAM, represent more than 20% of the total client assets managed by such   QPAM, the conditions of Part I(c) and (g) of the QPAM Exemption are satisfied,   neither the QPAM nor a person controlling or controlled by the QPAM maintains   an ownership interest in the Company that would cause the QPAM and the     





 







        ln-255235    19   Company to be “related” within the meaning of Part VI(h) of the QPAM   Exemption and (i) the identity of such QPAM and (ii) the names of any employee   benefit plans whose assets in the investment fund, when combined with the assets   of all other employee benefit plans established or maintained by the same   employer or by an affiliate (within the meaning of Part VI(c)(1) of the QPAM   Exemption) of such employer or by the same employee organization, represent   10% or more of the assets of such investment fund, have been disclosed to the   Company in writing pursuant to this clause (d); or   (e) the Source constitutes assets of a “plan(s)” (within the meaning of   Part IV(h) of PTE 96-23 (the “INHAM Exemption”)) managed by an “in-house   asset manager” or “INHAM” (within the meaning of Part IV(a) of the INHAM   Exemption), the conditions of Part I(a), (g) and (h) of the INHAM Exemption are   satisfied, neither the INHAM nor a person controlling or controlled by the   INHAM (applying the definition of “control” in Part IV(d)(3) of the INHAM   Exemption) owns a 10% or more interest in the Company and (i) the identity of   such INHAM and (ii) the name(s) of the employee benefit plan(s) whose assets   constitute the Source have been disclosed to the Company in writing pursuant to   this clause (e); or   (f) the Source is a governmental plan; or   (g) the Source is one or more employee benefit plans, or a separate   account or trust fund comprised of one or more employee benefit plans, each of   which has been identified to the Company in writing pursuant to this clause (g); or   (h) the Source does not include assets of any employee benefit plan,   other than a plan exempt from the coverage of ERISA.   As used in this Section 6.2, the terms “employee benefit plan,” “governmental plan,” and   “separate account” shall have the respective meanings assigned to such terms in section 3   of ERISA.   7. INFORMATION AS TO COMPANY.   7.1. Financial and Business Information.   The Company shall deliver to each holder of a Note that is an Institutional   Investor (and for purposes of this Agreement the information required by this Section 7.1   shall be deemed delivered on the date of delivery of such information in the English   language or the date of delivery of an English translation thereof):   (a) Interim Statements -- promptly after the same are available and in   any event within 90 days after the end of each quarterly fiscal period in each   fiscal year of the Company (other than the last quarterly fiscal period of each such   fiscal year), duplicate copies of     





 







        ln-255235    20   (i) a consolidated balance sheet of the Company and its   Subsidiaries as at the end of such fiscal period, and   (ii) consolidated statements of income, changes in   shareholders’ equity and cash flows of the Company and its Subsidiaries,   for such fiscal period and (in the case of the second and third quarters) for   the portion of the fiscal year ending with such quarter,   setting forth in each case in comparative form the figures for the corresponding   period in the previous fiscal year, all in reasonable detail, prepared in accordance   with IFRS applicable to interim financial statements generally, and certified by a   Senior Financial Officer as fairly presenting, in all material respects, the   consolidated financial position of the companies being reported on and their   consolidated results of operations and consolidated cash flows, subject to changes   resulting from year-end adjustments;   (b) Annual Statements -- promptly after the same are available and in   any event within 180 days after the end of each fiscal year of the Company,   duplicate copies of   (i) a consolidated balance sheet of the Company and its   Subsidiaries as at the end of such year, and   (ii) consolidated statements of income, changes in   shareholders’ equity and cash flows of the Company and its Subsidiaries   for such year,   setting forth in each case in comparative form the figures for the previous fiscal   year, all in reasonable detail, prepared in accordance with IFRS, and accompanied   by an opinion thereon (without a “going concern” or similar qualification or   exception and without any qualification or exception as to the scope of the audit   on which such opinion is based) of independent public accountants of recognized   international standing, which opinion shall state that such financial statements   either (1) present fairly, in all material respects or (2) give a true and fair view of,   the consolidated financial position of the companies being reported upon and their   consolidated results of operations and consolidated cash flows and have been   prepared in conformity with IFRS, and that the examination of such accountants   in connection with such financial statements has been made in accordance with   generally accepted auditing standards, and that such audit provides a reasonable   basis for such opinion in the circumstances;   (c) SEC and Other Reports -- promptly upon their becoming available,   one copy of (i) each financial statement, report, circular, notice or proxy statement   or similar document sent by the Company or any Subsidiary to its principal   lending banks as a whole (excluding information sent to such banks in the   ordinary course of administration of a bank facility, such as information relating     





 







        ln-255235    21   to pricing and borrowing availability) or to its public securities holders generally   (if applicable), and (ii) each regular or periodic report, each registration statement   that shall have become effective (without exhibits except as expressly requested   by such holder), and each final prospectus and all amendments thereto filed by the   Company or any Subsidiary with the SEC or any similar Governmental Authority   or securities exchange and of all press releases and other statements made   available generally by the Company or any Subsidiary to the public concerning   developments that are Material;   (d) Notice of Default or Event of Default -- promptly and in any event   within five days after a Responsible Officer becoming aware of the existence of   any Default or Event of Default or that any Person has given any notice or taken   any action with respect to a claimed default hereunder or that any Person has   given any notice or taken any action with respect to a claimed default of the type   referred to in Section 11(f), a written notice specifying the nature and period of   existence thereof and what action the Company is taking or proposes to take with   respect thereto;   (e) Employee Benefit Matters -- promptly and in any event within five   days after a Responsible Officer becoming aware of any of the following, a   written notice setting forth the nature thereof and the action, if any, that the   Company or an ERISA Affiliate proposes to take with respect thereto:   (i) with respect to any Plan, any reportable event, as defined in   section 4043(c) of ERISA and the regulations thereunder, for which notice   thereof has not been waived pursuant to such regulations as in effect on the   date hereof; or   (ii) the taking by the PBGC of steps to institute, or the   threatening by the PBGC of the institution of, proceedings under section   4042 of ERISA for the termination of, or the appointment of a trustee to   administer, any Plan, or the receipt by the Company or any ERISA   Affiliate of a notice from a Multiemployer Plan that such action has been   taken by the PBGC with respect to such Multiemployer Plan; or   (iii) any event, transaction or condition that could result in the   incurrence of any liability by the Company or any ERISA Affiliate   pursuant to Title I or IV of ERISA or the penalty or excise tax provisions   of the Code relating to employee benefit plans, or in the imposition of any   Lien on any of the rights, properties or assets of the Company or any   ERISA Affiliate pursuant to Title I or IV of ERISA or such penalty or   excise tax provisions, if such liability or Lien, taken together with any   other such liabilities or Liens then existing, could reasonably be expected   to have a Material Adverse Effect; or     





 







        ln-255235    22   (iv) receipt of notice of the imposition of a Material financial   penalty (which for this purpose shall mean any tax, penalty or other   liability, whether by way of indemnity or otherwise) with respect to one or   more Non-U.S. Plans;   (f) Notices from Governmental Authority -- promptly, and in any   event within 30 days of receipt thereof, copies of any notice to the Company or   any Subsidiary from any Governmental Authority relating to any order, ruling,   statute or other law or regulation that could reasonably be expected to have a   Material Adverse Effect; and   (g) Requested Information -- with reasonable promptness, such other   data and information relating to the business, operations, affairs, financial   condition, assets or properties of the Company or any of its Subsidiaries or   relating to the ability of the Company to perform its obligations hereunder and   under the Notes as from time to time may be reasonably requested by any such   holder of Notes, including information readily available to the Company   explaining the Company’s financial statements if such information has been   requested by the SVO in order to assign or maintain a designation of the Notes.   7.2. Officer’s Certificate.   Each set of financial statements delivered to a holder of Notes pursuant to   Section 7.1(a) or (b) shall be accompanied by a certificate of a Senior Financial Officer:   (a) Covenant Compliance — setting forth the information from such   financial statements that is required in order to establish whether the Company   was in compliance with the requirements of Section 10.3 through Section 10.7,   inclusive, during the interim or annual period covered by the statements then   being furnished (including with respect to each such provision that involves   mathematical calculations, the information from such financial statements that is   required to perform such calculations), and reasonably detailed calculations of the   maximum or minimum amount, ratio or percentage, as the case may be,   permissible under the terms of such Sections, and the calculation of the amount,   ratio or percentage then in existence, together with a reconciliation of such   financial statements with Pre-Default IFRS (if Pre-Default IFRS is being applied   at such time) showing, in reasonable detail, the effect of the application of Pre-   Default IFRS.  In the event that the Company or any Subsidiary has made an   election to measure any financial liability using fair value (which election is being   disregarded for purposes of determining compliance with this Agreement   pursuant to Section 23.9) as to the period covered by any such financial statement,   such Senior Financial Officer’s certificate as to such period shall include a   reconciliation from IFRS with respect to such election;    (b) Event of Default — certifying that such Senior Financial Officer   has reviewed the relevant terms hereof and has made, or caused to be made, under   his or her supervision, a review of the transactions and conditions of the Company     





 







        ln-255235    23   and its Subsidiaries from the beginning of the interim or annual period covered by   the statements then being furnished to the date of the certificate and that such   review shall not have disclosed the existence during such period of any condition   or event that constitutes a Default or an Event of Default or, if any such condition   or event existed or exists (including, without limitation, any such event or   condition resulting from the failure of the Company or any Subsidiary to comply   with any Environmental Law), specifying the nature and period of existence   thereof and what action the Company shall have taken or proposes to take with   respect thereto; and   (c) Assets of Certain Non-Recourse Entities — reporting the sum of   the assets of all Non-Recourse Entities and Non-Recourse Assets (other than the   ATT Tanjung Bin Phase 2 Assets) and calculating the percentage of Consolidated   Total Assets that those assets represent.   7.3. Visitation.   The Company shall permit the representatives of each holder of Notes   (other than a Competitor) that is an Institutional Investor:   (a) No Default — if no Default or Event of Default then exists, at the   expense of such holder and upon reasonable prior notice to the Company and   during normal business hours, to visit the principal executive office of the   Company, to discuss the affairs, finances and accounts of the Company and its   Subsidiaries with the Company’s officers, and (with the consent of the Company,   which consent will not be unreasonably withheld) its independent public   accountants, and (with the consent of the Company, which consent will not be   unreasonably withheld) to visit the other offices and properties of the Company   and each Subsidiary, all at such reasonable times and as often as may be   reasonably requested in writing; and   (b) Default — if a Default or Event of Default then exists, at the   expense of the Company to visit and inspect any of the offices or properties of the   Company or any Subsidiary, to examine all their respective books of account,   records, reports and other papers, to make copies and extracts therefrom, and to   discuss their respective affairs, finances and accounts with their respective   officers and independent public accountants (and by this provision the Company   authorizes said accountants to discuss the affairs, finances and accounts of the   Company and its Subsidiaries), all at such times and as often as may be requested.   7.4. Electronic Delivery.   Financial statements, opinions of independent certified public accountants,   other information and Officer’s Certificates that are required to be delivered by the   Company pursuant to Sections 7.1(a), (b) or (c) and Section 7.2 shall be deemed to have   been delivered if the Company satisfies any of the following requirements with respect   thereto:     





 







        ln-255235    24    (i) such financial statements satisfying the requirements of Section   7.1(a) or (b) and related Officer’s Certificate satisfying the requirements of Section 7.2   and any other information required under Section 7.1(c) are delivered to each holder of a   Note by e-mail at the e-mail address set forth in such holder’s Schedule B or as   communicated from time to time in a separate writing delivered to the Company; or    (ii) such financial statements satisfying the requirements of Section   7.1(a) or Section 7.1(b) and related Officer’s Certificate(s) satisfying the requirements of   Section 7.2 and any other information required under Section 7.1(c) are timely posted by   or on behalf of the Company on IntraLinks or on any other similar website to which each   holder of Notes has free access or are made available on its home page on the internet;    provided however, that in no case shall access to such financial statements, other   information and Officer’s Certificates be conditioned upon any waiver or other   agreement or consent (other than confidentiality provisions consistent with Section 21 of   this Agreement); provided further, that in the case of clause (ii), the Company shall have   given each holder of a Note prior written notice, which may be by e-mail or in   accordance with Section 19, of such posting or availability in connection with each   delivery; and provided further, that upon request of any holder to receive paper copies of   such forms, financial statements, other information and Officer’s Certificates or to   receive them by e-mail, the Company will promptly e-mail them or deliver such paper   copies, as the case may be, to such holder.   7.5. Limitation on Disclosure Obligation.   Neither the Company nor any Subsidiary shall be required to disclose the   following information pursuant to Section 7.1(c), 7.1(g) or 7.3:   (a) information that the Company or Subsidiary determines after   consultation with counsel qualified to advise on such matters that,   notwithstanding the confidentiality requirements of Section 21, it would be   prohibited from disclosing by applicable law or regulations without making public   disclosure thereof; or   (b) information that, notwithstanding the confidentiality requirements   of Section 21, the Company or Subsidiary is prohibited from disclosing by the   terms of an obligation of confidentiality contained in any agreement with any   non-Affiliate binding upon the Company or Subsidiary and not entered into in   contemplation of this clause (b), provided that the Company or Subsidiary shall   use commercially reasonable efforts to obtain consent from the party in whose   favor the obligation of confidentiality was made to permit the disclosure of the   relevant information and provided further that the Company or Subsidiary has   received a written opinion of counsel (which may be an internal counsel)   confirming that disclosure of such information without consent from such other   contractual party would constitute a breach of such agreement.     





 







        ln-255235    25   Promptly after a request therefor from any holder of Notes that is an   Institutional Investor, the Company or Subsidiary will provide such holder with a written   opinion of counsel (which may be addressed to the Company or Subsidiary and which   may be of an internal counsel) relied upon as to any requested information that the   Company or Subsidiary is prohibited from disclosing to such holder under circumstances   described in this Section 7.5.   Under no circumstances shall the Company or any Subsidiary be required   to disclose any information whatsoever under the terms of this Agreement to any Person   that is a Competitor.   8. PAYMENT AND PREPAYMENT OF THE NOTES.   8.1. Maturity.   As provided therein, the entire unpaid principal balance of each series of   the Notes shall be due and payable on the maturity date stated in such Note.   8.2. Optional Prepayments with Make-Whole Amount.   The Company may, at its option, upon notice as provided below, prepay at   any time all, or from time to time any part of, the Notes, in an amount not less than 5% of   the aggregate principal amount of the Notes of all series then outstanding in the case of a   partial prepayment, at 100% of the principal amount so prepaid, and the Make-Whole   Amount (if any) determined for the prepayment date with respect to such principal   amount.  The Company will give each holder of Notes written notice of each optional   prepayment under this Section 8.2 not less than 10 days and not more than 60 days prior   to the date fixed for such prepayment unless the Company and the Required Holders   agree to another time period pursuant to Section 18.  Each such notice shall specify such   date (which shall be a Business Day), the aggregate principal amount of the Notes to be   prepaid on such date, the principal amount of each Note held by such holder to be prepaid   (determined in accordance with Section 8.4), and the interest to be paid on the   prepayment date with respect to such principal amount being prepaid, and shall be   accompanied by a certificate of a Senior Financial Officer as to the estimated Make-   Whole Amount (if any) for each series due in connection with such prepayment   (calculated as if the date of such notice were the date of the prepayment), setting forth the   details of such computation.  Two Business Days prior to such prepayment, the Company   shall deliver to each holder of Notes a certificate of a Senior Financial Officer specifying   the calculation of such Make-Whole Amount as of the specified prepayment date.   8.3. Prepayment for Tax Reasons.   (a) If at any time as a result of a Change in Tax Law (as defined below)   the Company is or becomes obligated to make any Additional Payments (as   defined below) in respect of any payment of interest on account of any of the   Notes, the Company may give the holders of all affected Notes irrevocable written   notice (each, a “Tax Prepayment Notice”) of the prepayment of such affected     





 







        ln-255235    26   Notes on a specified prepayment date (which shall be a Business Day not less   than 30 days nor more than 60 days after the date of such notice) and the   circumstances giving rise to the obligation of the Company to make any   Additional Payments and the amount thereof and stating that all of the affected   Notes shall be prepaid on the date of such prepayment at 100% of the principal   amount so prepaid together with interest accrued thereon to the date of such   prepayment plus an amount equal to the Modified Make-Whole Amount (if any)   for each such Note, except in the case of an affected Note if the holder of such   Note shall, by written notice given to the Company no more than 20 days after   receipt of the Tax Prepayment Notice, reject such prepayment of such Note (each,   a “Rejection Notice”).  Such Tax Prepayment Notice shall be accompanied by a   certificate of a Senior Financial Officer as to the estimated Modified Make-Whole   Amount (if any) due in connection with such prepayment (calculated as if the date   of such notice were the date of the prepayment), setting forth the details of such   computation.  The form of Rejection Notice shall also accompany the Tax   Prepayment Notice and shall state with respect to each Note covered thereby that   execution and delivery thereof by the holder of such Note shall operate as a   permanent waiver of such holder’s right to receive the Additional Payments   arising as a result of the circumstances described in the Tax Prepayment Notice in   respect of all future payments of interest on such Note (but not of such holder’s   right to receive any Additional Payments that arise out of circumstances not   described in the Tax Prepayment Notice or which exceed the amount of the   Additional Payment described in the Tax Prepayment Notice), which waiver shall   be binding upon all subsequent transferees of such Note.  The Tax Prepayment   Notice having been given as aforesaid to each holder of the affected Notes, the   principal amount of such Notes together with interest accrued thereon to the date   of such prepayment plus the Modified Make-Whole Amount (if any) shall become   due and payable on such prepayment date, except in the case of Notes the holders   of which shall timely give a Rejection Notice as aforesaid.  Two Business Days   prior to such prepayment, the Company shall deliver to each holder of a Note   being so prepaid a certificate of a Senior Financial Officer specifying the   calculation of such Modified Make-Whole Amount, if applicable, as of such   prepayment date.   (b) No prepayment of the Notes pursuant to this Section 8.3 shall   affect the obligation of the Company to pay Additional Payments in respect of any   payment made on or prior to the date of such prepayment.  For purposes of this   Section 8.3, any holder of more than one affected Note may act separately with   respect to each affected Note so held (with the effect that a holder of more than   one affected Note may accept such offer with respect to one or more affected   Notes so held and reject such offer with respect to one or more other affected   Notes so held).   (c) The Company may not offer to prepay or prepay Notes pursuant to   this Section 8.3 (i) if a Default or Event of Default then exists, (ii) until the   Company shall have taken commercially reasonable steps to mitigate the     





 







        ln-255235    27   requirement to make the related Additional Payments or (iii) if the obligation to   make such Additional Payments directly results or resulted from actions taken by   the Company or any Subsidiary (other than actions required to be taken under   applicable law), and any Tax Prepayment Notice given pursuant to this Section   8.3 shall certify to the foregoing and describe such mitigation steps, if any.   (d) For purposes of this Section 8.3:  “Additional Payments” means   additional amounts required to be paid to a holder of any Note pursuant to Section   13 by reason of a Change in Tax Law; and a “Change in Tax Law” means   (individually or collectively with one or more prior changes) (i) an amendment to,   or change in, any law, treaty, rule or regulation of the United States of America or   the Netherlands after the date of the Closing, or an amendment to, or change in, an   official interpretation or application of such law, treaty, rule or regulation after the   date of the Closing, which amendment or change is in force and continuing and   meets the opinion and certification requirements described below or (ii) in the   case of any other jurisdiction that becomes a Taxing Jurisdiction after the date of   the Closing, an amendment to, or change in, any law, treaty, rule or regulation of   such jurisdiction, or an amendment to, or change in, an official interpretation or   application of such law, treaty, rule or regulation, in any case after such   jurisdiction shall have become a Taxing Jurisdiction, which amendment or change   is in force and continuing and meets such opinion and certification requirements.    No such amendment or change shall constitute a Change in Tax Law unless the   same would in the opinion of the Company (which shall be evidenced by an   Officer’s Certificate of the Company and supported by a written opinion of   counsel (or other tax advisor(s)) having recognized expertise in the field of   taxation in the Taxing Jurisdiction, both of which shall be delivered to all holders   of the Notes prior to or concurrently with the Tax Prepayment Notice in respect of   such Change in Tax Law) affect the deduction or require the withholding of any   Tax imposed by such Taxing Jurisdiction on any payment payable on the Notes.   8.4. Allocation of Partial Prepayments.   In the case of each partial prepayment of the Notes pursuant to Section 8.2,   the principal amount of the Notes to be prepaid shall be allocated among all of the Notes   (regardless of series) at the time outstanding in proportion, as nearly as practicable, to the   respective unpaid principal amounts thereof not theretofore called for prepayment.    8.5. Maturity; Surrender, Etc.   In the case of each optional prepayment of Notes pursuant to this Section   8, the principal amount of each Note to be prepaid shall mature and become due and   payable on the date fixed for such prepayment (which shall be a Business Day), together   with interest on such principal amount accrued to such date and the applicable Make-   Whole Amount or Modified Make-Whole Amount, if any.  From and after such date,   unless the Company shall fail to pay such principal amount when so due and payable,   together with the interest and Make-Whole Amount or Modified Make-Whole Amount, if   any, as aforesaid, interest on such principal amount shall cease to accrue.  Any Note paid     





 







        ln-255235    28   or prepaid in full shall be surrendered to the Company and cancelled and shall not be   reissued, and no Note shall be issued in lieu of any prepaid principal amount of any Note.   8.6. Purchase of Notes.   The Company will not and will not permit any Affiliate which it directly   or indirectly controls to purchase, redeem, prepay or otherwise acquire, directly or   indirectly, any of the outstanding Notes except (a) upon the payment or prepayment of   the Notes in accordance with this Agreement and the Notes or (b) pursuant to an offer to   purchase made by the Company or an Affiliate which it directly or indirectly controls pro   rata to the holders of all Notes at the time outstanding upon the same terms and   conditions (except to the extent necessary to reflect differences in the interest rates,   currencies and maturities of the Notes of different series), which offer shall remain   outstanding for a reasonable period of time (not to be less than 15 days); provided, that   any such offer shall provide each holder with sufficient information to enable it to make   an informed decision with respect to such offer.  If the holders of more than 50% of the   principal amount of the Notes then outstanding accept any such offer made pursuant to   the foregoing subpart (b), the Company shall promptly notify the remaining holders of   such fact and the expiration date for the acceptance by holders of Notes of such offer   shall be extended by the number of days necessary to give each such remaining holder at   least 5 Business Days from its receipt of such notice to accept such offer.  A failure by a   holder of Notes to respond to an offer to purchase made pursuant to subpart (b) of this   Section 8.6 shall be deemed to constitute a rejection of such offer by such holder. The   Company will promptly cancel all Notes acquired by it or any Affiliate which it directly   or indirectly controls pursuant to any payment or prepayment of Notes pursuant to this   Agreement and no Notes may be issued in substitution or exchange for any such Notes.   8.7. Make-Whole Amount and Modified Make-Whole Amount.   The terms “Make-Whole Amount” and “Modified Make-Whole   Amount” mean, with respect to any Note of any series, an amount equal to the excess, if   any, of the Discounted Value of the Remaining Scheduled Payments with respect to the   Called Principal of such Note over the amount of such Called Principal, provided that   neither the Make-Whole Amount nor the Modified Make-Whole Amount may in any   event be less than zero.  For the purposes of determining the Make-Whole Amount, or the   Modified Make-Whole Amount with respect to any Note, the following terms have the   following meanings:   “Applicable Percentage” in the case of a computation of the Modified   Make-Whole Amount for purposes of Section 8.3 means 1.00% (100 basis points),   and in the case of a computation of the Make-Whole Amount for any other   purpose means 0.50% (50 basis points).   “Called Principal” means, with respect to any Note of any series, the   principal of such Note that is to be prepaid pursuant to Section 8.2 or 8.3 or has   become or is declared to be immediately due and payable pursuant to Section 12.1,   as the context requires.     





 







        ln-255235    29   “Discounted Value” means, with respect to the Called Principal of any   Note of any series, the amount obtained by discounting all Remaining Scheduled   Payments with respect to such Called Principal from their respective scheduled   due dates to the Settlement Date with respect to such Called Principal, in   accordance with accepted financial practice and at a discount factor (applied on   the same periodic basis as that on which interest on the Notes is payable) equal to   the Reinvestment Yield with respect to such Called Principal.   “Reinvestment Yield” means,    (i) with respect to the Called Principal of any Note denominated in   Dollars, the sum of (x) the Applicable Percentage plus (y) the yield to maturity   implied by the ask-yield(s) reported as of 10:00 a.m. (New York City time) on the   second Business Day preceding the Settlement Date with respect to such Called   Principal, on the display designated as “Page PX1” (or such other display as may   replace Page PX1) on Bloomberg Financial Markets for the most recently issued   actively traded on-the-run U.S. Treasury securities (“Reported”) having a   maturity equal to the Remaining Average Life of such Called Principal as of such   Settlement Date.  If there are no such U.S. Treasury securities Reported having a   maturity equal to such Remaining Average Life, then such implied yield to   maturity will be determined by (a) converting U.S. Treasury bill quotations to   bond equivalent yields in accordance with accepted financial practice and   (b) interpolating linearly between the ask-yields Reported for the applicable most   recently issued actively traded on-the-run U.S. Treasury securities with the   maturities (1) closest to and greater than such Remaining Average Life and   (2) closest to and less than such Remaining Average Life.  The Reinvestment   Yield shall be rounded to the number of decimal places as appears in the interest   rate of the applicable Note.  If such yields are not Reported or the yields Reported   as of such time are not ascertainable (including by way of interpolation), then   “Reinvestment Yield” means, with respect to the Called Principal of any Note,   the sum of (x) the Applicable Percentage plus (y) the yield to maturity implied by   the U.S. Treasury constant maturity yields reported, for the latest day for which   such yields have been so reported as of the second Business Day preceding the   Settlement Date with respect to such Called Principal, in Federal Reserve   Statistical Release H.15 (or any comparable successor publication) for the U.S.   Treasury constant maturity having a term equal to the Remaining Average Life of   such Called Principal as of such Settlement Date.  If there is no such U.S.   Treasury constant maturity having a term equal to such Remaining Average Life,   such implied yield to maturity will be determined by interpolating linearly   between (1) the U.S. Treasury constant maturity so reported with the term closest   to and greater than such Remaining Average Life and (2) the U.S. Treasury   constant maturity so reported with the term closest to and less than such   Remaining Average Life; and   (ii)  with respect to the Called Principal of any Note denominated in   Euros, the sum of (x) the Applicable Percentage plus (y) the yield to maturity     





 







        ln-255235    30   implied by (I) the Kassekurs published in the Boersenzeitung on the second   Business Day preceding the Settlement Date with respect to such Called Principal   for Bundesobligationen having a maturity equal to the Remaining Average Life of   such Called Principal as of such Settlement Date, or (II) if (A) the Boersenzeitung   is not published on such Business Day or (B) there is a manifest error in such   published Kassekurs, the Kassekurs set on such Business Day by the Frankfurt   Stock Exchange at (or at approximately) 11:00 a.m. (Frankfurt time) on such   Business Day for actively traded Bundesobligationen having a maturity closest to   the Remaining Average Life of such Called Principal as of such Settlement Date   or (III) if such Kassekurs are not reported as of such time or the Kassekurs reports   as of such time are not ascertainable, by reference to the arithmetic mean of the   yields to maturity closest to the Remaining Average Life of such Called Principal   as of such Settlement Date by three market makers selected by the Company with   the consent of the holders of more than 50% in principal amount of the Notes, at   the time outstanding (exclusive of any such Notes then owned by the Company or   any of its Affiliates).  Such implied yield will be determined, if necessary, by   interpolating linearly between (1) the actively traded Bundesobligationen with the   maturity closest to and greater than the Remaining Average Life and (2) the   actively traded Bundesobligationen with the maturity closest to and less than the   Remaining Average Life.   The Reinvestment Yield shall be rounded to the number of decimal places   as appears in the interest rate of the applicable Note.   “Remaining Average Life” means, with respect to any Called Principal,   the number of years obtained by dividing (i) such Called Principal into (ii) the   sum of the products obtained by multiplying (a) the principal component of each   Remaining Scheduled Payment with respect to such Called Principal by (b) the   number of years, computed on the basis of a 360-day year composed of twelve   30-day months and calculated to two decimal places, that will elapse between the   Settlement Date with respect to such Called Principal and the scheduled due date   of such Remaining Scheduled Payment.   “Remaining Scheduled Payments” means, with respect to the Called   Principal of any Note of any series, all payments of such Called Principal and   interest thereon that would be due after the Settlement Date with respect to such   Called Principal if no payment of such Called Principal were made prior to its   scheduled due date, provided that if such Settlement Date is not a date on which   interest payments are due to be made under the Notes, then the amount of the next   succeeding scheduled interest payment will be reduced by the amount of interest   accrued to such Settlement Date and required to be paid on such Settlement Date   pursuant to Section 8.2, Section 8.3 or 12.1.   “Settlement Date” means, with respect to the Called Principal of any   Note, the date on which such Called Principal is to be prepaid pursuant to     





 







        ln-255235    31   Section 8.2 or Section 8.3 or has become or is declared to be immediately due and   payable pursuant to Section 12.1, as the context requires.   8.8. Payments Due on Non-Business Days.   Anything in this Agreement or the Notes to the contrary notwithstanding,   (x) subject to clause (y), any payment of interest on any Note that is due on a date that is   not a Business Day shall be made on the next succeeding Business Day without including   the additional days elapsed in the computation of the interest payable on such next   succeeding Business Day; and (y) any payment of principal of or Make-Whole Amount   or Modified Make Whole Amount on any Note (including principal due on the Maturity   Date of such Note) that is due on a date that is not a Business Day shall be made on the   next succeeding Business Day and shall include the additional days elapsed in the   computation of interest payable on such next succeeding Business Day.    8.9. OFAC Sanctions.   (a) Within five Business Days after the Company’s receipt of notice   from any Affected Noteholder that a Noteholder Sanctions Violation has occurred   with respect to such Affected Noteholder as a result of any OFAC Event, which   notice shall refer specifically to this Section 8.9 and describe in reasonable detail   such Noteholder Sanctions Violation and such OFAC Event, the Company shall   by written notice (a “Sanctions Prepayment Notice”) delivered to such Affected   Noteholder offer to prepay on a Business Day not less than 30 days and not more   than 60 days after the date of such Sanctions Prepayment Notice (the “Sanctions   Prepayment Date”) the Notes of such Affected Noteholder, at 100% of the   principal amount of such Notes at par (and without any make-whole, premium,   penalty, Make-Whole Amount or Modified Make-Whole Amount whatsoever or   however described), together with interest accrued thereon to the Sanctions   Prepayment Date, and specify the Sanctions Prepayment Response Date (as   defined below).  Such Affected Noteholder shall notify the Company of such   Affected Noteholder’s acceptance or rejection of such offer by giving written   notice of such acceptance or rejection to the Company on a date at least ten   Business Days prior to the Sanctions Prepayment Date (such date ten Business   Days prior to the Sanctions Prepayment Date being the “Sanctions Prepayment   Response Date”).  If such Affected Noteholder has accepted the Company’s   prepayment offer in accordance with this Section 8.9, on the Sanctions   Prepayment Date, the entire unpaid principal amount of the Notes held by such   holder of Notes which has accepted such prepayment offer, together with interest   accrued to the Sanctions Prepayment Date (but without any make-whole,   premium, penalty, Make-Whole Amount or Modified Make-Whole Amount   whatsoever or howsoever described), shall become due and payable.  The failure   by such Affected Noteholder to respond to such offer in writing on or before the   Sanctions Prepayment Response Date shall be deemed to be a rejection of such   offer. Under no circumstances shall any Affected Noteholder who has rejected (or   who has been deemed to have rejected) any such offer have any right to claim a     





 







        ln-255235    32   Default or Event of Default relating to the Noteholder Sanctions Violation relating   to such offer.   (b) No prepayment of any Note shall be permitted pursuant to this   Section 8.9 as a result of any OFAC Event if a Prohibited Subsequent Action shall   have occurred with respect to such OFAC Event.   (c) Promptly, and in any event within five (5) Business Days, after the   Company’s receipt of notice from any Affected Noteholder that a Noteholder   Sanctions Violation shall have occurred with respect to such Affected Noteholder   as a result of any OFAC Event, the Company shall forward a copy of such notice   to each holder of Notes.    (d) Notwithstanding anything to the contrary contained in this Section   8.9, if a Noteholder Sanctions Violation has occurred but (i) the Company and/or   its Controlled Entities have taken such action(s) in relation to their activities so as   to remedy any violation of Section 10.9(b)(ii) (such that such Affected   Noteholder(s) shall not be in violation of any law or regulation applicable to such   Affected Noteholder or subject to sanctions under CISADA or any similar law or   regulation with respect to Iran or any other country that is subject to U.S.   Economic Sanctions), in each case prior to the Sanctions Prepayment Date, then   the Company shall not be obliged to prepay such Affected Notes in relation to   such Noteholder Sanctions Violation which is no longer continuing and shall keep   the holders reasonably informed of such actions and the results thereof.   (e) Notwithstanding the provisions of Section 8.9(a), if any Affected   Noteholder that has given written notice to the Company of its acceptance of the   Company’s prepayment offer in accordance with this Section 8.9 also gives notice   to the Company prior to the relevant Sanctions Prepayment Date that it has   determined (in its sole discretion) that it requires clearance from any United States   Governmental Authority in order to receive a prepayment pursuant to this Section   8.9, the principal amount of the Affected Noteholder’s Notes, together with   interest accrued thereon to the date of prepayment, shall become due and payable   on the later of (i) such Sanctions Prepayment Date and (ii) the date that is 10   Business Days after such Affected Noteholder gives notice to the Company that it   is entitled to receive a prepayment pursuant to this Section 8.9, and in any event,   any such delay in accordance with the foregoing clause (e)(ii) shall not be deemed   to give rise to any Default or Event of Default.   8.10. Change of Control Prepayment Offer.   (a) Promptly upon becoming aware that a Change of Control has   occurred (and in any event not later than ten (10) Business Days thereafter), the   Company shall give written notice (the “Change of Control Notice”) of such fact   to all holders of the Notes.  The Change of Control Notice shall (i) describe the   facts and circumstances of such Change of Control in reasonable detail, (ii) refer   to this Section 8.10 and the rights of the holders hereunder and (iii) contain an     





 







        ln-255235    33   offer by the Company to prepay the entire unpaid principal amount of Notes held   by each holder at 100% of the principal amount of such Notes at par (without any   make-whole, premium, penalty or Make-Whole Amount or Modified Make-   Whole Amount whatsoever or howsoever described), together with interest   accrued thereon to the prepayment date selected by the Company, which   prepayment shall be on a date specified in the Change of Control Notice, which   date shall be a Business Day not less than 30 nor more than 60 days after such   Change of Control Notice is given should any agreement to the contrary with   respect to such payment date not be reached among the Company and each of the   holders of the Notes.   (b) A holder of Notes may accept the offer to prepay made pursuant to   this Section 8.10 by causing a notice of such acceptance to be delivered to the   Company not more than 25 days after the date of the written offer notice referred   to in subsection (a) of this Section 8.10.  A failure by a holder of Notes to respond   to an offer to prepay made pursuant to this Section 8.10 shall be deemed to   constitute rejection of such offer by such holder.   (c) On the prepayment date specified in the Change of Control Notice,   the entire unpaid principal amount of the Notes held by each holder of Notes   which has accepted such prepayment offer, together with interest accrued thereon   to the prepayment date (without any make-whole, premium, penalty or Make-   Whole Amount or Modified Make-Whole Amount whatsoever or howsoever   described), shall become due and payable.   (d) For purposes of this Section 8.10,   (i) a “Change of Control” occurs if either:   (A) Vitol Holding B.V. and its Affiliates, collectively or   individually, do not control the Company and either (I) hold (directly or   indirectly) less than 25% of the issued share capital of the Company   carrying a right to vote at a general meeting of the Company or (II) the   investment committee of Vitol Investment Partnership Limited ceases to   be comprised of a majority of persons appointed by Vitol Holding B.V.   and its Affiliates, collectively or individually; or   (B) Vitol Holding B.V. (and its Affiliates) and Vitol Investment   Partnership Limited (and its Affiliates), collectively or individually, cease   to control the Company.   (ii) “control” means:   (A) the power (whether by way of ownership of shares, proxy,   contract, agency or otherwise) directly or indirectly to:     





 







        ln-255235    34   (I) cast, or control the casting of, not less than one-half of the   maximum number of votes that might be cast at a general   meeting of the Company; or   (II) appoint or remove not less than one-half of the directors or   other equivalent officers of the Company; or   (III) give directions with respect to the operating and financial   policies of the Company which the directors or other   equivalent officers of the Company are obliged to comply   with; or   (B) the holding (directly or indirectly) of not less than one-half   of the issued share capital of the Company carrying a right to vote at a   general meeting of the Company.   9. AFFIRMATIVE COVENANTS.   The Company covenants that so long as any of the Notes are outstanding:   9.1. Compliance with Law.   Without limiting Section 10.9, the Company will, and will cause each of   its Subsidiaries to, comply with all laws, ordinances or governmental rules or regulations   to which each of them is subject, including, without limitation, ERISA, the USA Patriot   Act and Environmental Laws, and will obtain and maintain in effect all licenses,   certificates, permits, franchises and other governmental authorizations necessary to the   ownership of their respective properties or to the conduct of their respective businesses,   in each case to the extent necessary to ensure that non-compliance with such laws,   ordinances or governmental rules or regulations or failures to obtain or maintain in effect   such licenses, certificates, permits, franchises and other governmental authorizations   could not, individually or in the aggregate, reasonably be expected to have a Material   Adverse Effect.   9.2. Insurance.   The Company will, and will cause each of its Subsidiaries to, maintain,   with financially sound and reputable insurers, insurance with respect to their respective   properties and businesses against such casualties and contingencies, of such types, on   such terms and in such amounts (including deductibles, co-insurance and self-insurance,   if adequate reserves are maintained with respect thereto) as is customary in the case of   entities of established reputations engaged in the same or a similar business and similarly   situated.     





 







        ln-255235    35   9.3. Maintenance of Properties.   Subject to Sections 10.2 and 10.3, the Company will, and will cause each   of its Subsidiaries to, maintain and keep, or cause to be maintained and kept, their   respective properties in good repair, working order and condition (other than ordinary   wear and tear), so that the business carried on in connection therewith may be properly   conducted at all times, provided that this Section shall not prevent the Company or any   Subsidiary from discontinuing the operation and the maintenance of any of its properties   if such discontinuance is desirable in the conduct of its business and the Company has   concluded that such discontinuance could not, individually or in the aggregate,   reasonably be expected to have a Material Adverse Effect.   9.4. Payment of Taxes and Claims.   The Company will, and will cause each of its Subsidiaries to, file all   income or similar tax returns required to be filed in any jurisdiction and to pay and   discharge all taxes shown to be due and payable on such returns and all other taxes,   assessments, governmental charges or levies imposed on them or any of their properties,   assets, income or franchises, to the extent the same have become due and payable and   before they have become delinquent and all claims for which sums have become due and   payable that have or might become a Lien on properties or assets of the Company or any   Subsidiary, provided that neither the Company nor any Subsidiary need pay any such tax,   assessment, charge, levy or claim if (i) the amount, applicability or validity thereof is   contested by the Company or such Subsidiary on a timely basis in good faith and in   appropriate proceedings, and the Company or a Subsidiary has established adequate   reserves therefor in accordance with IFRS on the books of the Company or such   Subsidiary or (ii) the nonpayment of all such taxes, assessments, charges, levies and   claims in the aggregate could not reasonably be expected to have a Material Adverse   Effect.   9.5. Corporate Existence, Etc.   Subject to Section 10.2, the Company will at all times preserve and keep   in full force and effect its corporate (or similar) existence.  Subject to Sections 10.2 and   10.3, the Company will at all times preserve and keep in full force and effect the   corporate existence of each of its Subsidiaries (unless merged into the Company or a   Wholly-Owned Subsidiary) and all rights and franchises of the Company and its   Subsidiaries unless, in the good faith judgment of the Company, the termination of or   failure to preserve and keep in full force and effect such corporate existence, right or   franchise could not, individually or in the aggregate, have a Material Adverse Effect.   9.6. Books and Records.   The Company will, and will cause each of its Subsidiaries to, maintain   proper books of record and account in conformity with IFRS and all applicable   requirements of any Governmental Authority having legal or regulatory jurisdiction over   the Company or such Subsidiary, as the case may be.  The Company will, and will cause     





 







        ln-255235    36   each of its Subsidiaries to, keep books, records and accounts which, in reasonable detail,   accurately reflect all transactions and dispositions of assets.  The Company and its   Subsidiaries have devised a system of internal accounting controls sufficient to provide   reasonable assurances that their respective books, records, and accounts accurately reflect   all transactions and dispositions of assets and the Company will, and will cause each of   its Subsidiaries to, continue to maintain such system.   9.7. Priority of Obligations.   The Company will ensure that its payment obligations under this   Agreement and the Notes will at all times rank at least pari passu in right of payment,   without preference or priority, with all other unsecured and unsubordinated Indebtedness   of the Company, except for such Indebtedness as would be preferred by operation of   bankruptcy, insolvency, liquidation or similar laws of general application.  The Company   will ensure that the payment obligations of each Subsidiary Guarantor under its   respective Subsidiary Guaranty Agreement will at all times rank at least pari passu in   right of payment with all other unsecured and unsubordinated Indebtedness of such   Subsidiary Guarantor, except for such Indebtedness as would be preferred by operation of   bankruptcy, insolvency, liquidation or similar laws of general application.   9.8. Subsidiary Guarantors.   (a) The Company may, at its election (but subject to Section 9.8(c)), at   any time or from time to time, cause any Subsidiary which is not then a   Subsidiary Guarantor to become a Subsidiary Guarantor if the following   conditions are satisfied:   (i) each holder of a Note shall have received an executed   Subsidiary Guaranty Agreement from such new Subsidiary Guarantor;   (ii) each holder of a Note shall have received an opinion or   opinions of counsel in all applicable jurisdictions to the combined effect   that such Subsidiary Guaranty Agreement of such new Subsidiary   Guarantor has been duly authorized, executed and delivered by such new   Subsidiary Guarantor and constitutes a legal, valid and binding obligation   enforceable against such new Subsidiary Guarantor in accordance with its   terms, all as subject to any exceptions and assumptions of the type set   forth in the opinions referenced in Section 4.4 and as are reasonable under   the circumstances;   (iii) each holder of a Note shall have received a certificate of   the Secretary or a Director (or other appropriate officer or person) of the   new Subsidiary Guarantor as to due authorization, charter documents,   board resolutions and the incumbency of officers;   (iv) each holder of a Note shall have received evidence of (A)   the appointment of CT Corporation System (or any successor to the duties     





 







        ln-255235    37   thereof) as such new Subsidiary Guarantor’s agent to receive, for it and on   its behalf service of process in the State of New York with respect thereto   and (B) the payment of fees for such service through December 15, 2028;   (v) in relation to any such new Subsidiary Guarantor organized   under the laws of Malaysia and to the extent legally applicable,   confirmation that the prior written approval of BNM for the creation of the   financial guarantee by the relevant Additional Guarantor has been obtained   and is in full force and effect; and   (vi) each holder of a Note shall have received a certificate of a   Responsible Officer of the Company certifying that at such time and   immediately after giving effect to such Subsidiary Guaranty Agreement no   Default or Event of Default shall have occurred and be continuing.   (b) Subject to Section 9.8(c), at the election of the Company and by   written notice to each holder of Notes, any Subsidiary Guarantor may be   discharged from all of its obligations and liabilities under its Subsidiary Guaranty   Agreement and shall be automatically released from its obligations thereunder   without the need for the execution or delivery of any other document by the   holders or any other Person, provided, in each case, that (i) after giving effect to   such release no Default or Event of Default shall have occurred and be continuing,   (ii) no amount is then due and payable under such Subsidiary Guaranty   Agreement, and (iii) each holder of Notes shall have received a certificate of a   Responsible Officer to the foregoing effect and setting forth the information   (including reasonably detailed computations) reasonably required to establish   compliance with the foregoing requirements , and provided further in each case   that the highest consideration paid or provided (if any) to any creditor under any   Principal Bank Facility for the release of such Subsidiary Guarantor from its   obligations under such Principal Bank Facility is paid pro rata to each holder of   Notes at substantially the same time and on equivalent terms.   (c) The Company agrees that so long as any Subsidiary is a borrower   or guarantor under or with respect to any Principal Bank Facility such Subsidiary   shall at all such times be a Subsidiary Guarantor.   9.9. Designation and Maintenance of Non-Recourse Entities.   (a) Subject to compliance with paragraphs (b) and (c) below, the   Company shall have the right to designate any Subsidiary as a Non-Recourse   Entity and any assets of a member of the Group as Non-Recourse Assets, in each   case (other than as set forth in paragraph (b) below) by delivering to each holder   of Notes a writing, signed by a Senior Financial Officer, certifying that the   Company shall have so designated such Subsidiary or such assets.  Any   Subsidiary so designated shall be deemed to have been a Non-Recourse Entity as   of the date it shall have become a Subsidiary and any assets so designated shall be   deemed to have been Non-Recourse Assets as of the date they shall have become     





 







        ln-255235    38   assets of a member of the Group.  By delivery to each holder of Notes a writing,   signed by a Senior Financial Officer, the Company may un-designate any   Subsidiary or assets that had previously been designated as a Non-Recourse   Entity or Non-Recourse Assets, such that such Subsidiary shall no longer be   deemed a Non-Recourse Entity or such assets shall no longer be deemed Non-   Recourse Assets for purposes of this Agreement.   (b) Subject to compliance with paragraph (c) below, the Company   may designate, un-designate and re-designate the same Subsidiary or assets as a   Non-Recourse Entity or Non-Recourse Assets no more than twice (not including   the initial designation) during the life of the Notes.  For the avoidance of doubt   and notwithstanding anything to the contrary contained in paragraph (a) above, it   is hereby understood and agreed that the ATT Tanjung Bin Phase 2 Assets are   designated as Non-Recourse Assets as of the date of this Agreement.   (c) In no event will any Subsidiary or assets be permitted to be   designated, un-designated or re-designated as a Non-Recourse Entity or Non-   Recourse Assets if (i) any Default or Event of Default exists immediately prior to   or after giving effect to such designation, un-designation or re-designation or (ii)   such designation, un-designation or re-designation is being done for the purpose   of avoiding a Default or Event of Default.  Further, the Company will not at any   time designate a Subsidiary as a Non-Recourse Entity or assets as Non-Recourse   Assets, or make (or permit any Subsidiary to make) any investment in a new or   existing Non-Recourse Entity or new or existing Non-Recourse Assets, if,   immediately prior to or following such designation or investment, the assets of all   Non-Recourse Entities together with all Non-Recourse Assets (other than the   ATT Tanjung Bin Phase 2 Assets) (without double counting), determined on a   consolidated basis, exceed 10% of Consolidated Total Assets (to be determined as   of the last date of the quarterly fiscal period then most recently ended).   (d) During any time that the assets of all Non-Recourse Entities and   Non-Recourse Assets (other than the ATT Tanjung Bin Phase 2 Assets) (without   double counting) exceed 10% of Consolidated Total Assets as aforesaid, the   Company shall, promptly after the same are available and in any event within 90   days after the end of each quarterly fiscal period in each fiscal year of the   Company, deliver to each holder of a Note that is an Institutional Investor (and for   purposes of this Agreement the information required by this Section 9.9(d) shall   be deemed delivered on the date of delivery of such information in the English   language or the date of delivery of an English translation thereof) unaudited   consolidating accounts of the Non-Recourse Entities (individually or as a whole)   or any other member of the Group holding Non-Recourse Assets (other than any   member of the Group holding the ATT Tanjung Bin Phase 2 Assets), showing   their results of operations and cash flows used in the preparation of the   Company’s accounts, prepared in accordance with IFRS applicable to interim   financial statements generally and certified by a Senior Financial Officer as fairly   presenting, in all material respects, the financial position of the companies being     





 







        ln-255235    39   reported on and their results of operations and cash flows, subject to changes   resulting from year-end adjustments.   10. NEGATIVE COVENANTS.   The Company covenants that so long as any of the Notes are outstanding:   10.1. Transactions with Affiliates.   The Company will not and will not permit any Subsidiary to enter into   directly or indirectly any transaction or group of related transactions (including, without   limitation, the purchase, lease, sale or exchange of properties of any kind or the rendering   of any service) with any Affiliate (other than the Company or another Subsidiary), except   pursuant to the reasonable requirements of the Company’s or such Subsidiary’s business   and upon fair and reasonable terms no less favorable to the Company or such Subsidiary   than would be obtainable in a comparable arm’s-length transaction with a Person not an   Affiliate.   10.2. Merger, Consolidation, Etc.   The Company will not, and will not permit any Subsidiary Guarantor to,   consolidate with or merge with any other Person or convey, transfer or lease all or   substantially all of its assets in a single transaction or series of transactions to any Person,   otherwise than as permitted under Section 10.3, provided however, that:   (a) the Company may consolidate or merge with, or sell, lease or   otherwise dispose of all or substantially all of its assets to, any other Person if   (i) either (A) the Company shall be the surviving or continuing Person, or (B) the   surviving, continuing or resulting Person that purchases, leases or otherwise   acquires all or substantially all of the assets of the Company (1) is a solvent   corporation or limited liability company incorporated under the laws of any   Permitted Jurisdiction and (2) expressly assumes the obligations of the Company   hereunder and under the Notes, in a writing which is in form and substance   reasonably satisfactory to the Required Holders, and (ii) at the time of such   transaction and after giving effect thereto no Default or Event of Default shall   have occurred and be continuing or would exist on a pro forma basis as of the   immediately preceding Relevant Period;   (b) any Subsidiary Guarantor may consolidate or merge with, or sell,   lease or otherwise dispose of all or substantially all of its assets to, any other   Person if (i) either (A) the Company or the Subsidiary Guarantor shall be the   surviving or continuing Person, or (B) the surviving, continuing or resulting   Person that purchases, leases or otherwise acquires all or substantially all of the   assets of the Subsidiary Guarantor (1) is a solvent corporation or limited liability   company and (2) expressly assumes the obligations of the Subsidiary Guarantor   under the Subsidiary Guaranty Agreement to which it is a party, in a writing   which is in form and substance reasonably satisfactory to the Required Holders,     





 







        ln-255235    40   and (ii) at the time of such transaction and after giving effect thereto no Default or   Event of Default shall have occurred and be continuing or would exist on a pro   forma basis as of the immediately preceding Relevant Period; and   (c) the Company and any Subsidiary Guarantor may sell, lease or   otherwise dispose of their respective assets in accordance with the provisions of   Section 10.3, and   provided, further, that in the event of a merger, consolidation or sale described in   subparagraph (B) of paragraph (a) or subparagraph (B) of paragraph (b):   (1) the holders of Notes shall have received an opinion of   independent counsel to the surviving Person as to (i) the due organization,   valid existence and, if legally applicable, good standing of the surviving   Person, (ii) the due authorization, execution and delivery of any required   assumption agreement by the surviving Person and (iii) the valid, binding   and enforceable nature of the obligations of the surviving Person under   such assumption agreement subject to reasonable and customary   exceptions, assumptions and/or qualifications under the circumstances;   and   (2) the holders of Notes shall have received each then existing   Subsidiary Guarantor’s (or the surviving Person’s in a merger or   consolidation involving a Subsidiary Guarantor, if appropriate)   unconditional and irrevocable confirmation and reaffirmation as to its   obligations under its respective Subsidiary Guaranty Agreement, pursuant   to a writing in form and substance reasonably satisfactory to the Required   Holders.   No such conveyance, transfer or lease of substantially all of the assets of the Company or   any Subsidiary Guarantor shall have the effect of releasing the Company or such   Subsidiary Guarantor or any successor corporation or limited liability company that shall   theretofore have become such in the manner prescribed in this Section 10.2 from its   liability under this Agreement, the Notes or any Subsidiary Guaranty Agreement, as   applicable.   10.3. Sale of Assets.   The Company will not and will not permit any Subsidiary to, directly or   indirectly, sell, lease, transfer or otherwise dispose of (each, or any combination thereof,   being a “Disposition”) any of its assets unless, after giving effect to such proposed   Disposition, the aggregate net book value of all assets of the Group that were the subject   of Dispositions made during the 365-day period ending on the date of such proposed   Disposition does not exceed 10% of Adjusted Consolidated Total Assets (to be   determined as of the last date of the quarterly fiscal period then most recently ended),   provided that the following Dispositions (or portions thereof) shall not be taken into   account for purposes of this Section 10.3:      





 







        ln-255235    41   (a) Dispositions made in the ordinary course of business;   (b) Dispositions of assets from one member of the Group to another   member of the Group (including any Person which immediately following such   Disposition becomes a member of the Group);   (c) Dispositions of assets or businesses on arm’s length terms in return   for other assets of comparable or greater value or businesses of a similar nature   with comparable or greater value or earnings generation potential;   (d) Dispositions for cash or Cash Equivalent Investments of any   surplus, obsolete, redundant or worn-out assets not required for the efficient   operations of the business of the Group;   (e) Dispositions made pursuant to, and in full compliance with,   Section 10.2;    (f) Dispositions of assets acquired in an acquisition subsequent to   Closing if (i) such assets are outside the principal business areas to which the   assets acquired, taken as a whole, relate, and (ii) such assets are sold or disposed   of for cash or any other consideration which represents the fair market value   thereof;   (g) Dispositions of cash or Cash Equivalent Investments for purposes   not otherwise prohibited by this Agreement and on arm’s length terms;    (h) Dispositions of assets which are seized, expropriated or acquired   by compulsory purchase by or by the order of any central or local government   authority;   (i) Dispositions pursuant to any lease or sublease granted to any third   party on arm’s length terms provided that the granting or performance of such   lease or sublease does not adversely affect in any material respect the business of   the Group taken as a whole;   (j) of any Non-Recourse Entity (including equity interests thereof),   Non-Recourse Assets and any other assets forming part of a Non-Recourse   Transaction (including, for the avoidance of doubt, the assets, utilities, operations   and business of ATT Tanjung Bin Phase 2); and   (k) Dispositions for fair value to the extent that the net proceeds of   such Dispositions (or an amount equal thereto) are and/or were used (or, in the   case of subpart (i) below, are committed to be used, but only to the extent such   amounts are so used within 548 days after the date thereof) within 365 days   before and/or after the date thereof for either or both of (but for the avoidance of   doubt recognizing that not all such proceeds must be so used):     





 







        ln-255235    42   (i) investment in or the purchase, acquisition, development,   redevelopment or construction of assets or businesses which are to be used   or useful in the business of the Company or any Subsidiary (or the   payment of Indebtedness incurred in relation to the same, so long as such   Indebtedness was incurred within 365 days before and/or after the date of   the Disposition in question); or   (ii) the repayment of outstanding unsubordinated Indebtedness   of the Company or any Subsidiary (other than (A) Indebtedness owing to   the Company, any Subsidiary or any Affiliate which the Company directly   or indirectly controls and (B) Indebtedness of any Non-Recourse Entity or   borrowed to acquire any Non-Recourse Assets); provided that any such   repayment or prepayment of Indebtedness shall at or about the same time   include an offer, which offer shall be on the same terms and conditions as   to each holder of a Note and shall remain outstanding for at least 30 days   (and the requirements of this clause (k)(ii) shall be deemed satisfied if   such offer is made and, to the extent accepted, consummated), from the   Company to the holders of all outstanding Notes, to prepay a pro rata   portion of such Notes, such pro rata portion of the Notes to be calculated   by multiplying (A) the aggregate amount of such proceeds to be so used in   such repayment or prepayment of unsubordinated Indebtedness (including   the Notes) by (B) a fraction, the numerator of which is the aggregate   principal amount of the Notes outstanding and the denominator of which is   the aggregate principal amount of all unsubordinated Indebtedness of the   Group outstanding (including the Notes, but excluding (1) Indebtedness   owing to the Company, any Subsidiary or any Affiliate which the   Company directly or indirectly controls and (2) Indebtedness of any Non-   Recourse Entity or borrowed to acquire any Non-Recourse Assets, and in   each case calculated immediately prior to such repayment or prepayment);   provided further, however, that any prepayment of the Notes pursuant to   any such offer shall in all cases be at par without any make-whole,   premium, penalty, Make-Whole Amount or Modified Make-Whole   Amount whatsoever or howsoever described.   10.4. Liens.   The Company will not and will not permit any Subsidiary to create,   assume, incur or permit to exist any Lien upon or with respect to any property, whether   now owned or hereafter acquired, unless the Notes shall be substantially concurrently   secured equally and ratably with the obligation or obligations secured by such Lien   pursuant to documentation in form and substance reasonably satisfactory to the Required   Holders, provided that nothing in this Section 10.4 shall prohibit:    (a) (1) Liens arising by operation of law and in the ordinary course of   trading, (2) Liens for taxes, assessments or other governmental charges or levies,   either not yet due and payable or to the extent that nonpayment thereof is   permitted by the proviso to Section 9.4, (3) in relation to any member of the     





 







        ln-255235    43   Group, any Lien arising in relation to any authorizations required to carry on its   business and (4) any Lien in favor of customs and excise authorities to secure   payment of customs duties owed by any member of the Group in connection with   the importation of goods;   (b) Liens created by or resulting from any litigation or legal   proceeding which is effectively stayed while the underlying claims are being   contested in good faith by appropriate proceedings and with respect to which the   Company has established adequate reserves on its books in accordance with IFRS;   (c) (1) Liens incidental to the normal conduct of the business of the   Company or any Subsidiary (including, but not limited to, Liens in connection   with worker’s compensation, social security, unemployment insurance and other   like laws, warehousemen’s and attorneys’ liens and statutory landlords’ liens,   Liens encumbering goods and documents of title with respect to such goods, any   rights of setoff and other Liens arising by operation of law), (2) Liens to secure   the performance of bids, tenders or trade contracts, or to secure statutory or   planning obligations, surety or appeal bonds or other Liens of like general nature   incurred in the ordinary course of business, in each such case, not in connection   with the borrowing of money, (3) the pledging of collateral for margin accounts in   connection with any derivative or futures transaction and (4) any Lien over or   affecting any asset in connection with any sale and repurchase transactions   entered into by any member of the Group in the ordinary course of trade ;   (d) Liens existing on the date of the Closing and described in   Schedule 5.15, except to the extent the principal amount secured by that Lien   exceeds the amount stated in such Schedule 5.15;   (e) Liens securing Indebtedness of any member of the Group owing to   another member of the Group which is not a Finance Subsidiary;   (f) any Lien on an asset (including any asset of any Person at the time   such Person becomes a member of the Group) acquired by a member of the Group   after the date of this Agreement and in existence at the time of such acquisition   but only to the extent that (i) the principal amount secured by that Lien has not   been incurred or increased in contemplation of, or since, such acquisition and (ii)   such Lien is removed or discharged within twelve months of the date of   acquisition of such asset;   (g) any Lien incurred after the Closing given to secure Indebtedness   incurred after the Closing in connection with the acquisition (including an   acquisition pursuant to a finance lease arrangement), modification, improvement,   development or redevelopment of any property, asset (or documents of title   thereto) or part thereof (the “New Property”) which is useful and intended to be   used in carrying on the business of the Company or one or more of its   Subsidiaries, including, without limitation, Liens existing on such New Property     





 







        ln-255235    44   at the time of acquisition thereof, whether or not such existing Liens were given   to secure the payment of the purchase price of the New Property to which they   attach provided that (i) the Lien shall attach solely to the New Property acquired,   modified, improved, developed or redeveloped, (ii) the portion of such   Indebtedness permitted to be secured pursuant to the provisions of this clause (g)   shall not exceed the lesser of the total purchase price and the fair market value of   such New Property at the time of acquisition, modification, improvement,   development or redevelopment of such New Property (as determined in good faith   by a Senior Financial Officer), and (iii) such Lien is created or assumed with   respect of such New Property at the time of, or within 365 days of such   acquisition, modification, improvement, development or redevelopment;   (h) leases, subleases, minor encumbrances, covenants, easements or   reservations, or for rights-of-way, utilities and other similar purposes or zoning   and other restrictions as to the use of real properties, minor survey exceptions and   the like;   (i) any Lien securing indebtedness arising under any Non-Recourse   Transaction provided that no member of the Group will be permitted to create or   permit to subsist any Lien over any shares in ATT Tanjung Bin Sdn. Bhd., which   includes all existing shares in the share capital of ATT Tanjung Bin Sdn. Bhd. and   all shares subsequently created by ATT Tanjung Bin Sdn. Bhd.;   (j) any payment or close out netting or set-off arrangement pursuant to   any hedging transactions entered into by a member of the Group for the purpose   of (i) hedging any risk to which any member of the Group is exposed in its   ordinary course of day-to-day business or (ii) its interest rate or currency   management operations which are carried out in the ordinary course of day-to-day   business and for non-speculative purposes only, but in each case excluding any   Lien under a credit support arrangement in relation to a hedging transaction;   (k) any Lien granted by a member of the Group over shares owned by   it in any joint venture to secure the obligations of that member of the Group to the   other joint venture partners of that joint venture where such Lien is required to be   granted by the terms of the relevant joint venture agreement;   (l) any Lien created pursuant to the general banking terms and   conditions (algemene bankvoorwaarden) used by any bank or financial institution   in respect of its branch offices in the Netherlands and based on the general   conditions agreed between The Netherlands Bankers Association (Nederlandse   Vereniging van Banken) and the Consumers Association (Consumentenbond);   (m) any title transfer, conditional sale or retention of title arrangement   entered into by the Company or any Subsidiary in the normal course of its trading   activities on the counterparty’s standard or usual terms and any Lien created or   subsisting in the ordinary course of business (in connection with the provision of     





 







        ln-255235    45   documentary letters of credit) and not in connection with the borrowing of money   over documents of title, insurance policies or sale contracts in relation to   commercial goods to secure the purchase price of such goods;   (n) extensions, renewals, refinancings or replacements of any Lien   permitted by clauses (d), (f) (but only for so long as it meets the original   requirements for excluding the original Lien under such clause (f)) and (g) above,   provided that such extension, renewal, refinancing or replacement is in respect of   the same property and the principal amount of such Indebtedness outstanding   immediately before giving effect to such extension, renewal, refinancing or   replacement is not increased;   (o) any netting or set-off arrangement entered into by any member of   the Group in the ordinary course of its credit arrangements for the purpose of   netting debit and credit balances including any netting or set-off or cash cover   arrangements in respect of any obligation in relation to bank guarantees, but in   respect of a member providing cash cover (howsoever described) in respect of any   Non-Credit Replacing Guarantees, only to the extent that the aggregate amount   thereof does not exceed €50,000,000; and   (p) Liens not otherwise permitted by clauses (a) through (o) above   securing Indebtedness of one or more members of the Group, provided that after   giving effect thereto the sum (without duplication) of (i) the aggregate   outstanding principal amount of Indebtedness secured by all such Liens permitted   by this clause (p) plus (ii) the aggregate outstanding principal amount of   Indebtedness permitted by Section 10.5(h) does not exceed 10% of Adjusted   Consolidated Total Assets determined as of the last date of the quarterly fiscal   period then most recently ended, provided further that, notwithstanding the   foregoing, the Company will not, and will not permit any Subsidiary to, grant any   Liens securing Indebtedness outstanding under or pursuant to any Principal Bank   Facility pursuant to this Section 10.4(p) unless and until all obligations of the   Company under this Agreement and the Notes shall concurrently be secured   equally and ratably with such Indebtedness pursuant to documentation in form   and substance reasonably satisfactory to the Required Holders.   10.5. Limitation on Subsidiary Indebtedness.   The Company will not permit any Subsidiary (other than any Subsidiary   Guarantor) to create, assume, incur or guarantee or otherwise be or become liable in   respect of any Indebtedness other than:   (a) Indebtedness owed to another member of the Group, provided that   Indebtedness owed by members of the Group (other than Indebtedness owed by   Non-Recourse Entities and Indebtedness borrowed to acquire Non-Recourse   Assets) to Non-Recourse Entities in excess of €10,000,000 shall only be included   in this paragraph (a) to the extent such Indebtedness is subordinated to the Notes   on terms reasonably satisfactory to the Required Holders but, notwithstanding the     





 







        ln-255235    46   foregoing, on the basis that payments (of principal, interest or otherwise) with   respect to such Indebtedness shall be permitted prior to the occurrence of an   acceleration of the Notes under Section 12.1;   (b) Acquired Subsidiary Indebtedness, but only to the extent repaid   within twelve months of the date of acquisition or consolidation of the relevant   Subsidiary;   (c) Finance Subsidiary Indebtedness;   (d) Indebtedness of any Subsidiary set forth in Schedule 5.15, and the   extension, renewal, or replacement of such Indebtedness, but only to the extent   that the available principal amount of such Indebtedness shall not be increased;   (e) the ATT Subordinated Debt;   (f) Indebtedness of a Subsidiary which is secured by any Lien   permitted pursuant to the provisions of Section 10.4(g);   (g) Indebtedness incurred by a Non-Recourse Entity arising under any   Non-Recourse Transaction and Indebtedness incurred to acquire Non-Recourse   Assets; and   (h) Indebtedness not otherwise permitted by the foregoing clauses (a)   through (g) above, provided that after giving effect thereto the sum (without   duplication) of (i) the aggregate principal amount of all unpaid Indebtedness   permitted pursuant to this clause (h) plus (ii) the aggregate unpaid principal   amount of all Indebtedness secured by Liens permitted by Section 10.4(p) does   not exceed 10% of Adjusted Consolidated Total Assets determined as of the last   date of the quarterly fiscal period then most recently ended (and for purposes of   this clause (h) any Subsidiary Guarantor which is discharged from its Subsidiary   Guaranty Agreement pursuant to Section 9.8(b) shall be deemed to have incurred   all of its remaining Indebtedness on the date such Subsidiary Guaranty Agreement   is discharged).   10.6. Interest Cover   The Company shall ensure that, in relation to any Relevant Period, the   ratio of Consolidated EBITDA for that Relevant Period to Consolidated Net Finance   Charges for that Relevant Period, shall not be less than 4.00 to 1.00.   10.7. Debt Cover   The Company shall ensure that, in relation to any Relevant Period, the   ratio of Consolidated Total Net Debt on the last day of that Relevant Period to   Consolidated EBITDA for that Relevant Period, shall not exceed the higher of (a) 3.50 to     





 







        ln-255235    47   1.00 or (b) any corresponding ratio for the same financial covenant set out in the   Principal Bank Facility (but in no event to exceed 3.75 to 1.00).   10.8. Line of Business.   The Company shall ensure that no substantial change is made to the   general nature of the business of the Group as a whole from that carried on at the date of   this Agreement.   10.9. Terrorism Sanctions Regulations.   The Company will not, and will not permit any Controlled Entity to, (a)   become (including by virtue of being owned or controlled by a Blocked Person), own or   control a Blocked Person or any Person that is the target  of sanctions imposed by the   United Nations or by the European Union, (b) directly or indirectly have any investments   in, or engage in any dealings or transactions (including, without limitation, any   investment, dealing or transaction involving the proceeds of the Notes) with, any Person   where such investments, dealings, or transactions would result in either (i) the Company   or a Controlled Entity being in violation of any applicable law, except to the extent such   violation would not, individually or in the aggregate, reasonably be expected to have a   Material Adverse Effect or (ii) any holder of a Note (an “Affected Noteholder”) being in   violation of any laws or regulations administered or enforced by OFAC or being subject   to sanctions under CISADA or any similar law or regulation with respect to Iran or any   other country that is subject to U.S. Economic Sanctions (any such violation described in   this clause (ii), a “Noteholder Sanctions Violation”); provided that, a breach of clause   (b)(ii) of this Section 10.9 as a result of any OFAC Event shall only occur with respect to   any Noteholder Sanctions Violation if (A) the Noteholder Sanctions Violation directly   resulted from actions taken by the Company or any Controlled Entity after the occurrence   of such OFAC Event (“Prohibited Subsequent Actions”) or (B) so long as no   Prohibited Subsequent Actions have occurred, (1) the Affected Noteholder with respect   to such Noteholder Sanctions Violation has provided the Company with written notice of   such Noteholder Sanctions Violation and such other information contemplated by Section   8.9 with respect thereto and (2) the Company shall have failed to comply with Section 8.9   with respect to such Noteholder Sanctions Violation.   10.10. Lease Contracts and Subordination Deed Poll.   (a) The Company shall not (and the Company shall ensure that no   other member of the Group will) agree to terminate, amend, vary, novate,   supplement, replace or supersede the Lease Contracts in a manner which would   be reasonably likely to have a Material Adverse Effect.   (b) The Company shall not (and the Company shall ensure that no   other member of the Group will) agree to terminate, amend, vary, novate,   supplement, replace or supersede the Subordination Deed Poll without the prior   consent of the Required Holders (acting reasonably), provided that the parties     





 







        ln-255235    48   thereto may terminate the Subordination Deed Poll upon the repayment and   cancellation in full of the ATT Tanjung Bin Phase 2 Loan.   10.11. Non-Recourse Liabilities.   The Company shall ensure that no member of the Group shall (a) incur,   create or permit to subsist or have outstanding any guarantee or indemnity in   respect of any indebtedness for monies borrowed by any Non-Recourse Entity or   to acquire any Non-Recourse Assets (other than in relation to the ATT Tanjung   Bin Phase 2 Assets) or (b) give any legally binding commitments in relation to a   Non-Recourse Entity or Non-Recourse Assets (other than in relation to the ATT   Tanjung Bin Phase 2 Assets) to make funding arrangements for the purpose of   meeting such Non-Recourse Entity’s liabilities (or liabilities relating to such Non-   Recourse Assets (other than in relation to the ATT Tanjung Bin Phase 2 Assets))   during the operational phase of a Non-Recourse Transaction.   10.12. Distributions.   (a) The Company shall not:   (i) declare, make or pay any dividend, charge, fee or other distribution   (or interest on any unpaid dividend, charge, fee or other distribution) (whether in   cash or in kind) on or in respect of its share capital (or any class of its share   capital);   (ii) repay or distribute any dividend or share premium reserve; or   (iii) redeem, repurchase, defease, retire or repay any of its share capital   or resolve to do so,   if:   (A) any Default is continuing; or   (B) any transaction referred to in sub-paragraphs (i) to (iii) above   would result in a Default or would be reasonably expected to result in a Default   within 12 months of the date of such transaction.   (b) Subject to paragraph (c) below, the Company shall not (and will   ensure that no other member of the Group will):   (i) repay or prepay any principal amount (or capitalised interest) of   any Subordinated Debt;   (ii) pay any interest or any other amounts payable in connection with   any Subordinated Debt; or     





 







        ln-255235    49   (iii) purchase, redeem, defease or discharge any amount outstanding   with respect to any Subordinated Debt,   if:   (A) any Default is continuing; or   (B) any transaction referred to in sub-paragraphs (i) to (iii) above   would result in a Default or would be reasonably expected to result in a Default   within 12 months of the date of such transaction,   provided that this paragraph (b) shall not apply to any transaction referred to in sub-   paragraphs (i) to (iii) above which is entered into by ATT Tanjung Bin Sdn. Bhd. in   respect of any Subordinated Debt arising under the ATT Tanjung Bin Phase 2 Loan.   (c) ATT Tanjung Bin Sdn. Bhd. shall not (and the Company will   ensure that no other member of the Group will):   (i) repay or prepay any principal amount (or capitalized interest) of   any Subordinated Debt arising under the ATT Tanjung Bin Phase 2 Loan;   (ii) pay any interest or any other amounts payable in connection with   any Subordinated Debt arising under the ATT Tanjung Bin Phase 2 Loan; or   (iii) purchase, redeem, defease or discharge any amount outstanding   with respect to any Subordinated Debt arising under the ATT Tanjung Bin Phase   2 Loan,   unless:   (A) no Default referred to in Section 11(g), (h) and/or (i) is continuing   in respect of ATT Tanjung Bin Sdn. Bhd. at the time of any transaction referred to   in sub- paragraphs (i) to (iii) above (or would result from the entry into any such   transaction); and   (B) such transaction is funded solely from (1) net revenues generated   from ATT Tanjung Bin Phase 2 (including the proceeds of any disposal of assets   constituting all or any part of ATT Tanjung Bin Phase 2 which is permitted by   Section 10.3) and/or (2) the proceeds of additional equity issued by the Company   to its shareholders.   11. EVENTS OF DEFAULT.   An “Event of Default” shall exist if any of the following conditions or   events shall occur and be continuing:     





 







        ln-255235    50   (a) the Company defaults in the payment of any principal or Make-   Whole Amount or Modified Make-Whole Amount, if any, on any Note when the   same becomes due and payable, whether at maturity or at a date fixed for   prepayment or by declaration or otherwise; provided that such failure shall not be   an Event of Default if it occurs solely from any technical or administrative   difficulties relating solely to the transfer of such amount and such failure is   remedied within five Business Days after the due date for payment; or   (b) the Company defaults in the payment of any interest on any Note   or any amount payable pursuant to Section 13 for more than five Business Days   after the same becomes due and payable; or   (c) the Company defaults in the performance of or compliance with   any term contained in Sections 7.1(d) ,10.6 or 10.7; or   (d) the Company defaults in the performance of or compliance   with any term contained herein (other than those referred to in Sections 11(a), (b)   and (c)) and such default is not remedied within 30 days after the earlier of (i) a   Responsible Officer obtaining actual knowledge of such default and (ii) the   Company receiving written notice of such default from any holder of a Note (any   such written notice to be identified as a “notice of default” and to refer   specifically to this Section 11(d)); or   (e) any representation or warranty made in writing by or on behalf of   the Company, a Subsidiary Guarantor or by any officer thereof in this Agreement,   a Subsidiary Guaranty Agreement or in any writing furnished in connection with   the transactions contemplated hereby or thereby proves to have been false or   incorrect in any material respect on the date as of which made; or   (f) (i) the Company or any Subsidiary is in default (as principal or as   guarantor or other surety) in the payment of any principal of or premium or make-   whole amount or interest on any Indebtedness (other than Indebtedness incurred   solely in respect of Non-Recourse Transactions) that is outstanding in an   aggregate principal amount of at least $25,000,000 (or its equivalent in the   relevant currency of payment) beyond any period of grace provided with respect   thereto, or (ii) the Company or any Subsidiary is in default in the performance of   or compliance with any term of any evidence of any Indebtedness (other than   Indebtedness incurred solely in respect of Non-Recourse Transactions) in an   aggregate outstanding principal amount of at least $25,000,000 (or its equivalent   in the relevant currency of payment) or of any mortgage, indenture or other   agreement relating thereto or any other condition exists (and in all cases other   than as a result of (A) any condition which is in the nature of a Change of Control   (in which event the terms and provisions of Section 8.10 shall govern) or (B) the   acquisition by a member of the Group of a Subsidiary, which acquisition resulted   in a default under any Indebtedness of such Subsidiary due to the fact that the   Subsidiary was acquired by such member of the Group, but only so long as such     





 







        ln-255235    51   default is cured or otherwise no longer outstanding on the 30th day following the   acquisition of such Subsidiary), and as a consequence of such default or condition   such Indebtedness has become, or has been declared (or one or more Persons are   entitled to declare such Indebtedness to be), due and payable before its stated   maturity or before its regularly scheduled dates of payment, or (iii) as a   consequence of the occurrence or continuation of any event or condition (other   than (A) the passage of time or the right of the holder of Indebtedness to convert   such Indebtedness into equity interests, (B) as a result of any condition which is in   the nature of a Change of Control (in which event the terms and provisions of   Section 8.10 shall govern) or (C) as a result of the acquisition by a member of the   Group of a Subsidiary, which acquisition resulted in a default under any   Indebtedness of such Subsidiary due to the fact that the Subsidiary was acquired   by such member of the Group, but only so long as such default is cured or   otherwise no longer outstanding on the 30th day following the acquisition of such   Subsidiary), (x) the Company or any Subsidiary has become obligated to purchase   or repay Indebtedness (other than Indebtedness incurred solely in respect of Non-   Recourse Transactions) before its regular maturity or before its regularly   scheduled dates of payment in an aggregate outstanding principal amount of at   least $25,000,000 (or its equivalent in the relevant currency of payment), or (y)   one or more Persons have the right to require the Company or any Subsidiary so   to purchase or repay such Indebtedness (other than Indebtedness incurred solely   in respect of Non-Recourse Transactions); or    (g) any Material Company (i) is generally not paying, or admits in   writing its inability to pay, its debts as they become due, (ii) files, or consents by   answer or otherwise to the filing against it of, a petition for relief or   reorganization or arrangement or any other petition in bankruptcy, for liquidation   or to take advantage of any bankruptcy, insolvency, reorganization, moratorium   or other similar law of any jurisdiction (in each case other than in connection with   a solvent liquidation of a Material Company that is a Subsidiary), (iii) makes an   assignment for the benefit of its creditors, (iv) consents to the appointment of a   custodian, receiver, trustee or other officer with similar powers with respect to it   or with respect to any substantial part of its property (other than in connection   with a solvent liquidation of a Material Company that is a Subsidiary), (v) is   adjudicated as insolvent or to be liquidated (other than in connection with a   solvent liquidation of a Material Company that is a Subsidiary), or (vi) takes   corporate action for the purpose of any of the foregoing (other than in connection   with a solvent liquidation of a Material Company that is a Subsidiary); or   (h) a court or Governmental Authority of competent jurisdiction enters   an order appointing, without consent by any Material Company, a custodian,   receiver, trustee or other officer with similar powers with respect to it or with   respect to any substantial part of its property, or constituting an order for relief or   approving a petition for relief or reorganization or any other petition in   bankruptcy or for liquidation or to take advantage of any bankruptcy or   insolvency law of any jurisdiction, or ordering the dissolution, winding-up or     





 







        ln-255235    52   liquidation of any Material Company, or any such petition shall be filed against   the any Material Company and such petition shall not be dismissed within 60 days;   or   (i) any event occurs with respect to any Material Company which   under the laws of any jurisdiction is analogous to any of the events described in   Section 11(g) or (h), provided that the applicable grace period, if any, which shall   apply shall be the one applicable to the relevant proceeding which most closely   corresponds to the proceeding described in Section 11(g) or (h); or   (j) (i) any default shall occur under any Subsidiary Guaranty   Agreement or any Subsidiary Guaranty Agreement shall cease to be in full force   and effect for any reason whatsoever (except as otherwise permitted hereunder   and under such Subsidiary Guaranty Agreement), including, without limitation, a   determination by any Governmental Authority that such Subsidiary Guaranty   Agreement is invalid, void or unenforceable or (ii) any Subsidiary Guarantor shall   contest or deny in writing the validity or enforceability of any of its obligations   under its Subsidiary Guaranty Agreement; or   (k) a final judgment or judgments for the payment of money   aggregating in excess of $25,000,000 (or its equivalent in the relevant currency of   payment) are rendered against one or more of the Company and its Subsidiaries   and which judgments are not, within 60 days after entry thereof, bonded,   discharged or stayed pending appeal, or are not discharged within 60 days after   the expiration of such stay; or   (l) if (i) any Plan shall fail to satisfy the minimum funding standards   of ERISA or the Code for any plan year or part thereof or a waiver of such   standards or extension of any amortization period is sought or granted under   section 412 of the Code, (ii) a notice of intent to terminate any Plan shall have   been or is reasonably expected to be filed with the PBGC or the PBGC shall have   instituted proceedings under ERISA section 4042 to terminate or appoint a trustee   to administer any Plan or the PBGC shall have notified the Company or any   ERISA Affiliate that a Plan may become a subject of any such proceedings, (iii)   the sum of (x) the aggregate “amount of unfunded benefit liabilities” (within the   meaning of section 4001(a)(18) of ERISA) under all Plans, determined in   accordance with Title IV of ERISA, plus (y) the amount (if any) by which the   aggregate present value of accrued benefit liabilities under all funded Non-U.S.   Plans exceeds the aggregate current value of the assets of such Non-U.S. Plans   allocable to such liabilities, shall exceed an amount that could reasonably be   expected to have a Material Adverse Effect, (iv) the Company or any ERISA   Affiliate shall have incurred or is reasonably expected to incur any liability   pursuant to Title I or IV of ERISA or the penalty or excise tax provisions of the   Code relating to employee benefit plans, (v) the Company or any ERISA Affiliate   withdraws from any Multiemployer Plan, (vi) the Company or any Subsidiary   establishes or amends any employee welfare benefit plan that provides post-    





 







        ln-255235    53   employment welfare benefits in a manner that would increase the liability of the   Company or any Subsidiary thereunder, (vii) the Company or any Subsidiary fails   to administer or maintain a Non-U.S. Plan in compliance with the requirements of   any and all applicable laws, statutes, rules, regulations or court orders or any Non-   U.S. Plan is involuntarily terminated or wound up or (viii) the Company or any   Subsidiary becomes subject to the imposition of a financial penalty (which for this   purpose shall mean any tax, penalty or other liability, whether by way of   indemnity or otherwise) with respect to one or more Non-U.S. Plans; and any   such event or events described in clauses (i) through (viii) above, either   individually or together with any other such event or events, could reasonably be   expected to have a Material Adverse Effect.   As used in Section 11(l), the terms “employee benefit plan” and “employee welfare   benefit plan” shall have the respective meanings assigned to such terms in section 3 of   ERISA.   12. REMEDIES ON DEFAULT, ETC.   12.1. Acceleration.   (a) If an Event of Default with respect to the Company described in   Section 11(g), (h) or (i) (other than an Event of Default described in clause (i) of   Section 11(g) or described in clause (vi) of Section 11(g) by virtue of the fact that   such clause encompasses clause (i) of Section 11(g)) has occurred, all the Notes   then outstanding shall automatically become immediately due and payable.   (b) If any other Event of Default has occurred and is continuing, the   Required Holders may at any time at their option, by notice or notices to the   Company, declare all the Notes then outstanding to be immediately due and   payable.   (c) If any Event of Default described in Section 11(a) or (b) has   occurred and is continuing, any holder or holders of Notes at the time outstanding   affected by such Event of Default may at any time, at its or their option, by notice   or notices to the Company, declare all the Notes held by it or them to be   immediately due and payable.   Upon any Notes becoming due and payable under this Section 12.1,   whether automatically or by declaration, such Notes will forthwith mature and the entire   unpaid principal amount of such Notes, plus (x) all accrued and unpaid interest thereon   (including interest accrued thereon in respect of any series of the Notes at the Default   Rate for such series, if applicable) and (y) the Make-Whole Amount (if any) determined   in respect of such principal amount (to the full extent permitted by applicable law), shall   all be immediately due and payable, in each and every case without presentment, demand,   protest or further notice, all of which are hereby waived.  The Company acknowledges,   and the parties hereto agree, that each holder of a Note has the right to maintain its   investment in the Notes free from repayment by the Company (except as herein     





 







        ln-255235    54   specifically provided for) and that the provision for payment of a Make-Whole Amount   by the Company in the event that the Notes are prepaid or are accelerated as a result of an   Event of Default, is intended to provide compensation for the deprivation of such right   under such circumstances.   12.2. Other Remedies.   If any Default or Event of Default has occurred and is continuing, and   irrespective of whether any Notes have become or have been declared immediately due   and payable under Section 12.1, the holder of any Note at the time outstanding may   proceed to protect and enforce the rights of such holder by an action at law, suit in equity   or other appropriate proceeding, whether for the specific performance of any agreement   contained herein or in any Note, or for an injunction against a violation of any of the   terms hereof or thereof, or in aid of the exercise of any power granted hereby or thereby   or by law or otherwise.   12.3. Rescission.   At any time after any Notes have been declared due and payable pursuant   to Section 12.1(b) or (c), the Required Holders, by written notice to the Company, may   rescind and annul any such declaration and its consequences if (a) the Company has paid   all overdue interest on the Notes, all principal of and Make-Whole Amount or Modified   Make-Whole Amount, if any, on any Notes that are due and payable and are unpaid other   than by reason of such declaration, and all interest on such overdue principal and Make-   Whole Amount or Modified Make-Whole Amount, if any, and (to the extent permitted by   applicable law) any overdue interest in respect of the Notes, at the Default Rate for the   applicable series, (b) neither the Company nor any other Person shall have paid any   amounts that have become due solely by reason of such declaration, (c) all Events of   Default and Defaults, other than non-payment of amounts that have become due solely by   reason of such declaration, have been cured or have been waived pursuant to Section 18,   and (d) no judgment or decree has been entered for the payment of any monies due   pursuant hereto or to the Notes.  No rescission and annulment under this Section 12.3 will   extend to or affect any subsequent Event of Default or Default or impair any right   consequent thereon.   12.4. No Waivers or Election of Remedies, Expenses, Etc.   No course of dealing and no delay on the part of any holder of any Note in   exercising any right, power or remedy shall operate as a waiver thereof or otherwise   prejudice such holder’s rights, powers or remedies.  No right, power or remedy conferred   by this Agreement or by any Note upon any holder thereof shall be exclusive of any other   right, power or remedy referred to herein or therein or now or hereafter available at law,   in equity, by statute or otherwise.  Without limiting the obligations of the Company under   Section 16, the Company will pay to the holder of each Note on demand such further   amount as shall be sufficient to cover all costs and expenses of such holder incurred in   any enforcement or collection under this Section 12, including, without limitation,   reasonable attorneys’ fees, expenses and disbursements.     





 







        ln-255235    55   13. TAX INDEMNIFICATION.   13.1. Gross-up.   All payments whatsoever under this Agreement and the Notes will be   made by the Company in Dollars or Euros (as applicable) free and clear of, and without   liability for withholding or deduction for or on account of, any present or future Taxes of   whatever nature imposed or levied on such payments made to any holder of Notes by or   on behalf of any jurisdiction (other than the jurisdiction in which such holder is resident   for tax purposes) (a) in which the Company is incorporated, organized, managed or   controlled or otherwise resides for tax purposes or (b) where a branch or office through   which the Company is acting for purposes of this Agreement is located or from or   through which the Company is making any payment (or any political subdivision or   taxing authority of or in such jurisdiction) (hereinafter a “Taxing Jurisdiction”), unless   the withholding or deduction of such Tax is required by law or by the interpretation or   administration of law.   If any deduction or withholding for any Tax of a Taxing Jurisdiction shall   at any time be required in respect of any amounts to be paid by the Company under this   Agreement or the Notes, the Company will pay to the relevant Taxing Jurisdiction the   full amount required to be withheld, deducted or otherwise paid before penalties attach   thereto or interest accrues thereon and pay to each holder of a Note such additional   amounts as may be necessary in order that the net amounts paid to such holder pursuant   to the terms of this Agreement or the Notes after such deduction, withholding or payment   (including, without limitation, any required deduction or withholding of Tax on or with   respect to such additional amount), shall be not less than the amounts then due and   payable to such holder under the terms of this Agreement or the Notes before the   assessment of such Tax, provided that no payment of any additional amounts shall be   required to be made:   (a) for or on account of any Tax that would not have been imposed but   for the existence of any present or former connection between such holder (or a   fiduciary, settlor, beneficiary, member of, shareholder of, or possessor of a power   over, such holder, if such holder is an estate, trust, partnership or corporation or   any Person other than the holder to whom the Notes or any amount payable   thereon is attributable for the purposes of such Tax) and the Taxing Jurisdiction,   other than the mere holding of the relevant Note or the receipt of payments   thereunder or in respect thereof or the exercise of remedies in respect thereof,   including, without limitation, such holder (or such other Person described in the   above parenthetical) being or having been a citizen or resident thereof, or being or   having been present or engaged in trade or business therein or having or having   had an establishment, office, fixed base or branch therein, provided that this   exclusion shall not apply with respect to a Tax that would not have been imposed   but for the Company, after the date hereof, opening an office in, moving an office   to, reincorporating in, or changing the Taxing Jurisdiction from or through which   payments on account of this Agreement or the Notes are made to, the Taxing   Jurisdiction imposing the relevant Tax;     





 







        ln-255235    56   (b) for or on account of any Tax that would not have been imposed but   for the delay or failure by such holder (following a written request by the   Company or its legal counsel) in the filing with the relevant Taxing Jurisdiction of   Forms (as defined below) that are required to be filed by such holder to avoid or   reduce such Taxes (including for such purpose any extensions, refilings or   renewals of filings that may from time to time be required by the relevant Taxing   Jurisdiction) and/or in the delay or failure by such holder to take such other   reasonably requested actions in order to mitigate the amount of any such Tax,   provided that the filing of such Forms and/or the taking of such other actions   would not (in such holder’s reasonable judgment) impose any unreasonable   burden (in time, resources or otherwise) on such holder or result in any   confidential or proprietary income tax return information being revealed, either   directly or indirectly, to any Person and such delay or failure could have been   lawfully avoided by such holder, and provided further, that such holder shall be   deemed to have satisfied the requirements of this clause (b) upon the good faith   completion and submission of such Forms (including extensions, refilings or   renewals of filings), or taking of such actions, as may be specified in a written   request of the Company or its legal counsel no later than 60 days after receipt by   such holder of such written request (accompanied by copies of such Forms and   related instructions, if any, all in the English language or with an English   translation thereof);   (c) for or on account of any estate, inheritance, gift, sale, excise,   transfer, personal property or similar tax assessment or other governmental charge;   (d) to any holder of a Note that is registered in the name of a nominee   if under the law of the relevant Taxing Jurisdiction (or the current regulatory   interpretation of such law) securities held in the name of a nominee do not qualify   for an exemption from the relevant Tax and the Company shall have given timely   notice of such law or interpretation to such holder;    (e) for any Tax imposed under FATCA;   (f) any combination of clauses (a), (b), (c), (d) and (e) above.   13.2. Treaty Clearance.   On or before the date hereof the Company or its legal counsel will furnish   each Purchaser or its legal counsel with copies of the appropriate Form (and English   translation if required as aforesaid) currently required to be filed in the Netherlands   pursuant to Section 13.1(b), if any (such furnishing of such forms to be deemed to be the   written request of the Company as aforesaid so that no further request must be made, and   which such written request and related filing instructions will be deemed to have been   given on the date that such forms are furnished but no earlier than the date hereof), and in   connection with the transfer of any Note the Company or its legal counsel will furnish the     





 







        ln-255235    57   transferee of such Note or its legal counsel with copies of any Form and English   translation then required.   Subject to the limitations of Section 13.1(b) above, by acceptance of any   Note, the holder of such Note agrees, that it will from time to time with reasonable   promptness (i) duly complete and deliver to or as reasonably directed by the Company all   such forms, certificates, documents and returns provided to such holder or its legal   counsel by the Company or its legal counsel (collectively, together with instructions for   completing the same, “Forms”) required to be filed by or on behalf of such holder in   order to avoid or reduce any such Tax pursuant to the provisions of an applicable statute,   regulation or administrative practice of the relevant Taxing Jurisdiction or of a tax treaty   between the jurisdiction of the holder of such Note and such Taxing Jurisdiction and (ii)   provide the Company with such information with respect to such holder as the Company   may reasonably request in order to complete any such Forms, provided that nothing in   this Section 13 shall require any holder to provide information with respect to any such   Form or otherwise if in the good faith opinion of such holder such Form or disclosure of   information would involve the disclosure of tax return or other information that is   confidential or proprietary to such holder, and provided further that each such holder   shall be deemed to have complied with its obligation under this paragraph with respect to   any Form if such Form shall have been duly completed and delivered by such holder to   the Company or mailed to the appropriate taxing authority, whichever is applicable,   within 60 days following a written request of the Company (which request shall be   accompanied by copies of such Form and English translations of any such Form not in   the English language) and, in the case of a transfer of any Note, at least 90 days prior to   the relevant interest payment date; provided that (i) where such Form has been mailed to   the appropriate taxing authority, each such holder shall have provided a copy of such   submitted Form to the Company, and a copy of the acknowledgment of receipt of the   Form from the appropriate taxing authority if available or possible to request such   acknowledgment of receipt from the appropriate taxing authority and (ii) each such   holder shall have responded to any query relating to such Form from the appropriate   taxing authority within the longer of (1) the applicable time limits (if any such limits exist)   and (2) 30 days of receipt of such query by the holder.    13.3. Tax Credits, Etc.   If any payment is made by the Company to or for the account of the holder   of any Note after deduction for or on account of any Taxes, and increased payments are   made by the Company pursuant to this Section 13, then, if such holder in its discretion   (acting reasonably) determines that it has received, utilized (in the case of a credit or   allowance) or been granted a refund of, or credit or allowance with respect to, such Taxes,   such holder shall, to the extent that it can do so without prejudice to the retention of the   amount of such refund, credit or allowance, reimburse to the Company the amount of   such refund, credit or allowance as such holder shall, in its discretion (acting reasonably),   determine to be attributable to the relevant Taxes or deduction or withholding.  Nothing   herein contained shall interfere with the right of the holder of any Note to arrange its tax   affairs in whatever manner it thinks fit and, in particular, no holder of any Note shall be     





 







        ln-255235    58   under any obligation to claim relief from its corporate profits or similar tax liability in   respect of such Tax in priority to any other claims, reliefs, credits or deductions available   to it or (other than as set forth in Section 13.1(b) above) oblige any holder of any Note to   disclose any information relating to its tax affairs or any computations in respect thereof.   The Company will furnish the holders of Notes, promptly and in any event   within 60 days after the date of any payment by the Company of any Tax in respect of   any amounts paid under this Agreement or the Notes, the original tax receipt (or a   certificate of Tax deducted) issued by the relevant taxation or other authorities involved   for all amounts paid as aforesaid (or if such original tax receipt (or a certificate of Tax   deducted) is not available or must legally be kept in the possession of the Company, a   duly certified copy of the original tax receipt or any other reasonably satisfactory   evidence of payment), together with such other documentary evidence with respect to   such payments as may be reasonably requested from time to time by any holder of a Note.   If the Company is required by any applicable law, as modified by the   practice of the taxation or other authority of any relevant Taxing Jurisdiction, to make   any deduction or withholding of any Tax in respect of which the Company would be   required to pay any additional amount under this Section 13, but for any reason (other   than the delay or default of the relevant holder of a Note in the making of any filing of a   Form described above or otherwise) does not make such deduction or withholding with   the result that a liability in respect of such Tax is assessed directly against the holder of   any Note, and such holder pays such liability, then the Company will promptly reimburse   such holder for such payment (including any related interest or penalties to the extent   such interest or penalties arise by virtue of a default or delay by the Company) upon   demand by such holder accompanied by an official receipt (or a duly certified copy   thereof) issued by the taxation or other authority of the relevant Taxing Jurisdiction.   If the Company makes payment to or for the account of any holder of a   Note after deduction for or on account of any Taxes, and such holder is entitled to a   refund of or credit or allowance with respect to the Tax to which such payment is   attributable upon the making of a filing (other than a Form described above except where   any such Form may also be used to request any such refund, credit or allowance for such   Tax), then such holder shall, as soon as practicable after receiving written request from   the Company (which shall specify in reasonable detail and supply the refund, credit   and/or allowance forms to be filed) use reasonable efforts to complete and deliver such   refund, credit and/or allowance forms to or as directed by the Company, subject, however,   to the same limitations with respect to Forms as are set forth above.   The obligations of the Company under this Section 13 shall survive the   payment or transfer of any Note and the provisions of this Section 13 shall also apply to   successive transferees of the Notes.   13.4. FATCA Information.   By acceptance of any Note, the holder of such Note agrees that such   holder will from time to time with reasonable promptness duly complete and deliver to or     





 







        ln-255235    59   as reasonably directed by the Company or its agent from time to time (i) in the case of   any such holder that is a U.S. Person, such holder’s United States tax identification   number or other Forms reasonably requested by the Company necessary to establish such   holder’s status as a U.S. Person under FATCA and as may otherwise be necessary for the   Company to comply with its obligations under FATCA and (ii) in the case of any such   holder that is not a U.S. Person, such documentation prescribed by applicable law   (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional   documentation as may be necessary for the Company to comply with its obligations   under FATCA and to determine that such holder has complied with such holder’s   obligations under FATCA or to determine the amount (if any) to deduct and withhold   from any such payment made to such holder.  Nothing in this Section 13.4 shall require   any holder of Notes to provide information that is confidential or proprietary to such   holder unless such information is prescribed by applicable law for the Company to   comply with its obligations under FATCA and, in such event, the Company shall treat   such information as confidential.   14. REGISTRATION; EXCHANGE; SUBSTITUTION OF NOTES.   14.1. Registration of Notes.   The Company shall keep at its registered office or principal place of   business a register for the registration and registration of transfers of Notes.  The name   and address of each holder of one or more Notes, each transfer thereof and the name and   address of each transferee of one or more Notes shall be registered in such register.  If   any holder of one or more Notes is a nominee, then (a) the name and address of the   beneficial owner of such Note or Notes shall also be registered in such register as an   owner and holder thereof and (b) at any such beneficial owner’s option, either such   beneficial owner or its nominee may execute any amendment.  Prior to due presentment   for registration of transfer, the Person in whose name any Note shall be registered shall   be deemed and treated as the owner and holder thereof for all purposes hereof, and the   Company shall not be affected by any notice or knowledge to the contrary.  The   Company shall give to any holder of a Note that is an Institutional Investor promptly   upon request therefor, a complete and correct copy of the names and addresses of all   registered holders of Notes.   14.2. Transfer and Exchange of Notes; No Transfer to Competitors.   (a) Upon surrender of any Note to the Company at the address and to   the attention of the designated officer (all as specified in Section 19) for   registration of transfer or exchange (and in the case of a surrender for registration   of transfer accompanied by a written instrument of transfer duly executed by the   registered holder of such Note or such holder’s attorney duly authorized in writing   and accompanied by the relevant name of the beneficial owner, nominee name (if   any) for registration of notes, address and other details for notices of each   transferee of such Note or part thereof) within ten Business Days thereafter the   Company shall execute and deliver, at the Company’s expense (except as   provided below), one or more new Notes of the same series (as requested by the     





 







        ln-255235    60   holder thereof) in exchange therefor, in an aggregate principal amount equal to   the unpaid principal amount of the surrendered Note.  Each such new Note shall   be payable to such Person as such holder may request and shall be substantially in   the form of Exhibit 1(a)(i), Exhibit 1(a)(ii) or Exhibit 1(a)(iii), as applicable.    Each such new Note shall be dated and bear interest from the date to which   interest shall have been paid on the surrendered Note or dated the date of the   surrendered Note if no interest shall have been paid thereon.  The Company may   require payment of a sum sufficient to cover any stamp tax or governmental   charge imposed in respect of any such transfer of Notes.  Notes shall not be   transferred in denominations of less than $500,000 or €500,000 (as applicable),   provided that if necessary to enable the registration of transfer by a holder of its   entire holding of Notes, one Note may be in a denomination of less than $500,000   or €500,000 (as applicable).  Any transferee, by its acceptance of a Note   registered in its name (or the name of its nominee), shall be deemed to have made   the representations set forth in Section 6.   (b) Without limiting the foregoing, each Purchaser and each   subsequent holder of any Note severally agrees that it will not, directly or   indirectly, resell any Notes purchased by it to a Person which is a Competitor (it   being understood that such Purchaser shall advise any broker or intermediary   acting on its behalf that such resale to a Competitor is limited hereby).  The   Company shall not be required to recognize any sale or other transfer of a Note to   a Competitor and no such transfer shall confer any rights hereunder upon such   transferee.   14.3. Replacement of Notes.   Upon receipt by the Company at the address and to the attention of the   designated officer (all as specified in Section 19(iii)) of evidence reasonably satisfactory   to it of the ownership of and the loss, theft, destruction or mutilation of any Note (which   evidence shall be, in the case of an Institutional Investor, notice from such Institutional   Investor of such ownership and such loss, theft, destruction or mutilation), and   (a) in the case of loss, theft or destruction, of indemnity reasonably   satisfactory to it (provided that if the holder of such Note is, or is a nominee for,   an original Purchaser or another holder of a Note with a minimum net worth of at   least $100,000,000 (or its equivalent in any other currency) or a Qualified   Institutional Buyer, such Person’s own unsecured agreement of indemnity shall be   deemed to be satisfactory), or   (b) in the case of mutilation, upon surrender and cancellation thereof,   within ten Business Days thereafter the Company at its own expense shall execute and   deliver, in lieu thereof, a new Note of the same series, dated and bearing interest from the   date to which interest shall have been paid on such lost, stolen, destroyed or mutilated   Note or dated the date of such lost, stolen, destroyed or mutilated Note if no interest shall   have been paid thereon.     





 







        ln-255235    61   15. PAYMENTS ON NOTES.   15.1. Place of Payment.   Subject to Section 15.2, payments of principal, Make-Whole Amount or   Modified Make-Whole Amount, if any, and interest becoming due and payable on the   Notes shall be made in New York, New York at the principal office of Citibank, N.A. in   such jurisdiction.  The Company may at any time, by notice to each holder of a Note,   change the place of payment of the Notes so long as such place of payment shall be either   the principal office of the Company in such jurisdiction or the principal office of a bank   or trust company in such jurisdiction.   15.2. Home Office Payment.   So long as any Purchaser or its nominee shall be the holder of any Note,   and notwithstanding anything contained in Section 15.1 or in such Note to the contrary,   the Company will pay all sums becoming due on such Note for principal, Make-Whole   Amount or Modified Make-Whole Amount, if any, and interest by the method and at the   address specified for such purpose below such Purchaser’s name in Schedule B, or by   such other method or at such other address as such Purchaser shall have from time to time   specified to the Company in writing for such purpose, without the presentation or   surrender of such Note or the making of any notation thereon, except that upon written   request of the Company made concurrently with or reasonably promptly after payment,   prepayment in full or purchase of any Note, such Purchaser shall surrender such Note for   cancellation, reasonably promptly after any such request, to the Company at its principal   executive office or at the place of payment most recently designated by the Company   pursuant to Section 15.1.  Prior to any sale or other disposition of any Note held by a   Purchaser or its nominee, such Purchaser will, at its election, either endorse thereon the   amount of principal paid thereon and the last date to which interest has been paid thereon   or surrender such Note to the Company in exchange for a new Note or Notes pursuant to   Section 14.2.  The Company will afford the benefits of this Section 15.2 to any   Institutional Investor that is the direct or indirect transferee of any Note purchased by a   Purchaser under this Agreement and that has made the same agreement relating to such   Note as the Purchasers have made in this Section 15.2.   16. EXPENSES, ETC.   16.1. Transaction Expenses.   Whether or not the transactions contemplated hereby are consummated,   the Company will pay all costs and expenses (including reasonable attorneys’ fees of a   special counsel for all of the holders of the Notes and, if reasonably required by the   Required Holders, local or other counsel for all of the holders of the Notes) incurred by   the Purchasers and each other holder of a Note in connection with such transactions, in   connection with any Subsidiary Guaranty Agreement and in connection with any   amendments, waivers or consents under or in respect of this Agreement, the Notes or any   Subsidiary Guaranty Agreement (whether or not such amendment, waiver or consent     





 







        ln-255235    62   becomes effective), including, without limitation: (a) the costs and expenses incurred in   enforcing or defending (or determining whether or how to enforce or defend) any rights   under this Agreement, the Notes or any Subsidiary Guaranty Agreement or in responding   to any subpoena or other legal process or informal investigative demand issued in   connection with this Agreement, the Notes or any Subsidiary Guaranty Agreement, or by   reason of being a holder of any Note, (b) the costs and expenses, including one financial   advisor’s fees for all of the holders of the Notes, incurred in connection with the   insolvency or bankruptcy of the Company or any Subsidiary or in connection with any   work-out or restructuring of the transactions contemplated hereby and by the Notes or   any Subsidiary Guaranty Agreement, (c) the costs and expenses incurred in connection   with the initial filing of this Agreement and all related documents and financial   information with the SVO, provided that such costs and expenses under this clause (c)   shall not exceed $3,000 for each series of Notes and (d) if required by the NAIC, the cost   of obtaining and maintaining a Legal Entity Identifier (LEI).  The Company will pay, and   will save each Purchaser and each other holder of a Note harmless from, (i) all claims in   respect of any fees, costs or expenses, if any, of brokers and finders (other than those, if   any, retained by a Purchaser or other holder in connection with its purchase of the Notes),   (ii) any and all wire transfer fees that any bank deducts from any payment under such   Note to such holder or otherwise charges to a holder of a Note with respect to a payment   under such Note and (iii) any judgment, liability, claim, order, decree, fine, penalty, cost,   fee, expense (including reasonable attorneys’ fees and expenses) or obligation resulting   from the consummation of the transactions contemplated hereby, including the use of the   proceeds of the Notes by the Company.   16.2. Certain Taxes.   The Company agrees to pay all stamp, documentary or similar taxes or   fees which may be payable in respect of the execution and delivery or the enforcement of   this Agreement or any Subsidiary Guaranty Agreement or the execution and delivery (but   not the transfer) or the enforcement of any of the Notes in the United States of America   or the Netherlands or of any amendment of, or waiver or consent under or with respect to,   this Agreement or of any of the Notes or any Subsidiary Guaranty Agreement, and to pay   any value added tax due and payable in respect of reimbursement of costs and expenses   by the Company pursuant to this Section 16, and will save each holder of a Note to the   extent permitted by applicable law harmless against any loss or liability resulting from   nonpayment or delay in payment of any such tax or fee required to be paid by the   Company hereunder.   16.3. Survival.   The obligations of the Company under this Section 16 will survive the   payment or transfer of any Note, the enforcement, amendment or waiver of any provision   of this Agreement or the Notes, and the termination of this Agreement.     





 







        ln-255235    63   17. SURVIVAL OF REPRESENTATIONS AND WARRANTIES; ENTIRE   AGREEMENT.   All representations and warranties contained herein shall survive the   execution and delivery of this Agreement and the Notes, the purchase or transfer by any   Purchaser of any Note or portion thereof or interest therein and the payment of any Note,   and may be relied upon by any subsequent holder of a Note, regardless of any   investigation made at any time by or on behalf of such Purchaser or any other holder of a   Note.  All statements contained in any certificate or other instrument delivered by or on   behalf of the Company pursuant to this Agreement shall be deemed representations and   warranties of the Company under this Agreement.  Subject to the preceding sentence, this   Agreement and the Notes embody the entire agreement and understanding between each   Purchaser and the Company and supersede all prior agreements and understandings   relating to the subject matter hereof.   18. AMENDMENT AND WAIVER.   18.1. Requirements.   This Agreement and the Notes may be amended, and the observance of   any term hereof or of the Notes may be waived (either retroactively or prospectively),   with (and only with) the written consent of the Company and the Required Holders,   except that (a) no amendment or waiver of any of the provisions of Section 1, 2, 3, 4, 5, 6   or 22, or any defined term (as it is used therein), will be effective as to any Purchaser   unless consented to by such Purchaser in writing, and (b) no such amendment or waiver   may, without the written consent of the holder of each Note at the time outstanding   affected thereby, (i) subject to the provisions of Section 12 relating to acceleration or   rescission, change the amount or time of any prepayment or payment of principal of, or   reduce the rate or change the time of payment or method of computation of interest or of   the Make-Whole Amount or Modified Make-Whole Amount on or in relation to, the   Notes, (ii) change the percentage of the principal amount of the Notes the holders of   which are required to consent to any such amendment or waiver, or (iii) amend Section 8   (except as set forth in the second sentence of Section 8.2), 11(a), 11(b), 12, 13, 18, 21 or   23.8.   18.2. Solicitation of Holders of Notes.   (a) Solicitation.  The Company will provide each holder of the Notes   (irrespective of the amount of Notes then owned by it) with sufficient information,   sufficiently far in advance of the date a decision is required, to enable such holder   to make an informed and considered decision with respect to any proposed   amendment, waiver or consent in respect of any of the provisions hereof or of the   Notes.  The Company will deliver executed or true and correct copies of each   amendment, waiver or consent effected pursuant to the provisions of this Section   18 to each holder of outstanding Notes promptly following the date on which it is   executed and delivered by, or receives the consent or approval of, the requisite   holders of Notes.     





 







        ln-255235    64   (b) Payment.  The Company will not directly or indirectly pay or cause   to be paid any remuneration, whether by way of supplemental or additional   interest, fee or otherwise, or grant any security or provide other credit support, to   any holder of Notes as consideration for or as an inducement to the entering into   by any holder of Notes of any waiver or amendment of any of the terms and   provisions hereof or of the Notes or any Subsidiary Guaranty Agreement unless   such remuneration is concurrently paid, or security is concurrently granted or   other credit support concurrently provided, on the same terms, ratably to each   holder of Notes then outstanding even if such holder did not consent to such   waiver or amendment.   (c) Consent in Contemplation of Transfer.  Any consent given   pursuant to this Section 18 or any Subsidiary Guaranty Agreement by a holder of   any Note that has transferred or has agreed to transfer it Note to the Company,   any Subsidiary or any Affiliate of the Company or to any other Person in   connection with, or in anticipation of, an acquisition of, tender offer for or merger   with the Company and/or any of its Affiliates in connection with such consent   shall be void and of no force or effect except solely as to such holder, and any   amendments effected or waivers granted or to be effected or granted that would   not have been or would not be so effected or granted but for such consent (and the   consents of all other holders of Notes that were acquired under the same or similar   conditions) shall be void and of no force or effect except solely as to such   transferring holder.   18.3. Binding Effect, Etc.   Any amendment or waiver consented to as provided in this Section 18 or   any Subsidiary Guaranty Agreement applies equally to all holders of Notes and is binding   upon them and upon each future holder of any Note and upon the Company without   regard to whether such Note has been marked to indicate such amendment or waiver.  No   such amendment or waiver will extend to or affect any obligation, covenant, agreement,   Default or Event of Default not expressly amended or waived or impair any right   consequent thereon.  No course of dealing between the Company and the holder of any   Note nor any delay in exercising any rights hereunder or under any Note or any   Subsidiary Guaranty Agreement shall operate as a waiver of any rights of any holder of   such Note.     18.4. Notes Held by Company, Etc.   Solely for the purpose of determining whether the holders of the requisite   percentage of the aggregate principal amount of Notes then outstanding approved or   consented to any amendment, waiver or consent to be given under this Agreement, the   Notes or any Subsidiary Guaranty Agreement, or have directed the taking of any action   provided herein or in the Notes or in any Subsidiary Guaranty Agreement to be taken   upon the direction of the holders of a specified percentage of the aggregate principal   amount of Notes then outstanding, Notes directly or indirectly owned by the Company or   any of its Affiliates or any Competitor shall be deemed not to be outstanding.     





 







        ln-255235    65   19. NOTICES; ENGLISH LANGUAGE.   Except to the extent otherwise provided in Section 7.4, all notices and   communications provided for hereunder shall be in writing and sent (a) by telecopy if the   sender on the same day sends a confirming copy of such notice by a recognized   international commercial delivery service (charges prepaid), or (b) by registered or   certified mail with return receipt requested (postage prepaid), or (c) by a recognized   international commercial delivery service (with charges prepaid).  Any such notice must   be sent:   (i) if to a Purchaser or its nominee, to such Purchaser or its   nominee at the address specified for such communications in Schedule B,   or at such other address as such Purchaser or its nominee shall have   specified to the Company in writing (together with a hard copy if   requested by such Purchaser),   (ii) if to any other holder of any Note, to such holder at such   address as such other holder shall have specified to the Company in   writing, or    (iii) if to the Company, to the Company at its address set forth   at the beginning hereof to the attention of the Directors, or at such other   address or email address as the Company shall have specified to the holder   of each Note in writing.   Notices under this Section 19 will be deemed given only when actually received.   Each document, instrument, financial statement, report, notice or other   communication delivered in connection with this Agreement shall be in English or   accompanied by an English translation thereof.   This Agreement and the Notes have been prepared and signed in English   and the parties hereto agree that the English version hereof and thereof (to the maximum   extent permitted by applicable law) shall be the only version valid for the purpose of the   interpretation and construction hereof and thereof notwithstanding the preparation of any   translation into another language hereof or thereof, whether official or otherwise or   whether prepared in relation to any proceedings wherever they may be brought.   20. REPRODUCTION OF DOCUMENTS.   This Agreement and all documents relating thereto, including, without   limitation, (a) consents, waivers and modifications that may hereafter be executed, (b)   documents received by any Purchaser at the Closing (except the Notes themselves), and   (c) financial statements, certificates and other information previously or hereafter   furnished to any Purchaser, may be reproduced by such Purchaser by any photographic,   photostatic, electronic, digital or other similar process and such Purchaser may destroy   any original document so reproduced.  The Company agrees and stipulates that, to the     





 







        ln-255235    66   extent permitted by applicable law, any such reproduction shall be admissible in evidence   as the original itself in any judicial or administrative proceeding (whether or not the   original is in existence and whether or not such reproduction was made by such Purchaser   in the regular course of business) and any enlargement, facsimile or further reproduction   of such reproduction shall likewise be admissible in evidence.  This Section 20 shall not   prohibit the Company or any holder of Notes from contesting any such reproduction to   the same extent that it could contest the original, or from introducing evidence to   demonstrate the inaccuracy of any such reproduction.   21. CONFIDENTIAL INFORMATION.   For the purposes of this Section 21, “Confidential Information” means   information delivered to any Purchaser or holder of Notes by or on behalf of the   Company or any Subsidiary in connection with the transactions contemplated by or   otherwise pursuant to this Agreement, provided that such term does not include   information that (a) was publicly known or otherwise known to such Purchaser or holder   prior to the time of such disclosure, (b) subsequently becomes publicly known through no   act or omission by such Purchaser or holder or any person acting on such Purchaser’s or   holder’s behalf, (c) otherwise becomes known to such Purchaser or holder other than   through disclosure by the Company or any Subsidiary or (d) constitutes financial   statements delivered to such Purchaser or holder under Section 7.1 that are otherwise   publicly available.  Each Purchaser and each holder of Notes will maintain the   confidentiality of such Confidential Information in accordance with procedures adopted   by such Purchaser or holder in good faith to protect confidential information of third   parties delivered to such Purchaser or holder, provided that such Purchaser or holder may   deliver or disclose Confidential Information to (i) its directors, trustees, officers,   employees, agents, attorneys and affiliates (to the extent such disclosure reasonably   relates to the administration of the investment represented by its Notes), (ii) its auditors,   financial advisors and other professional advisors who agree to hold confidential the   Confidential Information substantially in accordance with the terms of this Section 21,   (iii) any other Purchaser or holder of any Note, (iv) any Institutional Investor to which it   sells or offers to sell such Note or any part thereof or any participation therein (if such   Person has agreed in writing prior to its receipt of such Confidential Information to be   bound by the provisions of this Section 21 and so long as such Person is not a   Competitor), (v) any Person from which it offers to purchase any security of the   Company or a Subsidiary Guarantor (if such Person has agreed in writing prior to its   receipt of such Confidential Information to be bound by the provisions of this Section 21   and so long as such Person is not a Competitor), (vi) any federal or state regulatory   authority having jurisdiction over such Purchaser or holder, (vii) the NAIC or the SVO or,   in each case, any similar organization, or any nationally recognized rating agency that   requires access to information about such holder’s investment portfolio, or (viii) any   other Person to which such delivery or disclosure may be necessary or appropriate (w) to   effect compliance with any law, rule, regulation or order applicable to such Purchaser or   holder, (x) in response to any subpoena or other legal process, (y) in connection with any   litigation to which such Purchaser or holder is a party or (z) if an Event of Default has   occurred and is continuing, to the extent such Purchaser or holder may reasonably     





 







        ln-255235    67   determine such delivery and disclosure to be necessary or appropriate in the enforcement   or for the protection of the rights and remedies under such holder’s Notes, this   Agreement or any Subsidiary Guaranty Agreement.  Each holder of a Note, by its   acceptance of a Note, will be deemed to have agreed to be bound by and to be entitled to   the benefits of this Section 21 as though it were a party to this Agreement.  On reasonable   request by the Company in connection with the delivery to any holder of a Note of   information required to be delivered to such holder under this Agreement or requested by   such holder (other than a holder that is a party to this Agreement or its nominee), such   holder will enter into an agreement with the Company embodying the provisions of this   Section 21.   In the event that as a condition to receiving access to information relating   to the Company or its Subsidiaries in connection with the transactions contemplated by or   otherwise pursuant to this Agreement, any Purchaser or holder of a Note is required to   agree to a confidentiality undertaking (whether through IntraLinks, another secure   website, a secure virtual workspace or otherwise) which is different from this Section 21,   this Section 21 shall not be amended thereby and, as between such Purchaser or such   holder and the Company, this Section 21 shall supersede any such other confidentiality   undertaking.   22. SUBSTITUTION OF PURCHASER.   Each Purchaser shall have the right to substitute any one of its Affiliates or   another Purchaser or any one of such other Purchaser’s Affiliates (a “Substitute   Purchaser”) as the purchaser of the Notes that it has agreed to purchase hereunder, by   written notice to the Company, which notice shall be signed by both such Purchaser and   such Substitute Purchaser, shall contain such Substitute Purchaser’s agreement to be   bound by this Agreement and shall contain a confirmation by such Substitute Purchaser   of the accuracy with respect to it of the representations set forth in Section 6.  Upon   receipt of such notice, any reference to such Purchaser in this Agreement (other than in   this Section 22), shall be deemed to refer to such Substitute Purchaser in lieu of such   original Purchaser.  In the event that such Substitute Purchaser is so substituted as a   Purchaser hereunder and such Substitute Purchaser thereafter transfers to such original   Purchaser all of the Notes then held by such Substitute Purchaser, upon receipt by the   Company of notice of such transfer, any reference to such Substitute Purchaser as a   “Purchaser” in this Agreement (other than in this Section 22), shall no longer be deemed   to refer to such Substitute Purchaser, but shall refer to such original Purchaser, and such   original Purchaser shall again have all the rights of an original holder of the Notes under   this Agreement.   23. MISCELLANEOUS.   23.1. Successors and Assigns.   All covenants and other agreements contained in this Agreement by or on   behalf of any of the parties hereto bind and inure to the benefit of their respective   successors and assigns (including, without limitation, any subsequent holder of a Note)     





 







        ln-255235    68   whether so expressed or not, except that, subject to Section 10.2, the Company may not   assign or otherwise transfer any of its rights or obligations hereunder or under the Notes   without the prior written consent of each holder.  Nothing in this Agreement, expressed   or implied, shall be construed to confer upon any Person (other than the parties hereto   and their respective successors and assigns permitted hereby) any legal or equitable right,   remedy or claim under or by reason of this Agreement.   23.2. Accounting Terms.   (a) Except as otherwise specifically provided herein, (i) all accounting   terms used herein which are not expressly defined in this Agreement have the   meanings respectively given to them in accordance with IFRS as applicable to the   Company from time to time, (ii) all computations made pursuant to this   Agreement shall be made in accordance with IFRS as applicable to the Company   from time to time, and (iii) all financial statements deliverable hereunder shall be   prepared in accordance with IFRS as applicable to the Company from time to   time.   (b) In the event that any change in IFRS shall (i) cause a Default or   Event of Default related to any provision hereof (each an “Applicable Provision”)   or (ii) result in an indication that a Default or Event of Default related to any   Applicable Provision shall occur in the future, then the parties hereto shall   proceed as follows:   (i) such Default or Event of Default shall be tolled or   suspended and the Company and the holders of all outstanding Notes shall   promptly enter into good faith negotiations lasting for a period not to   exceed ninety (90) days, pursuant to which the Company and the Required   Holders shall (if possible) agree to an amendment or waiver of terms of   this Agreement sufficient to eliminate or preempt any such Default or   Event of Default; and   (ii) in the event such good faith negotiations do not result in an   amendment or waiver sufficient to eliminate or preempt any such Default   or Event of Default, the Company shall be entitled to re-determine or   determine (as applicable) compliance with such Applicable Provision on   the basis of IFRS in effect on the date of (and as applied by the Company   in connection with) the Group’s most recent consolidated financial   statements issued prior to such change in IFRS (“Pre-Default IFRS”).   (c) In the event that any re-determination or determination (as   applicable) of any Applicable Provision in accordance with Pre-Default IFRS   shall indicate that the Company is then in compliance with the Applicable   Provision on such basis, no Default nor Event of Default in relation thereto shall   be deemed to have occurred (or be continuing) or shall occur thereafter (as   applicable).     





 







        ln-255235    69   23.3. Severability.   Any provision of this Agreement that is prohibited or unenforceable in any   jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition   or unenforceability without invalidating the remaining provisions hereof, and any such   prohibition or unenforceability in any jurisdiction shall (to the full extent permitted by   law) not invalidate or render unenforceable such provision in any other jurisdiction.   23.4. Construction, Etc.   Each covenant contained herein shall be construed (absent express   provision to the contrary) as being independent of each other covenant contained herein,   so that compliance with any one covenant shall not (absent such an express contrary   provision) be deemed to excuse compliance with any other covenant.  Where any   provision herein refers to action to be taken by any Person, or which such Person is   prohibited from taking, such provision shall be applicable whether such action is taken   directly or indirectly by such Person.   For the avoidance of doubt, all Schedules and Exhibits attached to this   Agreement shall be deemed to be a part hereof.   23.5. Counterparts.   This Agreement may be executed in any number of counterparts, each of   which shall be an original but all of which together shall constitute one instrument.  Each   counterpart may consist of a number of copies hereof, each signed by less than all, but   together signed by all, of the parties hereto.   23.6. Governing Law.   This Agreement shall be construed and enforced in accordance with, and   the rights of the parties shall be governed by, the law of the State of New York excluding   choice-of-law principles of the law of such State that would permit the application of the   laws of a jurisdiction other than such State.   23.7. Jurisdiction and Process; Waiver of Jury Trial.   (a) The Company irrevocably submits to the non-exclusive   jurisdiction of the courts of the State of New York or of the United States of   America located in New York, New York, over any suit, action or proceeding   arising out of or relating to this Agreement or the Notes.  To the fullest extent   permitted by applicable law, the Company irrevocably waives and agrees not to   assert, by way of motion, as a defense or otherwise, any claim that it is not subject   to the jurisdiction of any such court, any objection that it may now or hereafter   have to the laying of the venue of any such suit, action or proceeding brought in   any such court and any claim that any such suit, action or proceeding brought in   any such court has been brought in an inconvenient forum.     





 







        ln-255235    70   (b) The Company agrees, to the fullest extent permitted by applicable   law, that a final judgment in any suit, action or proceeding of the nature referred   to in Section 23.7(a) brought in any such court shall be conclusive and binding   upon it subject to rights of appeal, as the case may be, and may be enforced in the   courts of the United States of America or the State of New York (or any other   courts to the jurisdiction of which it or any of its assets is or may be subject) by a   suit upon such judgment.   (c) The Company consents to process being served by or on behalf of   any holder of a Note in any suit, action or proceeding of the nature referred to in   Section 23.7(a) by mailing a copy thereof by registered or certified or priority   mail, postage prepaid, return receipt requested, or delivering a copy thereof in the   manner for delivery of notices specified in Section 19, to CT Corporation System,   as its agent for the purpose of accepting service of any process in the United   States of America.  The Company agrees that such service upon receipt (i) shall   be deemed in every respect effective service of process upon it in any such suit,   action or proceeding and (ii) shall, to the fullest extent permitted by applicable   law, be taken and held to be valid personal service upon and personal delivery to   it.  Notices hereunder shall be conclusively presumed received as evidenced by a   delivery receipt furnished by the United States Postal Service or any reputable   commercial delivery service.   (d) PURSUANT TO SECTION 5-1401 OF THE GENERAL   OBLIGATIONS LAW OF THE STATE OF NEW YORK, AND WITHOUT IN   ANY WAY LIMITING THE PRECEDING CONSENTS TO JURISDICTION   AND VENUE, THE PARTIES HERETO INTEND (AMONG OTHER THINGS)   TO AVAIL THEMSELVES OF THE BENEFIT OF SECTION 5-1402 OF THE   GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK AND   RULE 327(B) OF THE CIVIL PRACTICE LAW AND RULES OF THE STATE   OF NEW YORK.   (e) Nothing in this Section 23.7 shall affect the right of any holder of a   Note to serve process in any manner permitted by law, or limit any right that the   holders of any of the Notes may have to bring proceedings against the Company   in the courts of any appropriate jurisdiction or to enforce in any lawful manner a   judgment obtained in one jurisdiction in any other jurisdiction.   (f) The Company hereby irrevocably appoints CT Corporation System   to receive for it, and on its behalf, service of process in the United States of   America.   (g) THE PARTIES HERETO HEREBY WAIVE TRIAL BY JURY   IN ANY ACTION BROUGHT ON OR WITH RESPECT TO THIS   AGREEMENT, THE NOTES OR ANY OTHER DOCUMENT EXECUTED IN   CONNECTION HEREWITH OR THEREWITH.     





 







        ln-255235    71   23.8. Obligation to Make Payment in Dollars or Euros.   (a) Any payment on account of an amount that is payable hereunder or   under the Notes in Dollars which is made to or for the account of any holder of   Notes in any other currency, whether as a result of any judgment or order or the   enforcement thereof or the realization of any security or the liquidation of the   Company, shall constitute a discharge of the obligation of the Company under this   Agreement or the Notes only to the extent of the amount of Dollars which such   holder could purchase in the foreign exchange markets in London, England, with   the amount of such other currency in accordance with normal banking procedures   at the rate of exchange prevailing on the London Banking Day following receipt   of the payment first referred to above.  If the amount of Dollars that could be so   purchased is less than the amount of Dollars originally due to such holder, the   Company agrees to the fullest extent permitted by law, to indemnify and save   harmless such holder from and against all loss or damage arising out of or as a   result of such deficiency.  This indemnity shall, to the fullest extent permitted by   law, constitute an obligation separate and independent from the other obligations   contained in this Agreement and the Notes, shall give rise to a separate and   independent cause of action, shall apply irrespective of any indulgence granted by   such holder from time to time and shall continue in full force and effect   notwithstanding any judgment or order for a liquidated sum in respect of an   amount due hereunder or under the Notes or under any judgment or order.     (b) Any payment on account of an amount that is payable hereunder or   under the Notes in Euros which is made to or for the account of any holder of   Notes in any other currency, whether as a result of any judgment or order or the   enforcement thereof or the realization of any security or the liquidation of the   Company, shall constitute a discharge of the obligation of the Company under this   Agreement or the Notes only to the extent of the amount of Euros which such   holder could purchase in the foreign exchange markets in London, England, with   the amount of such other currency in accordance with normal banking procedures   at the rate of exchange prevailing on the London Banking Day following receipt   of the payment first referred to above.  If the amount of Euros that could be so   purchased is less than the amount of Euros originally due to such holder, the   Company agrees to the fullest extent permitted by law, to indemnify and save   harmless such holder from and against all loss or damage arising out of or as a   result of such deficiency.  This indemnity shall, to the fullest extent permitted by   law, constitute an obligation separate and independent from the other obligations   contained in this Agreement and the Notes, shall give rise to a separate and   independent cause of action, shall apply irrespective of any indulgence granted by   such holder from time to time and shall continue in full force and effect   notwithstanding any judgment or order for a liquidated sum in respect of an   amount due hereunder or under the Notes or under any judgment or order.   (c) As used in this Agreement, the term “London Banking Day” shall   mean any day other than Saturday or Sunday or a day on which commercial banks   are required or authorized by law to be closed in London, England.     





 







        ln-255235    72   23.9. IAS 39.   In determining compliance with the requirements of the covenants   contained in Section 10.4 through Section 10.7, any election by the Company to measure   any portion of Indebtedness at fair value (as permitted by International Accounting   Standard 39 or any similar accounting standard) at balance sheet date, other than to   reflect a hedge or swap (or other similar derivative instrument) of such Indebtedness   (including, without limitation, both interest rate and foreign currency hedges and/or   swaps), shall be disregarded and such determination shall be made as if such election had   not been made.   23.10. Setoff.   All payments to be made by the Company under this Agreement and the   Notes shall be calculated and be made without (and free and clear of any deduction for)   set-off or counterclaim.   *    *    *    *    *    





 







   ln-255235    If you are in agreement with the foregoing, please sign the form of   agreement on a counterpart of this Agreement and return it to the Company, whereupon   this Agreement shall become a binding agreement between you and the Company.   Very truly yours,   VTTI MLP B.V.   /s/ Robert M.W.J.C. Nijst   Name: Robert M.W.J.C. Nijst    Title: Director     





 







   ln-255235    This Agreement is hereby accepted   and agreed to as of the date thereof.   AEGON LEVENSVERZEKERING N.V.            /s/ H. Eggens   Name: H. Eggens      Title: Director         /s/ R.R.S Santokhi   Name: R.R.S Santokhi      Title: Director                                                                                                        





 







   ln-255235          This Agreement is hereby accepted   and agreed to as of the date thereof.   TRANSAMERICA FINANCIAL LIFE INSURANCE COMPANY       By: AEGON USA Investment Management, LLC,     its investment manager            /s/ Frederick B. Howard   Name: Frederick B. Howard       Title: Vice President         TRANSAMERICA LIFE INSURANCE COMPANY       By: AEGON USA Investment Management, LLC,     its investment manager            /s/ Frederick B. Howard   Name: Frederick B. Howard      Title: Vice President                                                                  





 







   ln-255235                   This Agreement is hereby accepted   and agreed to as of the date thereof.   ALLIANZ LIFE INSURANCE COMPANY OF NORTH AMERICA             /s/ Lawrence Halliday   Name: Lawrence Halliday      Title: Assistant Treasurer                                                                                                     





 







   ln-255235                         This Agreement is hereby accepted   and agreed to as of the date thereof.   AMERICAN EQUITY INVESTMENT LIFE INSURANCE COMPANY             /s/ Jeffrey A. Fossell   Name: Jeffrey A. Fossell      Title: Authorized Signatory                                                                                               





 







   ln-255235                         This Agreement is hereby accepted   and agreed to as of the date thereof.   ATHENE ANNUITY AND LIFE COMPANY      By: Athene Asset Management, L.P.     its investment adviser       By: AAM GP Ltd.,           its general partner              /s/ Roger D. Fors   Name: Roger D. Fors       Title: Senior Vice President,                  Fixed Income                                                                          





 







   ln-255235                               This Agreement is hereby accepted   and agreed to as of the date thereof.   AXA LEBENSVERSICHERUNG AG   AXA LEBENSVERSICHERUNG AG –    DECKUNGSSTOCK DBV   LEBENSVERSICHERUNG       DEUTSCHE ARZTEVERSICHERUNG AG       AXA KRANKENVERSICHERUNG AG       PRO BAV PENSIONKASSE AG       PRO BAV PENSIONKASSE AG – WINSECURA AG       AXA BELGIUM SA       AXA FRANCE IARD       AXA France VIE OPPORTUNITE      COMPARTMENT INFRASTRUCTURE 1 OF BABEL FCT          /s/ Isabelle Scemama   Name: Isabelle Scemama       Title: CEO AXA REIM SGP                                                        





 







   ln-255235                            This Agreement is hereby accepted   and agreed to as of the date thereof.   MASSACHUSETTS MUTUAL    LIFE INSURANCE COMPANY            By: Babson Capital Management LLC as                Investment Adviser                                       /s/ Mark Ackerman   Name: Mark Ackerman                                              Title: Managing Director                                                                                   





 







   ln-255235                                This Agreement is hereby accepted   and agreed to as of the date thereof.   ENSIGN PEAK ADVISORS, INC.                                           /s/ Matthew D. Dall   Name: Matthew D. Dall                                                      Title: Head of Credit Research                                                                                                                                 





 







   ln-255235                                   This Agreement is hereby accepted   and agreed to as of the date thereof.   THE GUARDIAN LIFE INSURANCE    COMPANY OF AMERICA      /s/ Thomas M. Donohue   Name: Thomas M. Donohue                                             Title: Managing Director                                                                                      





 







   ln-255235                                     This Agreement is hereby accepted   and agreed to as of the date thereof.   JOHN HANCOCK LIFE INSURANCE COMPANY (U.S.A)      /s/ Matthew R. Beck   Name: Matthew R. Beck                            Title: Director                                                                                      





 







   ln-255235                                      This Agreement is hereby accepted   and agreed to as of the date thereof.   MANULIFE LIFE INSURANCE COMPANY               /s/ Akira Okada    Name: Akira Okada                                                                                                Title: Head of Privately-Placed Securities Investment                                                                                                                                                                              





 







   ln-255235                                        This Agreement is hereby accepted   and agreed to as of the date thereof.   JPMORGAN CHASE BANK, not individually but solely in its   capacity as Directed Trustee for the SBC Master Pension Trust               /s/ Jacqueline M. Savage   Name: Jacqueline M. Savage                                    Title: Attorney-in-Fact                                                                                





 







   ln-255235                                        This Agreement is hereby accepted   and agreed to as of the date thereof.   METROPOLITAN LIFE INSURANCE COMPANY      GENERAL AMERICAN LIFE INSURANCE COMPANY   By Metropolitan Life Insurance Company, its Investment Manager      METLIFE INSURANCE COMPANY USA   By Metropolitan Life Insurance Company, its Investment Manager      OMI MLIC INVESTMENTS LIMITED   By Metropolitan Life Insurance Company, its Investment Manager         /s/ John Wills   Name: John Wills                                    Title: Managing Director            LINCOLN BENEFIT LIFE COMPANY   By MetLife Investment Advisors, LLC, its Investment Manager      SYMETRA LIFE INSURANCE COMPANY   By MetLife Investment Advisors, LLC, its Investment Manager         /s/ C. Scott Inglis   Name: C. Scott Inglis   Title: Managing Director           





 







   ln-255235                                              This Agreement is hereby accepted   and agreed to as of the date thereof.   THE OHIO NATIONAL LIFE INSURANCE COMPANY         /s/ Annette M. Teders   Name: Annette M. Teders                                    Title: Vice President         THE OHIO NATIONAL LIFE ASSURANCE CORPORATION      /s/ Annette M. Teders   Name: Annette M. Teders   Title: Vice President                                                     





 







   ln-255235                                                    This Agreement is hereby accepted   and agreed to as of the date thereof.   PACIFIC LIFE INSURANCE COMPANY         /s/ Matthew A. Levene   Name: Matthew A. Levene                                    Title: Assistant Vice President         /s/ Cathy L. Schwartz   Name: Cathy L. Schwartz   Title: Assistant Secretary                                                     





 







   ln-255235                                                       This Agreement is hereby accepted   and agreed to as of the date thereof.   PAN-AMERICAN LIFE INSURANCE COMPANY         /s/ Lisa Baudot   Name: Lisa Baudot                                    Title: Vice President, Securities                                                                 





 







   ln-255235                                                             This Agreement is hereby accepted   and agreed to as of the date thereof.   THRIVENT FINANCIAL FOR LUTHERANS         /s/ Martin Rosacker   Name: Martin Rosacker                                    Title: Managing Director                                                           





 







   ln-255235                                                             This Agreement is hereby accepted   and agreed to as of the date thereof.   VOYA RETIREMENT INSURANCE AND ANNUITY COMPANY   VOYA INSURANCE AND ANNUITY COMPANY   RELIASTAR LIFE INSURANCE COMPANY   SECURITY LIFE OF DENVER INSURANCE COMPANY      By: Voya Investment Management LLC, as Agent      /s/ Christopher P. Lyons   Name: Christopher P. Lyons                                    Title: Managing Director                                               





 







   ln-255235                                                                   This Agreement is hereby accepted   and agreed to as of the date thereof.   NATIONALE-NEDERLANDEN   LEVENSVERZEKERING MAATSHAPPIJ N.V.      Represented by: NN Investment Partners B.V.      /s/ J.W.F. Stoten   Name: J.W.F. Stoten                                    Title: Chief Investment Officer      /s/ J.W. van der Wal   Name: J.W. van der Wal   Director                                   





 







   ln-255235                                                                      This Agreement is hereby accepted   and agreed to as of the date thereof.   NATIONALE-NEDERLANDEN   LEVENSVERZEKERING MAATSHAPPIJ N.V.      Represented by: NN Investment Partners B.V.      /s/ J.W.F. Stoten   Name: J.W.F. Stoten                                    Title: Chief Investment Officer      /s/ J.W. van der Wal   Name: J.W. van der Wal   Director           





 







SCHEDULE A            DEFINED TERMS   As used herein, the following terms have the respective meanings set forth   below or set forth in the Section hereof following such term:   “Acceptable Bank” means:   (a) The Bank of Tokyo-Mitsubishi UFJ, Ltd., BNP Paribas,   Coöperatieve Centrale Raiffeisen-Boerenleenbank B.A., trading as Rabobank   International, The Hongkong and Shanghai Banking Corporation Limited, ING   Bank N.V., Oversea-Chinese Banking Corporation Limited, Société Générale and   Sumitomo Mitsui Banking Corporation and their respective European branches;   (b) a bank or financial institution which has a rating for its long term   unsecured and non credit-enhanced debt obligations of BBB+ or higher by   Standard & Poor’s Rating Services or Fitch Ratings Ltd or Baa1 or higher by   Moody’s Investor Services Limited or a comparable rating from an internationally   recognized credit rating agency; or   (c) any other bank or financial institution approved by the Required   Holders (acting reasonably).   “Acquired Subsidiary Indebtedness” means all Indebtedness of any   Person which becomes a Subsidiary after the date of Closing or is consolidated with or   merged into a Subsidiary after the date of Closing and which (a) is outstanding on the   date such Person becomes a Subsidiary (or such Person is at such time contractually   bound, in writing to incur such Indebtedness) and (b) has not been (and is not being)   incurred, extended or renewed in contemplation of such Person becoming a Subsidiary.   “Adjusted Consolidated Total Assets” means Consolidated Total Assets,   adjusted by deducting the sum of the assets of all Non-Recourse Entities and all Non-   Recourse Assets (other than the ATT Tanjung Bin Phase 2 Assets) (without double   counting).   “Affected Noteholder” is defined in Section 10.9.   “Affiliate” means, at any time, and with respect to any Person, any other   Person that at such time directly or indirectly through one or more intermediaries   Controls, or is Controlled by, or is under common Control with, such first Person, and,   with respect to the Company, shall include any Person beneficially owning or holding,   directly or indirectly, 10% or more of any class of voting or equity interests of the   Company or any Subsidiary or any corporation of which the Company and its   Subsidiaries beneficially own or hold, in the aggregate, directly or indirectly, 10% or   more of any class of voting or equity interests.  As used in this definition only, “Control”   means the possession, directly or indirectly, of the power to direct or cause the direction     





 







   ln-255235  A-2   of the management and policies of a Person, whether through the ownership of voting   securities, by contract or otherwise. Unless the context otherwise clearly requires, any   reference to an “Affiliate” is a reference to an Affiliate of the Company.   “Agreement” means this Agreement, including all Schedules and Exhibits   attached to this Agreement, as it may be amended, restated, supplemented or otherwise   modified from time to time.   “Anti-Corruption Laws” is defined in Section 5.16(d)(1).   “Anti-Money Laundering/Anti-Terrorism Laws” is defined in Section   5.16(c).   “Applicable Provision” is defined in Section 23.2(b).   “ATT Subordinated Debt” means Indebtedness of ATT Tanjung Bin Sdn.   Bhd. owing to VTTI B.V. under the ATT Tanjung Bin Phase 2 Loan, provided that such   Indebtedness is subordinated to amounts due under this Agreement and the Notes   pursuant to the terms of the Subordination Deed Poll.    “ATT Tanjung Bin Phase 2” means the second phase of the development   of the ATT Tanjung Bin terminal, being the expansion project to construct an additional   250,000 cubic metres in storage capacity and a new 120,000 deadweight tonnage jetty   berth.   “ATT Tanjung Bin Phase 2 Assets” means the assets, utilities,   operations and business relating to ATT Tanjung Bin Phase 2.   “ATT Tanjung Bin Phase 2 Loan” means each loan entered into or to be   entered into by VTTI B.V. (as lender) and ATT Tanjung Bin Sdn. Bhd (as borrower) for   the purpose of financing ATT Tanjung Bin Phase 2.   “ATT Tanjung Bin Project Financing” means the debt facilities made   available to ATT Tanjung Bin Sdn. Bhd. pursuant to the loan agreement dated 25 March   2011 made between, amongst others, ATT Tanjung Bin Sdn. Bhd. and Sumitomo Mitsui   Banking Corporation and HSBC Bank Malaysia Berhad for the financing of the Tanjung   Bin petroleum products storage terminal.   “ATT Tanjung Bin Sdn. Bhd.” means ATT Tanjung Bin Sdn. Bhd.   (Company No.: 755986-P), a wholly owned Subsidiary of the Company, being a   company incorporated in Malaysia under the Companies Act 1965 of Malaysia.   “ATT Tanjung Bin Subordination Agreement” means the   subordination agreement dated June 27, 2014,  and made between, amongst others,   165675-4-1-v11.0 - 6- 70-40573284 VTTI B.V., ATT Tanjung Bin Sdn. Bhd. and   Coöperatieve Centrale Raiffeisen-Boerenleenbank B.A. trading as Rabobank   International in relation to the subordination of all Indebtedness arising under the ATT     





 







   ln-255235  A-3   Tanjung Bin Phase 2 Loan to amounts due to the creditors under the Facility Agreement   and related documentation upon the occurrence of any insolvency proceedings (or   analogous procedures) in respect of ATT Tanjung Bin Sdn. Bhd.   “Blocked Person” is defined in Section 5.16(a).   “BNM” means Central Bank of Malaysia, Bank Negara Malaysia.   “BNM Approval” is defined in Section 4.13.   “Borrowings” means, at any time, the outstanding principal, capital or   nominal amount and any fixed or minimum premium payable on prepayment or   redemption of any indebtedness for or in respect of:   (a) moneys borrowed;   (b) any amount raised by acceptance under any acceptance credit   facility;   (c) any amount raised pursuant to any note purchase facility or the   issue of bonds, notes, debentures, loan stock or any similar instrument;   (d) the amount of any liability in respect of any lease or hire purchase   contract which would, in accordance with IFRS, be treated as a finance or capital   lease;   (e) receivables sold or discounted (on terms which give recourse to a   member of the Group (and only to the extent of such recourse));   (f) any counter-indemnity obligation in respect of a guarantee,   indemnity, bond, standby or documentary letter of credit or any other instrument   issued by a bank or financial institution (excluding any such instruments which   are given in respect of trade credit arising in the ordinary course of day-to-day   business);   (g) any amount of any liability under an advance or deferred purchase   agreement if one of the primary reasons behind the entry into the agreement is to   raise finance;   (h) any amount raised under any other transaction (including any   forward sale or purchase agreement) having the commercial effect of a   borrowing; and   (i) (without double counting) the amount of any liability in respect of   any guarantee or indemnity for any of the items referred to in paragraphs (a) to (h)   above.     





 







   ln-255235  A-4   “Business Day” means (a) for the purposes of Section 8.7 only, any day   other than a Saturday, a Sunday or a day on which commercial banks in New York, New   York are required or authorized to be closed, and (b) for the purposes of any other   provision of this Agreement, any day other than a Saturday, a Sunday or a day on which   commercial banks in New York, New York or Amsterdam, the Netherlands are required   or authorized to be closed.   “Capital Lease” means, at any time, a lease with respect to which the   lessee is required concurrently to recognize the acquisition of an asset and the incurrence   of a liability in accordance with IFRS.   “Cash” means, at any time, cash at hand and at bank of any member of the   Group (excluding any Non-Recourse Entity and any cash which is attributable to any   project that is financed by Non-Recourse Transactions) provided that there is no Lien   over that cash.   “Cash Equivalent Investments” means at any time:   (a) certificates of deposit maturing within one year after the relevant   date of calculation and issued by an Acceptable Bank;   (b) any investment in marketable debt obligations issued or guaranteed   by the government of the United States of America, the United Kingdom, any   member state of the European Economic Area or any Participating Member State   or by an instrumentality or agency of any of them having an equivalent credit   rating, maturing within one year after the relevant date of calculation and not   convertible or exchangeable to any other security;   (c) commercial paper not convertible or exchangeable to any other   security:   (i) for which a recognized trading market exists;   (ii) issued by an issuer incorporated in the United States of   America, the United Kingdom, any member state of the European   Economic Area or any Participating Member State;   (iii) which matures within one year after the relevant date of   calculation; and   (iv) which has a credit rating of either A-1 or higher by   Standard & Poor’s Rating Services or F1 or higher by Fitch Ratings Ltd or   P-1 or higher by Moody’s Investor Services Limited, or, if no rating is   available in respect of the commercial paper, the issuer of which has, in   respect of its long-term unsecured and non-credit enhanced debt   obligations, an equivalent rating;     





 







   ln-255235  A-5   (d) sterling bills of exchange eligible for rediscount at the Bank of   England and accepted by an Acceptable Bank (or their dematerialized equivalent);   (e) any investment in money market funds which (i) have a credit   rating of either A-1 or higher by Standard & Poor’s Rating Services or F1 or   higher by Fitch Ratings Ltd or P-1 or higher by Moody’s Investor Services   Limited, (ii) which invest substantially all their assets in securities of the types   described in paragraphs (a) to (d) above and (iii) can be turned into cash on not   more than 30 days’ notice; or   (f) any other debt security approved by the Required Holders (acting   reasonably), in each case, denominated in Euros, Dollars or sterling and to which   any member of the Group (as appropriate) is alone (or together with other   members of the Group) beneficially entitled at that time and which is not issued or   guaranteed by any member of the Group or subject to any Lien (other than as   permitted under this Agreement) excluding any Cash Equivalent Investments of   any Non-Recourse Entity and any Cash Equivalent Investments which are   attributable to any project that is financed by Non-Recourse Transactions.   “Change of Control” is defined in Section 8.10.   “Change of Control Notice” is defined in Section 8.10.   “CISADA” means the Comprehensive Iran Sanctions, Accountability, and   Divestment Act of 2010, United States Public Law 111195, as amended from time to   time, and the rules and regulations promulgated thereunder from time to time in effect.   “Closing” is defined in Section 3.   “Code” means the Internal Revenue Code of 1986, as amended from time   to time, and the rules and regulations promulgated thereunder from time to time.   “Commodity Exchange Act” means the Commodity Exchange Act (7   U.S.C. §1 et.seq.), as amended from time to time, and any successor statute.   “Company” is defined in the first paragraph of this Agreement, and   includes any successor that becomes such in the manner prescribed in Section 10.2.   “Competitor” means any Person (other than any Purchaser) who is   substantially engaged in the businesses of the Company or any Subsidiary as more fully   described in the Memorandum and/or other activities reasonably related thereto provided   that:   (a) the provision of investment advisory services by a Person to a Plan   or Non-U.S. Plan which is owned or controlled by a Person which would   otherwise be a Competitor shall not of itself cause the Person providing such   services to be deemed to be a Competitor if such Person has established     





 







   ln-255235  A-6   procedures which will prevent confidential information supplied to such Person   by any member of the Group from being transmitted or otherwise made available   to such Plan or Non-U.S. Plan or Person owning or controlling such Plan or Non-   U.S. Plan; and   (b) in no event shall an Institutional Investor which maintains passive   investments in any Person which is a Competitor be deemed a Competitor it being   agreed that the normal administration of the investment and enforcement thereof   shall be deemed not to cause such Institutional Investor to be a “Competitor”.   “Confidential Information” is defined in Section 21.   “Consolidated EBIT” means the consolidated profits of the Group from   ordinary activities before taxation:   (a) before deducting any Consolidated Net Finance Charges;   (b) before taking into account any exceptional items;   (c) after deducting the amount of any profit of any member of the   Group (other than a Subsidiary Guarantor) which is attributable to minority   interests; and   (d) after deducting the amount of any profit of any Non-Recourse   Entity and any member of the Group which is attributable to any project that is   financed by Non-Recourse Transactions,   in each case, to the extent added, deducted or taken into account, as the case may be, for   the purposes of determining the profits of the Group from ordinary activities before   taxation. For the avoidance of doubt, notwithstanding paragraph (d) above, in computing   Consolidated EBIT, any cash distribution received by a member of the Group for its own   account in respect of a Non-Recourse Transaction shall be taken into account.    Consolidated EBIT determined for any period shall be calculated by giving pro forma   effect to any acquisitions and disposals made during such period.      “Consolidated EBITDA” means Consolidated EBIT before deducting   any amount attributable to the amortization of intangible assets or the depreciation of   tangible assets but (for the avoidance of doubt) except for any amount attributable to the   amortization of intangible assets of Non-Recourse Entities or which is attributable to any   project that is financed by Non-Recourse Transactions or the depreciation of tangible   assets of Non-Recourse Entities which is attributable to any project that is financed by   Non-Recourse Transactions. Consolidated EBITDA determined for any period shall be   calculated by giving pro forma effect to any acquisitions and disposals made during such   period.      “Consolidated Net Finance Charges” means, for any Relevant Period,   the aggregate amount of the accrued interest, commission, fees, discounts, prepayment     





 







   ln-255235  A-7   penalties or premiums and other finance payments in respect of Borrowings whether   paid, payable or capitalized by any member of the Group in respect of that Relevant   Period:   (a) excluding any such obligations owed to any other member of the   Group;   (b) excluding any such obligations owed in respect of Non-Recourse   Transactions;   (c) excluding any arrangement or participation fee payable in respect   of the Facility Agreement;   (d) including the interest element of leasing and hire purchase   payments;   (e) including any accrued commission, fees, discounts and other   finance payments payable by any member of the Group under any hedging   agreements entered into for the purpose of hedging interest rate and/or currency   liabilities;   (f) deducting any accrued commission, fees, discounts and other   finance payments owing to any member of the Group under any hedging   agreements; and   (g) deducting any accrued interest owing to any member of the Group   on any deposit or bank account.   “Consolidated Total Assets” means the sum of the assets of the Group as   shown in the Company’s most recent consolidated financial statements.   “Consolidated Total Debt” means at any time the aggregate amount of   all obligations of the Group for or in respect of Borrowings but:   (a) excluding any indebtedness incurred by any Non-Recourse Entity   and any member of the Group which is attributable to any project that is financed   by any Non-Recourse Transactions;   (b) excluding any Subordinated Debt;   (c) excluding any such instruments which constitute Non-Credit   Replacing Guarantees issued in the ordinary course of day-to-day business;   (d) excluding any such obligations to any other member of the Group;   and     





 







   ln-255235  A-8   (e) including, in the case of finance leases, only the capitalised value   thereof,   and so that no amount shall be included or excluded more than once.   “Consolidated Total Net Debt” means at any time Consolidated Total   Debt after deducting the aggregate amount of Cash and Cash Equivalent Investments held   by the Group (excluding Cash and Cash Equivalent Investments of any Non-Recourse   Entity and Cash and Cash Equivalent Investments which are attributable to any project   that is financed by Non-Recourse Transactions) at such time and so that no amount shall   be included or excluded more than once.   “control”, as used in Section 8.10, is defined in Section 8.10.   “Controlled Entity” means any of the Subsidiaries of the Company and   any of their or the Company’s respective Controlled Affiliates. As used in this definition,   “Control” means the possession, directly or indirectly, of the power to direct or cause the   direction of the management and policies of a Person, whether through the ownership of   voting securities, by contract or otherwise.   “Default” means an event or condition the occurrence or existence of   which would, with the lapse of time or the giving of notice or both, become an Event of   Default.   “Default Rate” means that rate of interest that is the greater of (i) 2.00%   per annum above the rate of interest first stated in clause (a) of the first paragraph of the   Notes and (ii) 2.00% over the rate of interest publicly announced by Citibank, N.A. in   New York, New York as its “base” or “prime” rate.   “Disclosure Documents” is defined in Section 5.3.   “Disposition” is defined in Section 10.3.   “Dollars”, “U.S.$” or “$” means lawful money of the United States of   America.   “Environmental Laws” means any and all Federal, state, local, and   foreign statutes, laws, regulations, ordinances, rules, judgments, orders, decrees, permits,   concessions, grants, franchises, licenses, agreements or governmental restrictions relating   to pollution and the protection of the environment or the release of any materials into the   environment, including but not limited to those related to Hazardous Materials.   “ERISA” means the Employee Retirement Income Security Act of 1974,   as amended from time to time, and the rules and regulations promulgated thereunder from   time to time in effect.     





 







   ln-255235  A-9   “ERISA Affiliate” means any trade or business  (whether or not   incorporated) that is treated as a single employer together with the Company under   section 414 of the Code.   “Euro” or “€” means the unit of single currency of the Participating   Member States.   “Event of Default” is defined in Section 11.   “Excluded Swap Obligation” means, with respect to any Subsidiary   Guarantor, any Swap Obligation if, and to the extent that, all or a portion of the guarantee   of such Subsidiary Guarantor of, or the grant by such Subsidiary Guarantor of a security   interest to secure, such Swap Obligation (or any guarantee thereof) is or becomes illegal   under the Commodity Exchange Act or any rule, regulation or order of the Commodity   Futures Trading Commission (or the application or official interpretation of any thereof)   by virtue of such Subsidiary Guarantor’s failure for any reason to constitute an “eligible   contract participant” (as defined in the Commodity Exchange Act and the regulations   thereunder at the time the guarantee of such Guarantor or the grant of such security   interest becomes effective with respect to such Swap Obligation). If a Swap Obligation   arises under a master agreement governing more than one swap, such exclusion shall   apply only to the portion of such Swap Obligation that is attributable to swaps for which   such guarantee or security interest is or becomes illegal.   “Facility Agreement” means that certain €580,000,000 dated, June 26,   2014 by and among the Company, Coöperatieve Centrale Raiffeisen-Boerenleenbank   B.A. trading as Rabobank International (acting as agent) and the other financial   institutions listed more fully therein, as amended pursuant to amendment letters dated   December 2, 2014, January 26, 2015 and September 17, 2015 and as increased pursuant   to an accordion commitment notice dated March 18, 2015, and as the same may be   amended or modified from time to time.   “FATCA” means (a) sections 1471 to 1474 of the Code (or any amended   or successor version thereof) or any associated regulations or other official guidance; (b)   any treaty, law, regulation or other official guidance enacted in any other jurisdiction, or   relating to an intergovernmental agreement between the United States and any other   jurisdiction, which (in either case) facilitates the implementation of paragraph (a) of this   definition; or (c) any agreement pursuant to the implementation of paragraphs (a) or (b)   of this definition with the United States Internal Revenue Service, the United States   government or any governmental or taxation authority in any other jurisdiction.   “Finance Subsidiary” means a Subsidiary which (a) has been formed for   the purpose of, and whose primary activities are, the issuance of debt obligations to   Persons other than Affiliates and the lending of net proceeds of such debt obligations to   the Company and/or any Subsidiary Guarantor and/or any other Subsidiary and activities   related thereto, and (b) has no significant assets other than promissory notes evidencing   such loans.     





 







   ln-255235  A-10   “Finance Subsidiary Indebtedness” means any Indebtedness of a   Finance Subsidiary, to the extent that the net proceeds thereof are lent on to the Company   and/or any Subsidiary Guarantor (so long as such Subsidiary Guarantor remains a   Subsidiary Guarantor).   “Financial Quarter” means the period commencing on the day after one   Quarter Date and ending on the next Quarter Date.   “Financial Year” means the annual accounting period of the Group   ending on December 31 in each year.   “Forms” is defined in Section 13.   “Governmental Authority” means   (a) the government of   (i) the United States of America or the Netherlands or any   state or other political subdivision of either thereof, or   (ii) any other jurisdiction in which the Company or any   Subsidiary conducts all or any part of its business, or which asserts   jurisdiction over any properties of the Company or any Subsidiary, or   (b) any entity exercising executive, legislative, judicial, regulatory or   administrative functions of, or pertaining to, any such government.   “Governmental Official” means any governmental official or employee,   employee of any government-owned or government-controlled entity, political party, any   official of a political party, candidate for political office or official of any public   international organization.   “Group” means, at any time, the Company and its Subsidiaries at such   time.   “Guaranty” means, with respect to any Person, any obligation (except the   endorsement in the ordinary course of business of negotiable instruments for deposit or   collection) of such Person guaranteeing or in effect guaranteeing any indebtedness,   dividend or other obligation of any other Person in any manner, whether directly or   indirectly, including (without limitation) obligations incurred through an agreement,   contingent or otherwise, by such Person:   (a) to purchase such indebtedness or obligation or any property   constituting security therefor;   (b) to advance or supply funds (i) for the purchase or payment of such   indebtedness or obligation, or (ii) to maintain any working capital or other     





 







   ln-255235  A-11   balance sheet condition or any income statement condition of any other Person or   otherwise to advance or make available funds for the purchase or payment of such   indebtedness or obligation;   (c) to lease properties or to purchase properties or services primarily   for the purpose of assuring the owner of such indebtedness or obligation of the   ability of any other Person to make payment of the indebtedness or obligation; or   (d) otherwise to assure the owner of such indebtedness or obligation   against loss in respect thereof.   In any computation of the indebtedness or other liabilities of the obligor under any   Guaranty, the indebtedness or other obligations that are the subject of such Guaranty shall   be assumed to be direct obligations of such obligor.   “Hazardous Material”  means any and all pollutants, toxic or hazardous   wastes or other substances that might pose a hazard to health and safety, the removal of   which may be required or the generation, manufacture, refining, production, processing,   treatment, storage, handling, transportation, transfer, use, disposal, release, discharge,   spillage, seepage or filtration of which is or shall be restricted, prohibited or penalized by   any applicable law, including, without limitation, asbestos, urea formaldehyde foam   insulation, polychlorinated biphenyls, petroleum, petroleum products, lead based paint,   radon gas or similar restricted, prohibited or penalized substances.   “holder” means, with respect to any Note the Person in whose name such   Note is registered in the register maintained by the Company pursuant to Section 14.1;   provided, however, that if such Person is a nominee, then for the purposes of Sections 7,   12, 18.2 and 19 and any related definitions in this Schedule B, “holder” shall mean the   beneficial owner of such Note whose name and address appears in such register.   “IFRS” means international accounting standards within the meaning of   the IAS Regulation 1606/2002 to the extent applicable to the relevant financial statements.   “Indebtedness” with respect to any Person means, at any time, without   duplication,   (a) moneys borrowed;   (b) any amount raised by acceptance under any acceptance credit   facility;   (c) any amount raised pursuant to any note purchase facility or the   issue of bonds, notes, debentures, loan stock or any similar instrument evidencing   indebtedness for borrowed money;     





 







   ln-255235  A-12   (d) the amount of any liability in respect of any lease or hire purchase   contract which would, in accordance with IFRS, be treated as a finance or capital   lease;   (e) receivables sold or discounted (but only to the extent of any   recourse against any member of the Group for non-payment of such receivables   by the receivables counterparty);   (f) any amount raised under any other transaction (including any   forward sale or purchase agreement) having the commercial effect of a borrowing;   (g) any derivative transaction entered into in connection with   protection against or benefit from fluctuation in any rate or price (and, when   calculating the value of any derivative transaction, only the marked to market   value shall be taken into account);   (h) any counter-indemnity obligation in respect of a guarantee,   indemnity, bond, standby or documentary letter of credit or any other instrument   issued by a bank or financial institution;   (i) any amount of any liability under an advance or deferred purchase   agreement if one of the primary reasons behind the entry into this agreement is to   raise finance; and   (j) the amount of any liability in respect of any guarantee or   indemnity for any of the items referred to in paragraphs (a) to (i) above.   “Institutional Investor” means (a) any Purchaser of a Note, (b) any   holder of a Note holding (together with one or more of its affiliates) more than 5% of the   aggregate principal amount of the Notes then outstanding, (c) any bank, trust company,   savings and loan association or other financial institution, any pension plan, any   investment company, any insurance company, any broker or dealer, or any other similar   financial institution or entity, regardless of legal form, and (d) any Related Fund of any   holder of any Note.   “Lease Contracts” means the lease contracts between the Company or   any of its Affiliates and Vitol Holding B.V. or any of its Affiliates (including without   limitation the lease contracts between ATT Tanjung Bin Sdn. Bhd. and Vitol Holding   B.V. or any of its Affiliates).    “Lien” means, with respect to any Person, any mortgage, lien, pledge,   charge, security interest or other encumbrance, or any interest or title of any vendor,   lessor, lender or other secured party to or of such Person under any conditional sale or   other title retention agreement or Capital Lease, upon or with respect to any property or   asset of such Person (including in the case of stock, stockholder agreements, voting trust   agreements and all similar arrangements).     





 







   ln-255235  A-13   “Make-Whole Amount” is defined in Section 8.7.   “Material” means material in relation to the business, operations, affairs,   financial condition, assets or properties of the Company and its Subsidiaries taken as a   whole.   “Material Adverse Effect” means a material adverse effect on (a) the   business, operations, affairs, financial condition, assets or properties of the Company and   its Subsidiaries taken as a whole, or (b) the ability of the Company to perform its   obligations under this Agreement and the Notes, or (c) the ability of any Subsidiary   Guarantor to perform its obligations under the Subsidiary Guaranty Agreement to which   it is then a party or (d) the validity or enforceability of this Agreement or the Notes or any   Subsidiary Guaranty Agreement.   “Material Company” means, at any time, the Company, each Subsidiary   Guarantor and:   (a) each Subsidiary of the Company which has earnings before   interest, tax, depreciation and amortization (calculated on the same basis as   Consolidated EBITDA) representing 10% or more of Consolidated EBITDA;   and/or      (b) a Subsidiary of the Company which has total assets representing   10% or more of the aggregate consolidated total assets of the Group; and/or      (c) a Subsidiary of the Company which has revenues representing   10% or more of the aggregate consolidated total revenues of the Group,      in each case calculated on a consolidated basis (but for the avoidance of doubt excluding   intra-group items).      For the purposes of this definition, Non-Recourse Entities and their   respective Subsidiaries shall not be included for the purpose of calculating the gross   assets of the Group and the turnover of the Group. As set out in the definition of   “Consolidated EBITDA”, Consolidated EBITDA shall not include the amount of any   earnings before interest, tax, depreciation and amortization of any member of the Group   which is attributable to any project that is financed by any Non-Recourse Transaction   (except to the extent any member of the Group receives any cash distribution for its own   account in respect of a Non-Recourse Transaction).      Compliance with the conditions set out in paragraphs (a), (b) and (c)   above shall be determined by listing all Material Companies in each certificate of a   Senior Financial Officer supplied by the Company pursuant to Section 7.2(a).   “Memorandum” is defined in Section 5.3.   “Modified Make-Whole Amount” is defined in Section 8.7.     





 







   ln-255235  A-14   “Multiemployer Plan” means any Plan that is a “multiemployer plan” (as   such term is defined in section 4001(a)(3) of ERISA).   “NAIC” means the National Association of Insurance Commissioners or   any successor thereto.   “New Property” is defined in Section 10.4(g).   “Non-Credit Replacing Guarantee” means any non-credit replacing   guarantee or non-credit replacing guarantee facility issued via a bank or financial   institution (including any lender (or affiliate of a lender) under a Principal Bank Facility)   for the account of, or at the request of a member of the Group.      “Non-Recourse Assets” means the assets which are the subject of any   Non-Recourse Transaction, including any equity interests of any Non-Recourse Entity or   otherwise relating to such assets.      “Non-Recourse Entity” means any Subsidiary of the Company that shall   have been designated as a “Non-Recourse Entity” in accordance with the provisions of   Section 9.9.      “Non-Recourse Transaction” means       (a) the ATT Tanjung Bin Phase 2 Loan; and      (b) any other project financing transaction or any trade financing   transaction which is entered into by any Non-Recourse Entity on terms such that   the relevant creditors' recourse in respect of any indebtedness incurred pursuant to   such transaction is limited to:      (i) in respect of a project financing transaction, the assets   constituting the project and, in respect of a trade financing transaction, the   assets to which that trade financing relates (including, in both cases, the   shares in any Subsidiary of the Non-Recourse Entity which are integral to   the project financing or, as the case may be, trade financing);      (ii) the shares in the capital of the Non-Recourse Entity (or   special purpose vehicle parent of such Non-Recourse Entity); and/or      (iii) the amount of any equity contribution or shareholder loan   from any member of the Group by way of specific cash funding in respect   of such project financing or trade financing transaction and to which there   is no other recourse to any member of the Group pursuant to any   completion guarantee or otherwise.      “Non-U.S. Plan” means any plan, fund or other similar program that (a) is   established or maintained outside the United States of America by the Company or any     





 







   ln-255235  A-15   Subsidiary primarily for the benefit of employees of the Company or one or more   Subsidiaries residing outside the United States of America, which plan, fund or other   similar program provides, or results in, retirement income, a deferral of income in   contemplation of retirement or payments to be made upon termination of employment,   and (b) is not subject to ERISA or the Code.   “Notes” is defined in Section 1(a).   “Noteholder Sanctions Violation” is defined in Section 10.9.   “OFAC” is defined in Section 5.16(a).   “OFAC Event” means any amendment to, or change after the date of this   Agreement in, the laws or regulations of OFAC, or any amendment to or change after the   date of this Agreement in the official administration, interpretation or application of such   laws or regulations.   “OFAC Listed Person” is defined in Section 5.16(a).   “OFAC Sanctions Program” means any economic or trade sanction that   OFAC is responsible for administering and enforcing.  A list of OFAC Sanctions   Programs may be found at http://www.treasury.gov/resource-   center/sanctions/Programs/Pages/Programs.aspx.   “Officer’s Certificate” means a certificate of a Senior Financial Officer   or of any other officer of the Company whose responsibilities extend to the subject matter   of such certificate.   “Original Subsidiary Guarantors” means (a) Eurotank Amsterdam B.V.,   a private company with limited liability incorporated under the laws of the Netherlands,   (b) Euro Tank Terminal B.V., a private company with limited liability incorporated under   the laws of the Netherlands, (c) VTTI Fujairah Terminals Ltd (VTTI FTL) FZC, a free   zone company with limited liability, incorporated in the Fujairah Free Zone and formed   pursuant to Free Zone Law No.1 of 2004, (d) Antwerp Terminal & Processing Company   NV, a limited liability company incorporated in Belgium, (e) Seaport Canaveral Corp., a   Delaware corporation and (f) ATT Tanjung Bin Sdn. Bhd, a company incorporated in   Malaysia under the Companies Act 1965 of Malaysia.   “Participating Member State” means any member state of the European   Community that adopts or has adopted the euro as its lawful currency in accordance with   legislation of the European Community relating to Economic Monetary Union.   “PBGC” means the Pension Benefit Guaranty Corporation referred to and   defined in ERISA or any successor thereto.   “Permitted Jurisdiction” means (a) the United States of America, any   State thereof or the District of Columbia, (b) Canada or any Province thereof, (c) any     





 







   ln-255235  A-16   member of the European Union as of December 31, 2003 (except Greece, Italy, Portugal   and Spain), (d) Jersey, (e) Switzerland, (f) Australia and (g) New Zealand.   “Person” means an individual, partnership, corporation, limited liability   company, association, trust, unincorporated organization, business entity or   Governmental Authority.   “Plan” means an “employee benefit plan” (as defined in section 3(3) of   ERISA) subject to Title I of ERISA that is or, within the preceding five years, has been   established or maintained, or to which contributions are or, within the preceding five   years, have been made or required to be made, by the Company or any ERISA Affiliate   or with respect to which the Company or any ERISA Affiliate may have any liability.   “Pre-Default IFRS” is defined in Section 23.2(b)(ii).   “Principal Bank Facility” means the Facility Agreement and any   successor, replacement or supplemental syndicated credit facility or bilateral credit   facility of the Company entered into to refinance, replace or supplement the foregoing so   long as the principal amount of indebtedness which is permitted to be incurred thereunder   is equal to or in excess of €150,000,000 (or its equivalent in any other currency).   “Prohibited Subsequent Actions” is defined in Section 10.9.   “property” or “properties” means, unless otherwise specifically limited,   real or personal property of any kind, tangible or intangible, choate or inchoate.   “PTE” is defined in Section 6.2(a).   “Purchaser” is defined in the first paragraph of this Agreement; provided   that, after Closing, any Purchaser of a Note that ceases to be the registered holder or a   beneficial owner (through a nominee) of such Note as the result of a transfer thereof   pursuant to Section 14.2 shall cease to be included within the meaning of “Purchaser” of   such Note for the purposes of this Agreement upon such transfer.   “Qualified ECP Guarantor” means, in respect of any Swap Obligation,   each Subsidiary Guarantor that has total assets exceeding $10,000,000 at the time the   relevant guarantee or grant of the relevant security interest becomes effective with respect   to such Swap Obligation or such other person as constitutes an “eligible contract   participant” under the Commodity Exchange Act or any regulations promulgated   thereunder and can cause another person to qualify as an “eligible contract participant” at   such time by entering into a keepwell under Section 1a(18)(A)(v)(II) of the Commodity   Exchange Act.   “Qualified Institutional Buyer” means any Person who is a “qualified   institutional buyer” within the meaning of such term as set forth in Rule 144A(a)(1)   under the Securities Act.     





 







   ln-255235  A-17   “Quarter Date” means each of March 31, June 30, September 30 and   December 31.    “Related Fund” means, with respect to any holder of any Note, any fund   or entity that is an “accredited investor” within the meaning of Regulation D of the   Securities Act and (a) invests in Securities or bank loans, and (b) is advised or managed   by such holder, the same investment advisor as such holder or by an affiliate of such   holder or such investment advisor.   “Relevant Period” means each period of twelve months ending on the last   Business Day of the Company’s financial year and each period of twelve months ending   on a Quarter Date (other than the fourth Quarter Date in each financial year).   “Required Holders” means, at any time, the holders of more than 50% in   principal amount of the Notes at the time outstanding (exclusive of Notes then owned by   the Company or any of its Affiliates or any Competitor).   “Responsible Officer” means any Senior Financial Officer, the Secretary   and any other officer of the Company with responsibility for the administration of the   relevant portion of this Agreement.   “Sanctions Prepayment Date” is defined in Section 8.9(a).    “Sanctions Prepayment Notice” is defined in Section 8.9(a).   “Sanctions Prepayment Response Date” is defined in Section 8.9(a).   “SEC” means the Securities and Exchange Commission of the United   States, or any successor thereto.   “Securities” or “Security” shall have the meaning specified in Section 2(1)   of the Securities Act.    “Securities Act” means the Securities Act of 1933, as amended from time   to time, and the rules and regulations promulgated thereunder from time to time in effect.   “Senior Financial Officer” means a director, the chief financial officer,   principal accounting officer, treasurer or comptroller of the Company.   “series” means one or all of the Series A Notes, the Series B Notes or the   Series C Notes, as the context requires.   “Series A Notes” is defined in Section 1(a).   “Series B Notes” is defined in Section 1(a).   “Series C Notes” is defined in Section 1(a).     





 







   ln-255235  A-18   “Series E Notes” is defined in Section 1(a).   “Series D Notes” is defined in Section 1(a).   “Source” is defined in Section 6.2.   “Subordinated Debt” means Indebtedness of:      (a) the Company owing to any direct or indirect shareholders of the   Company, provided that such Indebtedness is subordinated to amounts due under   this Agreement and the Notes on terms satisfactory to the Required Holders   (acting reasonably); and/or      (b) the ATT Subordinated Debt.      “Subordination Deed Poll” is defined in Section 4.14.      “Subsidiary” means any company or corporation (referred to as the “first   person”) in respect of which another company or corporation (referred to as the “second   person”):      (a) holds a majority of the voting rights in that first person or has the right   under the constitution of the first person to direct the overall policy of the first   person; or      (b) is a member of that first person and has the right to appoint or remove   a majority of its board of directors or equivalent administration, management or   supervisory body; or      (c) is a member of that first person and controls alone or pursuant to an   agreement with other shareholders or members, a majority of the voting rights in   the first person or the rights under its constitution to direct the overall policy of   the first person or alter the terms of its constitution,       and for the purposes of this definition, a company or corporation shall be treated as a   member of another company or corporation if any of that company or corporation’s   Subsidiaries is a member of that other company or corporation. A subsidiary undertaking   shall include any company or corporation notwithstanding that the shares or ownership   interests in which are subject to a Lien and where the legal title to the shares or   ownership interests so secured are registered in the name of the secured party or its   nominee pursuant to such Lien provided that, for the avoidance of doubt, that secured   party or its nominee shall not be a subsidiary undertaking.    “Subsidiary Guarantor” is defined in Section 1(b).   “Subsidiary Guaranty Agreement” means a Subsidiary Guaranty   Agreement of any Subsidiary Guarantor, substantially in the form of Exhibit 1(b).     





 







   ln-255235  A-19   “SVO” means the Securities Valuation Office of the NAIC or any   successor to such Office.   “Swap Obligations” means, with respect to any Subsidiary Guarantor,   any obligation to pay or perform under any agreement, contract or transaction that   constitutes a “swap” within the meaning of section 1a(47) of the Commodity Exchange   Act.   “Tax” means any tax (whether income, documentary, sales, stamp,   registration, issue, capital, property, excise or otherwise), duty, assessment, levy, impost,   fee, compulsory loan, charge or withholding imposed by any Governmental Authority.   “Taxing Jurisdiction” is defined in Section 13.   “Tax Prepayment Notice” is defined in Section 8.3.   “U.S. Economic Sanctions” is defined in Section 5.16(a).   “US GAAP” means generally accepted accounting principles as in effect   in the United States of America from time to time.   “U.S. Person” has the meaning set forth in Section 7701(a)(30) of the   Code.   “USA PATRIOT Act” means United States Public Law 107-56, Uniting   and Strengthening America by Providing Appropriate Tools Required to Intercept and   Obstruct Terrorism (USA PATRIOT ACT) Act of 2001, as amended from time to time,   and the rules and regulations promulgated thereunder from time to time in effect.   “Vitol Holdings B.V.” means Vitol Holdings B.V., a private company   with limited liability incorporated under the laws of the Netherlands.   “Wholly-Owned Subsidiary” means, at any time, any Subsidiary all of   the equity interests (except directors’ qualifying shares) and voting interests of which are   owned by any one or more of the Company and the Company’s other Wholly-Owned   Subsidiaries at such time.        





 







SCHEDULE B   ln-255235  B-1   INFORMATION RELATING TO PURCHASERS       Name and Address of Purchaser   Principal Amount and Series   of   Notes to be Purchased    [NAME OF PURCHASER] $   (1) All payments by wire transfer of immediately   available funds to:         with sufficient information to identify the   source and application of such funds.         (2) All notices of payments and written confirmations   of such wire transfers:      (3) All other communications:    (4) U.S. Tax Identification Number:               





 







SCHEDULE 5.3   ln-255235       DISCLOSURE MATERIALS      US Private Placement Investor Presentation dated September 2015     





 







SCHEDULE 5.4   ln-255235    SUBSIDIARIES OF THE COMPANY AND    OWNERSHIP OF SUBSIDIARY STOCK      Subsidiaries      Subsidiary Jurisdiction Ownership Percentage        Eurotank Belgium B.V. Netherlands 100%   Antwerp Terminal & Processing   Company NV      Belgium      100%   FOSCO Holding Ltd Bermuda 100%   VTTI Fujairah Terminals Ltd (VTTI   FTL) FZC      United Arab Emirates      90%   VTTI SE Asia B.V. Netherlands 100%   ATT Tanjung Bin Sdn. Bhd Malaysia 100%   VTTI Americas B.V. Netherlands 100%   Seaport Canaveral Corp. Delaware 100%   VTTI Nederland B.V. Netherlands 100%   Eurotank Amsterdam B.V. Netherlands 100%   ETT Pipeline Operations BV Netherlands 100%   Euro Tank Terminal B.V. Netherlands 95%   Jetty Operations B.V. Netherlands 100%         Affiliates      Vitol Holding B.V.   Vitol Investment Partnership Limited   VTTI BV   VTTI Energy Partners LP         Directors      Rob Nijst    Rubel Yilmaz           





 







SCHEDULE 5.5   ln-255235    FINANCIAL STATEMENTS      The audited consolidated special purpose financial statements of the Company   and its Subsidiaries for its fiscal year ended December 31, 2014.   The audited consolidated financial statements of VTTI Energy Partners LP and its   Subsidiaries for its fiscal years ended December 31, 2014, 2013 and 2012.        





 







SCHEDULE 5.15   ln-255235       EXISTING INDEBTEDNESS; FUTURE LIENS      Existing Indebtedness   Form of Indebtedness  Obligor(s)  Guarantor(s)  Obligee(s)    U.S.$ (millions)   Available/Outstanding  Liens                  Facility Agreement  VTTI MLP BV  (i) Eurotank Amsterdam B.V.,   (ii) Euro Tank Terminal B.V.,   (iii) VTTI Fujairah Terminals   Ltd (VTTI FTL) FZC, (iv)   Antwerp Terminal & Processing   Company NV and (v) Seaport   Canaveral Corp.    Bank Syndicate  613.6 / 538.0  None                    ATT Tanjung Bin Phase 2   Loan    ATT Tanjung Bin   Sdn Bhd    None  VTTI BV  95 / 74.9  None                                                       Total 708.6 / 612.9            Future Liens Not Permitted by Section 10.4      None.      Instruments Limiting the Incurrence of Indebtedness       The Facility Agreement   ATT Tanjung Bin Phase 2 Loan     





 







EXHIBIT 1(a)(i)   ln-255235       Form of Series A Note   VTTI MLP B.V.   4.53% SERIES A SENIOR UNSECURED NOTE DUE DECEMBER 15, 2022   No. RA-[_____]         [Date]   U.S.$[_______]          PPN:  N9061# AA6   FOR VALUE RECEIVED, the undersigned, VTTI MLP B.V., a private company   with limited liability incorporated under the laws of the Netherlands (herein called the   “Company”), hereby promises to pay to [____________], or registered assigns, the   principal sum of [_____________________] U.S. DOLLARS (or so much thereof as   shall not have been prepaid) on December 15, 2022, with interest (computed on the basis   of a 360-day year of twelve 30-day months) (a) on the unpaid balance hereof at the rate   of 4.53% per annum from the date hereof, payable semiannually, on the 15th day of June   and December in each year, commencing with the June 15th or December 15th next   succeeding the date hereof, until the principal hereof shall have become due and payable,   and (b) to the extent permitted by law, on any overdue payment (including any overdue   prepayment) of principal, any overdue payment of interest and any overdue payment of   any Make-Whole Amount or Modified Make-Whole Amount, payable semi-annually as   aforesaid (or, at the option of the registered holder hereof, on demand) at a rate per   annum from time to time equal to the Default Rate.   Payments of principal of, interest on and any Make-Whole Amount or Modified   Make-Whole Amount with respect to this Note are to be made in lawful money of the   United States of America at the principal offices of Citibank, N.A. (or any successor   thereto) in New York, New York or at such other place as the Company shall have   designated by written notice to the holder of this Note as provided in the Note Purchase   Agreement referred to below.   This Note is one of a series of Senior Unsecured Notes (herein called the “Notes”)   issued pursuant to the Note Purchase Agreement, dated as of December 15, 2015 (as from   time to time amended, the “Note Purchase Agreement”), by and among the Company   and the respective Purchasers named therein, and is entitled to the benefits thereof.  Each   holder of this Note will be deemed, by its acceptance hereof, to have (i) agreed to the   confidentiality provisions set forth in Section 21 of the Note Purchase Agreement and   (ii) made the representations set forth in Section 6 of the Note Purchase Agreement.    Unless otherwise indicated, capitalized terms used in this Note shall have the respective   meanings ascribed to such terms in the Note Purchase Agreement.     





 







   ln-255235    This Note is a registered Note and, as provided in the Note Purchase Agreement,   upon surrender of this Note for registration of transfer accompanied by a written   instrument of transfer duly executed, by the registered holder hereof or such holder’s   attorney duly authorized in writing, a new Note for a like principal amount will be issued   to, and registered in the name of, the transferee.  Prior to due presentment for registration   of transfer, the Company may treat the person in whose name this Note is registered as   the owner hereof for the purpose of receiving payment and for all other purposes, and the   Company will not be affected by any notice to the contrary.   This Note is subject to optional prepayment, in whole or from time to time in part,   at the times and on the terms specified in the Note Purchase Agreement, but not   otherwise.   The payment of this Note may from time to time be guaranteed by certain   Subsidiary Guarantors.    If an Event of Default occurs and is continuing, the principal of this Note may be   declared or otherwise become due and payable in the manner, at the price (including any   applicable Make-Whole Amount) and with the effect provided in the Note Purchase   Agreement.   This Note shall be construed and enforced in accordance with, and the rights of   the Company and the holder of this Note shall be governed by, the law of the State of   New York excluding choice-of-law principles of the law of such State that would permit   the application of the laws of a jurisdiction other than such State.      VTTI MLP B.V.      ________________________________   Name:   Title:    





 







EXHIBIT 1(a)(ii)   ln-255235    Form of Series B Note   VTTI MLP B.V.   4.87% SERIES B SENIOR UNSECURED NOTE DUE DECEMBER 15, 2025   No. RB-[_____]           [Date]   U.S.$[_______]          PPN:  N9061# AB4   FOR VALUE RECEIVED, the undersigned, VTTI MLP B.V., a private company   with limited liability incorporated under the laws of the Netherlands (herein called the   “Company”), hereby promises to pay to [____________], or registered assigns, the   principal sum of [_____________________] U.S. DOLLARS (or so much thereof as   shall not have been prepaid) on December 15, 2025, with interest (computed on the basis   of a 360-day year of twelve 30-day months) (a) on the unpaid balance hereof at the rate   of 4.87% per annum from the date hereof, payable semiannually, on the 15th day of June   and December in each year, commencing with the June 15th or December 15th next   succeeding the date hereof, until the principal hereof shall have become due and payable,   and (b) to the extent permitted by law, on any overdue payment (including any overdue   prepayment) of principal, any overdue payment of interest and any overdue payment of   any Make-Whole Amount or Modified Make-Whole Amount, payable semi-annually as   aforesaid (or, at the option of the registered holder hereof, on demand) at a rate per   annum from time to time equal to the Default Rate.   Payments of principal of, interest on and any Make-Whole Amount or Modified   Make-Whole Amount with respect to this Note are to be made in lawful money of the   United States of America at the principal offices of Citibank, N.A. (or any successor   thereto) in New York, New York or at such other place as the Company shall have   designated by written notice to the holder of this Note as provided in the Note Purchase   Agreement referred to below.   This Note is one of a series of Senior Unsecured Notes (herein called the “Notes”)   issued pursuant to the Note Purchase Agreement, dated as of December 15, 2015 (as from   time to time amended, the “Note Purchase Agreement”), by and among the Company   and the respective Purchasers named therein, and is entitled to the benefits thereof.  Each   holder of this Note will be deemed, by its acceptance hereof, to have (i) agreed to the   confidentiality provisions set forth in Section 21 of the Note Purchase Agreement and   (ii) made the representations set forth in Section 6 of the Note Purchase Agreement.    Unless otherwise indicated, capitalized terms used in this Note shall have the respective   meanings ascribed to such terms in the Note Purchase Agreement.        





 







   ln-255235    This Note is a registered Note and, as provided in the Note Purchase Agreement,   upon surrender of this Note for registration of transfer accompanied by a written   instrument of transfer duly executed, by the registered holder hereof or such holder’s   attorney duly authorized in writing, a new Note for a like principal amount will be issued   to, and registered in the name of, the transferee.  Prior to due presentment for registration   of transfer, the Company may treat the person in whose name this Note is registered as   the owner hereof for the purpose of receiving payment and for all other purposes, and the   Company will not be affected by any notice to the contrary.   This Note is subject to optional prepayment, in whole or from time to time in part,   at the times and on the terms specified in the Note Purchase Agreement, but not   otherwise.   The payment of this Note may from time to time be guaranteed by certain   Subsidiary Guarantors.   If an Event of Default occurs and is continuing, the principal of this Note may be   declared or otherwise become due and payable in the manner, at the price (including any   applicable Make-Whole Amount) and with the effect provided in the Note Purchase   Agreement.   This Note shall be construed and enforced in accordance with, and the rights of   the Company and the holder of this Note shall be governed by, the law of the State of   New York excluding choice-of-law principles of the law of such State that would permit   the application of the laws of a jurisdiction other than such State.      VTTI MLP B.V.      ________________________________   Name:   Title:    





 







EXHIBIT 1(a)(iii)      Form of Series C Note   VTTI MLP B.V.   4.97% SERIES C SENIOR UNSECURED NOTE DUE DECEMBER 15, 2027   No. RC-[_____]         [Date]   U.S.$[_______]          PPN:  N9061# AC2   FOR VALUE RECEIVED, the undersigned, VTTI MLP B.V., a private company   with limited liability incorporated under the laws of the Netherlands (herein called the   “Company”), hereby promises to pay to [____________], or registered assigns, the   principal sum of [_____________________] U.S. DOLLARS (or so much thereof as   shall not have been prepaid) on December 15, 2027, with interest (computed on the basis   of a 360-day year of twelve 30-day months) (a) on the unpaid balance hereof at the rate   of 4.97% per annum from the date hereof, payable semiannually, on the 15th day of June   and December in each year, commencing with the June 15th or December 15th next   succeeding the date hereof, until the principal hereof shall have become due and payable,   and (b) to the extent permitted by law, on any overdue payment (including any overdue   prepayment) of principal, any overdue payment of interest and any overdue payment of   any Make-Whole Amount or Modified Make-Whole Amount, payable semi-annually as   aforesaid (or, at the option of the registered holder hereof, on demand) at a rate per   annum from time to time equal to the Default Rate.   Payments of principal of, interest on and any Make-Whole Amount or Modified   Make-Whole Amount with respect to this Note are to be made in lawful money of the   United States of America at the principal offices of Citibank, N.A. (or any successor   thereto) in New York, New York or at such other place as the Company shall have   designated by written notice to the holder of this Note as provided in the Note Purchase   Agreement referred to below.   This Note is one of a series of Senior Unsecured Notes (herein called the “Notes”)   issued pursuant to the Note Purchase Agreement, dated as of December 15, 2015 (as from   time to time amended, the “Note Purchase Agreement”), by and among the Company   and the respective Purchasers named therein, and is entitled to the benefits thereof.  Each   holder of this Note will be deemed, by its acceptance hereof, to have (i) agreed to the   confidentiality provisions set forth in Section 21 of the Note Purchase Agreement and   (ii) made the representations set forth in Section 6 of the Note Purchase Agreement.    Unless otherwise indicated, capitalized terms used in this Note shall have the respective   meanings ascribed to such terms in the Note Purchase Agreement.     





 







   ln-255235    This Note is a registered Note and, as provided in the Note Purchase Agreement,   upon surrender of this Note for registration of transfer accompanied by a written   instrument of transfer duly executed, by the registered holder hereof or such holder’s   attorney duly authorized in writing, a new Note for a like principal amount will be issued   to, and registered in the name of, the transferee.  Prior to due presentment for registration   of transfer, the Company may treat the person in whose name this Note is registered as   the owner hereof for the purpose of receiving payment and for all other purposes, and the   Company will not be affected by any notice to the contrary.   This Note is subject to optional prepayment, in whole or from time to time in part,   at the times and on the terms specified in the Note Purchase Agreement, but not   otherwise.   The payment of this Note may from time to time be guaranteed by certain   Subsidiary Guarantors.    If an Event of Default occurs and is continuing, the principal of this Note may be   declared or otherwise become due and payable in the manner, at the price (including any   applicable Make-Whole Amount) and with the effect provided in the Note Purchase   Agreement.   This Note shall be construed and enforced in accordance with, and the rights of   the Company and the holder of this Note shall be governed by, the law of the State of   New York excluding choice-of-law principles of the law of such State that would permit   the application of the laws of a jurisdiction other than such State.      VTTI MLP B.V.      ________________________________   Name:   Title:    





 







EXHIBIT 1(a)(iv)      Form of Series D Note   VTTI MLP B.V.   2.50% SERIES D SENIOR UNSECURED NOTE DUE DECEMBER 15, 2022   No. RD-[_____]           [Date]   €[_______]           PPN:  N9061# AD0   FOR VALUE RECEIVED, the undersigned, VTTI MLP B.V., a private company   with limited liability incorporated under the laws of the Netherlands (herein called the   “Company”), hereby promises to pay to [____________], or registered assigns, the   principal sum of [_____________________] EUROS (or so much thereof as shall not   have been prepaid) on December 15, 2022, with interest (computed on the basis of a 360-   day year of twelve 30-day months) (a) on the unpaid balance hereof at the rate of 2.50%   per annum from the date hereof, payable semiannually, on the 15th day of June and   December in each year, commencing with the June 15th or December 15th next   succeeding the date hereof, until the principal hereof shall have become due and payable,   and (b) to the extent permitted by law, on any overdue payment (including any overdue   prepayment) of principal, any overdue payment of interest and any overdue payment of   any Make-Whole Amount or Modified Make-Whole Amount, payable semi-annually as   aforesaid (or, at the option of the registered holder hereof, on demand) at a rate per   annum from time to time equal to the Default Rate.   Payments of principal of, interest on and any Make-Whole Amount or Modified   Make-Whole Amount with respect to this Note are to be made in either Euros or Dollars   (as required by the Note Purchase Agreement referred to below) at the principal offices of   Citibank, N.A. (or any successor thereto) in New York, New York or at such other place   as the Company shall have designated by written notice to the holder of this Note as   provided in the Note Purchase Agreement referred to below.   This Note is one of a series of Senior Unsecured Notes (herein called the “Notes”)   issued pursuant to the Note Purchase Agreement, dated as of December 15, 2015 (as from   time to time amended, the “Note Purchase Agreement”), by and among the Company   and the respective Purchasers named therein, and is entitled to the benefits thereof.  Each   holder of this Note will be deemed, by its acceptance hereof, to have (i) agreed to the   confidentiality provisions set forth in Section 21 of the Note Purchase Agreement and   (ii) made the representations set forth in Section 6 of the Note Purchase Agreement.    Unless otherwise indicated, capitalized terms used in this Note shall have the respective   meanings ascribed to such terms in the Note Purchase Agreement.     





 







   ln-255235    This Note is a registered Note and, as provided in the Note Purchase Agreement,   upon surrender of this Note for registration of transfer accompanied by a written   instrument of transfer duly executed, by the registered holder hereof or such holder’s   attorney duly authorized in writing, a new Note for a like principal amount will be issued   to, and registered in the name of, the transferee.  Prior to due presentment for registration   of transfer, the Company may treat the person in whose name this Note is registered as   the owner hereof for the purpose of receiving payment and for all other purposes, and the   Company will not be affected by any notice to the contrary.   This Note is subject to optional prepayment, in whole or from time to time in part,   at the times and on the terms specified in the Note Purchase Agreement, but not   otherwise.   The payment of this Note may from time to time be guaranteed by certain   Subsidiary Guarantors.   If an Event of Default occurs and is continuing, the principal of this Note may be   declared or otherwise become due and payable in the manner, at the price (including any   applicable Make-Whole Amount) and with the effect provided in the Note Purchase   Agreement.   This Note shall be construed and enforced in accordance with, and the rights of   the Company and the holder of this Note shall be governed by, the law of the State of   New York excluding choice-of-law principles of the law of such State that would permit   the application of the laws of a jurisdiction other than such State.      VTTI MLP B.V.      ________________________________   Name:   Title:    





 







EXHIBIT 1(a)(v)      Form of Series E Note   VTTI MLP B.V.   2.86% SERIES E SENIOR UNSECURED NOTE DUE DECEMBER 15, 2025   No. RE-[_____]           [Date]   €[_______]           PPN:  N9061# AE 8   FOR VALUE RECEIVED, the undersigned, VTTI MLP B.V., a private company   with limited liability incorporated under the laws of the Netherlands (herein called the   “Company”), hereby promises to pay to [____________], or registered assigns, the   principal sum of [_____________________] EUROS (or so much thereof as shall not   have been prepaid) on December 15, 2025, with interest (computed on the basis of a 360-   day year of twelve 30-day months) (a) on the unpaid balance hereof at the rate of 2.86%   per annum from the date hereof, payable semiannually, on the 15th day of June and   December in each year, commencing with the June 15th or December 15th next   succeeding the date hereof, until the principal hereof shall have become due and payable,   and (b) to the extent permitted by law, on any overdue payment (including any overdue   prepayment) of principal, any overdue payment of interest and any overdue payment of   any Make-Whole Amount or Modified Make-Whole Amount, payable semi-annually as   aforesaid (or, at the option of the registered holder hereof, on demand) at a rate per   annum from time to time equal to the Default Rate.   Payments of principal of, interest on and any Make-Whole Amount or Modified   Make-Whole Amount with respect to this Note are to be made in either Euros or Dollars   (as required by the Note Purchase Agreement referred to below) at the principal offices of   Citibank, N.A. (or any successor thereto) in New York, New York or at such other place   as the Company shall have designated by written notice to the holder of this Note as   provided in the Note Purchase Agreement referred to below.   This Note is one of a series of Senior Unsecured Notes (herein called the “Notes”)   issued pursuant to the Note Purchase Agreement, dated as of December 15, 2015 (as from   time to time amended, the “Note Purchase Agreement”), by and among the Company   and the respective Purchasers named therein, and is entitled to the benefits thereof.  Each   holder of this Note will be deemed, by its acceptance hereof, to have (i) agreed to the   confidentiality provisions set forth in Section 21 of the Note Purchase Agreement and   (ii) made the representations set forth in Section 6 of the Note Purchase Agreement.    Unless otherwise indicated, capitalized terms used in this Note shall have the respective   meanings ascribed to such terms in the Note Purchase Agreement.     





 







   ln-255235    This Note is a registered Note and, as provided in the Note Purchase Agreement,   upon surrender of this Note for registration of transfer accompanied by a written   instrument of transfer duly executed, by the registered holder hereof or such holder’s   attorney duly authorized in writing, a new Note for a like principal amount will be issued   to, and registered in the name of, the transferee.  Prior to due presentment for registration   of transfer, the Company may treat the person in whose name this Note is registered as   the owner hereof for the purpose of receiving payment and for all other purposes, and the   Company will not be affected by any notice to the contrary.   This Note is subject to optional prepayment, in whole or from time to time in part,   at the times and on the terms specified in the Note Purchase Agreement, but not   otherwise.   The payment of this Note may from time to time be guaranteed by certain   Subsidiary Guarantors.   If an Event of Default occurs and is continuing, the principal of this Note may be   declared or otherwise become due and payable in the manner, at the price (including any   applicable Make-Whole Amount) and with the effect provided in the Note Purchase   Agreement.   This Note shall be construed and enforced in accordance with, and the rights of   the Company and the holder of this Note shall be governed by, the law of the State of   New York excluding choice-of-law principles of the law of such State that would permit   the application of the laws of a jurisdiction other than such State.      VTTI MLP B.V.      ________________________________   Name:   Title:    





 







EXHIBIT 1(b)      Form of Subsidiary Guaranty Agreement   [TO BE REVIEWED AND UPDATED BY LOCAL COUNSEL    IN ORDER TO ACCOUNT FOR ANY LIMITATIONS OR    LEGAL REQUIREMENTS FOR EACH JURISDICTION]         SUBSIDIARY GUARANTY AGREEMENT      Dated as of [________], 20[__]      By      [NAME OF SUBSIDIARY GUARANTOR]      Re:      U.S.$75,000,000   4.53% Series A Senior Unsecured Notes due December 15, 2022   and   U.S.$72,000,000   4.87% Series B Senior Unsecured Notes due December 15, 2025   and   U.S.$98,000,000   4.97% Series C Senior Unsecured Notes due December 15, 2027   and   €50,000,000   2.50% Series D Senior Unsecured Notes due December 15, 2022   and   €130,000,000|   2.86% Series E Senior Unsecured Notes due December 15, 2025   of       VTTI MLP B.V.        





 







   ln-255235  1         Re:      U.S.$75,000,000   4.53% Series A Senior Unsecured Notes due December 15, 2022   and   U.S.$72,000,000   4.87% Series B Senior Unsecured Notes due December 15, 2025   and   U.S.$98,000,000   4.97% Series C Senior Unsecured Notes due December 15, 2027   and   €50,000,000   2.50% Series D Senior Unsecured Notes due December 15, 2022   and   €130,000,000|   2.86% Series E Senior Unsecured Notes due December 15, 2025   of       VTTI MLP B.V.   This Subsidiary Guaranty Agreement (as may be amended, restated or   otherwise modified from time to time, this “Guaranty Agreement”) is dated as of   [_______] [__], 20[__] by [                      ], a [______________] organized under the   laws of [          ] (the “Guarantor”).   RECITALS:   A. The Guarantor is a direct or indirect subsidiary of VTTI MLP B.V.,   a private company with limited liability incorporated under the laws of the Netherlands    (the “Company”).   B. In order to provide funds for general corporate purposes, the   Company entered into a Note Purchase Agreement dated as of December 15, 2015 (as   may be amended, restated, or otherwise modified from time to time, the “Agreement”)   with the institutions named on Schedule B to such Agreement (the “Purchasers”),   providing for, among other things, the issue and sale to the Purchasers of     





 







   ln-255235  2   U.S.$75,000,000 aggregate principal amount of its 4.53% Series A Senior Unsecured   Notes due December 15, 2022, U.S.$72,000,000 aggregate principal amount of its 4.87%   Series B Senior Unsecured Notes due December 15, 2025, U.S.$98,000,000 aggregate   principal amount of its 4.97% Series C Senior Unsecured Notes due December 15, 2027,   €50,000,000 aggregate principal amount of its 2.50% Series D Senior Unsecured Notes   due December 15, 2022 and €130,000,000 aggregate principal amount of its 2.86% Series   E Senior Unsecured Notes due December 15, 2025 (collectively, as may be amended,   restated or otherwise modified from time to time, including any such notes of either   series issued in substitution therefore pursuant to Section 14 of the Agreement, the   “Notes”).  Capitalized terms used herein and not otherwise defined shall have the   meanings assigned thereto in the Agreement.   C. The Guarantor by reason of its interest in the financing by the   Company of certain outstanding debt and in order to induce the Purchasers to provide the   Company with necessary funds for general corporate purposes has agreed to execute this   Guaranty Agreement.   NOW, THEREFORE, in consideration of the premises and the receipt   whereof is hereby acknowledged, the Guarantor does hereby covenant and agree as   follows:   SECTION 1. GUARANTY.   (a) The Guarantor hereby irrevocably, absolutely and unconditionally   guarantees to the holders from time to time of the Notes:  (i) the full and prompt   payment on demand of the principal of all of the Notes and of the interest thereon   at the rate therein stipulated (including, without limitation, to the extent legally   enforceable, interest on any overdue principal, Make-Whole Amount and   Modified Make-Whole Amount, if any, and interest at the rates specified in the   Notes and interest accruing or becoming owing both prior to and subsequent to   the commencement of any bankruptcy, reorganization or similar proceeding   involving the Company) and the Make-Whole Amount and Modified Make-   Whole Amount, if any, and all other amounts owing to the holders from time to   time under the Notes and the Agreement when and as the same shall become due   and payable, whether by lapse of time, upon redemption or prepayment, by   extension or by acceleration or declaration, or otherwise, (ii) the full and prompt   performance and observance by the Company of each and all of the covenants and   agreements required to be performed or observed by such Persons under the terms   of the Agreement, and (iii) payment, upon demand by any holder of the Notes, of   all costs and expenses, legal or otherwise (including reasonable attorneys’ fees)   and such expenses, if any, as shall have been expended or incurred in the   protection or enforcement of any right or privilege under the Agreement or this   Guaranty Agreement or in any consultation or action in connection therewith, and   in each and every case irrespective of the validity, regularity, or enforcement of   any of the Notes or the Agreement or any of the terms thereof or of any other like   circumstance or circumstances (all of the obligations described in the foregoing   clause (i), clause (ii) and clause (iii) being referred to herein as the “Guaranteed     





 







   ln-255235  3   Obligations”).  The guaranty of the Guaranteed Obligations herein provided for is   a guaranty of the immediate and timely payment of the principal, interest and   Make-Whole Amount and Modified Make-Whole Amount, if any, on the Notes as   and when the same are due and payable and shall not be deemed to be a guaranty   only of the collectability of such payments and that in consequence thereof each   holder of the Notes may sue the Guarantor directly upon such Guaranteed   Obligations. The Guarantor agrees as a primary obligation to indemnify each   Noteholder from time to time on demand from and against any loss incurred by it   as a result of the Agreement, any Notes and/or this Guaranty Agreement being or   becoming void, voidable or unenforceable for any reason whatsoever, whether or   not known to such Noteholder, the amount of such loss being the amount which   such Noteholder would otherwise have been entitled to recover from the   Guarantor.   (b) Principal Obligor.  The obligations of the Guarantor hereunder   shall be deemed to be undertaken as principal obligor and not merely as surety.   (c) Continuing Obligations.  The obligations of the Guarantor   hereunder shall be continuing obligations notwithstanding any settlement of   account or other matter or thing whatsoever and, in particular but without   limitation, shall not be considered satisfied by any intermediate payment or   satisfaction of all or any of the Company’s obligations under or in respect of any   Note and shall continue in full force and effect until all sums due from the   Company in respect of the Notes have been paid and all other obligations of the   Company thereunder or in respect thereof have been satisfied, in full.   SECTION 2. NATURE OF OBLIGATION; TERMINATION; LIMITATIONS.   (a) This Guaranty Agreement shall be absolute and unconditional and   shall remain in full force and effect until the entire principal, interest, Make-   Whole Amount and Modified Make-Whole Amount, if any, on the Notes and all   other sums due pursuant to the Agreement and the Notes shall have been fully,   finally and indefeasibly paid and such Guaranteed Obligations shall not be   affected, modified or impaired upon the happening from time to time of any event   or condition, including without limitation any of the following, whether or not   with notice to or the consent of the Guarantor:   (i) the power or authority or the lack of power or authority of   the Company to issue the Notes or of the Company to execute and deliver   the Agreement, and irrespective of the validity of the Notes, or the   Agreement or of any defense whatsoever that the Company may or might   have to the payment of the Notes (including, without limitation, principal,   interest, Make-Whole Amount and Modified Make-Whole Amount, if any)   or to the performance or observance of any of the provisions or conditions   of the Agreement, or the existence or continuance of the Company as a   legal entity;     





 







   ln-255235  4   (ii) any failure to present the Notes for payment or to demand   payment thereof, or to give the Guarantor or the Company notice of   dishonor for non-payment of the Notes, when and as the same may   become due and payable, or notice of any failure on the part of the   Company to do any act or thing or to perform or to keep any covenant or   agreement by either of them to be done, kept or performed under the terms   of the Notes or the Agreement;   (iii) additional money lent to the Company, any extension of the   obligation of the Notes, either indefinitely or for any period of time, or any   other modification in the obligation of the Notes or of the Agreement or   the Company thereon, or in connection therewith, or any sale, release,   substitution or exchange of any security;   (iv) any act or failure to act with regard to the Notes or the   Agreement or anything which might vary the risk of the Guarantor   (including, without limitation, any release or substitution of any one or   more of the endorsers or guarantors of the Guaranteed Obligations);   (v) any action taken under the Agreement in the exercise of   any right or power thereby conferred or any failure or omission on the part   of any holder of any Note to first enforce any right or security given under   the Agreement or any failure or omission on the part of any holder of any   of the Notes to first enforce any right against the Company or any other   Subsidiary Guarantor;   (vi) the waiver, compromise, settlement, release or termination   of any or all of the obligations, covenants or agreements of the Company   contained in the Agreement, or of any other Subsidiary Guarantor   contained in any other Subsidiary Guaranty Agreement, or of the payment,   performance or observance thereof;   (vii) the failure to give notice to the Company, the Guarantor or   any other Subsidiary Guarantor of the occurrence of any Default or Event   of Default under the terms and provisions of the Agreement;   (viii) the extension of the time for payment of any principal of, or   interest (or Make-Whole Amount, Modified Make-Whole Amount or any   other amount, if any), on any Note owing or payable on such Note or of   the time of or for performance of any obligations, covenants or agreements   under or arising out of the Agreement or the extension or the renewal of   any thereof;   (ix) the modification or amendment (whether material or   otherwise) of any obligation, covenant or agreement set forth in the   Agreement, the Notes and each Subsidiary Guaranty Agreement;     





 







   ln-255235  5   (x) any failure, omission, delay or lack on the part of the   holders of the Notes to enforce, assert or exercise any right, power or   remedy conferred on the holders of the Notes in the Agreement, the Notes   or any other Subsidiary Guaranty Agreement or any other act or acts on   the part of the holders from time to time of the Notes;   (xi) the voluntary or involuntary liquidation, dissolution, sale or   other disposition of all or substantially all the assets, marshaling of assets   and liabilities, receivership, insolvency, bankruptcy, assignment for the   benefit of creditors, reorganization or arrangement under bankruptcy or   similar laws, composition with creditors or readjustment of, or other   similar procedures affecting the Guarantor, or any other Subsidiary   Guarantor, or the Company or any of the assets of any of them, or any   allegation or contest of the validity of the Agreement or any other   Subsidiary Guaranty Agreement or the disaffirmance of the Agreement or   any other Subsidiary Guaranty Agreement in any such proceeding (it being   understood that the obligations of the Guarantor under this Guaranty   Agreement shall continue to be effective or be reinstated, as the case may   be, if at any time any payment made with respect to the Notes is rescinded   or must otherwise be restored or returned by any holder of the Notes upon   the insolvency, bankruptcy or reorganization of the Company, the   Guarantor or any other Subsidiary Guarantor, all as though such payment   had not been made);   (xii) any event or action that would, in the absence of this clause,   result in the release or discharge by operation of law of the Guarantor from   the performance or observance of any obligation, covenant or agreement   contained in this Guaranty Agreement;   (xiii) the invalidity or unenforceability of the Agreement, the   Notes and any other Subsidiary Guaranty Agreement;   (xiv) the invalidity or unenforceability of the obligations of the   Guarantor under this Guaranty Agreement, the absence of any action to   enforce such obligations of the Guarantor, any waiver or consent by the   Guarantor with respect to any of the provisions hereof or any other   circumstances which might otherwise constitute a discharge or defense by   the Guarantor, including, without limitation, any failure or delay in the   enforcement of the obligations of the Guarantor with respect to this   Guaranty Agreement or of notice thereof; or any suit or other action   brought by any shareholder or creditor of, or by, the Guarantor or any   other Person, for any reason, including, without limitation, any suit or   action in any way attacking or involving any issue, matter or thing in   respect of this Guaranty Agreement, the Agreement or the Notes or any   other agreement;     





 







   ln-255235  6   (xv) the default or failure of any Subsidiary Guarantor fully to   perform any of its covenants or obligations set forth in its respective   Subsidiary Guaranty Agreement;   (xvi) the impossibility or illegality of performance on the part of   the Company or any other Person of its obligations under any of the   Agreement, the Notes and each Subsidiary Guaranty Agreement or any   other instruments;   (xvii) in respect of the Company or any other Person, any change   of circumstances, whether or not foreseen or foreseeable, whether or not   imputable to the Company or any other Person, or other impossibility of   performance through fire, explosion, accident, labor disturbance, floods,   droughts, embargoes, wars (whether or not declared), civil commotions,   acts of God or the public enemy, delays or failure of suppliers or carriers,   inability to obtain materials, action of any regulatory body or agency,   change of law or any other causes affecting performance, or other force   majeure, whether or not beyond the control of the Company or any other   Person and whether or not of the kind hereinbefore specified;   (xviii) any attachment, claim, demand, charge, lien, order, process,   encumbrance or any other happening or event or reason, similar or   dissimilar to the foregoing, or any withholding or diminution at the source,   by reason of any taxes, assessments, expenses, indebtedness, obligations or   liabilities of any character, foreseen or unforeseen, and whether or not   valid, incurred by or against any Person, or any claims, demands, charges   or liens of any nature, foreseen or unforeseen, incurred by any Person, or   against any sums payable under this Guaranty Agreement, so that such   sums would be rendered inadequate or would be unavailable to make the   payments herein provided;   (xix) the failure of the Guarantor to receive any benefit or   consideration from or as a result of its execution, delivery and   performance of this Guaranty Agreement;   (xx) any sale, exchange, release or surrender of any property at   any time pledged or granted as security in respect of the Guaranteed   Obligations, whether so pledged or granted by the Guarantor or another   guarantor of the obligations of the Company under the Agreement, the   Notes and each Subsidiary Guaranty Agreement; or   (xxi) any other circumstance which might otherwise constitute a   defense available to, or a discharge of, the Guarantor in respect of the   obligations of the Guarantor under this Guaranty Agreement;     





 







   ln-255235  7   provided that the specific enumeration of the above-mentioned acts, failures or omissions   shall not be deemed to exclude any other acts, failures or omissions, though not   specifically mentioned above, it being the purpose and intent of this paragraph that the   obligations of the Guarantor hereunder shall be absolute and unconditional to the extent   herein specified and shall not be discharged, impaired or varied except by the full, final   and indefeasible payment to the holders thereof of the principal of, interest on and Make-   Whole Amount and Modified Make-Whole Amount, if any, and any other amounts due   in respect of the Notes, and then only to the extent of such payments.  Without limiting   any of the other terms or provisions hereof, it is understood and agreed that in order to   hold the Guarantor liable hereunder, there shall be no obligation on the part of any holder   of any Note to resort, in any manner or form, for payment, to the Company, to any other   Person or to the properties or estates of any of the foregoing.  All rights of the holder of   any Note pursuant thereto or to this Guaranty Agreement may be transferred or assigned   at any time or from time to time and shall be considered to be transferred or assigned   upon the transfer of such Note whether with or without the consent of or notice to the   Guarantor or the Company.  Without limiting the foregoing, it is understood that repeated   and successive demands may be made and recoveries may be had hereunder as and when,   from time to time, the Company shall default under the terms of the Notes or the   Agreement and that notwithstanding recovery hereunder for or in respect of any given   default or defaults by the Company under the Notes or the Agreement, this Guaranty   Agreement shall remain in full force and effect and shall apply to each and every   subsequent default.   (b) To the fullest extent permitted by law, the Guarantor does hereby   expressly waive:   (i) all of the matters specified in clause (a) of this Section 2   and any notices in respect thereof;   (ii) notice of acceptance of this Guaranty Agreement;   (iii) notice of any purchase or acceptance of the Notes under the   Agreement, or the creation, existence or acquisition of any of the   Guaranteed Obligations, subject to the Guarantor’s right to make inquiry   of each holder to ascertain the amount of the Guaranteed Obligations at   any reasonable time;   (iv) notice of the amount of the Guaranteed Obligations, subject   to the Guarantor’s right to make inquiry of each holder to ascertain the   amount of the Guaranteed Obligations at any reasonable time; and   (v) any stay (except in connection with a pending appeal),   valuation, appraisal, redemption or extension law now or at any time   hereafter in force that, but for this waiver, might be applicable to any sale   of property of the Guarantor made under any judgment, order or decree   based on this Guaranty Agreement, and the Guarantor covenants that it     





 







   ln-255235  8   will not at any time insist upon or plead, or in any manner claim or take   the benefit or advantage of any such law.   (c) Each of the rights and remedies granted under this Guaranty   Agreement to each holder in respect of the Notes held by such holder may be   exercised by such holder without notice to, or the consent of or any other action   by, any other holder.  Each holder may proceed to protect and enforce this   Guaranty Agreement by making the payment hereunder on demand, by suit or   suits or proceedings in equity, at law or in bankruptcy, and whether for the   specific performance of any covenant or agreement contained herein or in   execution or aid of any power herein granted; or for the recovery of judgment for   the obligations hereby guarantied or for the enforcement of any other proper, legal   or equitable remedy available under applicable law.   (d) If any holder shall have instituted any proceeding to enforce any   right or remedy under this Guaranty Agreement or under any Note held by such   holder and such proceeding shall have been discontinued or abandoned for any   reason, or shall have been determined adversely to such holder, then and in every   such case each such holder and the Company shall, except as may be limited or   affected by any determination in such proceeding, be restored severally and   respectively to its respective former position hereunder and thereunder, and   thereafter the rights and remedies of such holders shall continue as though no   such proceeding had been instituted.   (e) Notwithstanding anything to the contrary above, the Guarantor, by   written notice to each holder of a Note, may terminate this Guaranty Agreement at   any time and all obligations hereunder arising after the date of said termination in   accordance with Section 9.8 of the Agreement, provided, that, at the time of and   after giving effect to such termination, no Default or Event of Default shall have   occurred and be continuing under the Agreement.   (f) Any term or provision of this Guaranty Agreement, the Agreement   or of the Notes notwithstanding, if any U.S. federal or state fraudulent   conveyance laws are determined by a court of competent jurisdiction to be   applicable to the obligations of a Guarantor hereunder, such Guarantor’s   obligations hereunder shall be limited to the maximum aggregate amount of the   obligations that would not render such Guarantor’s obligations subject to   avoidance under applicable U.S. federal or state fraudulent conveyance laws.   (g) [INSERT APPROPRIATE JURISDICTIONAL LIMITATIONS:]   [NETHERLANDS:    (g) The guarantee, undertakings and indemnity of this Guaranty   Agreement in respect of any Guarantor organized under the law of The   Netherlands do not apply to any obligation or liability which, if it were included,     





 







   ln-255235  9   would result in this Guaranty Agreement contravening any law on financial   assistance (including a violation of section 2:98c of the Dutch Civil Code   (Burgerlijk Wetboek)).   (h) No Guarantor organized under the laws of The Netherlands shall   be liable under this Guaranty Agreement to the extent that, if it were so liable, its   entry into this Guaranty Agreement would violate: (i) its corporate interest; or (ii)   section 3:45 of the Dutch Civil Code (Burgerlijk Wetboek) or sections 42 or 43 of   the Dutch Bankruptcy Act (Faillissementswet).]   [UNITED ARAB EMIRATES: To the extent that a court should hold that   Article 1092 of Federal Law No. 5 of 1985 (as amended) of the United Arab   Emirates (or any successor thereto) may be applicable to the obligations of the   Guarantor under this Guaranty Agreement, the Guarantor expressly agrees that   the provisions of that Article shall not apply to the obligations of the Guarantor   under this Agreement and that no holder of a Note shall be obliged to make any   demand within the six month time period mentioned in that Article.]   [U.S.: (i) Notwithstanding any term or provision of this Guaranty   Agreement, or any other term in the Agreement or the Notes, the Guarantor shall   not be liable for any Excluded Swap Obligation.     (ii) To the extent the Guarantor is a Qualified ECP Guarantor, it   hereby jointly and severally absolutely, unconditionally and irrevocably   undertakes to provide such funds or other support as may be needed from time to   time by each other Subsidiary Guarantor to honor all of its obligations under this   Guaranty Agreement, the Agreement and the Notes in respect of Swap   Obligations (provided, however, that the Guarantor shall only be liable under this   sentence for the maximum amount of such liability that can be hereby incurred   without rendering its obligations under this Guaranty Agreement, or otherwise   under the Agreement and the Notes, voidable under applicable law relating to   fraudulent conveyance or fraudulent transfer, and not for any greater amount). To   the extent it is a Qualified ECP Guarantor, the obligations of the Guarantor under   this subpart (ii) shall remain in full force and effect until the discharge or release   of this Guaranty Agreement pursuant to the terms of the Agreement. To the extent   it is a Qualified ECP Guarantor, the Guarantor intends that this paragraph   constitutes, and this paragraph shall be deemed to constitute, a “keepwell, support,   or other agreement” for the benefit of each holder of a Note for all purposes of   Section 1a(18)(A)(v)(II) of the Commodity Exchange Act.   (iii) Any term or provision of this Agreement or any other term in this   the Agreement or the Notes notwithstanding, the maximum aggregate amount of   the obligations for which any Guarantor shall be liable under this Guaranty   Agreement or the Agreement or the Notes shall in no event exceed an amount   equal to the largest amount that would not render such Guarantor’s obligations     





 







   ln-255235  10   under this Agreement subject to avoidance under applicable United States federal   or state fraudulent transfer, fraudulent conveyance or similar laws.]   [BELGIUM: The obligations of the Guarantor under this Guaranty   Agreement shall: (i) not include any liability which would constitute unlawful   financial assistance (as determined in article 329/430/629 (as applicable) of the   Belgian Company Code, or any successor thereto) and (ii) be limited to a   maximum amount equal to the greater of (A) 80% of the Guarantor’s net assets   (as defined in article 320/429/617 (as applicable) of the Belgian Company Code,   or any successor thereto) and (B) the aggregate of the amounts, either directly or   through the Company and one or more other Subsidiary Guarantors, made   available to the Guarantor and its Subsidiaries (if any) pursuant to the Agreement   (increased by all interests, commissions, costs, fees, expenses and other sums   accruing or payable in connection with such amount) and which remain unpaid at   the time the Guarantee is enforced.]   [MALAYSIA: The guarantee, indemnity and other obligations expressed   to be assumed by the Guarantor under this Guaranty Agreement shall not apply if   and to the extent the same would constitute (i) unlawful financial assistance   within the meaning of Section 67 of the Companies Act 1965 of Malaysia (as   amended, extended or re-enacted) or (ii) an unlawful guarantee provided in   connection with a loan made to a person connected with a director of the   Guarantor or of its holding company by any other person, within the meaning of   Section 133A of the Companies Act 1965 of Malaysia (as amended, extended or   re-enacted).]   SECTION 3. SUBROGATION PAYMENTS HELD IN TRUST.   (a) To the extent of any payments made under this Guaranty   Agreement, the Guarantor shall be subrogated to the rights of the holder of the   Notes receiving such payments, but the Guarantor covenants and agrees that such   right of subrogation shall be subordinate in right of payment to the rights of any   holders of the Notes for which full payment has not been made or provided for   and, to that end, the Guarantor agrees not to claim or enforce any such right of   subrogation or any right of setoff or any other right which may arise on account of   any payment made by the Guarantor in accordance with the provisions of this   Guaranty Agreement unless and until all of the Guaranteed Obligations (other   than those arising by subrogation as aforesaid) owned by Persons other than the   Guarantor and all other sums due or payable under this Guaranty Agreement have   been fully paid and discharged or payment therefor has been provided.   (b) If any payment shall be made to the Guarantor by the Company or   any other guarantor of the Notes of any amounts owing to the Guarantor by the   Company or such other guarantor during any time when the obligations of the   Guarantor hereunder shall have become due and payable, the Guarantor shall hold   in trust all such payments for the benefit of the holders of the Notes.     





 







   ln-255235  11   SECTION 4. PREFERENCE.   The Guarantor agrees that to the extent the Company or any other Person   makes any payment on the Guaranteed Obligations, which payment or any part thereof is   subsequently invalidated, voided, declared to be fraudulent or preferential, set aside, or is   required to be repaid to a trustee, receiver or any other Person under any bankruptcy code,   common law, or equitable cause, then and to the extent of such payment, the obligation or   the part thereof intended to be satisfied shall be revived and continued in full force and   effect with respect to the Guarantor’s obligations hereunder, as if said payment had not   been made.  The liability of the Guarantor hereunder shall not be reduced or discharged,   in whole or in part, by any payment to any holder of the Notes from any source that is   thereafter paid, returned or refunded in whole or in part by reason of the assertion of a   claim of any kind relating thereto, including, but not limited to, any claim for breach of   contract, breach of warranty, preference, illegality, invalidity or fraud asserted by any   account debtor or by any other Person.   SECTION 5. MARSHALING.   None of the holders of the Notes shall be under any obligation (a) to   marshal any assets in favor of the Guarantor or in payment of any or all of the liabilities   of the Company under or in respect of the Notes or the obligation of the Guarantor   hereunder or (b) to pursue any other remedy that the Guarantor may or may not be able to   pursue itself and that may lighten the Guarantor’s burden, any right to which the   Guarantor hereby expressly waives.   SECTION 6. REPRESENTATIONS AND WARRANTIES OF THE GUARANTOR.   The Guarantor represents and warrants to you as follows:   (a) Organization and Authority.  The Guarantor is a ____________   duly organized, validly existing and, to the extent such concept is recognized, in   good standing under the laws of its jurisdiction of incorporation; the Guarantor   has the corporate (or other appropriate) power and authority to own its properties   and to conduct its business and is duly qualified as a foreign entity and, to the   extent such concept is recognized, is in good standing in each other jurisdiction in   which such qualification is required by law, other than those jurisdictions as to   which the failure to be so qualified or, to the extent such concept is recognized, in   good standing would not, individually or in the aggregate, reasonably be expected   to have a Material Adverse Effect.   (b) Transaction Is Legal and Authorized.  The issuance of this   Guaranty Agreement and compliance with all of the provisions of this Guaranty   Agreement   (1) are within the corporate (or other) powers of   the Guarantor;     





 







   ln-255235  12   (2) will not violate any provisions of any law or   any order of any court or governmental authority or agency   and will not conflict with or result in any breach of any of   the terms, conditions or provisions of, or constitute a   default under the articles of association, charter or By-laws   or other constitutive documents of the Guarantor or any   indenture or other agreement or instrument to which the   Guarantor is a party or by which it may be bound or result   in the imposition of any Lien on any property of the   Guarantor; and   (3) have been duly authorized by proper action   on the part of the Guarantor and any required action by the   stockholders or other equity holders of the Guarantor   required by law or by the articles of association, charter or   By-laws or other constitutive documents of the Guarantor   or otherwise, executed and delivered by the Guarantor and   this Guaranty Agreement constitutes the legal, valid and   binding obligation, contract and agreement of the   Guarantor enforceable in accordance with its terms, except   as such terms may be limited by (i) bankruptcy, insolvency,   fraudulent conveyance or similar laws affecting the   enforcement of creditors’ rights generally and (ii) equitable   principles of general applicability (regardless of whether   such enforceability is considered in a proceeding in equity   or at law).   (c) Governmental Consent.  [No][Other than the BNM Approval and   the payment of stamp duty of RM10.00 to the Inland Revenue Board, Malaysia on   this Guaranty Agreement and the applicable stamp duties on copies thereof if this   Guarantee Agreement is brought into or executed in Malaysia under the Stamp   Act 1949 of Malaysia, no] consent, approval or authorization of, or registration,   filing or declaration with, any Governmental Authority is required in connection   with the execution, delivery or performance by the Guarantor of this Guaranty   Agreement, including, without limitation, any thereof required in connection with   the obtaining of Dollars or Euros (as applicable) to make payments under this   Guaranty Agreement and the payment of such Dollars or Euros (as applicable) to   Persons resident in the United States of America.  [It][Other than the BNM   Approval and the payment of stamp duty of RM10.00 to the Inland Revenue   Board, Malaysia on this Guaranty Agreement and the applicable stamp duties on   copies thereof if this Guarantee Agreement is brought into or executed in   Malaysia under the Stamp Act 1949 of Malaysia, it] is not necessary to ensure the   legality, validity, enforceability or admissibility into evidence in [___________]   of this Guaranty Agreement that this Guaranty Agreement or any other document   be filed, recorded or enrolled with any Governmental Authority, or that any such     





 







   ln-255235  13   agreement or document be stamped with any stamp, registration or similar   transaction tax.   (d) Commercial Benefit.  The Guarantor will derive a commercial   benefit from the execution and delivery of this Guaranty Agreement.   (e) Solvency.  After giving effect to the execution and delivery of this   Guaranty Agreement and taking into account (i) the likelihood of being required   to perform this Guaranty Agreement and (ii) the fact that the Guarantor does not   have any intention to defraud any of its creditors, the Guarantor is solvent and   able to pay its debts as and when they become due and payable.   Without in any way limiting the generality of the warranties and   representations contained in Section 5 of the Agreement, each of such warranties and   representations is, insofar as it refers to any Subsidiary, true and correct with respect to   the Guarantor.   The Guarantor will comply with each of the provisions of Section 9 and   Section 10 of the Agreement, and each other covenant and agreement contained therein,   that is applicable to any Subsidiary generally.   [SECTION 7. PAYMENTS FREE AND CLEAR OF TAXES.]   [Provisions to be inserted for non-U.S. guarantors only]   7.1 Gross Up.   All payments whatsoever under this Guaranty Agreement will be made by the   Guarantor in Dollars or Euros (as applicable) free and clear of, and without liability or   withholding or deduction for or on account of, any present or future Taxes of whatever   nature imposed or levied on such payments made to any holder of Notes by or on behalf   of any jurisdiction (other than the jurisdiction in which such holder is resident for tax   purposes) (a) in which the Guarantor is incorporated, organized, managed or controlled or   otherwise resides for tax purposes or (b) where a branch or office through which the   Guarantor is acting for purposes of this Guaranty Agreement is located or from or   through which the Guarantor is making any payment (or any political subdivision or   taxing authority of or in such jurisdiction) (hereinafter a “Taxing Jurisdiction”), unless   the withholding or deduction of such Tax is compelled by law.   If any deduction or withholding for any Tax of a Taxing Jurisdiction shall at any   time be required in respect of any amounts to be paid by the Guarantor under this   Guaranty Agreement, the Guarantor will pay to the relevant Taxing Jurisdiction the full   amount required to be withheld, deducted or otherwise paid before penalties attach   thereto or interest accrues thereon and pay to each holder of a Note such additional   amounts as may be necessary in order that the net amounts paid to such holder pursuant   to the terms of this Guaranty Agreement after such deduction, withholding or payment     





 







   ln-255235  14   (including, without limitation, any required deduction or withholding of Tax on or with   respect to such additional amount), shall be not less than the amounts then due and   payable to such holder under the terms of this Guaranty Agreement before the assessment   of such Tax, provided that no payment of any additional amounts shall be required to be   made,   (a) for or on account of any Tax that would not have been imposed but   for the existence of any present or former connection between such holder (or a   fiduciary, settlor, beneficiary, member of, shareholder of, or possessor of a power   over, such holder, if such holder is an estate, trust, partnership or corporation or   any Person other than the holder to whom the Notes or any amount payable   thereon is attributable for the purposes of such Tax) and the Taxing Jurisdiction,   other than the mere holding of the relevant Note or the receipt of payments   thereunder or in respect thereof or the exercise of remedies in respect thereof,   including, without limitation, such holder (or such other Person described in the   above parenthetical) being or having been a citizen or resident thereof, or being or   having been present or engaged in trade or business therein or having or having   had an establishment, office, fixed base or branch therein, provided that this   exclusion shall not apply with respect to a Tax that would not have been imposed   but for the Guarantor, after the date of this Guaranty Agreement, opening an   office in, moving an office to, reincorporating in, or changing the Taxing   Jurisdiction from or through which payments on account of this Guaranty   Agreement are made to, the Taxing Jurisdiction imposing the relevant Tax;   (b) for or on account of any Tax that would not have been imposed but   for the delay or failure by such holder (following a written request by the   Guarantor or its legal counsel) in the filing with the relevant Taxing Jurisdiction   of Forms (as defined below) that are required to be filed by such holder to avoid   or reduce such Taxes (including for such purpose any extensions, refilings or   renewals of filings that may from time to time be required by the relevant Taxing   Jurisdiction) and/or in the delay or failure by such holder to take such other   reasonably requested actions in order to mitigate the amount of any such Tax,   provided that the filing of such Forms and/or the taking of such other actions   would not (in such holder’s reasonable judgment) impose any unreasonable   burden (in time, resources or otherwise) on such holder or result in any   confidential or proprietary income tax return information being revealed, either   directly or indirectly, to any Person and such delay or failure could have been   lawfully avoided by such holder and provided further that such holder shall be   deemed to have satisfied the requirements of this clause (b) upon the good faith   completion and submission of such Forms (including extensions, refilings or   renewals of filings), or taking of such actions, as may be specified in a written   request of the Guarantor no later than 60 days after receipt by such holder of such   written request (accompanied by copies of such Forms and related instructions, if   any, all in the English language or with an English translation thereof);     





 







   ln-255235  15   (c) for or on account of any estate, inheritance, gift, sale, transfer,   personal property or similar tax, assessment or other governmental charge;    (d) to any holder of a Note that is registered in the name of a nominee   if under the law of the relevant Taxing Jurisdiction (or the current regulatory   interpretation of such law) securities held in the name of a nominee do not qualify   for an exemption from the relevant Tax and the Guarantor shall have given timely   notice of such law or interpretation to such holder;    (e) for any Tax imposed under FATCA;   (f) any combination of clauses (a), (b), (c), (d) and (e) above;   7.2. Treaty Clearance.   At the time any Guarantor is called to act on the guarantee provided hereunder in   accordance with the terms of this Guaranty Agreement, such Guarantor or its legal   counsel will furnish each Purchaser or its legal counsel with copies of the appropriate   Form (and English translation if required as aforesaid) currently required to be filed in   [________] pursuant to Section 7.1(b), if any (such furnishing of such forms to be   deemed to be the written request of the Guarantor as aforesaid so that no further request   must be made, and which such written request and related filing instructions will be   deemed to have been given on the date that such forms are furnished), and in connection   with the transfer of any Note the Guarantor or its legal counsel will furnish the transferee   of such Note or its legal counsel with copies of any Form and English translation then   required.   Subject to the limitations of Section 7.1(b) above, by acceptance of any Note, the   holder of such Note agrees that it will from time to time with reasonable promptness (i)   duly complete and deliver to or as reasonably directed by the Guarantor all such forms,   certificates, documents and returns provided to such holder or its legal counsel by the   Guarantor or its legal counsel (collectively, together with instructions for completing the   same, “Forms”) required to be filed by or on behalf of such holder in order to avoid or   reduce any such Tax pursuant to the provisions of an applicable statute, regulation or   administrative practice of the relevant Taxing Jurisdiction or of a tax treaty between the   United States of America and such Taxing Jurisdiction and (ii) provide the Guarantor   with such information with respect to such holder as the Guarantor may reasonably   request in order to complete any such Forms, provided that nothing in this Section 7 shall   require any holder to provide information with respect to any such Form or otherwise if   in the good faith opinion of such holder such Form or disclosure of information would   involve the disclosure of tax return or other information that is confidential or proprietary   to such holder, and provided further that each such holder shall be deemed to have   complied with its obligation under this paragraph with respect to any Form if such Form   shall have been duly completed and delivered by such holder to the Guarantor or mailed   to the appropriate taxing authority, whichever is applicable, within 60 days following a   written request of the Guarantor (which request shall be accompanied by copies of such     





 







   ln-255235  16   Form and English translations of any such Form not in the English language) and, in the   case of a transfer of any Note, at least 90 days prior to the relevant interest payment date;   provided that (i) where such Form has been mailed to the appropriate taxing authority,   each such holder shall have provided a copy of such submitted Form to the Guarantor,   and a copy of the acknowledgment of receipt of the Form from the appropriate taxing   authority if available or possible to request such acknowledgment of receipt from the   appropriate taxing authority and (ii) each such holder shall have responded to any query   relating to such Form from the appropriate taxing authority within the longer of (1) the   applicable time limits (if any such limits exist) and (2) 30 days of receipt of such query   by the holder.   7.3. Tax Credits, Etc.   If any payment is made by the Guarantor to or for the account of the holder of any   Note after deduction for or on account of any Taxes, and increased payments are made by   the Guarantor pursuant to this Section 7, then, if such holder in its discretion (acting   reasonably) determines that it has received, utilized (in the case of a credit or allowance)   or been granted a refund of, or credit or allowance with respect to, such Taxes, such   holder shall, to the extent that it can do so without prejudice to the retention of the   amount of such refund, credit or allowance, reimburse to the Guarantor the amount of   such refund, credit or allowance as such holder shall, in its discretion (acting reasonably),   determine to be attributable to the relevant Taxes or deduction or withholding.  Nothing   herein contained shall interfere with the right of the holder of any Note to arrange its tax   affairs in whatever manner it thinks fit and, in particular, no holder of any Note shall be   under any obligation to claim relief from its corporate profits or similar tax liability in   respect of such Tax in priority to any other claims, reliefs, credits or deductions available   to it or (other than as set forth in Section 7.1(b) above) oblige any holder of any Note to   disclose any information relating to its tax affairs or any computations in respect thereof.   The Guarantor will furnish the holders of Notes, promptly and in any event within   60 days after the date of any payment by the Guarantor of any Tax in respect of any   amounts paid under this Guaranty Agreement, the original tax receipt (or a certificate of   Tax deducted) issued by the relevant taxation or other authorities involved for all   amounts paid as aforesaid (or if such original tax receipt (or a certificate of Tax deducted)   is not available or must legally be kept in the possession of the Guarantor, a duly certified   copy of the original tax receipt or any other reasonably satisfactory evidence of payment),   together with such other documentary evidence with respect to such payments as may be   reasonably requested from time to time by any holder of a Note.   If the Guarantor is required by any applicable law, as modified by the practice of   the taxation or other authority of any relevant Taxing Jurisdiction, to make any deduction   or withholding of any Tax in respect of which the Guarantor would be required to pay   any additional amount under this Section 7, but for any reason (other than the delay or   default of the relevant holder of a Note in the making of any filing of a Form (assuming   the holder has not satisfied the requirements of Section 7.3) described above or otherwise)   does not make such deduction or withholding with the result that a liability in respect of     





 







   ln-255235  17   such Tax is assessed directly against the holder of any Note, and such holder pays such   liability, then the Guarantor will promptly reimburse such holder for such payment   (including any related interest or penalties to the extent such interest or penalties arise by   virtue of a default or delay by the Guarantor) upon demand by such holder accompanied   by an official receipt (or a duly certified copy thereof) issued by the taxation or other   authority of the relevant Taxing Jurisdiction.   If the Guarantor makes payment to or for the account of any holder of a Note after   deduction for or on account of any Tax and such holder is entitled to a refund of or credit   or allowance with respect to the Tax to which such payment is attributable upon the   making of a filing (other than a Form described above except where any such Form may   also be used to request any such refund, credit or allowance for such Tax), then such   holder shall, as soon as practicable after receiving written request from the Guarantor   (which shall specify in reasonable detail and supply the refund, credit and/or allowance   forms to be filed) use reasonable efforts to complete and deliver such refund, credit   and/or allowance forms to or as directed by the Guarantor, subject, however, to the same   limitations with respect to Forms as are set forth above.   The obligations of the Guarantor under this Section 7 shall survive the payment or   transfer of any Note and the provisions of this Section 7 shall also apply to successive   transferees of the Notes.   7.4. FATCA Information.   By acceptance of any Note, the holder of such Note agrees that such holder will   from time to time with reasonable promptness duly complete and deliver to or as   reasonably directed by the Guarantor (i) in the case of any such holder that is a U.S.   Person, such holder’s United States tax identification number or other Forms reasonably   requested by the Guarantor necessary to establish such holder’s status as a U.S. Person   under FATCA and as may otherwise be necessary for the Guarantor to comply with its   obligations under FATCA and (ii) in the case of any such holder that is not a U.S. Person,   such documentation prescribed by applicable law (including as prescribed by Section   1471(b)(3)(C)(i) of the Code) and such additional documentation as may be necessary for   the Guarantor to comply with its obligations under FATCA and to determine that such   holder has complied with such holder’s obligations under FATCA or to determine the   amount (if any) to deduct and withhold from any such payment made to such holder.    Nothing in this Section 7.4 shall require any holder of Notes to provide information that   is confidential or proprietary to such holder unless such information is prescribed by   applicable law for the Guarantor to comply with its obligations under FATCA and, in   such event, the Guarantor shall treat such information as confidential.   SECTION 8. SUBMISSION TO JURISDICTION.   The Guarantor hereby expressly waives all right to object to jurisdiction or   execution in any legal action or proceeding relating to this Guaranty Agreement which it   may now or hereafter have by reason of its domicile or by reason of any subsequent or     





 







   ln-255235  18   other domicile.  The Guarantor agrees irrevocably that any legal action or proceeding   with respect to this Guaranty Agreement or to enforce any judgment obtained against the   Guarantor in any such legal action or proceeding against it or any of its properties or   revenues may be brought by the holder of any Note in the courts of the State of New   York or of the United States of America located in New York, New York, as the holder   of any Note may elect, and by execution and delivery of this Guaranty Agreement, the   Guarantor irrevocably submits to each such jurisdiction for such purpose only.   In addition, the Guarantor hereby irrevocably and unconditionally waives   any objection which it may now or hereafter have to the laying of venue of any of the   aforesaid actions, suits or proceedings arising out of or in connection with this Guaranty   Agreement brought in any of the aforesaid courts, and hereby further irrevocably and   unconditionally waives and agrees not to plead or claim that any such action, suit or   proceeding brought in any such court has been brought in an inconvenient forum.   [For non-U.S. Guarantor: The Guarantor hereby irrevocably designates,   appoints and empowers CT Corporation System with offices at [111 Eighth Avenue, New   York, New York 10011] and successors as the designee, appointee and agent of the   Guarantor to receive, accept and acknowledge, for and on behalf of the Guarantor and its   properties, service of any and all legal process, summons, notices and documents which   may be served in such action, suit or proceeding in the case of the courts of the State of   New York or of the United States of America located in New York, New York, which   service may be made on any such designee, appointee and agent in accordance with legal   procedures prescribed for such courts.  The Guarantor agrees to take any and all action   necessary to continue such designation in full force and effect and should such designee,   appointee and agent become unavailable for this purpose for any reason, the Guarantor   will forthwith irrevocably designate a new designee, appointee and agent with offices in   New York which shall irrevocably agree to act as such, with the powers and for purposes   specified in this Section 8.]  The Guarantor [further] irrevocably consents and agrees to   service of any and all legal process, summons, notices and documents out of any of the   aforesaid courts in any such action, suit or proceeding by the mailing by registered mail   of copies of such process, summons, notice or document to the Guarantor, as applicable,   at its respective address specified in this Guaranty Agreement or to its then designee,   appointee or agent for service.  If service is made upon such designee, appointee and   agent, a copy of such process, summons, notice or document shall also be provided to the   Guarantor by registered or certified mail, or overnight express air courier; provided that   failure of such holder to provide such copy to the Guarantor shall not impair or affect in   any way the validity of such service or any judgment rendered in such action or   proceedings.  The Guarantor agrees that service upon any such designee, appointee and   agent as provided for herein shall constitute valid and effective personal service upon the   Guarantor, and that the failure of any such designee, appointee and agent to give any   notice of such service to the Guarantor shall not impair or affect in any way the validity   of such service or any judgment rendered in any action or proceeding based thereon.    Nothing herein shall, or shall be construed so as to, limit the right of the holders of the   Notes to bring actions, suits or proceedings with respect to the obligations and liabilities   of the Guarantor under, or any other matter arising out of or in connection with, this     





 







   ln-255235  19   Guaranty Agreement or the Notes, or for recognition or enforcement of any judgment   rendered in any such action, suit or proceeding, in the courts of whatever jurisdiction in   which the respective offices of the holders of the Notes may be located or assets of the   Guarantor may be found or as otherwise shall to the holders of the Notes seem   appropriate, or to affect the right to service of process in any jurisdiction in any other   manner permitted by law.   SECTION 9. NOTICES.   All notices and communications provided for hereunder shall be in writing   and sent (a) by telecopy if the sender on the same day sends a confirming copy of such   notice by a recognized overnight delivery service (charges prepaid), or (b) by a   recognized overnight delivery service (with charges prepaid) or (c) by email where the   recipient has designated an email address for such purpose.  Any such notice must be sent:   (i) if to a Purchaser, to such Person at the address specified for   such communications in Schedule B to the Agreement, or at such other   address as the Purchaser shall have specified to the Company in writing, or   (ii) if to any other holder of any Note, to such holder at such   address as such other holder shall have specified to the Company in   writing, or   (iii) if to the Guarantor, c/o VTTI MLP B.V., c/o VTTI Energy   Partners LP, Warwick House, 25-27 Buckingham Palace Road, London   SW1W 0PP, United Kingdom, to the attention of the Directors or at such   other addresses as the Guarantor shall have specified to the holder of each   Note in writing.   Notices under this Section 9 will be deemed given only when actually received.   SECTION 10. AMENDMENTS AND MODIFICATIONS; SOLICITATION OF   NOTEHOLDERS.   (a) This Guaranty Agreement may only be amended and compliance   therewith waived (either generally or in a particular instance and either   retroactively or prospectively) by an instrument in writing signed by the   Guarantor and by the Required Holders; provided, that without the written   consent of the holders of all of the Notes then outstanding, no such amendment or   waiver shall be effective which will reduce the scope of the guaranty set forth in   this Guaranty Agreement or amend the requirements of Sections 1, 2, 3, 4, 5, 7 or   11 hereof or amend this Section 10.  No such amendment or modification shall   extend to or affect any obligation not expressly amended or modified or impair   any right consequent thereon.   (b) The Guarantor will not solicit, request or negotiate for or with   respect to any proposed waiver or amendment of any of the provisions of this     





 







   ln-255235  20   Guaranty Agreement unless each holder of the Notes (irrespective of the amount   of Notes then owned by it) shall be informed thereof by the Guarantor and shall   be afforded the opportunity of considering the same and shall be supplied by the   Guarantor with a sufficient information to enable it to make an informed decision   with respect thereto.  The Guarantor will not, directly or indirectly, pay or cause   to be paid any remuneration, whether by way of supplemental or additional   interest, fee or otherwise or grant any security or provide other credit support, to   any holder of the Notes as consideration for or as an inducement to the entering   into by any holder of the Notes of any waiver or amendment of any of the terms   and provisions of this Guaranty Agreement, the Agreement or the Notes, unless   such remuneration is concurrently paid or security is concurrently granted or other   credit support is concurrently provided, on the same terms, ratably to the holders   of all of the Notes then outstanding.  Promptly and in any event within 30 days of   the date of execution and delivery of any such waiver or amendment, the   Guarantor shall provide a true, correct and complete copy thereof to each of the   holders of the Notes.   (c) Solely for the purpose of determining whether the holders of the   requisite percentage of the aggregate principal amount of Notes then outstanding   approved or consented to any amendment, waiver or consent to be given under   this Guaranty Agreement, or have directed the taking of any action provided   herein to be taken upon the direction of the holders of a specified percentage of   the aggregate principal amount of Notes then outstanding, Notes directly or   indirectly owned by the Company or any of its Affiliates shall be deemed not to   be outstanding.   SECTION 11. PARI PASSU.   The payment obligations of the Guarantor under this Guaranty Agreement   will at all times rank at least pari passu in right of payment with all other unsecured and   unsubordinated Indebtedness of the Guarantor, except for such Indebtedness as would, by   virtue only of the law in force in the jurisdiction in which the Guarantor is organized, be   preferred by operation of bankruptcy, insolvency, liquidation or similar laws of general   application.   SECTION 12. OBLIGATION TO MAKE PAYMENT IN DOLLARS OR EUROS.   (a) Any payment on account of an amount that is payable hereunder,   under the Agreement, or under the Notes in Dollars which is made to or for the   account of any holder of Notes in any other currency, whether as a result of any   judgment or order or the enforcement thereof or the realization of any security or   the liquidation of the Guarantor, shall constitute a discharge of the obligation of   the Guarantor hereunder, under the Agreement or the Notes only to the extent of   the amount of Dollars which such holder could purchase in the foreign exchange   markets in London, England, with the amount of such other currency in   accordance with normal banking procedures at the rate of exchange prevailing on   the London Banking Day following receipt of the payment first referred to above.      





 







   ln-255235  21   If the amount of Dollars that could be so purchased is less than the amount of   Dollars originally due to such holder, the Guarantor agrees to the fullest extent   permitted by law, to indemnify and save harmless such holder from and against   all loss or damage arising out of or as a result of such deficiency.  This indemnity   shall, to the fullest extent permitted by law, constitute an obligation separate and   independent from the other obligations contained in this Guaranty Agreement, in   the Agreement and the Notes, shall give rise to a separate and independent cause   of action, shall apply irrespective of any indulgence granted by such holder from   time to time and shall continue in full force and effect notwithstanding any   judgment or order for a liquidated sum in respect of an amount due hereunder,   under the Agreement or under the Notes or under any judgment or order.    (b)  Any payment on account of an amount that is payable hereunder,   under the Agreement, or under the Notes in Euros which is made to or for the   account of any holder of Notes in any other currency, whether as a result of any   judgment or order or the enforcement thereof or the realization of any security or   the liquidation of the Guarantor, shall constitute a discharge of the obligation of   the Guarantor hereunder, under the Agreement or the Notes only to the extent of   the amount of Euros which such holder could purchase in the foreign exchange   markets in London, England, with the amount of such other currency in   accordance with normal banking procedures at the rate of exchange prevailing on   the London Banking Day following receipt of the payment first referred to above.    If the amount of Euros that could be so purchased is less than the amount of Euros   originally due to such holder, the Guarantor agrees to the fullest extent permitted   by law, to indemnify and save harmless such holder from and against all loss or   damage arising out of or as a result of such deficiency.  This indemnity shall, to   the fullest extent permitted by law, constitute an obligation separate and   independent from the other obligations contained in this Guaranty Agreement, in   the Agreement and the Notes, shall give rise to a separate and independent cause   of action, shall apply irrespective of any indulgence granted by such holder from   time to time and shall continue in full force and effect notwithstanding any   judgment or order for a liquidated sum in respect of an amount due hereunder,   under the Agreement or under the Notes or under any judgment or order.    (c) As used in this Guaranty Agreement, the term “London Banking   Day” shall mean any day other than Saturday or Sunday or a day on which   commercial banks are required or authorized by law to be closed in London,   England.   SECTION 13. MISCELLANEOUS.   (a) No remedy herein conferred upon or reserved to any holder of any   Note is intended to be exclusive of any other available remedy or remedies, but   each and every such remedy shall be cumulative and shall be in addition to every   other remedy given under this Guaranty Agreement now or hereafter existing at   law or in equity.  No delay or omission to exercise any right or power accruing     





 







   ln-255235  22   upon any default, omission or failure of performance hereunder shall impair any   such right or power or shall be construed to be a waiver thereof but any such right   or power may be exercised from time to time and as often as may be deemed   expedient.  In order to entitle any holder of any Note to exercise any remedy   reserved to it under this Guaranty Agreement, it shall not be necessary for such   holder to physically produce its Note in any proceedings instituted by it or to give   any notice, other than such notice as may be herein expressly required.   (b) In case any one or more of the provisions contained in this   Guaranty Agreement shall be invalid, illegal or unenforceable in any respect, the   validity, legality and enforceability of the remaining provisions contained herein   and therein shall not in any way be affected or impaired thereby.   (c) This Guaranty Agreement shall be binding upon the undersigned   Guarantor and its successors and assigns and shall inure to the benefit of the   Purchasers and their respective successors and assigns so long as any of their   respective Notes remain outstanding and unpaid.   (d) The Guarantor will maintain an office at the address of the   Guarantor referred to in Section 9, where notices, presentations and demands in   respect hereof or of the Guaranteed Obligations may be made upon the Guarantor   until such time as the Guarantor shall notify each holder of any change of location   of such office.   (e) This Guaranty Agreement shall be governed by and construed in   accordance with the laws of the State of New York.   IN WITNESS WHEREOF, the Guarantor has caused its corporate name to   be hereunto subscribed on the date first above written.   [Name of Guarantor]               By:___________________________     Name:     Title:    





 







EXHIBIT 4.4(a)(i)   ln-255235     Form of Opinion of U.S. Special Counsel for the Company    





 







EXHIBIT 4.4(a)(ii)   ln-255235     Form of Opinion of Dutch Special Counsel for the Company    





 







EXHIBIT 4.4(a)(iii)   ln-255235     Form of Opinion of United Arab Emirates Special counsel for the Original   Subsidiary Guarantor organized in the United Arab Emirates     





 







EXHIBIT 4.4(a)(iv)   ln-255235     Form of Opinion of Belgian Special counsel for the Original Subsidiary Guarantor   organized in Belgium     





 







EXHIBIT 4.4(a)(v)   ln-255235     Form of Opinion of Malaysian Special counsel for the Original Subsidiary   Guarantor organized in Malaysia           





 







EXHIBIT 4.4(b)   ln-255235     Form of Opinion of Special Counsel for the Purchasers   [To be provided on a case by case basis]